text:
    Atkinson and Rollins v. Jordan, Ellis & Co. and others.
    An assignment of effects, "by an insolvent debtor, to trustees, for the benefit of preferred creditors, with a clause that those who do not, within a time specified, release the debtor for account of what may be received, from the proceeds of the assignment, is void as against other creditors. The effects assigned, may, by proper process, be subjected, in the hands, of the assignees.
    In chancery, reserved from Hamilton county.
    The complainants are creditors of Jordan, Ellis & Co. They Rave prosecuted their claim at law, recovered judgment, and taken •out execution, but are unable to find property to satisfy their claim. Jordan, Ellis & Co., the debtors, being compelled to stop payment, executed an assignment of all their property to the defondants, Ames, Fessenden, and Bates, in trust for the benefit of their creditors, with authority to sell and apply the proceeds : 1. To defray the expenses of the trust; 2. To pay certain lawyers’fees; 3. To indemnify certain securities in a suit at law; 4. To pay certain preferred creditors; and, 5. To apply the residue, if any, to satisfy the claims of other creditors. The assignment contains, among others, the following clause: “Provided, nevertheless, and these presents are to be understood with this provision, that none of the creditors herein mentioned, • of either class, shall be entitled to the benefit of this assignment, or to claim any payment of their’ debts or demands, by virtue hereof, excepting such as shall, within ninety days from the date hereof, signify their assent to this assignment, and release the parties of the first part (Jordan, Ellis & Co.) by signing and -sealing these presents.” The assignment ^contained, in a separate clause, a release by each signor of all claims and causes of action against J., E. & Co. The complainants are in the schedule of creditors annexed to the assignment, but have not executed it. Jordan,.Ellis & Co. affirm that the assignment was made in good faith. The trustees admit the assignment, but allege that, when this suit was commenced, they had received nothing as proceeds of the assignment. The estimated amount of property which passed under the assignment is nineteen thousand two hundred and six dollars and twenty-two cents. The schedule of preferred debts is set down at thirty-one thousand three hundred and forty-four dollars and seven cents, that of other debts, at twenty-four thousand six hundred and four dollars and sixtv-eight cents. The complainants call upon the defendants to disclose the trust property and proceeds, and pray that these effects and funds maybe held liable to satisfy their judgments, and for general relief.
    Stoker & Fox, for complainants,
    cited 5 Johns. Ch. 332; 14 Johns. 458; 20 Johns. 446; 6 Conn. 277; 4 Mason, 206.
    Starr, contra,
    cited 8 Pick. 113; 7 Pick. 74; 9 Pick. 21; 2 Kent Com. 420; 2 Pick. 129; 5 Mass. 144; 5 Conn. 647; 14 Johns. 459; 5 Johns. Ch. 329; 15 Johns. 511; 13 Mass. 146; 20 Johns. 142; 1 Hopk. Ch. 373; 4 Dal. 76; 22 S. & R. 198; 2 Bin. 174; 5 Greenl. 252; 4 Mason, 206.
   Judge Wright

delivered the opinion of the court:

It is claimed that the assigment of Jordan, Ellis & Co. is fraudulent and void. The only objection urged, is to the-clause which: declares it inoperative in favor of any creditor who should not, within ninety days, execute the same and release the debtor. The case is without any evidence of fraud in fact, and presents a question of fraud in law, to be established by the force of the instrument.

It is said the genius of the common law opposes itself to every species of fraud; and the most solemn acts, even judicial proceedings, if tinctured with it, are held to be vicious and unavailing.While the multiplied and ever-varying relations of society refine the arts of deceit, and the intricacy of legal transfers and proceedings multiply the means of fraud and increase the difficulty of tracing and fixing the fraudulent connection between the original act and the ultimate ^purpose, they invoke the greatest vigilance of the law in .scrutinizing colorable and equivocal transactions, and require of courts, in deciding upon them, to have some regard to public utility. It seems admitted that a debtor, in failing circumstances, may, in good -faith, pay one creditor in money or goods, in preference to another; but the frequent abuses practicedj in transfers, to effect a preference by means of trusts, instead of actual payment, has led many to doubt the policy of holding-such transfers valid. As a general proposition, it will not be' denied that persons so situated are legally bound to good faith between themselves and their preferred creditors, and moreover to avoid, in transactions connected with the placing their effects beyond the reach of legal process, all bad faith in respect of other persons standing in a relation to be affected by them. The practice among speculating traders, of shattered and desperate circumstances, of accumulating property upon credit with a desire of securing the means of satisfying the claims of confidential creditors, who contribute in various ways to keep up the credit upon which the property has been procured, and then passing their effects, so procured, into the hands of trustees to be protected from legal process, and to be exhausted in satisfying those preferred claims, leaving all other creditors without a farthing, can hardly be justified on any sound moral or legal principle. Instances are-frequent of merchandise, procured from an honest trader on credit, being handed over in bulk to trustees to secure indorsers and other confidential creditors. Equity delights in equality, and it is becoming a grave question, whether courts of justice should longer countenance a sinking debtor, in preferring one creditor to another in the distribution of his effects. The opinion is gaining .ground, that chancery should control such assignment, and compel an equal distribution of the effects assigned among all the -creditors.

In Burd v. Smith, 4 Dal. 76, the high court of appeals in Pennsylvania held an assignment void, which provided for the distribution of the assigned effects to such creditors as should agree to accept, and the payment of the proportions of such creditors as should not accept to the debtor, because it contained a resulting trust to the debtor and placed *the dissenting creditors in his power, or that of trustees appointed by him. The judges in that case delivered their opinions seriatim. Smith, J., held the -deed void on its face. Breckenridge, J., page 88, says the right of a debtor to favor particular creditors “ has been allowed, perhaps, ■on principles of humanity; or in favor of just debts, to exclude • debts in law not strictly ex debito justitice. But I do not think the practice should be encouraged.- It is calculated to create confusion, uncertainty, and collision. I see nothing that will prevent the mischiefs of voluntary settlements and conveyances, but a gen-eral declaration that they are all void as against creditors.” Rush, J., page 89, says, “Until the expiration of nine months no distribution is to be mafle nor any creditor paid, however vigilant he may be. If a creditor may, in this mode, or by a device of this sort, ■frustrate his creditors for months, where shall the line be drawn ? Why not delay his suit for nine years as well as for nine months? His rights are the same in both cases. As there is no law of the land that authorizes a debtor to. pass an act of limitation in his •own favor, I hope this court will never do it for him.” “In the case before the court, we have an instance of a man plunged into debt, covered with lawsuits, overwhelmed with judgments, and -others impending over his head, suddenly and secretly, without the knowledge of a single creditor, conveying to trustees of his nomination an immense property, on such terms and in such man-ner as he has chosen to prescribe. I can not conceive anything more dangerous than to sanction, by judicial determination, a deed • of this description. It will be vesting the debtor with an unlimited power at all times over his property, to baffle his creditors, ■under the specious pretext of paying them. A decision of this sort is warranted by no adjudged case in the books.”

The Supreme Court of the same state, in Lippincott v. Barker, 2 ;Bin. 182, sustained an assignment conditioned that it should benefit only such creditors as should execute a release in four months.. But Chief Justice Tilghman, page 182, says, “I beg, however, to be-distinctly understood, that my opinion is confined to the circumstances of the present case, for there are many and strong objections to deeds of assignment, made without the privity of creditors, and ^excluding all who do not execute releases.” Judge Breckenridge, page 190, in giving his opinion, says : “It has been left to the asiutia Americana of debtors, to devise such a warehousing of effects, out of the hands of the law for a time, for the benefit of' particular creditors. I think it to the let and hindrance of creditors, and that such disposition is void both at common law and by-statute; though not fraudulent in fact, in the particular case, yet-fraudulent in law, and therefore void. It is not simply a surrender of his property as satisfaction pro rata of his debts that the-insolvent has in view. He couples an interest for himself in obtaining a discharge from that proportion of the respective debts which may remain unsatisfied. It is taking an undue advantage-of the situation of the creditor to impose this condition. It is immoral to exact it. Tolenti non fit injuria if the creditor accepts, but it is making a volunteer by compulsion, and is in fact a robbery. One -enlightened on the principles of' moral honesty would never think of it. He would give what he had to one or more, or to the whole of his creditors, but he would never think of annexing a-condition precedent or subsequent to such surrender. Of such conditions, a chancellor would not compel a fulfillment. I can think of nothing either morally honest, or strictly legal, but the indefinite, unconditional surrender of the property. Pass this-boundary, and I can draw no line where an assignment shall be supported and where not. Every case must be ad arbitrium judiéis without principle to guide; and he must decide according to his-own feelings of what is just and humane, or hard and uncharitable, in the case.”

In Passmore v. Eldridge, 12 S. & R. 198, the court held that an assignment would be void, if the transaction, taken altogether, has a direct tendency to protect the property of the debtor from his-other creditors. The cases of Chever v. Clark, 7 S. & R. 570; Scott v. Morris, 9 S. & R. 123, and Wilson v. Kneppley, 10 S. & R. 439, seem to admit the debtor’s right indirectly to coerce his creditors, by a conditional assignment, prohibiting them from participating-in his effects unless they executed releases within a reasonable time:. And in Pierpont & Lord v. Graham, 4 Wash. C. C. 232, Judge Washington held, that a condition to an assignment ^requiring • creditors to execute a release before taking the benefit of it, was not per se evidence of fraud, and that such disposition of property by the debtor would be valid, if it was not thereby to be sheltered from creditors an indefinite and unreasonable time.

