author: Judge Hitchcock;

text:
    Lessee of Ludlow’s Heirs v. David E. Wade.
    Case of Ludlow v. Johnston reviewed and affirmed.
    Loose and vague proceedings of the courts in the first stages of the territorial' government, to be sustained if possible, consistent with principle.
    The power of an administrator to sell the lands of his intestate is derived-' from'and dependent upon the statute that creates it. Though an order of court be made for carrying the law into effect, yet, if the statute be repealed before the order is executed, its effect is at an end, and no valid’ sale can be affected.
    An order of court, authorizing the administrator to sell the lands of his intestate, remaining unexecuted, is not a “ suit or prosecution pending,” within the saving clause of the general repealing law of February 22,180&.
    This was an action of ejectment reserved for decision here from the county of Hamilton, upon a motion made by the defendant for a new trial. The case is presented in the subjoined statement of facts, drawn up and filed, at the trial, by the direction of the court: This cause came on for trial before a jury, at the term of May, 1831, before this court, when the plaintiffs gave in evidence a deed-from Jonathan Dayton to Israel Ludlow, covering the premises in question, dated May 1,1803. Also, a copy from the record of deeds-of the county, of a deed from William H. Harrison and John O.Short to Jonathan Dayton, covering the premises in question, dated October 31,1818. Also, the last will and testament of J ohn 0. Symmes, the patentee of the Miami Purchase, and the testimony of Hezckiah Flint, who proved that Israel Ludlow claimed the land in question as early as the year 1799, and offered to sell, it as his own ; and that the defendant had declared that he purchased the land in question of the administrators of said Israel Ludlow. It was admitted that Israel Ludlow died January 21,. 1804, that the lessors of the plaintiffs are his heirs at law, and were minors at the time of his death, and that the defendant was in the possession of said *premises at the time of the service of the declaration, and had been since the year 1806. It was admitted that the said James C. Ludlow was born in the year 1798; said Martha C. Dudley, wife of Ambrose Dudley, was born in the year 1800; said Sarah Bella Garrard, wife of Jeptha D. Garrard, was born in the year 1802, and said Israel L. Ludlow was-born in May, 1804; and the plaintiffs there rested their case. The defendant then offered in evidence the transcript of th<* court of common pleas of the county, containing the appointment •of the administrators of Israel Ludlow, and an order of the court of common pleas of May, 1804,' directing said administrators to sell lands, in these words :
    “Administrators of Israel Ludlow, deceased, exhibit an account current of said estate. John Ludlow and James Findlay, two of the administrators sworn, and pray order to sell the real estate to satisfy the debts, etc. Court grant the prayer of the administrators, excepting and reserving the farm and impro.ved lands at Cincinnati, together with the houses and lots' in Cincinnati.”
    And also a deed from said administrators, to the defendant, for the tract of land in-question, dated March 25, 1807. And also offered proof that the estate of said Israel Ludlow was largely indebted at the time of his death; that one judgment in the court of common pleas of said county was standing against him at the time of his death; that another judgment was recovered against the estate between May, 1804, when the above order was entered, and January 1, 1805; and that several other valid claims against the estate of said Ludlow were presented to the administrators for payment, before and after the order of May, 1804, and payment thereof was urged. That after the order of May, 1804, the administrators promised the holders of the judgments and claims aforesaid, that if they would give'time, and delay pressing the collection thereof, that the same should bo satisfied out of moneys to be raised by virtue of the order aforesaid. And relying upon such promises, and on the faith thereof, the holders of said claims :and judgments, after the making of said order, and before January 1, 1805, did give time to said administrators, on the said claims and judgments, and delay the collection thereof, until 1808. *And the said judgments and claims were afterward satisdied by said administrators, out of the proceeds of the sale by them of the land in question. The defendants also .offered in evidence the accounts of the said administrators, filed in the court of common pleas, in the progress of the settlement of that estate. To the foregoing evidence, offered by the defendants, the plaintiff, by their •counsel, objected; and the said objection was sustained by the •court, and the whole of said testimony overruled. And thereupon the court directed the jury to find a verdict for the plaintiffs. And now the defendant moves the court for a new trial, for the reason that the court erred in overruling the testimony as above stated.”
    The land in controversy was sold, under the order before recited, by the administrators in the year 1806, to the defendant'. The law under which the order was made was repealed in February, 1805, to take effect June 1st of the same year. No other law enabling executors or administrators to obtain authority to sell a decedent’s lands was enacted until February, 1808.
    The plaintiffs maintained that the repeal of the law abrogated the effect of the order and power to sell, and that the sale was consequently unauthorized and void.
    The defendant contended that the order was in the natux’e of a judgment, and could not be affected by a repeal of the law, after it was made.
    He contended, also, that the saving clause of the repealing law embraced the case and preserved the effective force of the order.
    In support of the motion for a new trial, upon these grounds, the case was most elaborately argued by N. Wright, Storor and Fox, E. King, B. P. Wilcox, and Gaines, for the defendant; and by Hammond and Garx-ard against it,- for the plaintiffs. The opinion of the court reviews, at large, the arguments and authorities.
   Judge Hitchcock;

delivered the opinion of the court:

The questions presented for decision in this case have heretofore been submitted to the court in a variety of shapes, *in several actions which have been px-osocuted, growing out of the settlement of the estate of Israel Ludlow. Heretofore it has been unnecessary to decide them, and the court have carefully avoided forming a definite opinion upon them, until necessity should require it. Such necessity now exists, and we are highly gx'atified at the more than ordinary efforts which have been made, by the eminent counsel in the case, to aid and assist us in coming to a corx’oct conclusion.

In the case of the Heirs of Ludlow v. Johnson, 3 Ohio, 353, this court decided, together with other principlés arising in the case, that the law of 1795, “for the settlement of intestate estates,” was the first law of the territory or state giving authority to administrators to dispose of'the real estate of their intestates, and the only one giving this authority, previous to June, 1808; and that the law was repealed and ceased to have effect from and after the first day of June, 1805.

The case was decided after mature deliberation, and after every reflection had been bestowed upon it, which the importance of the subject and the value of the property in controversy demanded. The decision was concurred in by all the members of the court then present. Since that decision the same questions have been presented in a variety of aspects, and the principles of that decision-have been considered as the settled law of the state. All the-mem-' bers of the court, as now instituted, are satisfied with those principles. So far, then, as any point is made in this case which was decided in the case referred to, it will not be particularly examined,, but considered as settled by the authority of that case.

Three questions not heretofore directly decided are now presented to the court for consideration :

1. Is the order of May, 1804, under which the land in controversy was sold, of such a character that the purchaser can protect himself under it?

2. The order for sale having been made in 1804, and before the-law of 1795 was repealed, what effect will that rep>eal have upon those sales which were made subsequent to the repeal?

3. What effect can be given to the saving clause in the *general repealing law of February 22, 1805, so far as respects cases like the one now before the court ?

By the counsel for the plaintiffs, it is contended that the order of May, 1804, is void, and therefore that the defendant can not protect himself under it. The subject was hinted at in the case of Ludlow’s Lessee v. Johnson, but the argument was not pressed. In the"decision of that case the court considered the order as sufficient to protect a purchaser, without examining very specifically its-terms, or the arguments which might be urged against it.

The law of 1795, Ohio L. L. 331, under which this order was-made, provides that “ if any person or persons should die intestate, being owners of lands or tenements, within this territory, at the time of their death, and leave lawful issue to survive them, but not a sufficient personal estate to pay their just debts and maintain their children; in such case it should be lawful for the administrator or administrators of such deceased, to sell and convey such part or parts of said lands or tenements, for defraying their just debts, maintenance of their children, and for putting them apprentices,, and teaching them to read and write, and for improvement of the residue of the estate, if there be any, to their advantage, as the orphans’ court of the county where such estate lies, shall think fit to allow, order, and direct, from time to time.”

In the next section it is provided that no lands contained in marriage settlement shall be disposed of contrary to the form and effect of the settlement. That no sale shall be allowed before the “administrators requesting the same do exhibit one or more true and perfect inventories and conscionable appraisement of all the intestate’s personal estate whatever; as also a true and just account, upon his or her solemn oath or affirmation, of all the intestate’s debts which shall be then come to his or her knowledge, and if thereupon it shall appear to the court that the intestate’s personal estate will not be sufficient to pay the debts and maintain the children, until the eldest attaius the age of twenty-one years, or to put them out to be apprentices, and teach them to read and write, then, and in every such case, and not otherwise, the court shall allow such administrator to make public sale,” etc.

*This is the law which first, in this state or territory, authorized the administrator to interfere with the real estate of the intestate. It will be seen that the legislative authority were extremely careful in specifying the circumstances under which this interference should be had, as well as in prescribing the coui’se to be pursued before the orphans’ court had the power or jurisdiction to “ allow ” a sale. The object does not seem to have boon so much to provide for the payment of debts as to provide for the maintenance and education of minor children. Unless the decedent had “issue,” according to section 7, the section above first recited, power is not given to the administrator to dispose of real estate. And, according to section 8, this power is restricted unless the children are all under twenty-one years of age. Giving this law a natural construction, let a person die ever so much in debt, and leaving ever so much real estate, but leaving no'issue, that real estate could not, through the agency of the orphans’ court, be appropriated to the payment of his debts.

• At the present day such a statute would not,-probably, be very acceptable to the people of Ohio; but we must take it as it was, not as we nowtsuppose it ought to be. This statute was adopted from Pennsylvania, and I believe the courts of that state have construed it as extending to all intestate estate, as well where there was not as where there was issue. Justice might require such, construction, but the/words of the act would scarcely seem to warrant it.

