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    *Lot Pugh and William J. Shultz v. Gerrard R. Chesseldine.
    In the sale of real estate at auction, a mistake by the auctioneer in entering the name of the owner of the real estate in the memorandum of sale, will be corrected in equity.
    If the purchaser has treated the contract as valid, although he might have abandoned it, he will be required to perform.
    When the contract is for a good title, a quitclaim deed is sufficient, if the-grantor has the title.
    This is a bill in chancery, from the county of Hamilton, to enforce the specific performance of a contract for the purchase of real estate.
    The complainants are the assignees of Charles Shultz; and, as such assignees, were the owners of the property described in the-bill. On May 27, 1839, this property was sold at public auction, and the defendant, Chesseldine, became the purchaser, at the price ■of $14,050.' The terms of sale, and the defendant’s bid, were reduced to writing, at the time, by the auctioneer, John J. Wright. The following is a copy of the terms of the sale, proved by the auctioneer, as entered by him at the time: “ For G. Shultz, May '27th, at auction, corner of Lower Market and Main street, fifteen feet front, by forty-six feet deep; Chesseldine. Terms of sale, one quarter cash; balance in twelve, eighteen, and twenty-four months, with interest, secured by mortgage. J, J. Wright, auctioneer.”
    The defendant, in his answer, denies the substantial allegations in the bill.
    1. That the premises were advertised for sale at auction.
    2. That the complainants were the owners of the lot.
    3. That a sale was made to the defendant, or that any contract, or memorandum of a sale, by complainants, to him, was made, in writing, at any time, or signed by him or his agent.
    *4. He denies any tender of a deed or any demand, to comply with the terms of sale.
    5. Denies he has been in the possession of the premises, as a purchaser; but held them under a lease, dated January 5, 1839, .and afterward extended to January 15, 1840; and that Charles Shultz always called for and received the rent.
    The defendant avers, that about May 27, 1839, the auctioneer offered sundry lots at auction, etc., all of which he proclaimed to be clear of all incumbrances, and that, if a good title could not be made in ten days from the sale, it was to be no sale, and the purchasers released from their bids; that the defendant bid upon those terms; but that, on examination, he afterward ascertained that the premises were subject to two mortgage liens, to the Bank of the United States, for nearly $51»,000; that a suit was, and is still, pending in reference to the title to the premises, to which the respondent was not a party, and of which mortgages, and the pend-ency of which suits, he had no notice at the time of sale, or he should not have bid thereon. The defendant avers, that .as soon as he discovered the defects he gave up all intention of taking the property, and communicated the same to Charles Shultz, and came to an understanding with him, that the purchase should be abandoned, and that it was relinquished accordingly. He avers that no valid title can be made, and that he ought not to be held to said purchase, after so long delay, and want of good faith, on the part of the complainants. The defendant also relies upon the ■statute of frauds.
    Charles Pox, for the plaintiff:
    The first question for the decision of the court is as to the validity of the contract.
    The memorandum says, for Charles Shultz, May 27th, at auction, to Chesseldine, the lot was sold for $14,050; and the great question is as to the propriety of showing that, in making the sale, the auctioneer sold for William J. Shultz and Lot Pugh. In order to understand that matter more distinctly, *it may be as well to state that Charles Shultz was the original owner of the property; that in 1834 he became embarrassed, and made an assignment of the property in question, with other property, to William J. Shultz and Lot Pugh, for the benefit of his creditors. He made a deed to Shultz and Pugh, of the property in question, in trust to sell and dispose of, to pay off, first, the mortgages on the property; second, to pay certain preferred debts, etc.
    This deed was immediately recorded; the assignees took possession of the property and collected the rents from that time, and applied them, from time to time, in liquidation of the mortgages; and Chesseldine, the defendant, had been occupying the premises, which he purchased, from the time of the assignment to the date of the sale.
    During all this time Charles Shultz had been acting as the agent of the assignees in collecting the rent of Chesseldine, and gave receipt in the name of the assignees.
    Can the assignees, the principals in this’case, take the benefit of a sale of their own property, made in the name of their agent?
    It will hardly be denied that, in ordinary cases, even at law, the principal may sustain an action in his own name, on a written contract, made in the name of an agent. If it should be contended otherwise, the books abound with such cases. Baring and others v. Corrie and another, App. to Long on Sales, 321, shows that in a sale made by plaintiffs’ broker, in his own name, the plaintiffs were entitled to recover, and the purchasers who held, acceptances against the broker, and who expected to have paid for the goods with those acceptances, were not permitted to offset the broker’s acceptances. 2 Barn. & Ald. 137. A sale by a factor, whether he have or have not named his principal at the time of the sale, creates a contract between the owner and the buyer. 7 Mass. 319; 1 Johns. Cas. 488; Long on Sales, 249. A sale by the broker, in the name of the principal, where the sale note was in the name of the principal, was held to be a contract on which the broker could recover. 2 Esp. 493. “If a factor sells goods for a principal, he *may bring an action in the name of the principal; so, a vendor of goods to a factor, for the use of his principal, may maintain an action against the principal. 1 Atk. 248. So, where an agent contracts for his principal, under seal, when he had no authority to sign a sealed certificate, the principal will be liable in assumpsit. 19 Johns. 60. If an agent make a deposit on a treaty, for a purchase conducted by him in his own name, and without disclosing his principal, the latter may, nevertheless, upon the failure of the seller to fulfill the bargain, recover it in his own name. Long on Sales, 257; 1 Camp. N. P. Cas. 337. In the case of Coles v. Trecothick, 9 Ves. Jr. 234, the vendor was held bound to convey, where a clerk of the auctioneer signed an agreement, signed “Evan Phillips for Mr. Smith, agent for the seller.” This agreement was held good under the statuto of frauds, and Coles, the principal, obtained a specific performance, although his name nowhere appeared in the agreement.
    The mere fact of inserting the name of Charles Shultz, who was the agent merely of Pugh & Shultz, can have no greater effect in this than in any other case where the name of the agent only has been used. This is precisely one of those cases where, if the principal was not bound at law by the form of the contract, a court of equity would enforce it against the principal. 3 Taunt. 167; 3 Ves. & Beam. 187; 4 Bing. 722; 4 Taunt. 209. In the State v. Perry, Wright, 663, this court held a contract made with the canal commissioners, was a contract with the state, and could be recovered on as such.
    The next question presented is, whether the memorandum is a sufficient memorandum, in writing, under the statute of frauds and perjuries? Our statute, like most of this class of statutes in other states, requires the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.
    *It is well settled, that any memorandum or note of the contract, showing the important terms thereof, is sufficient, and that it is not necessary both parties should sign the contract; if the party sought to be charged has signed the memorandum, that satisfies the statute. 9 Ves. Jr. 351; 14 Johns. 484; 7 Ves. Jr. 275. Again, in Allen v. Bennet, 3 Taunt. 168, the name of the agent, only, appeared in the memorandum, and yet it was held the principal was bound by it. Bennet’s agent wrote in Allen’s book as follows: “Ordered from H. & G. Bennet, Liverpool, 12 cwt. fine shag tobacco, at 3s. 8d.—2d. per lb. discount-bill in two months, at M. Wright’s, September 11, 1809.” On September 23, the plaintiff wrote to the defendants, in which, after giving reference as to his credit, he added : “ The eight hundred weight of fine shag tobacco I wish immediately forwarded, as I have sold it, and'it is wanted; I likewise want the invoice of the rice, and the other tobacco.” The court decided that, although the name of Bennet’s agent only was signed, Bennet was bound; and although the name of the buyer did not appear in the memorandum, yet, as it did appear in letters written by the Bennets subsequently, it was sufficient. And the court say: “I see no objection why it should not be made out what was the name of the buyer, by the writing of these very defendants. It is in writing, and is evidently connected with the contract, that no doubt it may be coupled with the order in the book ; and a valid contract may be established by the evidence of several writings, as we often see it at nisi prius.”
    In Phillimore et al. v. Barry and another, 1 Campbell, 513, the defendants had written to Messrs. Fector & Minet, to buy thirteen puncheons of rum,' at a contemplated auction ; and at the auction, the auctioneer knocked off several lots to Mr. John Minet Fector, one of the firm of Fector & Minet, and put down the initials, J. M. F.; meaning John Minet Fector. About two weeks after, the' defendants wrote to Fector & Minet, approving the purchase. It. was held, although the purchase was in the name of the agent (without designating him to be an agent), the defendants, the principals, were liable. *“ The initials of the defendant’s agent, written by the auctioneer,.coupled with the letter recognizing the sale, was held to constitute a sufficient memorandum, in writing,, to satisfy the statute of frauds.”
    In Western v. Russel, 3 Vesey & Beames, 187, the court held, the letter, offering the land at a specified price, together with another letter from the same person, expressing himself thus — “I have just received yours, and am glad you have determined to purchase the watering farm, as I think it will be an accommodation to you”- contained a sufficient memorandum; and that, although no letter of acceptance could be proved, it was evident; from the last letter, an acceptance had been made, and that the letters, altogether, sufficiently showed the existence of a contract in writing.
    In Soames v. Spencer, 2 Dow. & Ry. 32, it appears Soames and one Tennant were joint owners of a quantity of oil. Soames, without any authority from Tennant, sold the oil in his own name; but Tennant, afterward (having first refused), confirmed or assented to the sale. It was held that, although the written contract did not name Tennant, and, therefore, did not bind him, yet his subsequent approval was tantamount to his previous authority.
    In 4 Bingham, 722, it was held that, where a person made sale of the property of another without authority, and entered into a memorandum, the owner might, by parol, subsequently approve of, and ratify, the contract; and that such subsequent ratification was equal to, and even more satisfactory, than previous authority because the owner knew what he was ratifying.
    In White v. Proctor, 4 Taunton, 203, the auctioneer put down the name of Mr. Stokes as the purchaser. The defendant’s name was not in the memorandum; but he was held liable, inasmuch as Stokes was his agent.
    The principles to be extracted, then, from all these cases, are these:
    The memorandum, required by the statute, need only be signed by the party to be charged, or by his agent, and that the auctioneer is the agent of buyer and seller.
    *That a memorandum, in the name of the agent of the buyer or seller., is equally binding on the principal as though it was in the name of the principal, provided the agent was authorized by the principal.
    That this authority may be conferred previous to the sale, or by ratification or recognition after the sale.
    That a written memorandum in the name of one party, where the other is not named, will be made available by a recognition of the contract .by the other party, by letter or paper referring to the sale.