In Widgery v. Haskell, 5 Mass. 144, a debtor transferred all his property to trustees, the proceeds .to be applied to pay indorsers and securities in full, and the remainder to be distributed to such • other creditors as gave notice in six months, stayed all legal process, consented to have their claims adjusted by the majority, and released the debtor on the admission of their demands. This was held void, though the decision did not turn on the condition for a release. Chief Justice Parsons, in giving the' decision, remarks : 11 Was this conveyance bona fide? Was it made with honest intentions, etc., and for purposes for which the law will authorize an insolvent debtor to convey all his effects? It purports to be made for the benefit of the indorsers and securities of the grantors, and for the grantees to secure them. But it is evident the intent of the parties went much farther; to compel the discharge of 'the grantors from all their debts, by locking up from every creditor wbo would not discharge them every part of the estate of the grantors.” “Does the law allow an insolvent debtor to make this bankrupt law for himself? By our law a debtor’s property is liable to attachment by any creditor ; and, on the other hand, a debtor may prefer one creditor to another, by paying his debt either in • cash, or by conveying so much of his estate as will be adequate to the payment. But the creditor must be a party assenting to this payment or conveyance. If he be not, nothing passes to him, and nothing passes from the debtor, and his estate intended to bo conveyed remains liable to attachment by any other creditor.” Again, he says, “ We do not admit that an insolvent debtor can convey his estate in trust to pay his creditors without their consent.” “The intent of the parties, apparent from the deed, was not the true intent, which was the pro rata payment of the other creditors on their discharging the grantors; the deed, therefore, was on a confidence not expressed, for their own benefit, reposed by the grantors in the grantees. We say for the benefit of *the grantors, because they expected; in this manner, to obtain a discharge from the debts, on paying a part of them.”

In Ingraham v. Geyer, 13 Mass. 146, the court held an assign-, ment void conditioned for such creditors as should within four months release all their claims against the assignor, although that was not the sole ground of the decision. Parker, Chief Justice, says, “It is voluntary on the part of the debtor and involuntary on the part of the creditor. It has no legal consideration ; for the •debts of the creditors who are to become parties are not discharged at the time, and it shuts out from a participation in the funds all the creditors who will not give an absolute discharge from all their debts. There is, indeed, but one party to the indenture, viz: the assignor, for the persons named are his agents until the creditors sign the instrument. Such an assignment can not be supported.”

In Burlingame v. Bell, 16 Mass. 324, the court held that a fraudulent assignment created no lien in favor of the assignee and says, “the man who fraudulently receives the property of another to prevent its being attached, ought not to have the right against the -will of the creditors whom it is attempted to defi'aud, to have the opportunity to perfect the fraud, by disposing of the goods, and leaving the creditors his liability only for his security.”

In Harris v. Sumner, 2 Pick. 129, the court held that an insolvent debtor could not transfer his whole property in such a manner as to make provision for himself, and to lock it up from those of his creditors, who did not feel willing to accept of the remainder and discharge him.

In Borden v. Sumner, 5 Pick. 265, an assignment conditioned for a release by agreeing creditors was fully discussed by counsel, though the decision turned upon different grounds; but in page 267, the court express the opinion that the point has never been decided in that state.

In Johnson v. Whitwell, 7 Pick., Judge Wild says, “An arrangement to secure property from attachment for the time being, though ultimately to secure the rights of all the creditors, is against the policy of the law — an attempt to hinder creditors in the prosecution of their lawful actions. Such attempts to cover the property from legal process, are unlawful, *and although no moral fraud was intended, yet it was a legal fraud, and can not be set up against a creditor.”

In the cases of Marston v. Coburn, 17 Mass. 454; Andrews v. Ludlow, 5 Pick. 28; Lupton v. Cutter, 8 Pick. 298; Cox v. Adams, 5 Greenl. 245; DeCaters v. LeRoy Chaumont, 2 Pick. 491; and Canal Bank v. Cox, 6 Greenl. 395, assignments with conditions for a release by assenting creditors were investigated, and held valid, though no objection was made on account of that clause.

The case of Halsey v. Whitney, 4 Mason, 206, has been confidently cited as conclusive upon the point in controversy. In that case the court did hold an assignment with the condition of a release valid; but the judge places his decision upon wbat he took to be the practice in Massachusetts. In page 230, he says, “ When we take into view the great length of time' during.which stipulations of this nature have prevailed in this state without objection, there is much reason to believe that the profession have deemed1 the law settled in favor of the debtor on this point. But I am free to say, that if the question were entirely new, and many estates had not passed upon the faith of such assignment, the strong inclination of my mind would be against the validity of them.”

The decisions in New York, although not direct upon the naked point presented in the case in hearing, tend strongly to convince us how the rule of law is esteemed in that state. Chancellor Kent, in Leavring v. Brinckerhoof, 5 Johns. Ch. 332, held a partial assignment, upon condition of a release by creditors, as of pernicious tendency, if not fraudulent. He says, “a power of coercion.over the creditor with such resulting trusts to the grantor, in ease the-, coercion should not be successful, was deemed by the Supreme Court, in Hyslop v. Clark, 14 Johns. 458, to be a badge of fraud and not a fair and lawfnl assignment.” The assignment in the case of Hyslop and Clark was to a trustee, for such creditors as should release, and in case any refused to release, their proportions to be paid to such other creditors as the assignors should appoint, and the overplus to the assignors. Judge Yan Ness, in giving the opinion of the court, expressed his conviction that the assignment was, in judgment of law, fraudulent and void. “ One object (he said) evidently was to coerce the ^creditors to acquiesce in the terms offered to them. The language held to them is this: 1 If you will release your debts, you may participate in the benefits that may result from this assignment, but if you refuse, we will lock up our property indefinitely, in such a way that whether you ever get any part of it shall depend upon our will and pleasure.’ ” Again, he says, “if they can keep it (the property) locked1 up, in this way, in the hands of trustees, and set their creditors at. defiance for three months, they may do it for three years, or an indefinite period. I think, therefore, that this part of the assignment is void under.the statute of frauds.; and that it would be establishing the most dangerous precedent, to declare it to be valid.”

In Austin v. Bell, 20 Johns. 442, an assignment conditioned for a release by assenting creditors, and for the reservation of the. shares of those refusing to release to the grantor, was held void,, and the assigned property held subject to levy on execution, Chief Justice Spencer, in giving the opinion of the court in that case says, page” 150: “This is not only an attempt to coerce creditors, and to place the property beyond their reach on execution, but it is the reservation of property which ought to be devoted to the payment of their debts to their private use. Without in the least impugning the doctrine that a man indebted has a right to give preference to creditors, I am bound to say that a deed which does not fairly devote the property of a person overwhelmed with debt, to the payment of his creditors, but reserves a portion of it to himself, unless the creditors assent to such terms as he shall subscribe, is, in law, fraudulent and void, as against the statute of frauds, being made with intent to delay, hinder, or defraud creditors of their just and legal actions.”

In Mackie v. Cairns, 1 Hopk. Ch. 404, Chancellor Sanford says that when a debtor “transfers his property upon the condition that his creditors, who are pursuing their legal remedies, shall relinquish their remedies, such a transfer is plainly made to coerce the pursuing- creditors ; it directly impedes the course of law and justice, and it must be void.” Again, page 406, he says; “ Where such assignments are made merely for the payment of debts, they are often convenient to creditors as well as debtors, and they seem to involve no great evil. But *when the debtor is allowed to proceed beyond the single object of paying his'debts, such assignments become pregnant' with great mischiefs.” “ If he may assign all his property, in trust, partly for himself and partly for his creditors, and may allot to some of his creditors absolute payment, and to others payment upon condition that they shall do or not do acts dictated by himself, he is, indeed, armed with a formidable power. If a debtor may, by any machinery of his own contrivance, either reserve his property for his own use, or wield it in such a manner that his creditors can not reach it in due course ■of law, or can not reach it without great difficulty, he becomes the master, and holds the power of coercion.”' In page 407, he says: “ It is only against the property of a debtor that our laws have any efficacy, and the laws concerning conveyances, made in fraud of creditors, are now the only efficient check upon the power uf disposition in the creditor. While assignments for -the payment of debts must be supported, I can not perceive that either law, equity, or policy, requires that such assignments should be sustained where they are complicated with trusts and followed by consequences so injurious and vexatious to creditors. Assignments containing the provisions which appear in this case are of recent invention, and if they can prevail, they will, to a great extent, afford to debtors a secure triumph over their creditors.” ■Chief Justice Savage, in the same case, 5 Cowen, 580, esteems it a conceded point that a man can not put his property beyond the reach of his creditors, and he says: “ When a debtor fails from misfortune or folly, or from dishonest motives, his property in moral justice belongs to his creditors. When he appropriates his property to his own use the act becomes fraudulent, nor does it lie in his mouth to prescribe terms to his creditors. The law is open to them. They have a right to pursue their debtor in the mode pointed out by law, and any act which obstructs them in their pursuits is against law, and, of course, void,” as against creditors.

I have examined the foregoing cases, because it seemed to be assumed that our decision, if against the validity of the assignment, would contravene the authorities. It is somewhat remarkable that amidst all the strong language used *on the subject, so little upon the simple question under consideration is embraced within the decisions. The case of Ingraham v. Wheeler, 6 Conn. 277, is full in point upon the case in hearing. There the assignment was to pay certain preferred creditors, and the residue to such others as should, within six months, execute a discharge, and the court held it void. In page 283, Judge Brainard says : “ No insolvent debtor has a right to prescribe terms to his creditors; ‘ to say to them take up with the crumbs on my own terms or have nothing.’ Besides, if their creditors do not see fit to comply with their terms, where is the residue ? The answer must be, in the hands of the trustees of the bankrupt’s own creation, and for ■his own use and benefit, a trust necessarily resulting. I, therefore, lay this instrument totally out of the question as being wholly void, and that upon the face of it.”

The District Court of the United States in Maine, in Lord v. Brig Watchman, in April, 1832 (see Amer. Jurist, Oct. No., p. 296), has fully examined this subject. This court holds “ that á transfer by a debtor of his property, which, in its effect, would delay the creditor’s remedy against the estate for an indefinite period, unless they would consent to take a less sum than their whole debt in satisfaction, or consent to discharge the debtor, on different terms from those borne on their contracts, is a conveyance made to delay and to defraud creditors. The object of such a conveyance is to coerce the creditor to discharge the debtor from his contract without his fulfilling his obligations.” “ No argument is required to prove such an intent illegal.”