Before the court can act, the administrator is bound to present two inventories of the personal property and “ conscionable appraisement.” He is also bound to present an account of debts due from the intestate, as far as the same may have come to his knowledge, verified by his own oath or affirmation. It is objected, that the order in this case does not show these facts. Neither does it show that there were any minor children or other issue left by the intestate. Neither is there any other evidence of record to show these facts. Nor anything from which it can be inferred that the personal property was not sufficient to pay all debts. The order is further objected to on the ground of vagueness and uncertainty.

*It is in these words: “ The administrators of Israel Ludlow, deceased, exhibit an account current, and pray the court to issue an order for the sale of real property, etc. John Ludlow and James Eindlay sworn in court. The court order so much of the real property sold as will meet the said demands, except the farm and improved lands near Cincinnati, together with the houses and lots in Cincinnati.” This order is certainly very vague and indefinite, and it is difficult to get over the objections raised by the plaintiff’s counsel. It ought, unquestionably, to have appeared somewhere upon the record, that these circumstances concurred, without which the court has no power to “ allow ” the administrator to sell. These circumstances probably existed and wore made known to the court. It would have been far better, however, that •they should have appeared of record, either in the form of an application to the court as the foundation of the order, or in the order itself. Were this a proceeding of the present day we should hesitate to pronounce it irregular and void, as being too indefinite and loose to protect an individual who had purchased in pursuance of it. But it must be recollected that these proceedings were had at a very early period of our judicial history; and experience teaches us that we must view these early proceedings with a more favorable eye than those of more modern date. Such has been the course heretofore adopted (3 Ohio, 272), and we do not feel inclined to depart from it.

Nor has it escaped the notice of the court, that the probate business, in some parts of the state, and particularly in the county of Hamilton, was at an early period conducted in a very loose manner. Pew, if any, of the orders for the sale of real estate were regular, perhaps not so much so as in the present case. Yet lands were sold in many instances by administrators. These lands have passed into the hands of subsequent purchasers. They have improved in their condition and risen in value. It would be impossible, therefore, even to conjecture the immense injury which would be done by holding this order invalid. Although such has been the irregular manner of transacting the business, still it is to be presumed that little, if any, injustice has been *done. Lands of intestates have been sold, but the avails have been applied to the payment of their debts. Prom these considerations, and we are frank to say that it is from these consideration alone, we are inclined to hold this order valid. It was made by a court having, under certain circumstances, jurisdiction of the subject matter, and we will presume that, those circumstances existed and were made known before the order was entered of record.

I come next to consider what effect the repeal of the law of 1795-would have upon sales made after that repeal, but in pursuance of the order of 1804.

In order to arrive at a certain conclusion upon this question, it is necessary to inquire into the character of an order of this-description. It is strenuously argued by the defendant’s counsel that it assimilates itself to a judgment or decree of a court; and, going upon this hypothesis, that the repeal of a law could not-affect it, unless clearly so expressed by the repealing law itself. If the premises are true, this consequence will follow.

So far as the interests of purchasers are concerned, this court-have ever considered these orders of equal validity with judgments. 3 Ohio, 257, 561, 562; 4 Ohio, 130, 131. As a purchaser from the sheriff need not look behind the judgmént, neither is it necessary for the purchaser at the administrator sale to look behind the order of sale. If the court have jurisdiction of the subject matter,, this is sufficient.

But does the analogy hold beyond this? It is true, in the case of Goforth’s Lessee v. Longworth, 4 Ohio, 131, the court say, in speaking of such an order, “this act to be performed by the court is essentially of a judicial character; a judgment is tojbe made up and pronounced; and this judgment is the foundation of the administrator’s or executor’s power to sell. To 'see the applicability of this language, it is necessary to look at the facts of the case then under consideration. The defendant relied upon a title derived from an administrator’s sale, but produced no order of sale. The question to be determined was, whether without such order the sale could be sustained. By the court it was held that it could not. And it will be found, by an examination *of all the statutes upon the subject, that an administrator could at no time sell without the approbation of the court. The law makes-provision for the sale, but leaves it with the court to ascertain whether there is such a combination of circumstances as will under that law justify a sale. Without such order the sale would be void. The order, then, is essentially necessary; it is the-foundation of the power to sell. But without a law authorizing the sale the order itself would be void. It would lay no ‘ foundation ’ that would justify the execution of such power. Every order of court to extend may be considered as a judgment. But it is in the character of a final judgment that an order of sale must be considered, or the consequence will not follow which is contended for by the defendant’s counsel.”

The object of a judgment is to settle conflicting rights between parties — to render certain that which before was uncertain. And whenever a party recovers a judgment, a right is vested in him to receive that which he has recovered. This right can not be taken away by implication, and it may well bo doubted whether' it would be in the power of the legislature to divest him of it.

Now what right is settled by an order to sell land ? What does the administrator gain by it? It may enable him the more-readily to settle the debts of the intestate. But to him it is immaterial whether those debts are paid by property passing through his hands, or by property which passes to the heir, and in his hands is charged with the payment of those debts. An administrator who acts in good faitn can never be charged beyond the amount of assets which came to his hands. And if the law will not permit him to dispose of the real estate, he has nothing more to do than to dispose of the personal and distribute the' avails among the creditors or heirs, as the case .may require. Neither do the creditors acquire any right in consequence of such an order. So long as the realty is subject to the payment of the-debts of a deceased person, they have a claim to have their debts-■satisfied out of that estate. But whether they shall obtain that satisfaction in one mode or another is a different matter. Further, in cases of this description, they are in no shape parties to the proceedings. It seems clear to me that this border can in no shape be assimilated to a judgment between litigant parties, except so far as a purchaser is concerned.

Counsel for the defendant seem to think that the power to -sell depends upon the order of court. Without the order, it is •true, the administrator can not sell. But the power itself is derived from a higher source, from the legislature itself. By his ■appointment the administrator is vested with an interest in the personalty, but he has no concern with the realty. At common law an administrator has no right to interfere with the latter.. "Tjhe statute, however, authorizes him to do it under certain circumstances. But it does not leave it in his discretion to determine whether those circumstances do or do not exist. This is to be determined by the probate court upon an examination of the facts. And it is only with the approbation of that court that this power intrusted to him, not by the order of the court, but by the law under which he acts, can be exercised. It can not but be noticed -with how much care the legislature. have, in all this business, guarded the estate of the intestate. They authorize the administrator to sell, but do not leave it to his discretion when a sale ■should take place. It can only be done when a certain state of 'facts exist, and when such is the.case it may be done, provided the court advise or direct. In this view of the case I can look • upon the order of sale as nothing more than record evidence of the existence of the necessary .state of facts to justify such a proceeding, and the assent on the .part of the court that the administrator should exercise a power previously vested in him. It calls that power which was before dormant into life and activity. It follows, then, that a repeal of the law is a revocation of the power. And after its revocation a sale made would be void, al-though during the existence of the statute an order for such sale had been made. In fact, the right to sell depends both upon the •existence of the law and of the order, and when either ceases to be in force the-right is gone. A repeal ofthe law would not have .an effect to rescind equivalent to the effect which the reversal of a judgment would have upon that judgment. And as after such ■reversal a sale made would convey nothing, so after the repeal of the law would a sale made be void. While both *the law and the order are in force a good title can be made, but not after one is repealed or the other rescinded.

It remains to be considered whether such effect can be given to-the saving clause of the general repealing law of February 22,. 1805, as so far to continue the order of 1804 as to sustain the sale under which the defendant claims.

Section 1 of this act provides “that all the laws adopted or' passed by the governor and judges prior to the 1st day of September, in the year of our Lord 1799, and now in force in this state,, be and the same are hereby repealed.” Section 2 : “ That all laws- and resolutions passed by the territorial legislature prior to April 1, 1802, be and the same are hereby repealed, except,” etc. “ Provided, nevertheless, that nothing in this act contained shall be so' construed as to affect, in any manner, any suit or prosecution now-depending and undetermined, but the same shall be carried on to-final judgment and execution, agreeably to the provisions of any. of the said laws under which the suit or prosecution may have-been commenced and the practice of the courts.”

The determination of this case, so far as the present question is concerned, depends upon the meaning which shall be attached to the phrases, “ suit or prosecution.”

It is insisted by counsel that the provision before recited should, be attached and made applicable to all the acts by which territorial, laws were repealed during that session, whether repealed by their title or by this general repealing law. And considering that under the law of 1795 no other proceeding could be had in court, except to procure an order for the sale of land, they urge that such application must be considered in the nature of a suit and the order of a judgment within this saving clause.

To a certain extent this position may be correct. I incline to the opinion that it was the intention of the legislature that the effects of this provision should apply to the repeal of all those' laws when it was necessary for the furtherance of justice, or rather, where laws were repealed under which it might be supposed that a suit or prosecution could be pending; and that whether the law was repealed by its title or by *the general law. To consider it as applicable to the repeal of the statutes would be useless. Rut it does not follow, because such was the intention, that a new meaning shall be given to words, or that they shall be-construed to mean anything different from their ordinary signification. Unless there was a necessity to save a suit or prosecution, this saving clause could not be considered as attaching to the repeal of the law of 1795. Prom the position of the defendant’s • counsel, then, no inference can bo made with respect to the meaning of the phrases “suit and prosecution.” At least no inference which can go to change their ordinary import.

I am led to the conclusion that it was the intention to apply this saving clause to the laws generally, by an examination of the session of 1804-5, and from the peculiar phraseology of this repealing law.

It will be found that the several statutes passed that session took effect at a subsequent period. Most of them in June. Some few of them earlier, and one, at least, as late as August. During the' session there was a general revision, and, as a general rule, when the legislature acted upon any subject, they repealed by their title such as were upon the same subject, and also all others coming within the purview of the statute which they were then enacting. It is said by the defendant’s counsel, that every territorial law then in force was repealed by its title, with the exception of the law of 1795, “for the settlement of intestate estates.” That this law was as effectually repealed, as if it had been named by its title, by the act of February 21, 1805 (3 Ohio L. 188), “defining the duties of administrators on wills and intestates’ estates,” •etc., I can have no doubt. Although this course was pursued, there was not attached to each clause a proviso saving suits and prosecutions. This was the case in but very few instances.