      As to the mortgage incumbrances, it is shown they were well known to the bidders; at the time of the purchase the auctioneer mentioned the existence of these mortgages, and the fact that they were hold by the banks mentioned as an inducement to purchasers, because he expected the purchasers might obtain further time from the banks.
    It is well settled that the existence of incumbrances at the time of purchase is no objection to a specific performance, if they were proclaimed at the sale, or their existence was known to the purchaser. 5 Ves. Jr. 818. So a party will be held to have waived his objections to a title on the ground of an incumbrance, if he treats for the purchase after knowledge of the incumbrance. 3 Meriv. Ch. 64.
    Applying these decisions to the present case, there can be no pretense for setting up the mortgage incumbrances as an objection to the specific performance of the contract: First, because the existence of these mortgages was well known at the time of sale; and, secondly, because if not known then, it is clear they were known immediately'after the sale, and no objection taken on that account; but, on the contrary, everything was satisfactory except the pending of the creditors’s bill to set aside the deed of assignment, and it was agreed to let the matter rest until that cause was decided, and, if the title of the assignees should be sustained, the title would be satisfactory.
    *Edward Woodruri’, for defendant,
    relied upon the following positions:
    1. The proof does not sustain the allegations of the bill.
    2. The case is within the statute of frauds.

    3. That by the terms of the sale the defendant is not bound by his purchase, the title not being.clear and indisputable at the time of the sale,\nor within ten days, nor oven at this time.
    4. That the circumstances of the sale wore such as to show unfairness toward the purchasers — a suppression of the truth — in not disclosing incumbrances and litigation, to which said premises were, and still are, subject.
    5. That parol proof can not be introduced by the plaintiff to show anything which transpired subsequent to the sale, for the purpose of creating a now liability on the defendant, not warranted by the original agreement.
    6. That there is no mutuality of obligation on the complainant, inasmuch as the defendant could not have compelled the complainants to a specific performance. ,
    7. That if any deed was tendered to the defendant, it was not in conformity with the alleged terms of sale, being nothing more than a quitclaim; nor is there any certificate of the official character of the officer before whom the same was acknowledged.
    It will be recollected that the complainants alleged that the contract was made by defendant with them ; the proof, to wit, the memorandum, shows that O. Shultz was the person, if any one could claim the benefit of said memorandum, as his name alone is mentioned.
    But it is sought to show by parol that the contract was made with the complainants.
    “Parol evidence, which substantially varies a written agreement, is inadmissible in equity as well as at law.” Sug. Tend. 89, 95.
    “Several papers, not referring to each other, can not be connected by parol proof.” 1 Johns. Ch. 273; 2 Stark. Ev. *350, and note 1. “A memorandum of the sale of lands, besides being signed by the party, must contain the essential terms of the contract, expressed with such clearness and certainty that they may be understood from the writings themselves, without the necessity of parol proof; and a written or printed advertisement, containing the conditions of sale, exhibited and read to the purchasers, will not supply the defect.” 16 Wend. 28.
    If part performance is relied on, where is the proof of it?
    It will bo recollected that Chesseldine was in possession, as lessee, at the time of the alleged sale.
    “If the vendee be a tenant in possession, under the vendor, the case is not taken out of the statute, for his possession is properly referable to his tenancy, and not to the contract.” 2 Story’s Eq. 68.
    But it is said that Chesseldine agreed to pay for the expense of removing a wall. The testimony is that he would, if he completed the purchase (see paper attached to S. P. Chase’s deposition) ; and that he agreed to arbitrate the deficiency in the quantity of the land. These acts being merely preliminary, are not sufficient to take the case out of the statute.
    “Delivering an abstract; giving directions for conveyances; going to view the estate; fixing upon appraisers to value stock;

      making valuations, etc., will not take the ease out of the statute.” Sug. Tend. 72, 73; 2 Story’s Eq. 68.
    “ The purchaser, to be bound, must know the objections to the title at the time he purchases.” Sug. Tend. 254; 7 Tes. Jr. 265.
    “ The title must' be like Caesar’s wife, above suspicion.” Sugden,210.
    “ It must be clear of all suspicion; no man is obliged to buy a law suit.” Sugden, 211; Butler v. Hear, 1 Des. 381; Kelly v. Bradford, 3 Bibb, 317.
    “If no incumbrance be communicated to the purchaser, or known to him to exist, he must suppose himself to purchase an unincumbered estate.”
    “ His objections to taking it need not be confined to cases of ^doubtful title, but may be extended to incumbrances of every description, which may embarrass him in the full enjoyment of his purchase.” Garrett v. Macon, Call, 303.
    “ It must be shown, by the party asking for a specific performance, that he has been in no default, in not having performed the agreement; and that ho has taken all proper steps toward performance on his part.” Story’s Eq. 81.
    In all cases cited by the counsel for complainants, to show that a sale made in the name of an agent may be claimed by the principal, although the name of the principal was not disclosed, it will be found that the sales were avowedly made by the vendor as agent.
    The complainants have also acted carelessly and negligently in the premises, in taking no steps to rid the premises of the incumbrances ; and a space of nearly six months elapsed from the time of said sale until a deed was said to have been tendered, the circumstances of the property, in point of value, and other respects, materially changing.
    “ If the character and condition of the property, to which the contract is attached, have been so altered that the terms and restrictions of it are no longer applicable to the state of things, in such cases courts of equity will not grant any relief, but leave the parties to their remedies at law. Courts of equity will not interfere to decree a specific performance, except in cases where it would be strictly equitable to make such a decree.” 2 Story’s Eq. 53.