It seems to us clear, upon authority and the reason of the thing, that the clause in the assignment of J., E. & Co., prohibiting any creditor from availing himself of any portion, except within ninety days he executed a release for his whole debt, is a manifest attempt, on the part of these debtors, to place all their property beyond the reach of creditors, by ordinary legal process, and coerce from them a release of their entire demands upon the possible contingency of realizing something out of the effects, after the expenses, securities, and preferred creditors are satisfied, and as such is void against creditors. The case before the court is a ^strong one to show the injustice of such proceedings. The debtors, the trustees, and only three or four of a large number of creditors have •executed the assignment, while, by its operation, property to the amount of nineteen thousand dollars, is held under it beyond the reach of legal process. An effort is made by it to procure releases from the general creditors, without the possibility of their obtaining one cent. The preferred creditors alone, who are postponed till the expenses, securities, and fees arc paid, have claims upon this nineteen thousand dollars for upward of thirty thousand dollars ? Can this be considered as fairly devoting the property of insolvent debtors to the payment of their debts?

Our statute of frauds makes void all assignments of goods in trust for the use of the assignor, and all conveyances of every-kind made with intent to defraud creditors of their debts- 29 Ohio L. 118. The variations between the provisions of this and the English statutes are not deemed material, in any view of the subject before the court. The principle is, that a failing debtor shall' neither make assignments of his effects for his own benefit, nor lock them up beyond the reach of legal process, unless without consideration he obtains a release of all his debts. No slight variation in the terms of the assignment, will affect the principle, when the design is evident to defeat a creditor of his' resort to-the goods, or compel him to release.

The case must be sent to a master to report the extent of the effects which passed into the hands of the assignees, and their present situation, and the amount of the proceeds, if disposed of.


source: Caselaw Access Project

author: Judge Wright

license: Public Domain

text:
    *Charles C. Perry v. The Ohio Insurance Company.
    An insurance of the body, machinery, tackle, and furniture of a steamboat covers the cost of repairing any injury to either within the policy,.and the' expense of towing her to the nearest port for repairs; but does not cover-the wages and subsistence of the hands during the delay.
    Covenant upon a policy of insurance, reserved from Hamilton. The policy was for four thousand dollars, “ on the entire of the steamboat Belle Creole, including her machinery, furniture, etc., for four' months, etc., with the privilege of navigating the Mississippi and Ohio rivers, with such of the tributary streams as are safely navigable.” It is stipulated in the policy that it shall be lawful for-the boat to “ sail to, touch, and stay at, any ports and places thereunto obliged, by stress of weather or other unavoidable accident, without prejudice to this insurance; ” and “in case of any losü 'or misfortune, it shall be lawful for the assured, etc., to sue, labor, and travel, for the defense, safeguard and recovery of the said vessel, or any part'thereof, without prejudice to this insurance; to the charges whereof the said insurance company will contribute according to the rate and quantity of the sum herein insured.” “ But no partial loss, or particular average, shall in any case be paid unless amounting to five per cent.” . ■
    At the trial it was proven to the jury that the boat was owned by the plaintiff in Cincinnati; was laden with half freight for New Orleans and the intermediate ports; and on her way down Red river, bound for New Orleans, broke her shaft so as to render her unable to proceed. The break was within the perils incurred of risk. When the accident occurred, New Orleans was the nearest port where the boat could refit. She was unable to proceed without being towed, and was towed into port by another boat. The crew assisted in taking her into port, and about the repair while in port; and so soon as the repair was completed, the boat proceeded on her usual business. While the crew were so employed they were paid and subsisted by the assured. The damages claimed were: 1. The new shaft, one hundred and seventy-nine dollars and sixty-five cents. 2. For towing the boat to New Orleans, one hundred and fifty dollars. 3. For the wages and subsistence of the crew while getting into port, three hundred and thirty-six dollars and eighty cents. 4. For the wages and subsistence of the crew while in port repairing, four hundred and sixty-five dollars and ninety-two cents. Amounting, with interest from April.28, 1828, to thirteen hundred and eighty-one dollars and forty-nine cents; for which sum a verdict was taken, subject to the ^opinion of the court, upon the questions of law arising upon the facts. It is now submitted to the court upon the facts, to say what items in the bill are chargeable against' the insurers, and it is agreed that the verdict and judgment shall be entered ■for the sum allowed with interest, if it shall amount to five per •cent, upon the amount insured.
    Conover and E. King, for plaintiffs,
    cited Park on Ins. 125; Marsh. on Ins. 140, 539, 540, 725, 726; Phil, on Ins. 253, 330, 344, 345; Ab. on Ship., pl. 3, ch. 8, sec. 8; Beawes’ Lex Mercatoria; 3 Kent’s Com. 187, 188, 250; Samp. on Com. Law, 168; 2 Term, 414; 4 Term, 206; 12 East, 643; 1 Burr. 347; 4 Dal. 246; 1 Bin. 592; 1 Caine, 573, 576; 2 Caine, 262, 273, 276; 7 Johns. 424; 8 Johns. 245; 11 Johns. 315; 1 Conn. 242; 3 Mass. 239; 4 Mass. 548, 554.
    N. Wright and O. Hammond, contra,
    cited 1 Term, 127; 7 Johns. 431; 11 Johns. 315; 1 Conn. 243; 4 Mass. 551; Marsh. on Ins. 462, 463; Phil. on Ins. 331; 3 Maule & Sel. 482; 2 Caine, 263, 264; 4 Ohio, 234.
   Judge Wright

delivered the opinion of the court:

■The defendants object to the charges for towage, for the wages and subsistence of the crew, either in making port or while in port repairing; and claim a reduction from the charge for the> shaft of one-third, upon the marine law of one-third “ new for old.” They claim further, that so reduced, the amount will be less than five per cent, on the sum insured, and so will not be within the policy.

This insurance is, for time, upon the boat, her machinery and furniture, and stipulates for their safety. The policy does not insure a profitable freight, or against loss of wages or subsistence. On a policy upon a ship,” says Lord Mansfield, in Robertson v.. Ewen, 1 Term, 127, “ sailors’ wages or provisions are never allowed-in settling the damages. The insurance is on the body of the ship, tackle, and furniture, and not on the voyage or crew.” See also 7 Johns. 431; 11 Johns. 315; 1 Conn. 243; 4 Mass. 551.

It is urged, that inasmuch as the wages and subsistence of' the crew would fall within the common principle of general *average, these items are within the policy. Is this so T G-eneral average or loss is, where individual loss or injury is incurred for the common good of those having a community of interest and benefit, and is apportioned to the interest benefited. When, by stress of weather or other imposing danger, it becomes necessary for a ship to depart from her course and seek shelter in the nearest port; when hostile force has interrupted the voyage- and exacted the payment of ransom ; and in cases of jettison, when-the freight of a particular individual is thrown overboard to save-residue of the cargo and vessel; these being all cases of urgent necessity, and for the good of all concerned, the loss is averaged among all, and hence comes the term of general average. In such cases the risk is imminent, and affects the vessel as well as the cargo, and the insurer on her body is interested that immediate- and effective means should be adopted for her preservation, and reason and justice, as well as the law, subjects him to an average-share of the loss. Phil. on Ins. 331; Marsh. on Ins. 462, 463; Maule & Sel. 402; 2 Caine, 263. The loss in all such cases is apportioned among those who gain by it. It would seem to follow, that when the vessel was made safe in port or otherwise, the insurer on her body has no common interest in what further takes-place, having in view the completion of the voyage or the making-freight. In these the insurer gains nothing. It is true the necessary voyage is interrupted, but more delay is not sufficient to call upon the insurer of the vessel to contribute to a general average. The Belle Creole was not driven out of her course, but pursued her voyage to New Orleans, subject by the accident only to the expense of towage to secure her safe arrival. So far, then, as relates to the wages and subsistence of the crew on the way to New Orleans, or while lying in that port, they constitute no charge against t'he insurer on the policy upon the body and tackle of the boat. The circumstances under which, these expenses were incurred make no case for general average against such insurer.

But it is said these items- are embraced in those terms of the policy which stipulate to “ contribute for “ labor and travel ” about the safeguard of the boat. This clause doubtless assures the plaintiffs against any extra labor in ^securing the boat, which would be the direct consequence of accidents within the perils of the insurance. In our opinion it embraces the towage of the boat to New Orleans, that being an expense necessary to her preservation and repair, and charged only till she arrived at the nearest port for repair. The clause might also have embraced the wages and subsistence of extra hands, had any been necessary for securing the boat, or in effecting her repair. The ordinary wages of the crew and their subsistence are only the common expenses of the boat, and are neither increased nor diminished by the accident insured against. If the insurance had been upon freight instead of the body of the boat, the question might have assumed a different aspect. But it is said more was necessary to effectual reparation of the injury than to lay the new shaft upon the deck of the boat; that labor and skill was requisite to set it in its place and put it in readiness for use. This may be admitted; and if it had been necessary to effect the repair to procure the assistance of an artificer or other person not of the crew, the wages and subsistence of such aid would have constituted a part of the extra expense, and been within the policy. The case made does not show any such expense; the charge is for the ordinary wages and subsistence of the co mm on crow of the boat, a charge resting on the assured at any rate. The claim is not that their pay and subsistence was extraordinary, resulting from the accident, but that their labor was not as productive of profit to their employer as it otherwise would have been. . Judge Thompson, of the Supreme Court of New York, in 11 Johns. 321, says, “the insurance is upon the ship, etc., and the wages and provisions of the crew are no part of the thing insured. The court only look to the thing itself, which is the subject of the insurance.” 7 Johns. 432.

Counsel urge that this is an insurance on time, and that in such cases a different rule prevails from that which obtains an insurance upon the body of the ship for a particular voyage. The reasoning upon this point does not very forcibly impress our minds. The contract is, that the boat shall remain uninjured for the period of four months, or if she be injured within that time, to an amount greater than five per cent, on four thousand dollars, that the insurer will indemnify for it. *It is not a contract of indemnity against loss of profit or freight carried, or which might be carried for the four months, nor a stipulation that in case the boat be out of employ, the insurer will, while she is out of employ, pay and subsist her crew. The owner has not contracted with the insurer for a profitable, or ány employment for the boat for four months, or any other time.