Now let us look at the language of the repealing law. This act, like most of the others, was to take effect on the first day of June. By its terms the legislature do not profess to repeal laws, for the repeal of which provision had not been before made. Their language is, “ all the laws adopted,” etc., “ and now in force in this state be and the same are hereby repealed.” What laws were then in force? *As well those for the repeal of which, provision had previously been made during the same session, as any others which have been overlooked. The binding force and efficacy of all these it was enacted should cease on the first day of June then next. But all “suits or prosecutions ” under such laws, then pending, should be prosecuted to final “judgment and execution,” in the same manner as if the laws had not been repealed. This a]i< pears to me to have been the intention of the legislature, and, by giving this construction to their legislation, it will be found that there is less ground for complaint respecting it than has heretofore been thought.

"What laws were then in force, under which it might be reason.able to conclude suits or prosecutions, giving to these words their natural and obvious meaning, would be depending on the first day of June? The first law in the statute book (vol. 3, p. 1), is “an act respecting crimes and punishments.” This law repeals an act with the samé title, published at Marietta, September 6, 1788, and an act supplementary thereto, passed at Cincinnati, June 22,1791. It might be possible that on the first day of June there would be prosecutions depending under these laws, but still no provision is made in-this act that they shall be carried on to final judgment and execution. If we consider the saving clause of the #general repealing law as applicable to this statute, these prosecutions would be continued, otherwise they must cease and be determined. The act above referred to did not take effect until the 1st of August; the previous statutes upon the subject were, in virtue of the statute of the 22d of February, repealed on the 1st of June, and the state was left without any law for the punishment of crimes for the space of two months, to wit, from June 1 to August 1,1805. Those who were then acquainted with the state will recollect well the circumstances, and that it was in consequence of the construction given by the courts of that day to this general repealing law. That construction was, that this law repealed the previous territorial statutes upon the subject of the punishment of crimes,*on the 1st of June, although that repeal was provided for expressly in another statute, which did not take effect until the 1st of August.

*These were not the only statutes which were repealed by their titles during the session of 1804-5, and under which suits or prosecutions, as generally undei’stood, might have been depending, and which could not be prosecuted to final judgment and execution but for this general saving clause. I refer to the following, “ an act for the assignment of bail bonds,” of January 22, 1802; an “act regulating gristmills and millers,” passed December 2, 1799, an “act regulating divorce,” passed July 15, 1795. It is needless to name more.

Counsel for the defendant seem extremely anxious to attach this saving clause to the repeal of the law of 1795. So far'as it can be done, and still give to language its ordinary sense and meaning, I am willing to do it. But I have shown that there wore many other pre-existing territorial statutes, which were repealed and by their title too, under which suits and prosecutions might have been pending, and which must have been discontinued but for this proviso, and even under the law .of 1795, bonds-were required to be taken of the administrator. These bonds-might have been in suit, and under this proviso such suit might be prosecuted to final judgment. It is not to be supposed that the legislature had in view the law of 1795 any more than any other law. They were framing a system. And if in some respects it was defective, there is nothing extraordinary in the circumstance. It would be a dangerous course to pursue, in giving a-construction to their acts, to go upon the hypothesis that this case now before the court was intended to be provided for especially; or to suppose that construction to be controlled in any measure by its peculiar circumstances. The proper inquiry is, what is the law ? When that is ascertained apply it to the case before the court. It is a dangerous course, first to form an opinion upon a case, and then strive to give a construction which will sustain that opinion. There is much plausibility and ingenuity in the argument of counsel upon this point, but I must think it is somewhat deceptive.

In order to show that this order is embraced within the phrases “suit and prosecution,” counsel have gone into a critical examination of the meaning of the word “ suit.” But *the proper-manner of collecting the meaning in any particular case is to look at the connection in which it is used. As to the general signification in the common acceptation of the term, it has reference to-those proceedings by which an individual attempts, in a judicial court, to obtain redress for a civil injury. It applies to civil, as prosecutions do to criminal cases. The final end of such suit or prosecution is a judgment which may be enforced by execution. This being the common acceptation of the term, is there anything in the act of February 22, 1805, which should induce us to attach to it a different signification. The languagews, “nothing in this act contained shall be so construed as to affect, in any manner, any suit or prosecution now depending and undetermined, but the same shall be carried on to final judgment and execution, agreeably to the provisions of any of the said laws,” etc. It was a “suit or prosecution,” then, which could be carried into “judgment,” and such a judgment as could be enforced by “ execution” that the .legislature had in view. The language is too clear to admit of a doubt. And it can not be successfully contended that the order of May, 1804, was of that description. If not, it is not within this, saving clause.

Upon the whole, a majority of the court are of opinion that the evidence was properly rejected. The motion for a new trial will, therefore, be overruled.

Judge Collet dissented.


source: Caselaw Access Project

author: Collet, J.,

license: Public Domain

text:
    *Hinton, Administrator of Haggard, v. McNeil and others.
    Judgment in ejectment until reversed for error, or made void by adverse recovery in a subsequent suit, of tbe same obligation as other judgments.

      Hahere faaias poss. issued upon judgment in ejectment, and plaintiff put in possession, if again ousted, he can not have a new suit, but must resort to an original remedy.
    Though verdict may be technically against law, yet if substantial justice is done, a new trial should be refused. '
    This was an action of. trespass tried on the last circuit, in Ross county. A verdict was found for the plaintiff, against McNeil, for twenty dollars; the other defendants were found not guilty. A motion was made by McNeil for a new trial, which was reserved.
    The action was commenced by Haggard; on his death it was revived by his administrator. It was for turning Haggard out of possession of a farm and taking possession of it by the defendants, and converting the crops growing on the farm to their own use. It was proved on the trial that the premises are in Ross county, in the Yirginia military reservation; that one Stinson claimed them, and settled upon them with his family within a few years after the first settlement along the Scioto# in that county; that he died in possession ; that his widow and children, or some of them, continued in possession until the defendant, McNeil, got possession after January, 1823. That in 1818, Thomas S. Hinde obtained a patent for a tract of land which includes the premises; that he afterward commenced an ejectment in the United States Circuit Court for the Ohio district, and had his declaration served on the •tenant of Hinton and wife (the wife of Hinton is one of the heirs of Stinson); that one Mallow was made defendant to the ejectment for himself and the other tenants. In 1821, a judgment was rendered by the circuit court in favor of Hinde, after which Mallow filed a bill in chancery against Hinde, praying an injunction, which was allowed. Hinton and his wife and others were by consent made parties to the bill as complainants, and agreed that if the injunction was dissolved, the hab. fao.poss. on the judgment, might issue against them. The injunction was dissolved, and the bill ■dismissed without prejudice, in January, 1827. In January, 1823, Hinde, by deed of bargain and sale, conveyed to McNeil in fee the premises on which the trespass is charged to have been committed. ■Some time after, McNeil prevailed .on the tenant of Hinton and wife to go out and let him into possession of the premises; after which Hinton and wife brought an action of ejectment against McNeil to recover back the premises, and in *the Supreme Court for the county of Boss, in the fall of 1828, obtained a judgment in that action. A hab. fac. poss. issued on this judgment, by virtue of which the sheriff of Boss county, in the spring of 1829, put McNeil out, and Hinton and wife into possession. Hinton soon after leased the premises to Haggard, the intestate, for the year 1829, for which Haggard was to pay to Hinton one-third of the crop raised on the premises, and put Haggard into possession. In August, 1829, McNeil caused a hab. fac. poss. to issue on the judgment of the circuit court, which was soon after executed by a deputy marshal of the district, by putting Haggard out and McNeil into possession of the premises. Haggard had on the premises, at the time, a field of upward of thirty acres of corn, which would yield about forty bushels to the acre, two-thirds of which McNeil either delivered to Haggard or suffered him to take ■off, for which Haggard made him a receipt in these words:
    “Beceived of John McNeil, sen., my two-tliirds of all, according to my contract with Hinton; therefore, this is my receipt in full against all claims or demands against said John McNeil, sen,, up to this January 8, 1830.
    (Signe.d,) “David + Haggard.”
    “"Witness: Bobert C. Galbraith.”

      The defendant, McNeil, moves for a new trial on three grounds:
    1. By the patent to Hinde, and the deed from Hinde to McNeil, the title to the premises was shown to be in McNeil.
    2. The judgment of Hinde in the circuit court, and the hdb.fac. poss. were a complete defense to McNeil.
    3. The receipt of Haggard showed an accord and full satisfaction for the trespass.
    Brush, for plaintiff.
    Leonard, for defendant.
   Collet, J.,

delivered the opinion of the court:

It is a general rule that the judgment of a court, having juris•diction *of the subject matter and of the parties, is, as a plea, a bar, and as evidence, conclusive between the same parties •or privies in any action afterward prosecuted for the same matter by either against the other. So that no matter once litigated and determined, by competent authority, can, in general, again be litigated between the same parties or their privies. To this rule, in our. law, we remember but one exception, which is, that a judgment, in an action of ejectment, does not prevent the parties from retrying the same matter in another action of ejectment. Judgments are, many of them, liable to be reversed for error; and judgments in ejectment as liable as others. By reversal a judgment is made void, and the matters, litigated in the case reversed, again becomes open for litigation between the same parties. A judgment in ejectment is also liable to be made void, by the party, against whom the judgment is rendered, prosecuting another •ejectment against him who obtained it, and recovering against him. This second judgment makes void the first. But, until a judgment in ejectment is made void by one of these methods, it is as decisive and conclusive between the parties and their privies as to the right of possession of the premises for the time laid in the declaration, as a judgment in any other action is as to the matter litigated in such other aCtion. 1 Stark. Ev. 191, 192, 208; 2 Stark. Ev. 545, 546; 13 Johns. 234; 4 Bin. 359.