      The learned commentator takes a very rational distinction between the case of a plaintiff seeking a specific performance in equity, and the case of a defendant resisting such performance; that the specific execution of a contract in equity is matter, not of absolute right in the party, but of sound discretion in the court. Hence, it requires a much less strength of case to resist a bill to perform, than to enforce a specific performance. An agreement, to be entitled to be carried into specific performance, ought to be certain, fair, and just in all its parts.” 2 Story’s Eq. 79; 6 Johns. Ch. 222 ; Sugden, 125-135; 3 Cowen, 435.
    *All the peculiar circumstances may be shown by the defendants, and greater latitude is given for this purpose, by the introduction of parol proof, than is allowed the complainant. 2 Story’s Eq. 80; Sugden, 160.

      “ Delay on the part of the vendor, is a good ground to refuse a specific performance.” 7 Ohio, 92; 2 Story’s Eq. 87, and note.
    With respect to the attempt on the part of complainants to prove a tender of a deed, even if they have succeeded in proving it, it amounts to nothing. A tender made by a person who is unable to perform his contract, avails him nothing ; it is an empty act. 7 Ohio, 88.
    The deed which it is said was tendered to the defendant, was only a quitclaim. Now, Wright, the auctioneer, and two or three other witnesses, say part of the terms of sale was that a good and clear title would be made within ten days, etc.
    “ A contract to make a good and sufficient deed is for a conveyance in fee simple, with covenant of warranty.

    “ A deed without warranty does not fulfill the contract.” Wright, 644; 2 Johns. Ch. 613; 2 Greenleaf, 22; Gilchris v. Buie, 1 Dev. & Batt. 356.
    Mr. Fox for the plaintiff, in reply:
    Objections are made to a specific performance of the contract in this case:
    1. Because the proof does not sustain the allegations of the bill The answer is, the contract, if valid, exactly agrees with that stated in the bill. ' «
    2. Because the case is within the statute of frauds. I admit the case to be within the statute of frauds and perjuries.
    If we take these two objections together, they amount to this: The contract, in proof, varies from the one set forth, because the name of Charles Shultz appears in it; and the complainants are prohibited from showing by parol that they authorized the sale, and, therefore, the contract is void by the statute. Mr. Woodruff claims that, to show this sale to have *been made for the complainants by parol, is to vary the written contract. He refers to Sugden, 89, 95; but when we come to look into the authority cited, we find it only shows that another proposition contended for, can not be sustained, viz: that the verbal declarations of the auctioneer in the auction room, contrary to the printed conditions of sale, are inadmissible.
    Mr. Woodruff is mistaken in supposing that in alt the cases cited by myself, to show that a sale made in the name of an agent may be claimed by the principal, although the name of the principal was not disclosed, the sales were avowedly made by the vendor, as agent. So far from this being the case, in the case of Soames v. Spencer, 1 Dow. & Ry. 32, Soames sold the oil in his own name, without any authority, even from Tennant. The case in 4 Bingham, 722, is to the same effect. In White v. Proctor, 4 Campbell, 210, Mr. Stokes was put down as the name of the purchaser. Stokes was, in fact, the agent of Proctor. But the name of Mr. Stokes, only, was put down as purchaser, and not as agent for the purchaser; and Proctor was held liable on the contract made in the name of Stokes. So in the case of 3 Taunt. 168, and in 3 Ves. & Beames, 187, the names of buyer and seller were not on the same paper, but the contract was made out by different letters.
    In Hicks v. Hankin, 4 Espinasse, 114, the contract was made in the name of George Hankin, although it was, in fact, made by Joseph Hankin, who was acting as agent for George.
    Again, suppose it were as Mr. Woodruff supposes — that the name of the person making the sale was mentioned as agent — would this make the contract any more certain, without the aid of parol testimony? To sign the name merely as agent, without saying for whom the party was acting as agent, would still require the aid of parol testimony to show who was the principal.
    But the law is unquestionably settled that the mere concealing the name of the principal, whether buyer or seller, will not prevent the principal being made liable when discovered. “ Tho buyer or seller may resort to the principafwhen *discovered, although his name were not disclosed at the time of the contract." Patterson v. Gaudaseine, 15 East, 62.

      So, where two are jointly interested in property, and one only sells it, without any authority from the other, yet the latter may, by subsequent ratification, enforce the purchaser to comply with his contract. Soames v. Spencer, 1 Dow. & Ry. 32. Where a factor sells goods in his own name, and the purchaser does not know the fact that any other person is owner, yet if, before payment, the purchaser receives notice from the principal, and after that pays the broker, the principal may recover (Ross Vend. 147, 148,) although the statute of frauds, in regard to contracts concerning personalty, requires the agreement to be signed by both parties.
    Where the agent purchases in his own name, the fact of agency may be proved, so as to charge the principal. Sug. 121; 1 Moore, 46; Russ. & M. 53; Story’s Agency, 28; 5 Wheat. 671; Burton on Real Prop. 483.
    Again, I insist that it is not necessary the complainants should show they had previously authorized the sale; because the name of the purchaser being in writing, and signed by his agent, the' subsequent approbation of the sale is just as good as previous authority. In the case before alluded to, 4 Bing. 722, Justice Best says: “ It has been argued that the subsequent adoption of the contract by Dunn, will not take the case out of the operation of the statute of frauds; and it has been insisted that the agent should have his authority at the time the contract is entered into. If such had been the intention of the legislature, it would have been expressed more clearly; but the statute only requires some note or memorandum, in writing, to be signed by the party to be charged, or his agent thereunto lawfully authorized; leaving it to the rules of the common law as to the mode in which the agent is to receive his authority. Now, in all other cases, a subsequent sanction is considered the same thing in effect as an assent at the time; and, in my opinion, the subsequent sanction of a contract, signed by an agent, takes it out of the operation of the statute more satisfactorily than authority beforehand.”

    *As to the objection of uncertainty, it is futile. If we look at the memorandum of the auctioneer, to which is attached the copy of the printed advertisement, it will be seen that it is the property situate at the southeast corner of Main and Lower Market streets; and it is the same property occupied by Chesseldine, etc. There is no difficulty in identifying the property, which is the only object of a description.