It is a settled rule in the law of marine insurance, to reduce charges for repairs one-third new for old. This rule was recognized as applicable to river insurance, by this court, in Wallace v. Ohio Insurance Company, 4 Ohio, 242. But counsel urge that many of the rules which obtain in sea navigation are antiquated and arbitrary, have no application here, and should be rejected by our courts. In Wallace’s case the court were exhorted to the like course, and to take upon itself the revision of the whole law of marine insurance. But in that case the court held “ it safest to adhere to the doctrine as we find it settled, and to administer it as an entire system, to those who claim at our hands the administratration of a part of it.” The court still holds to that opinion. The rule must be applied to this ease, and will reduce the charge of one hundred and seventy-nine dollars and sixty-five cents for the new shaft by one-third to the value of the old.

The loss, when adjusted upon the principles here recognized, rejecting the items for vrages and subsistence, and admitting the •charge for towage and two-thirds of the expense of repairs, will exceed five cent, upon the sum insured, and is therefore chargeable •upon the insurer. The verdict and judgment will be entered for that amount, with interest. J


author: Wright, J.,

text:
    Josiah Lawrence v. J. McGregor et al.
    Bill of lading for articles received on board steamboat A., indorsed, “ Shipped at Cincinnati on board steamer T. to be reshipped at Louisville per steamer A.” Qwccre, as to the obligations of the freighter in unlading to pass the falls at Louisville.
    Assumpsit upon two bills of lading, of tbe same terms and date, adjourned from Hamilton county. The following is a copy of one ■of the bills:
    “Shipped, in good drder by Josiah Lawrence, for account *and risk of the shipper, in and upon- the good steamboat ■called the Amazon, whereof is master for the present voyage Captain McGregor, now lying in the Ohio river and bound for New Orleans, to say, thirty-four barrels of whisky, being marked .and numbered as in the margin, and are to be delivered, without delay, in like good order and well conditioned (the dangers of the river and unavoidable accidents only excepted), at the port of Now Orleans, unto Mr. Joseph S. Bogert, or unto his assignees, he or they paying freight for the said goods at the rate of seventy-five ■cents a barrel.” On the left hand margin, at the foot of the bill of lading, these words were written: “ Shipped at Cincinnati on board steamer Tecumseh, to be reshipped at Louisville per steamer Amazon.”

    The case made on trial was this: At the date of the bills of lading, the steamboat Amazon was lying at Shippingport, below the falls, in the Ohio. The Tecumseh was lying at Cincinnati, and took in the freight to be transported to Shippingport and reRhipped upon the Amazon. When the- Tecumseh arrived at Louisville, the state of the water was such that the pilot declined taking her over the falls. The goods were then placed n board a flat-boat, to be carried over the falls to the Amazon. The weather being boisterous and night coming on, it was concluded, by the advice of the pilot, to detain the flat until morning. She was moored on the outside of the Tecumseh, and about daylight the next morning was run upon by the steamboat Lady Franklin and sunk, and part of the cargo lost. This suit was brought .against the owners of the Amazon to recover this loss.
    In giving the case to the jury, the court instructed them that,, ' in legal contemplation, the bill of lading bound the defendants, to carry this merchandise, in the Tecumseh, to the Amazon, and that they had no right to substitute any other mode of transportation but at their own risk. A verdict was then taken for the plaintiff,, subject to the opinion of the court, upon that question of law. The defendants now move for a new trial, on the ground of error in the court, in the opinion expressed.
    *Storer & Pox, for the motion,
    cited Phil. on Ins. 14, 182, 425-427; 1 Johns. 205; 3 Johns. 221; Abbot on Ship. 294; 2 Burr. 887; 10 East, 378; 5 Bin. 525; Petersd. 107; 15 Johns. 18; 16 Johns. 363; 4 Wend. 54; Marsh on Ins. 171; 1 Camp. 50, note; 8 Cranch, 75; Park on Ins. 191; 1 Burr. 348; 6 Mass. 205-208; 3 Wend. 289; 2 B. & P. 430, 436; 1 Conn. 184, 197; 3 Conn. 14; 8 Pick. 14; 6 Mass. 422; 7 Mass. 300; 6 Cranch, 328; Doug. 512; 2 New R. 263; 2 Bay, 223; 7 Johns. 389; 10 Johns. 129; 11 Johns. 312, 397; 8 Cranch, 74; Rocius, 131; 1 Caine, 45; 1 Gall. 444; 4 Ohio, 334.
    Hodges, N. Wright and Hammond, contra,
    cited Phil. on Ins. 17, 182; 1 Stark. Ev. 423; 2 Stark. Ev. 335, 345; 8 Serg. & R. 533; 2 Stark. Ev. 145; 2 S. & R. 454; 1 Gall. 443; 3 Esp. 67, 131; 6 Johns. 177; 2 Kent’s Com. 327; 2 Condy’s Marsh. 707; 1 Phil. Ev. 435; 1 Johns. 430; 2 Johns. 335; 10 Mass. 28; 2 Burr. 1322; 4 Ohio, 345; 3 Serg. & R. 453; 15 Johns. 39; Story on Bail. 329.
   Wright, J.,

delivered the opinion of the court:

Several questions have been raised and elaborately argued by counsel in this case, but we confine our inquiries to one. Was th® opinion given by the court to the jury correct? A decision of this question necessarily involves the inquiry whether the memorandum in the margin of the bill of lading did not form a part of the contract of affreightment, and if so, whether the Tecumseh was not to be held subject to the usage of the river as to lighting over, or draying freight round the falls. If the marginal memorandum,, connected with the bill of lading, is to be taken as part of it, and of the contract, it would be understood as an undertaking to carry in the Tecumseh from Cincinnati to the Amazon, and in her to New Orleans. Whether these marginal memorandums are esteemed a part of the bill of lading or not, may depend on the usage of th® river, upon which we are not well informed. Our own opinions upon these questions do not perfectly harmonize. We doubt if the judge in ^giving the law to the jury did not express himself stronger than the law would warrant, and the difficulty is increased by the consideration that we are without certainty as to-the precise language used by him. The opinion, whatever it was, no doubt influenced the verdict, which was taken subject to our-opinion upon the law applicable to the facts. In such cases we think it best to give a new trial, that a more full investigation of the facts may be had before another jury, and an opportunity afforded for inquiry into the usage of the river in reference to this kind of bill of lading. Such light may be hereafter shed upon the question as will enable us more satisfactorily to settle the law arising upon it.

New trial is awarded. Costs to abide the event.


text:
    Union Bank of Georgetown v. The Administratrix, Heirs and Tenants of R. J. Meigs.

      Scire facias against keirs to subject real estate of ancestor for debts should, specifically descri be the lands sought to be charged.
    This is a scire facias to charge real estate of the decedent in execution. It was issued November 27,1830, and served May 6,1831. The writ sets forth that the plaintiff recovered judgment in the-Supreme Court, at October term, 1828, against the administratrix of Meigs, upon which execution issued, and some personal property was taken and sold, making a small part of the debt, and nulla bonareturned as to the residue, and prays a remedy. The command of the writ is that it be made known to the administratrix and to the heir at law (who are named), and to the tenants (without naming-any one), of all and singular the lands and tenements in said court, whereof the intestate died siezed, to show cause why execution should not be made of the balance of said judgment of these lands- and tenements. The return is, “ Served the within on Mary Sophia Jackson (the heir), and Sophia Meigs (administratrix), May 6,1831, in presence of A. T. D. Joline and Silas Cooke, and on-John Brophey, ^October 10, 1831, in presence of Daniel Nicoll and William Greene, and on J. E. P. Putnam and William Deval, October 12, 1831, in presence of David Barber and George Barker.”
    The administratrix and heir plead jointly:
    1. That the judgment was recovered against the executrix in •‘her representative character, and she was then and ever since had •been a resident in said county, her letters of administration being still in full force.
    2. That at October term, 1831, of the court of common pleas of said county, the said administratrix filed her petition for the sale of all the real estate of the deceased in said county which would ■be required to pay debts, according to law, and then obtained an order of court for the sale, which is still in force'.
    The plaintiff replied to the first plea that the date of the fi. fa. upon which the return of nulla bona is made is more than five years before the scire facias was sued out; and to the second, that more than five years had elapsed since administration was granted before the date of the scire facias. To these replications there is a general demurrer.
    Nye, in support of the demurrer,
    cited 22 Ohio L. 118, 124, 129; 29 Ohio L. 229, 231, 236, 237; 25 Ohio L. 19; 2 Cranch, 386; 3 Ohio, 466; 2 Ohio, 65; 3 Bur. 456; 1 Wm. Blk. 451; 3 Dal. 378; 4 Dal. 372; 1 Bin. 601; 4 Conn. 209; 2 Peters, 627.
    ■ Vinton, contra,
    cited Swan Land Law, 383; 22 Ohio L. 158; 29 Ohio L. 67, 73, 74, 109, 236; 18 Ohio L. 91; 4 Mass. 620; 9 Mass. 118, 119; 12 Mass. 570, 573; 17 Mass. 380, 385, 386; 1 Ohio, 467; 2 Ohio, 292; 3 Ohio, 225; 1 Saund. 219, n. 8; 1 Wash. 31; 1 Munf. 1; 4 Munf. 289 2 Hen. & Munf. 8; 1 Eq. C. Ab. 554; 2 Wm. Blk. 824; 1 Term, 285.
   Wright, J.,

delivered the opinion of the court: ’