The recovery of Hinton and wife, in the ejectment against McNeil, was decisive of their right of possession. McNeil had not recovered the premises in another ejectment, nor was the’judgment of Hinton and wife reversed; he could not, therefore, rely upon his title. It is a general rule, that in trespass, the defendant can defend himself by showing title to the premises in himself; but if that title-has before been litigated between the same parties, and adjudicated by a court having jurisdiction, it can not again be litigated between them while that judgment is in force. In debt, the defendant may prove a counter debt as offset, or he may prove payment; but if the matter produced as offset or payment has before been litigated between the parties, and determined on, and the judgment unreversed, it will be rejected.

*As to the second ground, when a person claims the right to possess a tract of land which is in possession of another, the law gives such person the action of ejectment, in which his right is-tried; if he shows that he has the right of possession, judgment is rendered for him; he then has a right to have an habere facias poss.. commanding the marshal or sheriff, the executive officer of the court,, to remove the defendant from the premises recovered, and put the plaintiff in; when in, he has gained the object of his suit, and government,, or the law, will, in that suit, do no more for him. If he is afterward disturbed he must resort to another action. He can not have another execution. 2 Wheat. Selw. 565. If, after the judgment,, the defendant leaves the premises, or the lessor can take possession of them peaceably, he may do so without execution, and he will be protected by his judgment, as he would have been had he been put in on execution by the proper officer. He has as fully got the object of his suit. 13 Johns. 234. The execution and the officer, were unnecessary, as there was no objection or resistance to his taking possession. When he has obtained possession, he can not afterward have an execution. Adams on Eject, by Tillinghast, 312. When the lessor is in without execution, as he has precisely the game rights, he is protected by his judgment to the same extent, why should not the effect be the same ? Why should he after have an execution ? The defendant in either case has the same right to commence an action of ejectment against the lessor, or him whom he puts into possession, and a recovery in the second action against the lessor would make void, as has been before said, the first judgment. If, where there had been no execution on the first judgment,, one could still issue, it would defeat the effect of the second recovery. Hinde, the lessor, after his recovery in the circuit court, conveyed the premises to McNeil in fee. McNeil afterward took pos- • session by virtue of this conveyance, and was thereby clothed with all the right of Hinde by virtue of this recovery. The action of ejectment was afterward commenced against McNeil by Hinton and wife, and a recovery had against him. This judgment, if Hinde had been made a party to it, would have made void the judgment of the circuit court, as to these ^premises, or if he had aliened to McNeil, with warranty, and had had notice of the suit, he might have made himself a party, and was bound by the judgment as though he had been a party. 1 Stark. Ev. 195; 4 Bin. 359. If the conveyance was without warranty, then the judgment against McNeil made Hinde’s judgment, as to these premises, void; no one was interested in it, as to these premises, but McNeil. If the judgment was rendered void, no execution could issue on it.

•As to the third ground, the crop was made by Haggard. McNeil took possession in August, when nothing more could be done for the crop than to keep up the fences around it, until it hardened and dried, and then to husk and crib it. He let Haggard have two-thirds of corn only, as appears from the receipt. The whole crop amounted to more than twelve hundred bushels; Hinton’s one-third part, therefore, was more than four hundred bushels. The verdict is for twenty dollars, which, for four hundred bushels is five cents per bushel. This was justly due to Haggard, and on his receipt of it due by him to Hinton, his lessor. It appears to me that Hinton, the landlord, might use the name of Haggard, his tenant, to sustain, his action. I see no other plain remedy for him; and if so, Haggard could not defeat it, even by a release. Payne v. Rogers, Doug. 406.

Upon the whole, it appears to us that no injustice has been done by the verdict; when this is the case, the court will not grant a new trial. A new trial is only granted when injustice has been done by the verdict, and there is a probability that justice will be cdone on retrial. 2 Burr. 936.

The motion is overruled.


text:
    *Duncan McArthur v. Benjamin W. Ladd.
    ■When suit is brought against one of several joint contractors, as upon a contract made singly, taking no notice of the other parties, exception cannot be taken by demurrer, but by plea in abatement.
    An. indorsement upon an article of agreement enlarging its terms, mado and. signed by the parties, is to be taken as part of the agreement and must be declared upon as such.
    A contract between the owner of land warrants and a locator, to locate the-warrants for a certain portion of the land, each party to contribute a share of the expenses, does not create a partnership between the owner and locator.
    This cause, on the last circuit, was reserved by the court in Jefferson county for decision here. It was an action of debt. The declaration contained five counts; to it the defendant filed a general demurrer, and the plaintiff joined in demurrer. On these pleadings it came on to be decided.
    The article of agreement on which the action is founded, is made a part of the record, and is as follows : “ Memorandum of an agreement made and entered into, October 31, 1810, between Duncan McArthur, of Ross county, Ohio, of the one part, and Benjamin W. Ladd, acting for himself and partner, Joseph Ladd, and as agent for Thomas Norvell, of the State of Yirginia, of the other part, witnesseth, that the before-named Duncan McArthur, now receives from the -said Ladds and Norvell, Yirginia continental-military warrants and assignments of warrants, to the quantity of ten thousand acres, which he, the said McArthur, is to locate and survey immediately for the said Joseph and Benjamin W* Ladd and Thomas Norvell, upon the following terms and conditions, to wit: The entries and surveys are all to bo made on the west side of the line run by Ludlow, from the head spring of the Little Miami river, to intersect Ludlow’s .north boundary line,, which lino, when produced, was intended to strike the source of Scioto river, and to be the dividing line between Yirginia military and Congress lands. All office fees, chain carriers, etc., are to be-paid by Joseph, and Benjamin W. Ladd and Thomas W. Norvell. Duncan McArthur shall be entitled to one-fifth part of the land so located, having respect in the division to quantity, quality, and situation; but it is to be understood, that if from any cause whatever, the location made under this contract by the said McArthur for the said Ladds and Norvell should not hold the land, then and in that case the said McArthur shall not have any interest in or part of said warrants, but they shall be exclusively and entirely at the disposal of said Lsidds and Norvell: Provided, nevertheless, that in case Congress should give other lands or money in lieu of the land which shall be located by the said McArthur, it is to be understood that he, the said ^McArthur shall have his one-fifth part of all such lands or money; it is also expressly agreed upon between the parties hereto, that each, in proportion to-the interest that he or they may or shall have in the land, shall pay his or their proportionate part of all the expenses which may be incurred in trying the validity of the locations made by virtue of this agreement, whether before any court of law or before Congress, etc. Eor the faithful performance of all and every part of the foregoing contract, the parties hereto bind themselves, their-heirs, executors, etc., each to the other in the sum of fifty thousand dollars. G-iven under our hands and seals, in the town of Chillicothe, the day and date first above written.
    “ Benjamin W. Ladd, [l. s.]

      “For himself and partner, Joseph Ladd, and as agent for Thomas Norvell.

    “ Duncan McArthur., [l. s.]
    “Before And. Lindsey and Peter Spurgh.

      “Memo. — Whatever warrants or assignments B. W. Ladd shall send on to Duncan McArthur, in addition to the quantity mentioned within and one thousand acres now handed him, the said McArthur, is to be located on the same terms and conditions expressed within.
    (Signed,) “ Benj. W. Ladd,
    Dunoan McArthur.”
    The first count of the declaration states that, “Whereas the said Benjamin W. Ladd heretofore, to wit, etc., etc., by his certain writing obligatory, sealed with his seal, etc., acknowledged himself to be held and firmly bound to the said Duncan, etc., which said writing obligatory was and is subject to a condition in writing, being part and parcel thereof, to the effect following: ” then follows a copy of the agreement, except the part containing the penalty and the conclusion, and adding thus: “And it was also agreed by the parties that,” etc.; here follows the memorandum, indorsed on the agreement.
    It is then averred that Benjamin W. Ladd, in addition to the warrants for ten thousand acres and for one thousand acres, put into McArthur’s hands, to be located according to said agreement,1 warrants for four thousand seven hundred and sixty and two-thirds acres, amounting in all to fifteen thousand *seven hundred and sixty and two-thirds acres; that McArthur immediately made entries in Richard C. Anderson’s office on these warrants for all the lands called for by them; the land entered all situate west of Ludlow’s line, etc., and that he surveyed them. Here follow copies of the .entries and surveys. It is then averred that in making these locations he paid for office fees, chain-carriers, and necessary expenses ten thousand dollars, and that he paid for the use of Benjamin W. Ladd and Ladd and Norvell, in defending said locations before Congress and the judicial tribunals of the United States and the State of Ohio twenty thousand dollars, (sixteen thousand dollars) four-fifths of which Benjamin W. Ladd is made to pay; that McArthur, by the locations, became entitled to one-fifth part, etc., of the land located, but that B. W. Ladd, or Ladd and Norvell, or either of them, would not convey or assign to him, although requested, etc., the one-fifth part of said lands, or pay him any part of the money advanced as above. That the said B. W. Ladd afterward, etc., assigned and transferred the warrants located as aforesaid without and against the consent of McArthur; that the assignees withdrew the entries aforesaid, and thereby made void the locations and surveys made by McArthur, which makes it impossible for McArthur to obtain his one-fifth part of said land, whereby he is injured, etc.; whereby, etc.
    The second count is as the first; omitting the averments of money advanced by McArthur.
    The third is as the second, except that it avers generally that McArthur located the warrants according to the agreement, but does not set.out copies of the entries and surveys.
    The fourth is on the agreement rejecting the indorsement as a part, and is in other respects substantially as the third.
    The fifth is for the penalty only, without setting out the contract or assigning breaches of it.