      As to the want of mutuality, there is no weight in that objection ; for it is well settled that, if the contract is signed by the party sought to be charged, it is sufficient. The statute does not require that the contract should be signed by both parties. Sug. Tend. 43, 45. Even a letter directing a third person to draw an agreement, mentioning the terms, is sufficient. Sug. 45, 50. But if such was the requirement of the statute, the auctioneer is agent, as well for the seller as the buyer, and, of course, his act would bind the vendors, as well as the vendee. 4 Johns. Ch. 666.
    As to the tender of the deed, 1 consider it immaterial. It is evident that, at that time, these purchasers refused to receive it. But as the tender is said to be denied in the answer, and only proved by one witness, it may be as well to remark that the bill does not call for a discovery ; the answer, therefore, is not made evidence by complainant, and it can not be made so by the defendant.
    It is said, however, the deed is only a quitclaim deed, and that the purchaser at an auction sale is entitled to a warranty deed. Whether a purchaser is entitled to a warranty deed depends upon the contract of sale. Now, there is no stipulation for a warranty deed ; and, I take it, a court of chancery will not decree a specific performance, even with a warranty deed, unless the title is good. So far, therefore, as the form of the deed is concerned, it is immaterial. If this court think the party entitled to a warranty deed, they can now decree one to be made. If a warranty deed had been tendered, it would avail nothing against a bad title. Was this a bad title at any time ? The counsel for defendant speak of this as an admitted bad title. Now, it is not pretended there was any defect at *all, save and except some creditors had seen proper to file a bill, and, without any proof' whatever, charge the trust deed to be fraudulent. But I submit to the court, whether that circumstance is to be considered as any evidence of a defective title. If I understand what is such a defective .title as to prevent a specific performance, it is a title where there is a link wanting in the chain, or where some manifest equitable title is existing, and this must be proved to the court. “ It is not sufficient to show that the title has been deemed insufficient by conveyancers, but he must prove the title bad.” Sug. 157. It is only where there is a substantial defect the defense can avail. 2 Story Eq. 89. And, although a vendor is not bound to take a doubtful title, he will not be permitted to object to a title on a mere probability of a defect. Sug. 214.
    As to the question of the warranty deed, I take this to be the law : A covenant, to give a good and sufficient deed for the promises, is complied with by giving a good and formal deed, without covenants of warranty. Such is declared to be the law in 16 Johns. 269; 12 Ib. 442.
   Wood, J.

There has been a mass of testimony taken in this case, too voluminous to be recapitulated at length, and will only bo referred to in general term3 in the disposition of the case. In this class of cases it is well settled that the auctioneer is the agent of both parties, and that sales of this description must be conducted in the utmost good faith; and the bidder, as a general rule, has the right to rely on the printed conditions, or verbal representations made by the auctioneer; and if they are not substantially true, it is a fraud upon the purchaser, and he is not bound by his bid. It is also true that a court of equity looks beyond the letter, and inquires after the intentions of the parties. Charles Shultz was, at one time, the owner of this property, and had assigned it to the complainants for the benefit of his creditors. At this time of the sale, and before and after he purchased, Ohesseldine occupied it under a lease from the complainants, as assignees, and paid the rents occasionally to Charles Shullz. He must, ^therefore, have known to whom it belonged, and that Charles Shultz was acting as the agent of the complainants in the management of the premises; and looking, then, at the transaction in its real light, equity would regard the contract as between the complainants and defendant, notwithstanding tho auctioneer erroneously made Charles Shultz a party. The correction of mistakes is one of the peculiar jurisdictions of a court of equity. It appears to us, also, the memorandum of the sale, signed by the defendant, through the agency of the auctioneer, if we regard the complainants as the real parties, takes the case out of the operation of the statute of frauds.

It is certain the property was incumbered at the time of the sale by the mortgages referred to, and until the July term of the superior court succeeding, and that a suit was pending in favor of certain creditors of Charles Shultz against the complainants, as his assignees, to set aside the assignment of this property; but at the July term, by consent of the Bank of the United States, the creditors and assignees, such proceedings were had that the title was confirmed in the assignees, and the avails of the property disposed of'by the decree, leaving it perfectly in the power of the assignees to make a good title. It is very clear if Chessoldino had chosen to abandon the purchase, at any time after the ten days had elapsed, in which the title was to be made, his right to do so could not have been questioned. But if he chose, on his part, to consider the contract open, and to waive the limitation, within which the complainants were to convey, and until it was in their power, equity will estop him from afterward setting up their default as a defense to the suit.

If he treated the bargain as open and subsisting until, the bill was filed, and the complainants were able to make a good title at the hearing, performance, on the part of the defendant, will be decreed. 2 P. Wms. 630; 1 Atk. 12; 3 Cow. 445, 555. It is also certain if the printed conditions of the sale, or the representations made, are not true, the purchaser may waive his right to abandon the contract, and he will, in that event, be compelled to perform it. Does not the defendant ^occupy this ground? Griffin Taylor swears that the defendant offered to sell him the property three or four weeks after the purchase. Fox says before he commenced this suit, which was on November 25, 1839, ho had several conversations with Ohesseldine. He at first expressed a willingness to take the property, but at last objected to the title, and in October, or early in November, deponent tendered him the deed of the complainants. It is proved by Mr. Chase that in June or July the defendant agreed to pay for one-half of a partition wall, to separate the premises in controversy from those of the deponent, in the event of his completing tho purchase. There are other facts also in proof, which altogether lead us to the conclusion that the defendant intended to take the property until about the time when the deed was tendered, in October or November, long after the title was complete in the assignees, and the cause of his refusal was then, probably, not so much from any objection to the title as the depreciation in the value of real estate, which is shown to have been at least twenty-five _per cent, from May till October, 1839.

Another ground of defense is, that the complainants’ deed was but a quitclaim, which the defendant was not obliged to receive. Whether this was a compliance with the contract, on the part of the complainants, must depend on its terms. The contract was for a good title. If, then, the assignees had the title, it would pass to the defendant by a quitclaim, as well as by a conveyance with covenants of warranty. The form of the conveyance, under such a contract, can not be material. The court will look to see if a good title is conveyed, and if not, whatever may be the form, the vendee will not be decreed to execute the contract, on his part. This deed, however, does contain covenants of warranty, by the assignees, against their own acts; but without even these covenants, a majority of the court would consider this conveyance sufficient to satisfy the terms of the sale. Decree for complainants.


source: Caselaw Access Project

author: Lane, C. J.

license: Public Domain

text:
    *The State of Ohio v. The Miami Exporting Company.
    A plea that the defendants have, for twenty years, exercised, the franchise which they are accused of usurping, is valid under the statute.
    No arguments came to the reporter.
   Lane, C. J.

This is an information in the nature of a quo warranto, averring that the defendants use, without warrant, grant, or charter, the following franchises :

1. Of being a corporation.
2. Issuing notes, and receiving deposits, making discounts, and carrying on banking operations.
3. “Of becoming the proprietor of a fund of gold and silver, and keeping the same in a banking house.”
4. Issuing notes for circulation, more than three times the amount of it.
5. Receiving money as capital and loaning, in notes and money, more than the amount, to its pretended officers.
6. Issuing notes for circulation, payable in notes of other banks.
7. Loaning such notes in the same manner as bank notes, payable on demand.

Process is, therefore, asked to bring them into court, to show by what warranty they exercise these franchises.

The pleadings are prolix. It is only necessary to notice the fifth plea. It is there averred, that the defendants were duly incorporated in 1803, and were, by the act of incorporation, duly authorized to exercise all the franchises specified in the declaration, and have exercised, all and singular, the specified franchises for the term of more than twenty years.