We will now only consider one of the several questions dis-, -cussed on this demurrer. Is the writ of scire facias and return sufficient to give the plaintiff a right to execution ? *The writ in this case stands in the place of a declaration, and must show in the plaintiff a title. This scire facias contains no suggestion of any particular real estate of which the intestate died seized, and which it is sought to chargo in execution, or that any particular - person is tenant of any real estate, late the property of the-decedent. The return leaves everything equally uncertain.. How can the court award execution against any particular land upon such a proceeding? In McVickars v. Heirs of Ludlow, 2 Ohio, 246, this court say, “Writs of this description are entered on the record with a mere formal charge, etc., as the declaration in the cause. They, must, therefore, contain everything that is required to constitute a good declaration; or, in other words, they must contain everything that is required' to show a right in the plaintiff to the relief prayed for.” “The scire facias contains an averment that lands descended to the defendants from their ancestor, but what lands, or of what value, or whether they are now' held by the heirs subject to execution or not, does not appear either in the writ, or in the return, or in any part of the record. And if a judgment should be rendered in this case, there is nothing to guide the officer in making the levy; or if the lands descended have been sold under such circumstances as place them beyond the reach of the judgment creditor, there is nothing from which the value of the assóts can be ascertained. Although the statute is silent on this point, yet the nature of the claim set up,. and the uniform practice of courts in similar cases, require that • the lands which may have descended should be set out in the body of the writ, or ascertained and described in the sheriff’s return. The latter course seems to be the practice in the courts of. Westminster. The propriety of ascertaining the lands, or their value, will appear from this consideration that the heir is not answerable beyond the amount of assets descended, and it may be that he has paid other claims against his ancestor to the amount-■ of the assets which came to him by descent. 1 Strange, 665.” In Wolf v. Pounsford, 4 Ohio, 397, the case of McVickars v. Heirs of Ludlow is cited and confirmed. The court in the last-named case • declined to settle the practice, and left the subject open, with the remark, “ That the plaintiff must *see that in some part of the proceedings the assets are shown to have descended to the heirs, so that an issue may be formed, and the matter reduced to a1certainty.” We think the better practice would be to make the suggestion in the writ of what lands are descended, by whom held, and to set out all the material facts essential to the right to.' •proceed against the particular estate he seeks to charge. Upon the authority of these cases this writ is clearly bad.

The demurrer is sustained, but the plaintiff has leave to amend •upon payment of costs.

We leave the other questions in the case wholly unnoticed.


text:
    Trustees of Bloomfield v. Trustees of Chagrin.
    ' The mother of an infant pauper settled in one township, does not change the infant’s residence, by marrying a second husband settled in another town- . ship, and there residing without the infant pauper.
    The plaintiffs declared in debt for two hundred dollars under the act for the relief of the poor. 22 Ohio L. 331. There are two .counts: 1. That one Richard Brown, who had his legal settlement in Chagrin, came into Bloomfield and became lame, diseased, a pauper, and unable to support himself, by reason whereof the plaintiffs were obliged to provide for his support during his illness, and to expend large sums for necessaries and medical aid, viz: two hundred dollars, and that so the defendants became indebted to the plaintiffs in the sum of two hundred dollars. The second count is for meat, drink, etc., furnished for one Richard Brown,-a pauper and inhabitant of Chagrin, who became sick, etc., in Bloomfield. Plea nil debet, with a notice of special matter in bar.
    Upon the trial, before the jury, it was agreed by the parties that the father and mother of the pauper were legally settled in Hampshire county, Massachusetts, and that the father died there' in 1820, leaving the mother a widow, and Richard, the pauper, an infant. The mother, with her infant son, afterward removed to Chagrin, in Cuyahoga county, and resided there one year and three months from January 15, 1823, without being warned out, and there married Levi Brown, who was then a resident of Perkins, in *the county of Huron, and had a legal settlement there.. She removed with her husband another township, Cuyahoga county, where she died in five months thereafter. Richard, the pauper, did not go with his mother, but resided in some .township in Geauga county, for eighteen months, and then at Bloomfield, in Trumbull county, became disabled by a wound, and a township charge. At the commencement of this suit he was still in his minority. The overseers of the poor in Bloomfield removed the pauper to Chagrin, and offered him to the trustees, who refused-to receive him. They, at the same time, presented their account and demanded payment, which was also refused. Upon these facts the jury found a special verdict for the plaintiffs : Debt, one hundred and twenty-one dollars and seventeen cents (the amount of the account), and ten dollars and forty-nine cents damages, if the court should be of opinion, upon the facts, that the pauper, on April 1, 1830, had a legal settlement in Chagrin ; but if the court should be of opinion, upon the facts, that at that time the said pauper had no legal settlement in Chagrin, then the jury found for the defendants. The questions arising on this yerdict were adjourned for decision here from Trumbull county.
    C. Pease, for plaintiff,
    cited 3 Ohio, 94; 4 Black. Com. 488.
    Card, contra,
    cited 22 Ohio L. 381; 9 Mass. 201.
   Judge Wright

delivered the opinion of the court:

By the law of Ohio, 22 Ohio L. 320, persons residing more than one year in any township, without being warned to depart, gain a settlement in such township. The same act provides that in case a pauper shall require relief in any other than the township of his settlement, the overseers of the poor shall provide for him, and when he is in proper condition to be removed, shall remove him to the township of his settlement; and if payment of all reasonable charges and expenses for the support and removal be refused, the same may be recovered by action of debt.

The mother of Richard Brown, after the death of his father, acquired a legal settlement in Chagrin. Richard, *being then a minor with his mother, acquired from her a derivative settlement in the same place. At common law and upon general principles all persons incapable of gaining a settlement in their own right, have that of the person upon whom they depend for support, and who has control of their persons and a right to their services. Upon this principle children have the settlement of their fathers, and femes covert that of the husband. 16 Mass. 123; 17 Johns. 89; 20 Johns. 282; 3 Ohio, 101. At the father’s death the mother becomes head of the family, and until the law otherwise disposes of them, has the same control over the minor-children that the father had, and the child being incapable of acquiring a settlement for himself, derives one from her. 1 Burr. Set. Cas. 64; 1 Ld. Raym. 41; 2 Ld. Raym. 1473; 2 Strange, 746; 16 Mass. 139; 17 Johns. 41; 20 Johns. 1452. Richard Bi’own, having acquired through his mother a legal settlement in Chagrin, did not lose it by his residence in Geauga county, though for a longer period than a year, because being still a minor, he had no capacity to acquire a settlement for himself. 3 Ohio, 103.

The counsel for the defendants insist that the settlement of the mother, by her second marriage, was drawn to that of her second' husband, and that a derivative settlement was thereby cast upon her infant son in Cuyahoga, or in Perkins, in Huron. Ms. Justice Powell, in Cumner v. Milton, 2 Salk. 528, thus lays down the law: “A mother can not gain a settlement for her children by a former husband in the parish where her second husband is settled, being under coverture, and having a settlement there herself, only as a part of her husband’s family.” See also 14 Petersd. Ab. 315. In Salk. 482, pl. 35, it is said the children of the first marriage, under seven years of age, shall go with the mother only for nurture, and be kept by her at the charge of the parish where they are settled. As we understand the law, th'e settlement which a mother derives from her husband by marriage, is not cast upon her children by a former marriage. The second husband has no legal control over his wife’s children, by a former marriage. He has no right .to their services, and is not bound to support them; consequently they can ^derive no settlement from him. 1 Burr. Set. Cases, 2; Carth. 449; 16 Mass. 52, 140; 14 Petersd. Ab. 315. The settlement of Richard Brown upon the facts was in Chagrin, on April 1, 1830.

The defendants have filed a motion in arrest of judgment, upon two grounds: 1. Because it does not appear in the declaration that Brown had a legal settlement in Chagrin. 2. Because it does not appear that Brown had not a legal settlement in Bloomfield. This is a special verdict and subject to the control of the court, and if it be true that one count is bad and the other good, it will be applied to the good count. The first count is, unquestionably, free from the objections taken, and good in law. The verdict will be entered on that count. We leave untouched the objections urged to the second count.

Judgment for the plaintiffs on the verdict.


author: Judge Hitchcock:

text:
    Andrew Harter v. Mary Harter.
    In petition for a divorce, where petitioner resides in one county and defendant in another, service of summons is not sufficient. Public notice must ha given in a newspaper.
    This cg.se was reserved in the county of Delaware. It is an application for divorce.
    The facts of the case, so far as it is necessary to state them, are as follows: The petitioner resides in the county of Delaware, and the defendant in the county of Perry. The petition was filed in the county of Delaware, a summons was issued directed to the sheriff of Perry, which was by him duly served and returned. No other notice of the pendency of the petition was given. No copy of the'petition delivered to the defendant.
    Parish, for the petitioner, submitted the case without argument.
   Judge Hitchcock:

delivered the opinion of the court :

^Perhaps there is no statute in Ohio more abused than the statute concerning “ divorce and alimony.” Perhaps there is no statute under which greater imposition is practiced upon the court and more injustice done to individuals. It seems to be considered, by a great portion of our community, that the marriage contract is the least obligatory of all others, and that nothing more is necessary to dissolve it than that application should be made to this court to register a decree to this effect. Not unfrequently a husband, who has by cruelty driven his wife from her home, seeks to-be divorced from her, charging her with willful absence. And there are cases where the adulterous wife seeks a similar remedy, charging the husband with extreme cruelty. The hearings are generally ex parte. Witnesses are examined, friendly to the applicant, and it is almost, if not utterly impossible, for the court in most instances to arrive at the real truths of the case. I would not be understood that there are no meritorious cases. That there ¡are some such there can be no doubt. But of the great multitude •of cases which are before this court I am confident that by far the greater number are not of this class. Aware of these circum.stances, and aware, too, of the immoral and mischievous tendency •of an easy dissolution of this most solemn of all contracts, we have ever been disposed to give a strict construction to the law, and not to hear a case unless the applicant brings him or herself within both the letter and spirit of the statute.