      Collier and Collier, for the defendant,
    cited 9 Johns. 286; 4 Term, 313; 2 Caine C. E. 1; 1 Mont. on Part. 43; Gow Part. 185; 1 Saund. 154, n. 1, 291, notes; 1 Chit. Pl. 29, 32; 2 Taunt. 254; 5 Burr. 2614; 2 East, 313; 1 B. & P. 67; 3 Stark. Ev. 1062; 3 Cowp. 426; *2 B. & A. 746; 4 Ohio, 346; 9 Wheat. 587; 1 Chit. Pl. 303; 8 Johns. 253; 2 Johns. Cas. 55; 1 Mont. on Part. 1, 6; 15 Johns. 422.
    Tappan and Vinton, for plaintiff,
    cited 2 Wash. 168; 5 Peters, 116, 120-126; 1 Wash. 12; 1 Chit. Pl. 643; 1 Saund. 291. n, 3, 4; 1 Saund. 172 C. n. 4; 2 Anst. 448; 3 Anst. 811; Com. Dig. Attorney, C. 5; 5 Mass. 30; 5 Bin. 615; 7 Term, 205; 13 Johns. 307; 1 Hen. & Mun. 423; Co. Rep., 5 part, 119; 2 Bl. 948; Conn. 832; 1 Wash. 19; 5 Burr. 2611; 29 Ohio L. 68, see. 50; 1 Chit. Pl. 27, 28; 1 Camp. 329; 4 Esp. 182; 4 Esp. 145; 10 Johns. 226.
   Collet, J.,

delivered the opinion of the court:

It is contended that this action should have been brought against Joseph Ladd and Thomas Norvell, as well as against Benjamin W. Ladd.

Joint contractors, if living, must all be sued together, or those ■sued may-plead in abatement that another (narfting him) is a joint contractor, and-that he is living; or, if these appear by the declaration, advantage may be taken of them by demurrer. But neither of these facts appear by this declaration. It is averred to be the writing obligatory of Benjamin, that it is sealed with his seal, not that it is the writing obligatory of Joseph Ladd and Thomas Norvell, or either of them, or that it has either of their seals. It is not averred that Benjamin W. Ladd sealed for them, >or that he had authority to do so. The statement in the article .as copied into the declaration, is not an averment of McArthur; it shows that Benjamin W. Ladd represented himself as agent for Norvell and as a partner of Joseph, and no more. As a partner he could not execute a deed which would be binding on Joseph. Wat. Part. 218. If Joseph and Norvell were present when Benjamin made the deed, and authorized him to do so, for them, they are bound; but this is not averred, nor is it probable. Benjamin W. Ladd professed to be authorized to execute the deed for Joseph and Norvell; he should aver and prove it, and that they were one or both living when this action commenced, before McArthur can. be put *out of court on these grounds. If judgment was rendered against McArthur, he would have to pay the costs of this action. If, when he sued the others, he could not prove that Benjamin was, by deed, authorized to execute this deed for them, or that they were present when it was executed and authorized it, or if it appeared that they had since died,.he wouid have the costs of that action also to pay, and again to commence his action against Benjamin W. Ladd. B. W. Ladd is, undoubtedly, liable to McArthur on this contract, if it has been violated by him, and before McArthur can be compelled to recommence his action against him, joining others, it must appear by the admission of McArthur on record, or from proof by B. W. Ladd, that the others-are really parties to the deed, and that they are living. 1 Saund. 291, a. b., n. 1, 2, 3, 4; 13 Johns. 310; Rees v. Abbott, Cowp. 832, This objection, it is very clear, can not be sustained by the court.

It is contended that, the indorsement on the article of agreement is no part of it, but an indejmndent agreement not under seal, and that the first, second, and third counts of the declaration, which set out the indorsement as a part of the article, are therefore bad.

An interlineation or erasure materially varying a deed, made before its execution, or after, with the consent of the parties, does-not make it void, but the instrument as altered, is the deed'of the parties. The interlineation or erasure is presumed to be fair. Speake v. United States, 2 Pet. 249. It is not easy to perceive-why an indorsement, or a note at the foot, or on the margin of a deed, when there was not room to write it distinctly between the-lines in the proper place, should not have the same effect. On policies of insurance, it is common, at the time of making the policy, to indorse memorandums varying in terms; these are taken as a part of the policy. 2 Wheat. Selw. 703; 3 Chit. Pl. The case of the United States v. Tingey, 5 Pet., was an action of debt on a bond with a condition, and a memorandum indorsed varying the condition. The declaration contained two counts. One was on the penal part only of the bond, the other set out the condition with the indorsement. The defendant filed several pleas, to which the plaintiff demurred. The court decided for the defondant on one of his pleas; *no objection oppears to have been taken to the declaration, because of the indorsement. The court, in their opinion, state the nature of the action and the substance of each count, and that the condition and indorsement were contained in one, but make no remark to it. The case of Gordon v. Frazier and another, 2 Wash. 130, was debt on a penal bill for the payment of tobacco; there was a memorandum indorsed on the back of the bill, varying its terms, signed by the parties; a judgment was entered on the bill without regarding the indorsement, for which a writ of error was brought, and the judgment for that cause reversed, and the court of error entered judgment, on the bill as varied by the indorsement. The indorsement shows that it was made by the consent of Benjamin and McArthur, it is signed by them; that it was intended by them to form, a part of the article is to be inferred. The warrants to be furnished are to be in addition to the ten thousand acres provided for in the body of the article; to be located on the same terms and conditions. It is a “ memo.it is without date, probably, therefore, done before the final separation of McArthur and B. W.Dadd. Benjamin and McArthur appear to have transacted the whole business. The article is formally signed and dated; the. memorandum is informal, but signed by the same persons. Memorandums on the margins of deeds and indorsements are sometimes not even signed. We are informed that the memoi’andum referred to was not signed. Whether this memorannum forms a part of this article is a question for a jury to determine under the charge of the-court on an issue of non est factum, as it would be if there was an interlineation varying the article as first drawn. 2 Pet. Cond. 249.

If the memorandum is not considered a part of the article or-deed, it is a' simple contract between the same parties (as they now appear), of which the covenants in the article form a part. To recover, on this contract, for anything more than the cash advanced by McArthur, by the technical rules of law, an action of assumpsit must be brought, in which the same evidence given in the. action on the article must be again collected and given, and a-second trial had on the same facts, when justice could not probably be so well administered between the parties as by a tribunal having the *whole case at the same time before it. If this queslion was doubtful the court would decide that the memorandum should be taken as a part of the article. The defendant can take nothing by this contract.

It is again objected that by this article the parties are partners' .and that this action can not therefore be sustained. Clearly, in our ■ opinion, between themselves the parties are partners. The warrants belonged to the Ladds and Norvell, to be surveyed and located for them, and unless they assigned them before location the location must be in their names; to them the patent must issue. McArthur, a surveyor and locator in this district, agreed to do this for them. When it was done he would have no title; a right only (having performed his covenant) to demand of them a • conveyance of one-fifth of the land, and if they refused, a right to file a bill against them for a specific performance, or to bring an action at law. The lands in the Virginia military district have . for the most part been thus located. The owner of a warrant employed one of the deputy surveyors of the district to enter and survey the land on his warrant, for which he agreed to convey to the surveyor a portion of the land located. Now, did every rev- ■ olutionary soldier or officer in the. Virginia line or continental establishment, who made such a contract with one of these deputy . surveyors, become a partner of his, so that if the surveyor did not perform his contract he could not sue him in a court of law; or if the soldier or officer, after he received a title, refused to convey, . or put it out of his power to do so by a sale or by a withdrawal ■ of his entry, could not the surveyor sue him for this breach of • contract in a court of law?

Ladd and McArthur intended to cover by these locations lands which had been sold by the United1 States and made valuable by the improvements of the purchasers, although there was an abun- • dance of good land unappropriated within the reserve to satisfy these warrants. Between Ladd and McArthur this can make no ■ difference. They foresaw lawsuits and a contest with Congress, .and provided that each should bear his proportion of the costs and have his proportion of the recovery. This does not vary the •nature of the contract; their common interest in equity, in the subject in controvery, would have subjected them to this. 3 Kent *Com. 2, 3. When partners covenant to do a particular thing other than to pay the proportion of the profits, an action lies for not doing it; for, as to such covenant, it is not necessary to settle the whole accounts of the partnership to ascertain the ■ damages: as, if a partner covenants to advance stock, or not to withdraw, etc. Gow on Part. 85, 86. Here the defendant covenanted that McArthur should have one-fifth of the land, and he has, by withdrawing the entry or causing it to be withdrawn, put it out of his power to fulfill this part of his contract. He covenanted to pay four-fifths of the costs of the litigation, all the cost of chain-carriers, etc.; this he has not done; so, that whether this is or is not a partnership this action lies.