The prosecutor replies to the first part of this plea, which is, substantially, setting up a title by prescription, that they have exercised privileges not conferred by charter, to wit, they issued notes to circulate as money. To the same part of the *same plea, he further replies,- that they did not pay their notes and other contracts; and, as to the residue of the same plea, he demurs, for want of form, and assigns as reasons, that it contains matter’s of law, instead of'matters of fact; that no compliance with the provisions of the act is shown; nor, because it does no show by what authority they loaned to themselves more than $200,000 over the amount of the capital stock, or by what authority they have taken more than six per cent, interest.

The defendants join in this demurrer.

It is difficult to speak in any terms of seriousness upon the style of pleading which the prosecutor is pleased to adopt. Let us endeavor to approach the real question, as far as we are able to find it.

The act relating to quo warranto declares no proceedings shall be had to question the authority for exercising franchises which have been exercised more than twenty years, provided such proceedings shall not be barred if instituted within two years from the passage of the act.

The defendant relies, in this plea, upon the prescriptive right of twenty years. The prosecutor, instead of either denying the exercise of the franchise for this period of time, or of bringing himself within the two years’ proviso, gives no other answer, except to repeat the averment that the defendant has done those things which he claims a right to do under his plea.

Without noticing, therefore, the other parts of the case, the plea seems to furnish a complete defense. Judgment for defendant.


author: Wood, J.

text:
    *The Bank of Cleveland v. Ward, Smith, et al.
    The power to change the venue rests in the sound discretion of the court, and must depend upon the circumstances of each particular case.
    The venue should not be changed on the affidavit of the party alone, hut only upon clear and satisfactory proof that fair and impartial justice probably can not he obtained in tho county where the suit was commenced.
   Wood, J.

This is a motion, filed by the plaintiff, to change the venue, in this case, from the county of Cuyahoga to the county of Greauga, for trial. The reason on which it is sought to sustain this motion is, that the cause of action has been so long and so publicly discussed, and has become so much a subject of general interest in the county' of Cuyahoga, that a fair and impartial trial can not be bad therein.

In support of this motion, the affidavit of Zalmon Fitch, president of the bank, is submitted. He deposes that a fair and impartial trial can not be had in Guy ahoga county, as he verily believes. The inquiry is, whether, from the evidence before us, this is a motion which should be granted of course, on the affidavit of the party; for nothing else, as connected with this case, has come to the knowledge of the court, to induce the belief that fair and impartial justice is not to be obtained in the county where the suit was commenced.

We have no settled rule of practice on the subject, and it would, perhaps, be difficult for any one to be precisely defined ; but such a motion must, of necessity, rest in the sound discretion of the court, under the peculiar circumstances attending each individual case.

In New York, in ordinary cases, the courts exercise the power of changing the venue, to accommodate the party who has a majority of witnesses residing in another county, under certain limitations, But when the motion is based upon the ground of excitement, it is said that when it is found that a fair trial, or no trial at all could be had, tho motion should be granted. This was the case of Messenger v. Holmes, 12 *Wend. 203, in which the court refer to the case of Bowman v. Ely, 2 Wend. 250. In the latter case, a motion was made to change the venue from Oneida to Monroe, the residence of most of the witnesses; the motion was opposed by the production of the affidavits of several disinterested and respectable individuals, that, from their knowledge of the ex-citemout which prevailed in Monroe, a fair trial could not be had in that county.

The court decided not to interfere, on any speculative opinion of individuals; that they ought first to see whether the apprehensions of the party were realized, and there would then be time to interpose, and cause the course of justice to flow unpolluted by passion or prejudice.

The power to interpose and change the venue in this state, is derived from section 134 of the practice act (Swan’s Stat. 684), which provides “ that, in all cases where it shall be made to appear to the court that a fair and impartial trial can not be had in the county where the suit is pending, the court may direct the venue to be changed.” It appears to us that more confidence is due to the not less than five thousand legally qualified jurors in the county of Cuyahoga, than to suppose a fair trial can not be had there, merely upon the speculative opinion of one individual, and he a party in interest in the cause; and there is nothing else in the case to induce such belief. There is nothing in the cause of action calculated to raise an excitement, or general feeling, for the matters in controversy are five promissory notes. The record shows there has been but one attempt at a trial by jury, and it is a fact within our recollection, upon that trial, and of which we must take judicial notice, that no difficulty occurred in the selection of the jury, though they were unable to agree, and were discharged by the court; and, under the proof in the cause, such disagreement might have hapjmned in any other county in the state.

As before remarked, it is difficult to establish any general rule, applicable to all cases of this kind; but it is nevertheless certain that the defendants should not be subjected to the vexation 4;and expense of trying their case in a distant county, because the plaintiff, alone, entertains the opinion that justice can not bo administered at homo. Either party has a right to a struck jury, if application is made; and in a populous county, until even that effort is tried, the court should not interfere, without other most clear and satisfactory proof of the necessity, to the fair and impartial administration of justice, that the place of trial should be changed. Motion overruled.


text:
    James Rockwell v. The State of Ohio, for the use of John Nevins.
    In a suit under the act of 1839, against the officer of a hank, for refusing to indorse its hills on presentment, it is necessary to aver, in the declaration a general suspension, by the hank, of specie payments.
    Section 13 of the act of 1839 does not impair the charter of the Bank of Cleveland.
    Debt is the proper remedy for the penalties imposed by the act.
    This is a writ of error to the court of common pleas of the county of Cuyahoga.
    A suit was brought before a justice of the peace, by the defendant in error, against the plaintiff, and, by an appeal, removed into the court of common pleas of the county of Cuyahoga, where a declaration was filed, containing but one count, in which the plaintiff below averred that the defendant below was indebted to the said plaintiff, etc.; for that whereas, the Bank of Cleveland, being a banking institution, duly chartered and incorporated, etc., and transacting the business of banking at Cleveland, on December 1, 1834, did then 'and there make and execute its certain promissory note, in writing, to B. Winslow, and thereby promised to pay the said Winslow, or bearer, on demand, five dollars; and *whereas, the said note afterward, to wit, on, etc., in due course of business, duly came into the hand of the said John Nev-ins, for whose use the suit is brought; and whereas, the said John Nevins being the bearer of said note, then and there, to wit, at the banking house of the Bank of Cleveland, on, etc., and within the usual business hours of said bank, presented said note at the counter of said bank, and demanded payment thereof, in specie, of the said James Bockwell, who, then and there, was an officer.of said bank, to wit, the cashier thereof, which payment the said James Bock-well, cashier as aforesaid, then and there refused; and, whereas, the said John Nevins then and there requested the said James Bockwell, as such cashier, to indorse said demand and refusal, together with the date thereof, in writing, upon the back of said note, and to subscribe the same as such cashier; he, the said James Bockwell cashier as aforesaid, then, and there did not, nor would lie, so indorse said note, but wholly neglected and refused so to do, whereby, and by force of the statute, the said Rockwell forfeited to the said State of Ohio, for the use of the said Nevins, the sum of fifty dollars, whereby an action hath accrued, etc. To this declaration the defendant below demurred generally. The demurrer was overruled in the common pleas, and, by leave of the court, the general issue of nil debet pleaded, the cause submitted to the adjudication of tho court, and judgment given for the plaintiff below for five dollars, and costs of suit.
    The only error assigned, necessary to notice specially, is, “that the declaration, and the matters therein contained, are not sufficient in law to maintain the said action.”
    Benedict, Allen and Stetson, for the plaintiff in error, insisted that the charter of the Bank of Cleveland is a contract within the meaning of section 10 of article 1 of the constitution of the United States, and so not subject to repeal or alteration. New Jersey v. Wilson, 7 Cranch, 164; Terret v. Taylor, 9 Cranch, 43; Trustees of Dartmouth College v. *Woodward, 4 Wheat. 518; Nichols v. Bertram, 3 Pick. 343; Armstrong v. Treasurer of Athens County, 10 Ohio, 239.
    No argument for the defendant came to the hands of the reporter.
   Wood, J.