The second section of the “ act concerning divorce and alimony,” passed January 7, 1824, 29 Ohio Stat. 431, provides thatjin all cases where application is made for divorce, and the party defendant resides in the county where application is made, personal service shall be made by summons and by copy of the petition. But in case the defendant does not reside in the county, then “ public notice, shall be given in one of the newspapers in the state for three months.” In the case before the court the defendant does not reside in the county of Delaware, where the application was made, .still “ public notice ” in a “newspaper” has not been given. It may be thought that the professed object being that a defendant *may have notice, this object would be as well, nay better, secured by the service of a summons, than by publication in a newspaper in some distant part of the state. Such would probably be the opinion of the members of this court, if we were about to legislate upon the subject. But this is notnur business. It is our province to construe, not to make laws. By the act of 1822, upon the same subject, which was repealed by that of 1824, personal notice was required in all cases where the defendant resided out-of the state. This provision is left out of the law of 1824, and notice by publication substituted. This must have been done by design, .i What induced the legislature to make this change we know not, nor is it necessary for us to inquire. We are bound, however, to suppose it was done upon good and sufficient reason. Having been done, it only remains that we should give it effect..

Even should the court presume to substitute a summons in lieu of the publication, the service in the case before ub would be de■fective. Where service is made by summons the law requires that a copy of the petition should be delivered to the defendant. This ■has not been done, and„upon neither ground are the parties properly before the court, f We will not, however, dismiss the cause. It may be continued for notice.1


author: *Hitchcock, J.,

text:
    Joseph Cooper v. Thomas Hall.
    Where, hy erecting a dam the water is flowed back in the bed of a stream, and raised against the land of an adjoining proprietor, no action lies; unless some actual injury is sustained.
    This cause was reserved in the county of Warren, upon a motion for a new trial.
    It was an action on the case for a nuisance.
    The declaration contains two counts: The first count alleges that the plaintiff, on May 1,1829, was, and for a long period before that time had been, the owner of a certain tract of land in the county of Warren, and between the Miami rivers, and that upon *Jan--nary 1, 1830, ho was .possessed, and still is possessed, of a certain ancient water-mill, over and upon a certain river or water-course, commonly called the Little Miami river, in the same county of Warren, and that he had, and of right ought to have, the free current, course, use, and benefit oí the water of said river, running and flowing from his said mill down the said river, without the same being penned back upon the said mill or the wheels thereof, to the obstruction of his said mill, and that defendant, on September 1, 1830, erected a dam in and across said river, below the mill of the plaintiff, and upon the land of the defendant; by means whereof, the water was set back upon the mill, mill-wheels, and tail-race of the said plaintiff, so as to obstruct the operation of his said mill, to his great damage.
    In the second count the injury complained of was that, in consequence of the erection of the dam, the water of the river was retarded in its course, and heightened in the bed of the river.
    To this declaration the general issue plea of not guilty was filed.

      Upon the trial of the cause, much testimony was introduced.; some of which was contradictory. The weight of evidence, however, seemed to be, that although the water was, in consequence-of the dam erected by the defendant, somewhat heightened in the channel of the river, opposite to a part of the plaintiff’s land; yet it was not caused to flow back upon the plaintiff’s mill or mill-wheels. '
    The court charged the jury that the backing of the water in the-channel of the river upon that part of it which passed along the land of the plaintiff, was not actionable, unless productive of real' or substantial injury.
    A verdict was returned for the defendant. Whereupon the counsel for the plaintiff moved for a new trial, on the ground that-the court mistook the law in the charge to the jury.
    Corwin and Ross, for plaintiff.
    A. H. Dunlevey, for defendant.
   *Hitchcock, J.,

delivered the opinion of the court:

It is matter of regret with the court that this cause should have-been submitted without argument, as we consider the question involved not only important, but difficult of solution. In every case we are anxious to administer justice according to strict law; and in no class of cases would we be more scrupulously exact than in those which arise between adjoining riparian proprietors. Water power, for propelling machinery, is not abundant in Ohio; and the wants oí the public require that what there is, should be used to the best advantage. Still it is the duty of the court to see that no one, in an attempt to use or improve that which is his own, shall presume to interfere with the rights of his neighbor. Eor any injury done to the person or property of another, where the injury is immediate, upon the commission of an unlawful act, the. person injured may have an action ; and this, although the injury complained of is ideal, not real or substantial. Every entry upon the land of another, without right, is unlawful, and for such entry, the owner of the soil may have trespass, and shall recover damages, if for 'nothing else, for the treading down his grass. The-damages may be merely nominal, but inasmuch as the rights of the person trespassed upon have been violated; and this, too, by ■an unlawful act, his right of action is complete. So, too, a person assaulted, although he has sustained no actual, or rather no real, ■substantial injury, may have his action. These principles are too well settled to be controverted. And they are so settled, not only that the absolute rights of a plaintiff may be secured, but that a defendant who has attempted, unlawfully, to violate those rights may be punished.

But when the act complained of is itself lawful, a different rule prevails. It is only when some actual injury is done that a right of action ensues. Every man has a right to use his own as to himself seems proper; but he must be careful so to use it that no injury is done to another. ’ Sic utere tuo ut alienum non abutere, is a maxim of universal application. Here we have the distinction between the action of trespass, properly so called, and the action of trespass on the case. *The action of trespass may be sustained where the injury complained of is immediate upon the commission of some unlawful act; trespass on the case where the injury is consequent upon the commission of an act in itself lawful. In the latter case, however, the injury must be real and .substantial.

In the case before the court, it can not be pretended that the act •of the defendant in erecting his dam, was unlawful. Nor is the injury. complained of, immediate upon the commission of that act. It ■is consequential. Under these circumstances the action is well conceived. It is trespass on the case for a nuisance.

What, then, are we to understand by the term nuisance ? Perhaps it is as well defined in 3 Petersdorff’s Com. Law, 550, as in any of. the books. It is there said that “ the term nuisance signifies anything that causes hurt, inconvenience, annoyance, or damage.” If a thing complained of, causes neither of these, it is difficult to discover upon what principles it can be called a nuisance. But if it causes cither in the least degree, the person creating it' must be answerable for consequences. No matter how small the damage, the person sustaining it will have a right of action. But there must have been some damage in fact, not merely in imagination. These were the considerations which influenced the court in the charge to the >ry-

A similar principle is held by the Supreme Court of the State of New York. 3 Caine, 307. In that case, however, the court go much further than is necessary to justify the charge in the case now before us. Every riparian proprietor of land has a right to the use^ of the water flowing in the river, so long as it flows adjacent to his-land. Rut he must so use it as not to injure an adjoining proprietor, either above or below him. For any such injury he will be answerable. But to subject him to an action, the injury must be-material, substantial. Such is the principle as laid down by Chancellor Kent, in his Commentaries (vol. 3, pp. 53, 54). And it is a. principle consistent with reason and common sense. It may be difficult, in some cases, to ascertain whether the injury be material;, but it is a question proper for the consideration of a jury.

*There is another consideration which it may be proper to-mention. The Little Miami is by statute declared to be a navigable river. Although in such case this court have decided, Gavit’s Adm’rs v. Chambers, 3 Ohio, 495, that the adjoining proprietor owns, for certain purposes, to the center of the river; yet it would seem, to be absurd that such proprietor should have an action against his neighbor, when that neighbor has done him no other injury than to raise the water in some small degree within the banks of the river, without doing him any actual damage.

Upon the whole, a majority of the court are of opinion that there was nothing erroneous in the charge of the court to the jury; the motion for a new trial must be therefore overruled, and judgment entered upon the verdict.


text:
    Horace Curtis v. The State of Ohio.
    A person who makes it a business to keep a house of entertainment for travelers, is a tavern-keeper, within the statute, though he keeps no liquor in, his house, for any purpose.
    This was a writ of error brought to reverse a judgment rendered against the plaintiff in error, by the court of common pleas of "Washington county, and was adjourned here for decision by the Supreme Court.
    The case was this: Curtis was indicted for that “on the first day of September, in the year of our Lord one thousand eight hundred and thirty-one, and from that day to the present term of this court, with force and arms, at Belpre township, in said county of Wash■ington, the said Curtis did keep a tavern, without being duly licensed as a tavern keeper, contrary to the statute, etc.
    The indictment was found at May term, 1832, and was predicated upon the following provision of the statute : “ If any person shall keep a tavern, or shall retail spirituous liquors, or shall vend or sell any spi2’ituous liquors of any kind, to be drank at the place where sold, or shall vend or sell such spirituous liquors by less quantity than one quart, without being duly licensed as a keeper of such tavern, each and every person so offending, shall ^forfeit and pay for each offense any sum not exceeding one hundred dollars, nor less than five dollars,” etc.
    The evidence given on the trial is set forth in the subjoined bill of exceptions : “ The defendant, at the time alleged in the indictment, and thence hitherto, had received and entertained travelers and their horses, for compensation, at his house, situate upon hi» farm in Belpre township. That defendant’s house was and is situate near the junction of several leading and public roads, Upon which there was much traveling, and that it was usual and customary for travelers to make the defendant’s house a stopping place either for breakfast, dinner, horse-feed or lodging; that such were in the habit of stopping there without invitation, and with no more ceremony than is usually practiced ata tavern. That the defendant was never known to turn any such persons away, but, on the contrary, furnished food and lodging, stabling and horse-feed, as desired, receiving therefor reasonable compensation.” It was further proved that the defendant did not, during such time, sell, vend, or retail any vinous or spirituous liquors to any person ; that he did not give or furnish any such liquors to his guest» or any other person, and that he did not keep any in his said house. Upon the foregoing facts, the court of common pleas charged the jury that if they should find the facts as stated in the bill of exceptions to be true, such facts constituted a tavern-keeper within the statute, and an offense under the statute. The jury found the defendant guilty, and he was adjudged to pay a fine of ten dollars and costs. To reverse this judgment the present writ of error was brought.
    Goddard and Converse for the plaintiff in error,
    contended that the term tavern, as used in the statute, embraced onty those who kept public houses for supplying guests with liquors, as well as food and lodgings. They cited Johnson’s Dictionary, Shakespeare, and Swift, and, as being in principle analogous, Parkhurst v. Foster, 1 Salk. 387.
    Nye, for the state,
    argued, that persons who made it a business regularly, and whenever called upon, to supply travelers and their horses with entertainment, for compensation, *and who was' notoriously known as furnishing such supplies, were tavern-keepers, within the statute, and subject to its penalties. On the construction of the statutes, he cited 6 Bac. Ab. 380; 2 Cranch, 386. The case cited from Salkeld was considered as bearing no analogy to this.
   The court were divided in opinion : Judges Hitchcock and Uollet, for reversing the judgment; Judges Lane and Wright, for affirming it. So, according to the rule of the court, the judgment was affirmed, no opinion being given.