The fourth count, which describes the contract without embracing the memorandum, is, from the view we take of the contract, bad for this variance. On a general demurrer, if one count only is good the demurrer must be overruled. It is so of breaches assigned; if some are good and others not, on a general demurrer the declaration is good. 1 Saund. 286, n. 9; 1 Chit. Pl. 327, n. Here, in each of the four first counts it is averred that the defendant had assigned the warrants without the consent of McArthur ; that the entries or locations had, in consequence, been withdrawn. This put it out of the power of McArthur to obtain any part of the land, or compensation for it of others. After these averments are admitted by the demurrer, can the defendant say that a useless demand to convey was not made of him, or that the demand was not of the proper person, or that it was not averred that the Ladds and Norvell had the legal title ? He who puts it out' of his power to perform a covenant by that act violates it. The par-^, ties, by the article, agreed “that if from any cause whatever,” the locations should not hold the lands, the Ladds and Norvell should have back their warrants. The title might have failed by McArthur’s making the locations unskillfully, or by the lands not being in the Yirginia military reservation. It is to causes like these that-the parties must have referred. It can not mean that Ladd might, at any time, rightfully destroy the location to get back his warrants. Ladd covenants that McArthur, for locating and surveying these lands, and for being at *one-fifth of the expense attending litigations growing out of the locations, should have one-fifth of the lands obtained by the locations, or of land and money recovered by the litigations. This covenant is an engagement of Ladd to do nothing to defeat McArthur’s claim. The article goes further. Ladd agrees to advance a proportion of the cost of the litigation necessary to obtain the land. “ Judges should be astute in furtherance of right and the means of recovering it. And therefore one is ashamed to see either hitch or hang upon pins or particles, contrary to the true manifest meaning of' •the contract,” said Lord Mansfield, in Rees v. Abbott, referred to above. It is not necessary for the court to go further; the demurrer is general, and the three first counts, in our opinion, are •good. The demurrer must, therefore, be overruled.


author: Judge Lane

text:
    Richard Douglass v. John McCoy, the Widow and Heirs of Thomas Worthington, the Widow and Heirs of Samuel Findlay, and the Heirs of Samuel Massie.
    A judgment, by confession, without pleadings, and found only on the journal of the court, though erroneous, is not void.
    Defect in description of a levy may be supplied by parol.
    Where several executions are levied upon the same lands, a sale upon one subjects the price paid, to distribution according to law, if application be l made in season. A sale upon each is unnecessary.
    Holder of lands, in the Virginia military district, by entry and survey only, sells and conveys. After his death, patent issues to his heirs, title inures to purchaser, who, or his assigns, is so invested with the fee that it may ’ be sold on execution.
    An original liability, as security, can not be so connected with a subsequent conveyance to secure, as to overreach an intervening judgment.
    Vendee from judgment debtor, having relinquishment of dower, can not set up that dower, as a separate independent estate, against preferable purchase under judgment.
    This was a suit in chancery, reserved from the county of Ross. The facts are stated in the opinion of the court.
    Douglass, for plaintiff.
    Scott & Murphy, for defendants.
   Judge Lane

delivered the opinion of the court:

The plaintiff, by his bill, avers that he holds the possession of, ■and the legal title to, outlots Nos. 1 and 5, in Chillicothe, and asks of the court to exercise the authority conferred by statute, to quiet his title against the claims sot up by the defendants.

*The heirs of Massie have not answered. The heirs of Worthington set up a title, on a sale by execution', made June 4, 1825. This judgment is subsequent to the judgment under which the lands were sold to the plaintiff,, and this sale is subsequent to his purchase; if, therefore, Douglass shall establish his legal title it is superior to this claim, consequently it need not be further noticed.

McCoy is the substantial defendant, and the merits of the ease are comprised in adjudging if he or Douglass possess the preferable right.

The title of both parties arises from Findlay. In 1797 the land was entered and surveyed by Massie, who sold lot No. 1 to McCoy in September, 1797. On June 24, 1807, McCoy conveyed it to Lamb, who, on July 13, 1812, conveyed it to Findlay. The other lot, No. 5, on June 20,1798, was conveyed by Massie to Ferguson, who conveyed it to Lamb on February 18, 1800, who conveyed it to Findlay on March 24, 1811. On December 31, 1814, after the death of Massie, a patent for the entry, which embraced these lands, was issued to his heirs.

On August 14, 1819, the mayor and corporation of Chillicothe recovered two judgments against Findlay, the executions of which were levied upon lot one and two-thirds of lot five. Sale was made to the judgment creditors under this levy in 1822, and in 1829 their interests were conveyed to the plaintiff. Jjhe judgments not being fully satisfied by the above sale, an execution was issued for the balance, which was levied on the remainder of lot one, and sold to Douglass. By these sales the plaintiff insists he acquired a title to the lands.

' McCoy’s title arises in the following manner: On June 27,1821, Findlay agreed to convey the land to him to indemnify him. against certain liabilities incurred before 1819. On June 28,1821, Findlay and wife conveyed to McCoy in execution of the above agreement. McCoy afterward, with the assent of Findlay, procured a deed from Wallace, a trustee appointed by the legislature, to convey the title of Massie’s heirs, arising under the patent, to the purchasers of lands from their ancestor. The paper title of *McCoy does not rise until after the entry of the judgment upon which Douglass’ title depends. To impugn that with success it is necessary to show that there was no valid judgment, or that no interests of Findlay’s were bound by its lien, or that the proceedings under the execution were so irregular as to confer no title upon the purchaser.

It is objected that no judgment is shown. There is no transcript of a complete record, no process, no pleadings; but a copy of the court journal is shown, in which, after giving the name of the case, it is stated that the parties' appeared and submitted the ease to the court, who entered judgment for the plaintiff, etc. Undoubtedly the judgment is erroneous, and would be reversed upon, error, but it is not void. A judgment confessed in open court,, without process of pleading, is valid. 3 Ohio, 273. The judgment of a court of competent jurisdiction over the parties and subject, however irregular and summary, can not be treated as a nullity. 3 Ohio, 305; 4 Ohio, 327. The validity of such a proceeding is only open to inquiry upon error or certiorari.

The defects in the levies give rise to the next class of objections..

The levy returned upon the first execution is upon “out-lot No. 5, and two-thirds of lot No. 1,” and it is insisted that it is void for uncertainty. No doubt such return is defective; it was so holden in Lessee of Mathews v. Thomson et al., 3 Ohio, 272, but it was there adjudged that the defect might be supplied by parol. This proof is before us; the order of confirmation identifies the land as “part of the lot which lies south of the garden,” which description is carried into the deed. Perhaps this would lead theeourt, in absence of contradictory proof, to presume, if necessary, that the part conveyed was the part appraised, and was duly described in the advertisement. But the testimony of Clifford, the sheriff, satisfactorily shows that the appraisal was properly made upon the part conveyed, and it is probable that a specific return was made upon another paper, one attached to the writ, but since lost.

The levy of the second execution is upon “ the north side of lot No. 1, in the occupancy of Findlay.” The appraisement and sale is of “nine poles from the north end of lot ^No. 1, fronting on Paint street, and running the whole width of said lot, on Fifth street, being the yard, garden, and improvement inclosed.” Ve find no ground of uncertainty here.

The sale, the one in which Douglass was the purchaser, was-made to satisfy, not only the balance of the judgments, in which the mayor and commonalty of the town of Ohilicothe had recovered against Findlay, but likewise the amount due upon two other judgments. Evans recovered a judgment against Findlay, in Boss common pleas, on November 8, 1820. Fi. fa. was issued upon this, July 21, 1824. The Bank of Chilicothe recovered a judgment against Findlay, on August 29, 1820, upon which afi. fa. was issued, September 18, 1824. Both executions were levied upon the land, while held by the execution of the judgment, of the mayor, etc., of town of Chillicothe.. The objection now taken is, that although the avails of the sale were appropriated upon three judgments, yet the return shows no levy, appraisement, or sale, except upon the latter. But it will be observed that the land stood levied upon, by the former executions upon the judgment, recovered by the mayor, etc., of Chillicothe, when the vendi. was issued, by which it was sold. The date of this vendL was July 26, 1824; the appraisement was made under it. The fi. fa., upon the Evans judgment bears date on the 21st of July, and was delivered to the sheriff on the 27th July. The fi. fa. upon the bank judgment was issued, and delivered to the sheriff on the. 18th of September; so that on the 20th of September, the'day of sale, he had execution upon these three judgments, all liens upon the land. The advertisement was regularly made, and no act was omitted to bring the property to a fair sale. Under these circumstances, separate proceedings, under each execution, were unnecessary, and independent appraisals might tend to perplex the title. The duty of the sheriff was well executed by an appraisal and sale under one, and an appropriation of the surplus to the others. ‘

But the strongest reliance of the defendants’ counsel is upon the position that Findlay never had any interest in the land, except in equity, which could not be reached by ^execution. It is necessary that this objection be removed before we can administer to the plaintiff the relief he asks. The title of Findlay was derived from Massie, while he held the land by entry and survey only; no patent was issued, except to his heirs, after his death. It is assumed that the heirs, acquiring a title under these circumstances, took by purchase, not by descent; that the covenant of warranty by the ancestor works no estoppel; and therefore, that the title acquired -by Massie’s heirs, does not inure to Massie’s purchasers. This point has been heretofore adjudged in this court, in a case arising under the same patent, Bond’s Lessee V. Swearengen, 1 Ohio, 395 and the opinion there expressed by the court is, “that Massie, after his entry and survey, might dispose of the lands; and when a patent was afterward issued, either to himself or hi3 heirs, by which the legal title became perfect, it inured to the benefit of his grantees, so as to make their title .good.”

This decision is the subject of severe criticism by the counsel for the defendant, and the most strenuous efforts are made to induce the court to overrule it. But no case ever decided here has been the subject of more anxious and careful investigation. The judges who decided it, with the opportunities they had, and the «are they bestowed, were little liable to be-misled. The present members of the court, after examining the arguments of counsel, and the reasoning in the report, fully acquiesce in the opinion of the court, as there expressed, and regard the point decided as a .-settled rule of property in Ohio.

The counsel for the defendant set up an equity in McCoy earlier than any right accruing to the plaintiff. It does not. arise from the deed from Findlay to McCoy, for that bears date in June, 1821, and is overreached by the judgment; nor from the agreement, since it was made but the day before; but he relies upon the fact, that McCoy incurred liabilities for Findlay, prior to 1821, which Findlay ought to indemnify. Undoubtedly this imposes upon Findlay the moral obligation to save him harmless, but no such specific, perfect right as a court of equity can enforce.