This suit is instituted under the provisions of section 13 of the act of the general assembly of this state, for tho appointment of a board of bank commissioners, and for the regulation of banks, etc., passed on February 25, 1839.

This section enacts that, “ if any banking institution in this state shall hereafter suspend the payment of its notes in gold and silver, it shall be the duty of the cashier, whenever any bill or bills shall be presented at tho counter of said bank, and the redemption thereof demanded in gold and silver, and the same be refused, to indorse such refusal and the date thereof, on the back of such bill or bills ; and if any cashier shall refuse to indorse any such bill or bills, according to the provisions of this act, such cashier shall forfeit and pay a fine of not less than five nor more than fifty dollars for every such bill so presented and refused, to be recovered before any court having jurisdiction, in the name of the State of Ohio, for the use of the person or persons aggrieved.”

This is a penal statute, and must be construed strictly; and.it is, therefore, necessary all the circumstances should bo stated, which are provided to bring the cashier within its provisions, or the judgment can not be sustained. If there be a title to recover, defectively sot out, such defects are cured by the judgment; but if the title itself to recover, as spread forth in the declaration, be defective, the judgment should be reversed.

The law, then, provides that if any banking institution in this state shall hereafter suspend the payment of its notes in gold and silver, it shall be the duty of the cashier to indorse, etc. It is to guard against a general suspension, or the suspension of the payment of its notes generally by the bank, *that the act confers upon the holders of its bills the authority to require this indorsement, and inflicts the penalty for a non-compliance; it was never the intention of the law to give the penalty upon an isolated controversy between an officer of the bank and the bolder of a bill, which resulted in a demand of payment, and refusal to pay or indorse. Such a transaction would hardly be worthy of legislation- and the bill holder is left to his remedy, by action-, for the recovery of his debt. But to prevent a general suspension of the payment of its notes, which affects the whole community, the provision was made. Are, then, such facts set forth as bring the cashier within the spirit or meaning of this act ? If any banking institution shall suspend the payment of its notes, says the law. The pleader has not averred the suspension of the payment of its notes, ‘.but that the plaintiff below presented a single bill, and payment was refused. This averment is, in our view, insufficient to sustain this judgment, and it must bo reversed.

It has been suggested, also, that debt is not the proper remedy in this case, the penalty being uncertain, resting in the sound discretion of the court, between five and fifty dollars ; and, as a general rule, debt lies only for a sum certain. We think, however, that debt is the proper remedy, and it is within the knowledge of the court that debt has been frequently brought in analogous cases, and is given by express provision in some other cases precisely similar.

But a claim still more extraordinary is advanced by the counsel for the plaintiff in error. It is, that as the charter of the bank contains no requisition upon the cashier to indorso in such cases, the law imposing this additional obligation impairs the charter, and is unconstitutional. It would be useless to discuss that subjcct, in this case, any farther than to remark, that the charter of this institution provides that the legislature may, at any time thereafter, enact laws enforcing and regulating the recovery of the notes, bills, or debts, of which payment shall be refused, etc.; and the act, under which this suit was instituted, seems to be in direct pursuance of this provision. Judgment reversed.


author: Hitchcock, J.

text:
    *Festus McVey et al. v. The Ohio University.
    Under the act of 1804, establishing the Ohio University, and the act of 1805, amendatory thereto, the lands of the university, on lease, are subject to revaluation.
    This is a bill in chancery, from the county of Athens.
    It comes before the court upon a demurrer to the bill.
    The facts, as set forth in the bill, are as follows: The United States, in 1792, in granting to the Ohio Company the lands by them purchased, reserved within the territory granted two townships of land, for the purpose of endowing a university; and, subsequently, by resolution of Congress, the legislature of Ohio were intrusted with the management and application of this fund.
    On February 18, 1804, the legislature of Ohio passed an act incorporating the Ohio University, in the town of Athens, nowin the county of Athens, and which is within one of the reserved townships. By this act the two reserved townships were vested in the corporation, in trust, for the sole use, benefit, and support of said university forever. In section 12 of the act the trustees are' directed, by the oaths of three judicious and disinterested freeholders, to lay off the land in said township, or such part thereof as they may deem expedient, into tracts of not less than 80 nor more than 240 acres, and to estimate and value the same as in their original and unimproved state. They are further authorized to lease the said land for the term of ninety years, renewable forever, on the yearly rent of six per centum on the amount of the valuation so made by the freeholders. The statute then goes on to provide that “the land so leased shall be subject to a revaluation at the expiration of thirty-five years, and to another rovaluation at the end of sixty years from the commencement of the term of each lease, which revaluation shall be made and conducted on the principle of the first; and the lessee shall pay a quarterly rent of six *per centum per annum on the amount of the revaluation so to be made ; provided, always, that the said corporation shall have power to demand a further yearly rent on said lands and tenements, not exceeding the amount of the tax imposed on property of like description by the state.”
    On February 21, 1805, an act was passed by the legislature, amendatory of the act of 1804, by which among other things, it is provided that James Denney, Emanuel Carponter, Jr., Isaac Dawson, Pelatiah White, and Ezekiel Deming shall appraise said college lands, at the then real value in an uncultivated state, and make report thereof to the board of trustees of said university; and the trustees are authorized to lease the same to any person, agreeable to law, for the term of ninety-nine years, renewable forever, with a fixed annual rent of six per centum on the appraised valuation, provided that no lands shall be leased at a loss valuation than at the rate of one dollar and seventy-five cents por acre. And it is further enacted, that so much of the act of 1804 as is contrary to this act, be and the same is hereby repealed. On November 24, 1804, the trustees (the land having been first appraised), leased to one Robert Ross, 240 78-100 acres of this land for ninety-nine years, renewable forever, he paying the annual rent of $25.57. In this lease no provision is made for a reappraisal, but the acts of 1804 and 1805 are referred to as conferring power on the trustees to make it. By sundry' assignments and conveyances, the property covered by the lease is now vested in the complainants, and they are chargeablo with the rents. It is charged in the bill, that at the time of the passage of the amendatory act, at the time of tho execution of the lease, and up to the time, or nearly so, of the filing of the bill, it was the understanding of the lessors and lessees, and all concerned, that the provisions of the law of 1804 were repealed by the law of 1805, and that there was to bo no revaluation of the leased promises. ,
    The bill then charges, that at the last session of the board of j trustees (contrary to all that had been before by them held), the trustees declared and resolved, and still pretend and claim, *that said promises, and all the lands in said township, except in the town of Athens, are subject to revaluation, and the demand of additional rent, agreeably to the provisions of the act of 1804, and that the corporation threaten to revalue said lands, and demand and assess a rent of six per centum upon said revaluation, and also a further rent, in addition thereto, equal to the state taxes on said land; and that in case of non-payment, they threaten to reenter, avoid the lease, and repossess themselves of said land.
    The prayer of the bill is, that the corporation may be enjoined, and the complainants may be quieted in their possession, and for general relief.
    Welch, for the complainants.
    Ewing, Stanbery & Hunter, for the defendants.
   Hitchcock, J.

The question which is presented to the court for consideration, in this case, is within a very narrow compass. It depends entirely upon the construction of the act of February, 1804, “establishing a university in the town of Athens.” Swan’s L. L. 226; 2 Ohio L. 193, and the act amendatory thereto, passed February 21, 1805, Swan’s L. L. 232.