text:
    John Pray v. W. Oliver and M. Baum. W. Oliver and M. Baum v. John Pray. John Pray v. W. Oliver and M. Baum.
    Case of practice and of facts.
    These cases came before the court, by adjournment from the county of Wood. By an agreement of counsel they were submitted for a final decision upon the merits of the whole matter in controversy.
    The first was an action of assumpsit, the object of which was to recover back purchase money paid for land, alleged to have been sold to Pray, by Oliver and Baum. In this action, in the court of common pleas of Wood county, May term, 1828, Pray obtained a verdict and judgment for three thousand two hundred and twenty-six dollars and ninety-six cents. Notice of aj>peal was given, and an appeal bond executed. But by the mistake of the clerkj the penalty of the appeal bond was fixed at only double the amount of the damages for which judg•ment was rendered, and did not cover the costs. For this defect of the bond, on motion of Pray, the Supreme Court quashed tho appeal.
    *The second case, Oliver and Baum against Pray, is a bill in chancery, brought by the complainants against Pray to obtain a new trial, upon the ground of the mistake of the clerk in preparing the appeal bond. The bill sets out the whole matter in dispute, making a case of strong equity for the complainants. Pray answered this bill, and a great deal of testimony was adduced on both sides. The court of common pleas of Wood county awarded a perpetual injunction against Pray, taking execution upon his judgment. From this decree Pray appealed to the Supreme Court. That court, in special session at Columbus, December term, 1829, awarded a new trial of the suit at law, upon terms which were acceded to by the parties. This new trial was had before the Supreme Court of Wood county, at July term, 1830, when Pray became nonsuit. A motion was then made by Pray’s counsel to set aside the nonsuit and direct a new trial. The decision •of this motion was adjourned to the special session at Columbus, where, at the December term, 1830, it was overruled, but no final judgment rendered, and the cause was again remanded to the Supreme Court of Wood county, where the chancery cause was still pending.
    At the July term, 1831, of the Supreme Court, in Wood county, the counsel upon both sides entered into an agreement to submit the whole matter to the decision of the court, with leave for Pray, to file a cross bill, and with an understanding than an issue out of chancery should be made, if deemed necessary by the court, to determine any material fact in the cause. The cross bill was filed, .answers put in, and further testimony taken; upon all which matters the case now was heard and decided.
    The final decision of the court was in favor of Oliver and Baum : but that decision being predicated altogether upon the facts, as made out by the proofs in the cause, which could not be made intelligible, but by a most voluminous report, which would be of little value to the profession, it is omitted.
    T. W. Powell and O. Parish, for Pray.
    •C. Hammond and P. B. Wilcox, for Oliver and Baum.


author: By the Court :

text:
    Jonathan Rawson v. Gains Boughton. Ezekiel A. Turner v. Gains Boughton.
    On application to redeem lands sold for taxes, if judges of the common pleas are disqualified from sitting, case may be certified to the Supreme Court.
    These two cases, involving the same principle, were adjourned here for decision from the county of Lorain.- In each case, the plaintiff petitioned the court of common pleas to redeem lands sold for taxes and purchased by the defendant. One of the judges of the court of common pleas was interested in the subject matter of the petitions; the president-judge had been of counsel for one of the parties in the matter in litigation. These facts being known to the judges of the common pleas, they certified the cause to the Supreme Court, for decision, under the provisions of section 63 of the act to regulate the practice of the judicial courts. In the Supreme Court a motion was made to dismiss the cases, for defect of jurisdiction, the decision of which motion was reserved, and adjourned.
    No counsel appeared on either side.
   By the Court :

The application to redeem lands sold for taxes is to be made to-the court of common pleas of the county where the lands lie. Notice of this application is to be given in the newspapers, specifying its object, and describing the land proposed to be redeemed. The court are required to examine the facts set forth touching the applicant’s right to redeem, and “the counter testimony of the adverse party, if any be offered.” Upon this examination the court are required, by law, if satisfied that the applicant is entitled to-redeem, “to make an order of redemption,” to “award restitution, of the premises, and direct that the applicant shall pay the costs of the application.” The proceeding is clearly contemplated to-be an adversary litigation between adverse parties. It must, consequently, be in the nature of a 11 suit or action,” and .comes fairly within the terms of the law under which the causes are certified to us. The case is one within *the inconvenience intended to-be provided for, as well as within the letter of the statute. W& would rather prefer to aid the full administration of justice by a. liberal construction of the terms used, than to adopt a strained one to divest ourselves of jurisdiction. It is therefore decided to retain the cases for final adjudication, that the party may not be-deprived of the remedy which the law contemplated, to afford him.


author: Hitchcock, J.,

text:
    Gibson and others v. Duncan McArthur and others.
    Under the statute of February, 1824, depositions taken upon notice before the-mayor of Alexandria, in the District of Columbia, could not be read in. evidence. Otherwise under the law of March, 1831.
    This case was reserved in the county of Pickaway.
    It is a proceeding in chancery, but as the question decided has-no connection with the merits of the case, it is unnecessary to give-an abstract of the bill, answer, exhibits, or evidence.
    Certain depositions were offered in evidence by the complainants, which were taken before the mayor of the town of Alexandria,, in the District of Columbia. These depositions were excepted to, on the ground that, under the statute of this state, in force at the-time these depositions were taken, an officer of this description-had no authority to take depositions to be r.ead in evidence in this-state.
    Swan, Leonard and Caldwell, in support of the objection.
    Scott, Murphy, Stanbery and Hunter, for complainants.
   Hitchcock, J.,

delivered the opinion of the court:

The depositions offered in evidence purport to have been taken-under section 72 of the practice act of February 18, 1824, 22 Ohio L. 65. At least they were taken while that act was in force, and at the time there was no other law in the state, authorizing the taking of depositions under a notice merely. This section provides-that, under the circumstances ^therein specified, the depositions of certain persons “may be taken, before an j justice or judge ot any of the courts oí the United States, or before any chancellory s.master commissioner in chancery, justice or judge of a supreme or superior court, mayor or chief magistrate of a city, or judge of any , county court, or court of common pleas, or justice of the peace, of any of the United States or of this state.” Here are two descriptions ■ of officers who are authorized to take depositions; those who . derive their offices from the United States, and those who derive their offices from the several states. Of the first cla'ss is the “justice ov judge of any of the courts of the United States.” The judicial officers of the Supreme Court of the United States are ■ styled justices; of the several district courts, judges. Before either ■ of these, depositions might be taken under the statute. And per- ■ haps it would not be a forced construction to say that they might be taken before the judical officers of the territorial courts of record. They derive their authority from the United States, and the courts in which they preside are courts of the United States.

Of the latter class are a “ chancellor,” “ master commissioner in ■ chancery," “justice or judge of any supreme or superior court,” or of any “county court or court of common pleas,” “mayor or chief magistrate of a city,” or “justice of the peace of any of the United .States or of this state." In some of the states the judicial officers of the higher judicial tribunals are styled justices, in others, judges. In our own state they are known by the latter appellative. Ail these officers derive their offices from the state authority, and before ..any of them, might depositions be taken under our statute of 1824.

Alexandria, however, is not a town of any one of the states of this Union. It is not located in any one of the states, but in the District of Columbia, a territory of the United States. Its “ chief magistrate," then, as such, had no power to take these depositions, because the power is delegated only to a “ mayor or chief magistrate ” of a city, in one of the United States or of “ this state.” It •.is said that the mayor of Alexandria is, ex officio, a justice of the peace, and as such may exercise this power. But the statute refers to justices of the *peace of “ any of the United States, or of this state." The objection is not that this officer has not power to administer oaths, but that he is not an officer specified ,-in the statute, and empowered to discharge the duty of taking depositions.

It has been urged, in argument, that the mayor of Alexandria .being, ex officio, a justice of the peace, and that town being within a territory of the United States, that, therefore, the court which he is authorized to hold, is a court of the United States, that he is ■ a justice of that court, and as such justice might take these depositions. There is more of ingenuity than force in this argument.. It is not to be believed that the legislature, when speaking of a - “justice or judge of any of the courts of the United States," had reference to the justices of the peace appointed by the authority of the United States. Else why did they, in the subsequent part ■ of the same section, after having named “justices or judges ” of the state court, speak of “justices of the peace” as distinct officers ? A majority of the court entertain the opinion that, under this statute, a justice of the peace of one of the territories of the-United States had not authority to take depositions.

Nor is this the first time the question has been before the court. True, it is the first time the question has been before the court in bank, but not upon the circuit. And upon the circuit it has been repeatedly decided, and such depositions rejected. It may bethought that this is giving a strict construction to the statute. But it' must be remembered that depositions are not unfrequently ex parte. And where there is a statute authorizing the taking of them, that statute should be strictly pursued.

In the present case it has been urged, that, inasmuch as the proceedings are in chancery, a different rule should be adopted. The statute itself makes no difference whether the proceedings are at law or in chancery. In either case depositions may be taken. And in either ease the party has his election to take them under a commission or dedimus potestatem, or under the statute by giving notice. The complainants might have pursued the former course, and their depositions would have been well taken; but having-elected to pursue the latter, they must be bound by it. They *have attempted to pursue the statute and failed. Their depositions must, therefore, be excluded.