The claim to the surplus money can not be settled in this suit. If any remain in the hands of the sheriff, let it be ^claimed from him. The judgments are satisfied by the sale, and it is a matter of no-importance, to McCoy or Findlay, if the purchaser has paid or not.

Another point made by the defendant is, that by Findlay and wife joining in the deed to McCoy, her dower at least passed by the deed; and as Findlay is now dead, McCoy may set it up as a bar to the plaintiff in this suit. But we consider it no obstacle to a decree against McCoy. Although the deed from Findlay and wife to McCoy extinguished the right of dower in the land conveyed, it was not intended to pass, nor did it pass the right of -dower as a separate substantive estate,'if no lands were conveyed by the deed, for the law will not permit the alienation of such possible contingent interests. 4 Kent’s Com. 254; 9 Mass. 143. Neither can it be aliened before assignment, so as to enable the grantee to maintain a suit in her own name, for it lies in action only. 17 Johns. 167.

The facts, in the opinion of the court, show the plaintiff holds the legal title and the possession of the land, and is, therefore, entitled to the decree. The statute in such case imperatively gives costs. 29 Stat. 83; Id. 14.

In this determination we place no weight upon the number of ■trials, in which the parties to this suit' have litigated their right to the land. In the English chancery, a bill of peace is not determined, unless the rights of the parties are satisfactorily established .at law, by more trials than one. Ours gives the remedy in all cases where the title and possession meet in the same person.

Decree against all the defendants, except Mrs. Eindlay.


author: Juctge Wright

text:
    *Pike Township v. Union Township.
    Where a new county line divides a township, though the residence of a pauper fall within the new county, the old township remains chargeable with his support.
    Decided by Judges Collet and Wright, in Madison, 1831.
    This was an action of debt under the statute, to recover compensation for necessaries furnished a pauper. The father of the pauper had a settlement in Pike township, in Madison county, .and died, leaving the son a minor, who afterward became a charge upon the township. The county of Union was afterward established in 1819. The southern line of the county divided Pike township and threw part of its territory into Union county. A dispute arose about this line, Which lasted several years. Various lines were run at different times as the true line. By some of these lines, the house at which the pauper was boarded, fell into one county, and by others into the other. The line was finally settled in 1828, and the house at which the pauper was boarded fell into Union county. The township of Union, in the latter county, adjoined the territory cut off from Pike. Under the impression that Unioju township was liable for the support of the pauper, this suit was brought to recover the expense of keeping him since Union county was established. There was no evidence that the part of Pike township which fell into Union county was ever attached to the adjoining township of Union, or formed.into-a new township, though it appeared that the trustees of Union township had exercised jurisdiction over it.
    Douglass and Kerr, for plaintiff,
    cited 22 Ohio L. 412; 3 Ohio, 101.
    O. Parish and G-. Swan, for defendant,
    cited 1 Root, 423; 4 Day, 189; 4 Mass. 278, 452.
   Juctge Wright

delivered the opinion of the court:

By the law of this state, 22 Ohio L. 412, power is given to the board of commissioners in each county, to form political townships of not less than twenty-two square miles (except including an incorporated town), and to alter the boundaries. ^of townships when necessary; and such townships become thenceforth bodies corporate. No provision is found in the general law,, nor in the act establishing Union county, providing for the division of townships cut in two by the lines of a new county, or directing the disposition of the territory thus severed, or of the property of such townships, or of the paupers and other charges upon them. Until the general assembly do make other provision, we must decide questions arising out of such difficulties upon common principles.

Where a township is divided by competent authority, and a. portion of the territory formed into a .new township, unless provision is made in the act of separation for a division of the property and paupers, both remain with the old township, or that part which retains the name or corporate franchises. The law is so laid down in Massachusetts and Connecticut upon good reason. 4 Mass. 278, 452; 4 Day, 189. The local residence of the pauper at the time of separation makes no difference. He belongs to the township, and has no locality peculiar to himself within it. In the case on trial, the pauper never had a settlement in Union township, and Pike can have no right of action against it. The pauper had a settlement in Pike at the time a part of its territory was-cut off into Union county. But as he was not attached to the territory, he was not transferred with it. He remained a charge on Pike.- But if this wore less clear, still Pike could not recover against Union without evidence to show that the territory cut off ■from. Pike has been attached to Union township. That it is included. in Union county is not sufficient to incorporate the territory embraced into any township.

By the law (22 Ohio L. 230, 231) paupers in townships where they have not gained a legal settlement, who need assistance, may be supplied by such township. at the expense of the township where the pauper was last legally settled, and recovery had of the -amount of such assistance and the expense of removal of the township where the pauper was last legally settled. The case on trial is not within this provision. This pauper was not within or supplied by a township where he had not been legally settled, bub where he had been settled. We are not able to find any provision of the ^statute or principle of law that will sustain th'e plaintiff’s case.

Yerdict and judgment for defendant.


author: Wright, J.,

text:
    William Rabe v. Thomas Hanna.
    ‘Where a husband, brutalized by intemperance, neglects or abuses his wife, her father may receive and protect her and her children, and no action lies for the husband.
    Decided by Judges Hitchcock and Wright, in Guernsey, 1832;
    Trespass for entering plaintiff’s house, and forcibly carrying -away his wife and keeping her away, and also for persuading away the plaintiff’s children. From the evidence offered by the plaintiff it appears that the plaintiff’s wife was the defendant’s, daughter, and that, owing to the intemperate habits and ill-treatment of her husband, she had left him and returned to her father’s house; that to induce her to return, the plaintiff promised reformation, and entered into a written agreement, wherein it was ■stipulated that she should live with him if he kept sober, but if he got drunk she was to leave him and live with her father. After ’this agreement she returned and lived with her husband. He soon fell into his bad habits, and she, with her young children, .again left him and returned to her father’s house. This was done without her father’s aid, and when he was away from home. She and her children have resided with her father ever since, and he has provided them with necessaries free of expense to the plaintiff. The defendant, being about to remove with his family into Pennsjdvania, took Mrs. Eabe and her children and some, others of his family a day or two in advance of the rest of the femily to avoid interruption and disturbance. The wife and. children reside with the defendant in Pennsylvania, and have no' intercourse with the plaintiff. It did not appear that the defendant had any agenpy in bringing his daughter and her children from the plaintiff’s house, or did anything compel them to stay away from him; but it was in proof that the defendant had repeatedly endeavored to induce his son-in-law to reform, *and had made him several offers as to business and property if he. would reform, but without effect. Upon this state of fact,
    Hubbard, Beebe and Bell, for defendant,
    moved for a nonsuit, ■ because the evidence showed there was no trespass committed by the defendant. They cited 9 East, 371; 11 East, 71; 5 Johns. 196.
    W. Kennon and S. W. Culbertson, contra,
    contended the gist of the action was the loss of the society of the wife, and the question is, has she been persuaded away, which was for the jury. They cited 1 Chit. Pl. 164; 5 Term, 361; 313 Ch. Com. 137; Clancy on Marital Rights, 428.
   Wright, J.,

delivered the opinion of the court:

If the grounds of the action be, as contended, for enticing away the plaintiff’s wife, it is misconceived. It should have been case, not trespass. If the injury complained of be upon the person of the wife, she should be joined with him in the suit. If the wife has, through persuasion or fraud, become the instrument of the defendant, in any direct injury upon, the plaintiff’s person or his property, trespass may lie, but there is no evidanee applicable to-such a state of things. The proof is, that the wife voluntarily left her husband because he had brutalized himself. She sought shelter under the roof of her father, and he has received her, and given her the protection and support refused by the husband; a protection dictated alike by the best feelings of the heart, the natural affection, and the common sense of the world. Does such an act make the father a trespasser? We think the law affords no countenance to a position so shocking to humanity and propriety. Does not the law permit a father to receive his own child into the bosom of his family, and to afford her needful shelter, food, and clothing, when she is abused and neglected by her husband? Shall he become a brute, and turn away his daughter, when cruelly driven by her husband from his doors, and left to perish, or become obnoxious to the law as a trespasser upon the property or ^conjugal rights of her husband?. In our estimation no such barbarity is required by the law of any civilized people. The law recognizes no principle so revolting to good feeling and propriety. The case in 5 Johns. 209, is exactly in point, and we cordially concur with Chief Justicement, that a “father’s house is always open to his children, and whether they be married or unmarried, it is still to them a refuge from evil and a'consolation in distress. Natural affection establishes and consecrates this asylum. The father is under even a legal obligation to maintain his children and grandchildren, if he be competent, and they unable to maintain themselves ; and, according to Lord Coke,it is ‘nature’s profession to assist, maintain, and console the' child.’ I should require, therefore, more proof to sustain the action against a father than against a stranger. It ought to appear-that he detains the wife against her will, or that he enticed her from her husband from improper motives. Bad or unworthy motives can not be presumed. They ought to be positively shown or necessarily deduced from the facts or circumstances detailed. This principle appears to me to preserve, in due dependence upon each other, and to maintain in harmony, the equally strong and sacred interest of the parent and the husband.”

The proof in this case falls short of what is requisite to sustain the action of trespass. . The plaintiff has not made a case for the jury. A nonsuit is ordered.


author: By the Court :

text:
    *Dixon v. Cassell.
    Laws of Ohio do1 not recognize an administrator de son tort.

    Tried before Judges Lane and Wright, in Jefferson, 1832.
    This was a writ of error to the common pleas of Jefferson.

      The only question raised is whether a creditor of a deceased person, in Ohio, can sustain a suit against an executor de son'tort.