Other questions are argued by complainant’s counsel, but they do not properly arise in the case. Whether any provision was made in the lease for a revaluation is a matter of no consequence. The lessors refer, in the lease, to the law under which they act, as the authority conferring upon them the power to make the lease, and it was incumbent upon the lessee to know the extent of this authority. Unless the lease was in conformity with the law, it was one which the trustees had not power to make, and the complainants’ title would fail. The complainants can not avail themselves of the allegation of having purchased without notice, for they are bound to be acquainted with the title under which they claim.

*By the act incorporating the Ohio University, the trustees are required to have the lands, with which they were intrusted for the benefit of the institution, appraised by three freeholders; and they are authorized to lease these lands, reserving a rent of six per centum per annum.

This act further provides that the lands shall be subject to revaluation at the end of thirty-five, sixty, and ninety years, and that the lessee shall pay a yearly rent of six per centum per annum upon the revaluation so made. And, further, that the corporation shall have power to demand a further yearly rent, not exceeding the amount of the tax imposed by the state on property of the like description. The same act declares that the lands themselves shall bo free from taxation by the state.

The amendatory act of 1805 empowers certain individuals therein named to appraise the lands, and authorizes the corporation to lease them (or ninety-nine years, renewable forever, reserving a fixed rent of six per centum per annum; prohibiting, however, the leasing of any land which shall not have been appraised as high as $1.75 per acre ; and it repeals so much of the former law as is contrary to this.

If, then, we can ascertain wherein the two acts differ, or wherein the latter is contrary to the former, we ascertain to what extent the former is repealed.

By the act of 1804, the lands were to be appraised by three freeholders ; by that of 1805, by five individuals named in the law. In this particular there is a difference.

By the former law the land was to be leased for ninety years, renewable forever; by the latter, for ninety-nine years, renewable forever. Here is another difference.

By the former law, the trustees were authorized to lease all the lands; by the latter, only such as should bo appraised as high as $1.75 per aero; and here is another difference.

The two laws are contrary, the one to the other, in the mode of appraisal, in the duration of the lease, and in the quantity of land to be leased. To this extent the former was repealed. *Wo have sought in vain for any other matter in which they conflict. It may have been the intention to have repealed all that part of the former law which related to the valuation and leasing of the land. But such intention can not be gathered by any known rule of construction, and, of course, we are not authorized to declare that such effect is produced.

The demurrer will be sustained, and the bill dismissed, at the costs of the complainants. Bill dismissed.


author: Grimjke, J.

text:
    Lessee of Blanchard v. Porter, Collins, et al.
    Land on the Ohio river, lying between high and low water mark, is not common to the public, but may be conveyed by the adjacent proprietor, whoso land bounds on the river.
    This is an action of ejectment, on an agreed statement of facts, from Brown county.
    It was agreed as follows:
    “ 1. That the plaintiff and defendants claim under one George Poage, whoso title covers the premises in controversy.
    “2. That the deed from the said Poage to the lessor of the plaintiff, dated October 19, 1838, includes the slope of the bank of the Ohio river, from low-water mark to the top of the bank.
    “3. That the deeds from said Poage, to the defendants, dated May 20, 1834, cover the ground to the top of said river bank where the deed to the plaintiff is bounded ; and that said deeds to the defendants, 1 save and except, and expressly reserve the break and slope of the bank of the river, and all ferries, and rights to have a ferry.’
    *“4. That the deed from said Poage to John G. Bacon, dated February 8, 1833, grants to said Bacon a right of ferry across said river, from Ferry street to the mouth of Eed Oak, between which two points, the slope of the bank in controversy lies.
    “ 5. That, in 1832, the defendants erected on the top of the bank, and within the hounds of their deeds, a steam saw-mill, and constructed, from said saw-mill, a logway, composed of timber, extending a short distance along the top of the bank, and then across the slope of the bank in question, obliquely, to the Ohio river.
    “ That, since that time, said logway has remained, and, with some little alterations, has been, and is now, used and occupied by the defendants for the purpose of drawing logs from the Ohio river up to said saw-mill. That the defendants, for the purpose of getting their lumber from said saw-mill to the Ohio river, have cut down the slope of the bank, and have constructed suitable fixtures thereon, for the purpose of hauling their logs from the river, and building flat-boats, etc., in which manner they are now occupying the said slope of the bank, embraced in plaintiff’s deed.
    “ It is also agireed that said logway passes partly across the mouth of one of the streets in the town of Ripley, and that said slope of the bank, in controversy, is suitable for the construction of warehouses, etc., by digging down the same.

      “ Third specification, so far as it refers to the deeds to the defendants, leaves the construction of said deeds to be decided by the court.”
    Hamer and Devore, for plaintiff:
    The facts in this case are agreed by counsel, and, it is conceived, there can be but little difficulty in determining the rights of the parties. The plaintiff’s deed, dated October 19, 1838, covers all the soil, from the top of the bank to low-water mark, on the margin of the Ohio river. No other conveyance interferes with his right to the land in controversy. The ^defendants’ deed conveys the soil to the top of the river bank, and reserves the “ break and slope,” between that point and the river. The deed to Bacon conveys a ferry-right, but does not interfere with the “soil and freehold” of the plaintiff. The most that Bacon could claim would be an easement; the right to embark and disembark his passengers at suitable places along the shore, between Ferry street and the mouth of Red Oak creek. This is neither an outstanding title, nor a previous conveyance of the premises in question.
    Do the defendants occupy the lands of the plaintiff? If so, by what authority? Is this occupancy consistent with the rights of the plaintiff? Determine these questions, and the case is settled.
    In regard to the first, there can be no doubt. It is admitted that they have a saw-mill on the top of the bank, and a logway reaching from the mill to the edge of the water, supported by permanent fixtures upon the soil. The whole slope of the bank is in their exclusive possession. It is a permanent, durable structure, built upon the soil of the plaintiff, and used, continually, for drawingup logs from the river to the mill. It is an appropriation of the slope of the river bank to their own use and benefit, which excludes the plaintiff, and all others, from the enjoyment of this portion of it, in any manner whatsoever. In addition to this, they have dug down the bank at another point, and established a yard for building boats. By what authority is this appropriation made? Not by their deed, for it does not reach beyond the “ break ” of the river bank. Not by prescription ; for the occupancy is too recent in its origin, and the facts too well known to allow of that defense. But it is said to be an occupancy under the “ ordinance for the government of the territory northwest of the Ohio river,” enacted by Congress in 1787. By that instrument, the Ohio river is made a highway, “ free and common ” to all the citizens of the United States, without any tax, duty, or impost therefor. .What is the extent of this provision, and how far does it interfere with the privileges of riparian proprietors, as they existed at common law? It simply secures *to the people of the United States the use of the river as a “ highway.” It gives them a right to the free and unobstructed navigation of the stream of the Ohio. This right Carrie's with it, as an incident to the grant, the right to land their watercrafts; to load and unload them; to secure them to the shore, by cables or otherwise, at convenient places; and to remain a reasonable time at such places, to accomplish any purpose legitimately connected with the business of navigating the river. But it conveys no right to the public, or to individuals, to dig down the soil of the adjacent proprietors; to remove the rocks and sand from the shore, which are valuable-for building; to establish boat-yards; to construct wharves; to erect warehouses; to build logways from the water to mills upon the top of the bank, or to incumber the freehold with permanent fixtures of any description. No such right existed at common law; none such were intended to be given by the ordinance.
    Is the occupancy of the defendants inconsistent with the rights of the plaintiff? They are clearly so. The slope of the bank is valuable for various purposes. The defendants have found it so; otherwise there would be no defense in the present action. It is agreed that the land covered by the plaintiff's deed is suitable for the erection of warehouses and other buildings. It lies in front of a flourishing town, Ripley, which is the depot for the produce of a fertile country of great extent. The slope is daily becoming more valuable. Suppose it lay in front of Cincinnati, what man would venture to assert that such a tract of land, deeded by the original proprietor to an individual, was common property, liable to be seized and appropriated by any one who chose to occupy it with warehouses, steam mills, factories, water-works, or other valuable buildings? Does its location, in front of Ripley, alter the principle ? If it were in the country, constituting a portion of a plantation, could that fact change the rights of the owners?
    The appropriation of the slope, by the defendants, has excluded the plaintiff entirely from the use of his freehold. His *grant is, practically, a nullity. The law secures to him that which he has purchased and paid for. The defendants have wrested it from him! His legal title .to the premises in controversy is indisputable, derived by a regular, unbroken chain, from the government of the United States. The defendants have wrongfully entered, and forcibly keep) the possession. The law has provided a remedy for this wrong — that remedy is the action of ejectment.
    In support of the doctrine advanced by the plaintiff’s counsel, see 5 Ohio, 495; 5 Wend. 423; 3 Term, 253; 7 Wheat. 59; 14 Mass. 55; 6 Cowen, 677.
    No argument for the defendants came to the hands of the reporter.
   Grimjke, J.