It is objected, however, that this question has been already decided in the present case, and that, therefore, it is too late to take-the exception. The fact appears to be this: At the September-term of the court, 1830, in Pickaway county, this case came before the court, and these same depositions were offered in evidence and objected to for the same reason as at the present time. The two judges who held the court divided in opinion as to the propriety of their reception. According to .the ordinary px'aeticeunder such circumstances the depositions were read. The clerk •entered upon the journal of the daily proceedings that the objection had been made and overruled. It is not customary that interlocutory decisions of this character appear upon the journal. They constitute no part of the record. But in this caso it so happened that this does appear. At a subsequent day of .the term the whole case was reserved for decision in bank. This very difference of opinion might have been one reason for this reservation. It certainly would have been a sufficient reason. For if these depositions are rejected there is no evidence to support the ■complainants’ claim.

The whole-case having been reserved, the counsel for the defendants again raise the objection, and insist that the decision in Pickaway can have no binding force upon this court. And such is the unanimous opinion of the court. In fact, that was no de- • cisión; owing to a difference of opinion it was impossible to de- ■ cide. To hold otherwise would result in this absurdity: that a • court, consisting of four members, would be compelled to decide .a case upon evidence which three of them believed to be incompetent or improperly taken.

It may be well to observe that under the present existing law the same difficulty does not exist. The “ act to provide for the taking of depositions,” passed March 3, 1831, 29 Ohio L. 123, in •section 1, has a provision authorizing justices of the peace, of the territories as well as of the states, to take depositions.

*These depositions being excluded on account of having been improperly taken, the case may be continued to give the complainants an opportunity to retake them.

Judge Collet dissented.


text:
    Thomas Reily v. Miami Exporting Company.
    Several judgment creditors having levies upon land agree that it shall be sold on one, a good title pass to the purchaser, and the priority of lien be settled in a contest for the proceeds. No party to such agreement will be permitted to proceed on his judgment against the land, after a fair sale.
    This is a chancery suit, and was reserved in Hamilton county for decision here. The facts are disclosed in the opinion of the court.
    Stoker and Fox, for complainant,
    cited 5 Ohio, 180; 6 Bac. Ab. 106; Stat. of West. 2, 13 Edw. I.; 2 Call, 183; 3 Caine, 262.
    Y. Worthington, contra,
    cited 5 Ohio, 178; 18 Ohio L. 180; 22 Ohio L. 67; 4 Ohio, 56, 459, 465; 13 Johns. 537, 550; 1 Peters, 323; 1 D. R. 389; 2 Seld. Pr. 188; 6 Term, 283; 2 Arch. Pr. 72, 76; 1 Peters’ C. C. 449; 1 Wash. C. C. 463; 3 Wash. C. C. 209; 2 Saund. 72; 4 Bibb, 24, 94; 2 Tidd’s Pr. 1031, 1152, 1159; 4 Com. Dig. 142; 2 Bac. Ab. 361, h; 6 Mod. 288; 1 Strange, 100; Hardin, 520; 2 Serg. & R. 142; 1 Ohio, 150, 465; 2 Ohio, 71, 290, 396, 400; 3 Ohio, 139, 223; 3 Caine, 270; 8 Johns. 365; 13 Serg. & R. 203; 2 Call, 103; Va. Rev. Code, 416; 3 Bin. 344; 7 Cowen, 540; 2 Jac. L. Dic. 481; Ter. Laws, 16; 3 Ohio L. 69; 6 Id. 147; 8 Id. 71; 10 Id. 57; 14 Id. 171; 20 Id. 68; 22 Id. 108, 201; 29 Id. 73, 101, 114; 2 Saund. 72, v. 47, m. 101, p. 472; Cro. Eliz. 209, 237, 391, 397; 3 Bibb, 344; 2 Ld. Raym. 1073, 1172; Cro. Jac. 73; 6 Mod. 290, 297; Salk. 276, 323; 2 Im. Pr. 465; 1 Seld. Pr. 535; 1 Chit. Pl. 354; Cro. Car. 328; 12 Johns. 208; 1 Mass. 403; 7 Johns. 428.
   Judge Wright

delivered the opinion of the court:

*Beily, the complainant, claiming to have title and possession of certain lots of ground in Cincinnati, seeks the aid of this court to quiet his title, and to compel the defendants to release claims by them set up to the property. The proceeding is predicated on section 14 of the chancery act, 29 Ohio L. 83, which provides that !i any person having the legal title ,and possession of lands may file a petition against any other person setting up a claim thereto; and if the complainant establishes his title to said lands, the defendant shall be decreed to release his claim and to pay the complainant his costs, unless the defendant, in his answer, shall disclaim all title or claim to such lands, and offer to give such release to the complainant, in which case the complainant shall pay to the defendant his costs, except for special reasons the court shall otherwise decree.” The case made is this:

Before the year'1820, one Hafer recovered a judgment against the Cincinnati Manufacturing Company, and levied an execution on the property in question. This is the oldest lien.

The defendants recovered a judgment against that company on-October 12,1820, and levied an execution upon the lots on January 30, 1821. This judgment was suffered to lie without execution* from June 19, 1823, until December 24, 1829, when it was revived by scire facias.

Davies and others recovered a judgment against that company on October 12, 1820, and levied execution upon the lots on January 31, 1821. Writs of venditioni exponas were issued upon this-judgment on April 2, 1822, June 25, 1823, and November 11, 1823. On December 15, 1823, a sale was made on the last vendí, to Davies & Co.

Lytle and Avery recovered judgment against the company on-December 27, 1820, and levied execution upon the lots on February 9, 1821. Upon this judgment and levy vendis were issued on March 27, 1824, and March 23, 1827, and June 16, -1829; and on the latter writ the lots were sold to the Miami Exporting-Company. This judgment was assigned to the Bank of the United States on April 13, 1826.

*On September 3, 1829, the counsel managing the three last judgments, entered into an agreement by which the sales on the two last were set aside, and the lots subdivided in order to effect better sales, and a new inquest and appraisement had in parcels. It was further agreed that execution should be issued on the Lytle and Avery judgment, then owned by the Bank of the-United States, to the November term, 1829, on whicn the lots should be offered for sale, and that upon such sale a clear title should pass to the purchaser, and that the priorities of the liens under the several judgments and levies, should be tried in such mode as might be thought advisable, and the proceeds of sale appropriated accordingly. Under this agreement an execution issued upon the Lytle and Avery judgment, on September 10, 1829, on which the lots were sold to the Bank of the United States for twenty-six thousand eight hundred and sixty dollars, upon November 16, 1829. This sale was affirmed by the court, and a deed made by the sheriff in pursuance-of the order of confirmation. The Bank of the United States subsequently sold and conveyed these lots to the complainant.

The proceeds of this sale to the Bank of the United States was by common consent first applied to satisfy Hafer’s judgment. As to the residue, application was made to the court to direct the distribution, in behalf of Davies & Co. and of the defendants, and of the bank. The order of distribution was brought before this court and decided in January, 1831. See 4 Ohio, 459. The court, determined that the judgments of Davies & Co. and the Miami Exporting Company had become dormant, because at the time of the sale to the bank, no executions had issued upon them for more than'five years, and so were not entitled to any distribution of the proceeds oí sale, and that all advantage arising from the previous sales on these judgments had been waived by their voluntary appearance in court and setting them aside.

Since this decision, the Miami Exporting Company have taken out execution upon their judgment, sold a part of the - premises by the sheriff, have themselves become the purchasers, and obtained a deed. Upon this they claim to hold the lots, and threaten ejectment to recover possession.

The view we take of the case renders it unnecessary to follow the counsel for the defendants through the various ^points discussed with much ability in the argument. The simple question is, has the Miami Exporting Company authority to go back of their agreement under which the property was sold to the-Bank of the United States, and sSt up their judgment lien. There is no pretense of fraud or unfairness on the part of the bank, in procuring the agreement. It was under standingly made by the parties in interest, to obtain a better price for the property, leaving the right of each to be made operative upon the proceeds, to be settled as they should be advised. Their claims were made in a court of competent jurisdiction, and settled, the claim of the Miami Exporting Company being adjudged invalid after a severe contest. If the decision bo erroneous, this court has no power to renew it; while the decision remains unreversed, it is conclusive upon the subject of it. The Miami Exporting Company was an active agent in procuring the sale on the Lytle judgment. She agreed to it, and agreed moreover, “that a clear title should pass to the purchaser under that sale.” “How can a clear title pass to the purchaser, if this company can be permitted to set up against the lots the lien of their judgment? ” The sale, under the agreement of the parties, as .it regards their claims against the purchaser, is precisely as if it had been made under either or all of the judgments claimed to be liens; the same as it regards the Miami Exporting Company as if made upon execution on her judgment. Each of the parties agreed to support a sale for the benefit of all, and to settle their priority of lien in a contest for the proceeds of .sale. It would be a gross fraud upon the purchasers, if either of the parties, having thus induced a purchase upon the assurance that a clear title should pass, were permitted to set up their prior lien against the lots, and a title against that passed by their own agreement to the purchaser. “It is a well-established principle in equity, that if a person, having a right to an estate, permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right; ” and this rule prevails even against femes covert and minors. Smiley v. Wright, 2 Ohio, 510; 16 Ves. Jr. 253; 4 Munf. 449; 11 Johns. 564; 6 Johns. Ch. 166; 9 Mod. 35; 6 Ves. 174; Cory v. Girthen, 2 Mod. 40; 1 Vern. 136; 7 Ves. Jr. 231, 236 ; *5 Ves. Jr. 688, 689; 2 Atk. 33; Jeremy Eq. 387-389; 4 Johns. Ch. 65; Ohio, 318.

The title and possession of these lots being in the complainant, he makes a case for relief under the statute. The defendants will be perpetually enjoined from enforcing the lien of their judgment against these lots, and ordered to release the complainants and pay costs.


text:
    Pelatiah Bliss v. David Long.
    This is a motion to quash an appeal from the common pleas. It is the same case adjourned here from Cuyahoga the last term. See 5 Ohio, 276.
   By the Court :

By the transcript now exhibited, it appears the court of common pleas, since the last continuance of this case, has retaxed the costs, and rejected from the judgment six dollars and five cents, by mistake of the clerk, included in it. The bond is now in double the amount of the judgment in the court of common pleas, and sufficient. The motion being now without any foundation is overruled.