    Sutherland and Leavitt, for plaintiff.
    J. and D. L. Collier, contra.
   By the Court :

By the law of this state administration is granted on intestate estates: 1. To the widow. 2. To the next of kin. 3. To creditors, if they apply. If the estate exceeds one hundred dollars in value, the court of common pleas, on application, may cause the next of kin, if in the county and known, or the person having the custody of a decedent’s goods, to appear and show cause why administration should not be granted; and if they fail to appear, or to show good cause, the court is empowered to appoint any person administrator. Creditors of the decedent are entitled to an equal distribution of the assets free of lien; no one can get the preference. Judgments are against assets to be administered, and are only to be levied upon assets. 22 Ohio L. 128; 5 Ohio, 87. This equality would be destroyed, if suits are sustained by any creditor against those having custody of goods of the decedent, as executor de son tort. It is unnecessary to sustain such suit, and we are unwilling to afford the opportunity, as we must if we sustain this suit, for one creditor by attending with a person having the custody of a decedent’s effects, to appropriate the whole assets to his individual debt, to the exclusion of all other claims. The judgment must be affirmed with costs.


author: By the Court:

text:
    *Lessee of Alshire v. J. R. Hulse.
    Proof that posts were set up as corners, between adjoining owners of land, controls the calls for course and distance.
    Decided by Judges Hitchcock and Wright, in Pickaway, 1832. This was ejectment. The question was one of boundary. The second and third corner, called for in the plaintiff’s deed, was a
      post. It was in proof that a survey was made before the deed, and. -the corner posts fixed. The parties had possessed and improved up to a line run from post to post, and the plaintiff had acknowledged that to be his boundary, and the places where the posts •stood, which was ascertained, his corners. But finding, after several years, that he had a less quantity of acres than he supposed, and that to run the line the exact course and distance called for, would carry them beyond the place where the posts stood, and give him a number of acres more than he possessed, brought this suit. He now claims to regard the posts as immaterial and void ■calls, and to run his lines by course and distance.
    Green and Olds, for plaintiff,
    cited 3 Pet. 96; 9 Cranch, 169, 370; 2 Bibb, 369; 1 Johns. Ch. 242.
    Caldwell and Irwin, contra, were stopped.
   By the Court:

In appropriating public domain, in the wilderness, where surveys have been made under legislative acts directing the location so specially and precisely as that others may be enabled with certainty to locate other warrants oh the adjacent residuum,” 9 Cranch, 168, courts have applied strict rules of construction; have required surveys to conform to the laws, and so to describe • the land that every one may know what is appropriated. In such cases as in 3 Peters, 96, and 2 Bibb, 390, calls for a beech or hickory tree, in forests of like trees, without more particular description to point them out, are held immaterial and void for uncertainty. The rule does not apply with the same strictness to actual surveys and descriptions in an improved and settled country. *There is no pretense of analogy in the description in the plaintiff’s deed, and that in Peters. Posts were not common and undistinguishable on this land, as beech or hickory trees in forests of such timber where there are thousands alike. All lands sold bv metes and bounds are supposed to have been surveyed, and the deed is given to convey what has been surveyed, although the lines may not, in fact, have been run out. 9 Cranch, .178. The real question is, where were these corner posts fixed ? If the spots are ascertained, the calls of the deed are satisfied; and they will control the course and distance of the line, as much as if the object described as a corner were a larger or more showy and costly monument of wood or stone. There may be more difficulty in finding them, but when found they have equal legal efficacy. A post, a stake, a stake and stones, or a stone, are common objects called for in the survey of boundary lines in an improved country, between individual holders. Shall we vitiate all such surveys and calls ? If the evidence satisfies the jury where the posts were fixed for the corner, and that a line drawn from one to the other bounds the defendant’s possession, he' is entitled to a verdict. The evidence on that subject does not contradict the deed, but fixes the call of the deed and applies it upon the ground. The objection to its admission is not well taken.

Verdict and judgment for defendant.


author: Judge Wright

text:
    *C. Rogers v. Weaver.
    Administrator, supposing an estate solvent, pays creditor beyond his distributive share, upon final settlement may recover back the difference, in an. action of money had and received.
    An agreement of the parties, after an award made, to waive, is obligatory.
    Decided by Judges Hitchcock and Wright, in Franklin, 1832.

      Assumpsit for money had and received. The defendant was a creditor of an intestate estate, and the plaintiff the administrator. The plaintiff, supposing the estate solvent, had paid the defendant several sums upon his demand, but, upon final settlement with the court, found the estate insolvent, and that he had paid the defendant more than his distributive share. Having given the defendant notice and demanded repayment of the overplus, and being refused, the plaintiff brought this suit to recover it. The parties' had once arbitrated this dispute, and obtained an award, but afterward had agreed to set the award aside, and to submit again, which had not been done.
    O. Parish, for defendant,
    objected that the plaintiff could not. recover:

      1. Because the plaintiff paid the money at his peril, being chargeable with knowledge of the situation of the estate.
    2. Because he paid as administrator, and seeks to recover back' in his individual right.
    3. Because the parties are concluded by the arbitration, and the agreement for a second submission is void, because procured from-defendant by threats.
    Wilcox, for plaintiff,
    cited 3 Ohio, 573.
   Judge Wright

delivered the opinion of the court:

The facts in this case are agreed, and we are to apply the law' to the facts. It is an admitted rule, that when money has been-paid by mistake, it may be recovered back in this action. It appears to us the payment in this case was made under a mistaken understanding of the true situation of the estate.- The administrator was under no obligation to pay before the true situation of the estate was ascertained; and if he paid to accommodate creditors, he had a right to require security to refund, if it turned out the *sum paid was more than the creditor’s dividend. In case suit is -brought, the law provides that administrators shall only be liable for assets, and that, too, notwithstanding he may never have got into legal difficulty by negligence, or false pleading. 29 Ohio L. 255; 5 Ohio, 87. This court has determined, that if an administrator prefer one creditor to another, the amount; overpaid was, as to other creditors, assets in his hands. 5 Ohio, 87. Even upon a forthcoming bond, by an administrator, it has-been held in Yirginia, that if afterward it turned out that the estate was insolvent, by the exhibition of new claims, the administrator was only liable for the distributive share of the assets. 1 Rand. 421. We think it just and equitable, as well as lawful, to-infer a promise to repay the sum received more than was due,, from the fact of its receipt through mistake.

The suit is correctly brought by the plaintiff in his individual character. He is personally responsible to other creditors, and should have a corresponding right to receive the amount. 17 Mass. 380.

The question upon the award is not without difficulty. Iff it-remains in force, it is conclusive against the plaintiff. But the agreed case admits that the partios, after the award, agreed to* submit the controversy anew. We think this vacates the first sub* mission and award. The submission gives validity to the award. 3 Ohio, 513. It is, however, said this last assignment was procured by the plaintiff by threatening suit, and so has no legal efficacy. A threat could not affect the obligation, except it amounted to duress. That is not pretended in this case.

Judgment for plaintiff.


text:
    *Mary Lattier v. Isaac Lattier.
    Practice in case of divorce.
    Decided in bank, in 1831, but omitted in the report.
    This was a petition for divorce. Several points of practice in ■ this class of cases were settled by the court.
   Wright, J.,

delivered the opinion of the court:

Deposition s taken without notice to the adverse party can not be read in evidence. Depositions taken upon notice are only authorized by the statute. 29 Ohio L. 123. The law requires, before the taking of any such deposition, that notice in writing of the time and place, etc., shall be served on the adverse party, or his agent, or attorney, or left at his place of abode, at least one day for every twenty miles distance, exclusive of Sundays. The depositions offered in this case have been taken without notice, or upon •notice published in a newspaper, and are claimed to, be read because the defendant has no known agent or attorney, or known place of residence. The case is not embraced in the statute, and if it be desired to change the law in this class of cases, application should be made to the legislature,- not to the court. We have no •authority to receive the depositions. It is not necessary to decide whether, in any case, the court would feel authorized, from the analogy of the practice in our proceedings for divorce, to issue a dedimus to take testimony. No dedimus was asked for or obtained in this case.

Petitions for divorce, under the laws of this state, as they now stand, 29 Ohio L. 431-434, should contain the following allegations:

1. That the petitioner, at the time of filing the petition, is an -actual resident of the county where it is filed.

2. That he or.she had a bona fide residence in the state at least two years before this application.

3. The time and place of the marriage, and the names and ages-of the children, if any.

4. A specific, brief statement of the cause of praying for a divorce ; and if adultery be the cause, a statement of *the time and place of the offense, and the person with whom, if known, and if unknown, show that excuse for the omission.

5. If alimony be sought for, the petition should set out, as near as may be, the kind and amount of the personal property, and describe the real estate of the defendant.

The petition must be filed at least three months before the term of the court at which the application is to be made, and if the defendant lives in the county, a copy of the petition must be served-1 on the defendant within one month after filing, and also a summons to appear and answer. If the defendant is not a resident of the county, public notice is to be given in one of the newspapers of the state, continued for three calendar months before the first day of the court, and the notice proved by affidavit of its publication, with a copy of the advertisement affixed. This should be-filed before the cause is called on to hearing.


text:
    Mary Houpt v. George Houpt.
    Practice in case of divorce.
    Beeore Judges Hitchcock and Wright, in Morgan, 1832.
    Application for divorce on the ground the defendant had a former wife living at his intermarriage with the complainant. Evi- ■ dence was offered to prove the former marriage by cohabitation and reputation. <•
   By the Court:

Section 4 of the divorce act, 29 Ohio L. 432, authorizes the court, in its discretion, to admit proof of cohabitation and reputation as-evidence of the marriage of the parties. We understand the marriage referred to here, which, in our discretion, may be proved by reputation, etc., to be the marriage of the parties to the suit, sought to be dissolved. *The evidence now offered we have no authority to receive. The discretion vested in us in the case provided for should not be exercised to admit the reputation proof without some reason is shown to excuse the production of better proof of the fact of marriage.