The deed to Bacon may be laid out of the question as not affecting the present controversy. It piurports to convey only an easement. It is not an outstanding title, which interferes with the right of the plaintiff to the soil and freehold. Nor is it a question whether the dead to the plaintiff conveys the land and water to the center of the river, since Virginia only granted the territory on the northern bank of the river to low-water mark, although, by the compact of 1792, between Virginia and Kentucky, a concurrent jurisdiction over the river is accorded to Ohio and Kentucky. There is also no question but what the deed to the plaintiff comprehends, within its description, so much of tholand as lies between high and low-water mark. The question is, simply, had George Poago capacity to convey to that extent? In other words, is the shore of the river common to the public, or does it belong to the adjacent proprietor?

The Ohio is a navigable river; it would be so considered, even if it were not expiressly declared to be such by the deed of cession. This, however, does not determine the question, for there are two kinds of navigable rivers. If we resort to the technical and legal definition of a navigable river, it is that part of the stream only where the tide ebbs and flows. The shore, *below high-water mark, belongs to the public. But grants of lands, bounded on rivers, or upon the margins of the same, above tide-water, carry the exclusive right of the grantee to low-water mark, or, as some of the authorities say, to the center of the stream. None of our rivers, in the western country, are navigable in the technical acceptation of the term. They all fall within the second class. The distinction was originally made in order to define the jurisdiction of the admiralty courts.

In Arnold v. Murndy, 1 Halst. 1, it was said that a grant bounded upon navigable water, where the tide ebbs and flows, extended to high-water mark when the tide was high, and to low-water mark when the tide was low, so as to constitute what Lord Coke called a movable freehold. Co. Lit. 48, b. But this opinion does not appear to have been followed anywhere else. In Cooper v. Smith, 9 Serg. & R. 26, 32, it was held that the right to the bed of a navigable river, where the tide did not reach, was presumed to belong to the public, while the right to the shore belonged to the adjacent proprietor. And in Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. 74, it was decided that the owners of the soil adjacent to the large rivers, in Pennsylvania, do not own the bed of the river to the center. This appears to have been the settled law in Pennsylvania from a very early period. It has, in some measure, effaced the common law distinction between rivers navigable and not navigable. It preserves the distinction, so far as to declare that the river itself is public property; and it destroys it, so far as to make the land between high and low-water mark the property of the riparian proprietor.

But, in Now York, the common-law doctrine has been carried to its utmost extent, and considering all rivers whore the tide does not ebb and flow as not navigable, the adjacent proprietor has been deemed to be possessed to the center of the stream. This was so held, in the People v. Platt, 17 Johns. 195; Hooker v. Cummings, 20 Johns. 90. And, in this last case, it was decided, as a necessary consequence of the doctrine, that the islands in the rivers were the property of the owners of the opposite shores. In South Carolina, a*rule, similar to that in Pennsylvania, appears from the case of Executors of Cotos v. Wadlington, 1 McCord, 580, to have been adopted. It was held that the rule of the English common law, that no river is navigable except where \he tide ebbs and flows, is not applicable to that state so as to entitle the proprietor of land adjacent to a large river, but which is unaffected by the tide, to hold to the middle of the stream. All the authorities, however, agree in giving the adjacent proprietor so much of the land as lies between high and low-water mark.

It appears to have been an unsettled question, in England, until a late period, whether individuals have a right to a tow-path for towing vessels up and down rivers, and it was not until the case of Ball v. Herbert, 3 Term, 253, finally determined that they had not, and contrary to the opinion of Sir Matthew Hale.

But, by banks of the river, in that case, it must be meant the lands above high-water mark; otherwise it would overturn the common-law distinction between rivers navigable and not navigable, for it was admitted, in that case, that the Ouse was a navigable river where the tide ebbed and flowed.

All the authorities, however, as I before remarked, concur in giving the adjacent proprietor a right to the land between high and low-water mark in rivers which are unaffected by the tide. The plaintiff is, therefore, entitled to judgment.

Judgment for plaintiff.


text:
    *James Crawford v. C. C. Wolcott.
    Where statutory damages are claimed upon a protested bill, it is for the jury to find those damages, and not for the court to assess them, or add them to the verdict.
    This is a writ of error, to the court of common pleas of the county of Jefferson. „
    The original suit was brought by the indorsee of a bill of exchange against the drawer. The declaration alleges the bill to have been made at Steubenville, Ohio, and that it was duly presented, for payment, to Force, the acceptor, at Pittsburg, and payment refused. The case was tried by a jury, wlo returned a verdict for $4,070, the amount of principal and interest of the bill. The record then states “that it appearing to the court, here, by testimony in the case, that the said bill of exchange was drawn by the said defendant, at Steubenville, to wit, within the State of Ohio, and that the said bill of exchange was, by said defendant, addressed to and accepted by the said William Force, which said William Force, at the time of the said drawing and acceptance, was resident at Pittsburg, in the Commonwealth of Pennsylvania, to wit, without the jurisdiction of the State of Ohio, and that said bill of exchange has been duly protested for nonpayment thereof.” The court thereupon proceeded to render judgment for the amount so found by the verdict, together with the further sum of $240, being six per centum damages on the amount due, and also for costs, etc.
    R. Marsh, for plaintiff in error.
    . Stanton & Peck, for defendant in error.
   Lane, C. J.

The right to the damages assessed by the court below depends upon the facts that the bill was drawn on some person out of the jurisdiction of this state, and within *the United States, and that it was protested. These facts may be contested, and the jury must determine them. It is not like the case of damages given on appeals to the Supreme Court, where the court, in certain cases, are required “to render judgment for the amount so recovered, together with five per centum damages thereon.” Swan’s Stat. 689. But these damages compose a part, of the amount due on the bill. They are given as an adjustment of all claims for expenses and re-exchange, and, like the principal, interest, and costs of protest, should be found by the jury and embraced in the verdict.

The judgment was reversed, as to the damages assessed by the court, and affirmed as to the residue.