text:
    *Josiah Parker v. Cadwallader Wallace.
    If complainant in equity, claiming conveyance from the elder patentee, have no patent when the bill is iiled, he may he entitled to a decree if he have a patent at the time of hearing.
    Saxiior entry upon resolution warrant, surveyed and patented conformable to laws of Congress, may he aided in equity against an elder patent on a junior entry.
    This cause was adjourned here for decision from the county of Brown. It was a bill in chancery to obtain from the defendant-the legal title to a tract of land, upon the ground that the complainant owned the superior equity, although the defendant had obtained the eldest patent.
    The facts, as they were made out in evidence, were as follow: The complainant claims under an entry made in the name of Josiah Parker, on January 11, 1788. The warrant upon which the entry was made, issued to Josiah Parker, in virtue of a special resolution of the legislature of Yirginia, and was of that class usually denominated “ resolution warrants.”
    The evidence upon which it was founded showed that in October, 1775, Parker was appointed a major in the 5th Yirginia regiment on continental establishment, where he served until August, 1776, when he was appointed lieutenant-colonel. In April, 1777, he received a full colonel’s commission, under which he served to August, 1778, when he resigned. After his resignation he was in active service with the militia upon every invasion of the state, until the arrival of the Count de Grasse. The resolution directing the warrant to issue in virtue of these services, passed November 18, 1783. The warrant bears date the 21st of the same month.
    The survey upon which the patent issued was dated June 14, 1828, and the patent issued February 1, 1827. A witness testified that he was present more than twenty years previous, when Lucas Suilivant, a deputy surveyor under Richard Anderson, the principal surveyor, surveyed Parker’s whole entry, of which the land in question was part. The complainant had been many years in possession and made improvements. The defendant’s entry was made July 23, 1823 ; surveyed and patented April 12, 1824. Having the eldest grant the defendant recovered in an ejectment at law. The complainant filed his bill March 3, 1826, for a conveyance, and obtained an injunction. A question was made in the bill and answer as to the identity and notoriety of the location, upon which much testimony was taken. The court *upon the proof decided this point for the complainant. It being a mere matter of fact dependent upon familiar and well-established principles, it is deemed unnecessary to introduce it into the report. The final decision turned upon the validity of the resolution warrant to appropriate the land, and the propriety of its being aided to do so by a court of equity.
    M. Marshall, for complainant,
    contended that the ground upon which the governor and council of Yirginia acted in issuing the warrant, was not now open for investigation, the warrant importing on its faces to be issued for services in the Yirginia line on continental establishment. He further contended that Congress, by their acts of May 13,1800, and of March 3,1807, had confirmed and sanctioned entries upon resolution warrants. He also contended that in virtue of the act of^Congress of March 2, 1807, the land in controversy was not open to be located by the defendant, when his entry was made.
    Scott, for defendant, insisted:

      First. That the complainant’s bill ought to be dismissed because he had no title when it was filed, the survey being made and the patent issued subsequently. He cited 2 Bibb, 123.

      Second. That the court could not aid the complainant’s claim, because founded on a resolution warrant, not protected by any law of Congress. He gave an analytical review of the Yirginia land laws, to prove that resolution warrants were not entitled to location between the Miami and' Scioto rivers. He contended the defendant had a right to go behind the warrant under which the complainant claimed, and show that the services had not been performed. He cited 3 Burr. 126; 2 Term, 466; 3 Blac. Com. 23; Coke Lit. 289; 2 Bac. Abr. 401; 1 Ld. Raym 584; 7 Wheat. 1.
    The acts of Congress relied upon, he insisted had not been pursued, by completing and depositing the survey within the period prescribed, and consequently they furnished no protection. Nor had the subsequent acts been so complied with as to protect the title.
    He contended the evidence of a survey, made by Sullivant, did not establish such a surveying, as could be received and *considered as official, because it only established that a chain had followed the compass round the lands. It had never been recorded, was not now produced, and its character was unknown. He cited 1 Pet. S. P. 645; Hard. 350; 7 Wheat. 23.
   By the Court:

The exception that the complainant’s bill is prematurely filed, because he was not invested with a legal title at the time of filing it, is, in our opinion, untenable. It is, we think, sufficient to warrant a decree in his favor, that the patent to him has issued when the decree is pronounced, if the other facts in the case entitle him to a decree.

The equity of the complainant rests upon his elder entry, finally surveyed and carried into grant, under the laws of the United States. The defendant denies that that entry can be sustained, because it is not founded upon a warrant issued in the ordinary way, for services performed in the Virginia line, upon continental establishment.

Whilst the territory within which these lands lie, was the property of the State of Virginia, and subject to her jurisdiction, she engaged, so early as October, 1776, to bestow land bounties upon those who should engage in the military service of the revolutionary war. The date of the original engagements of 1776, and 1778 have not been preserved in the published codes of Virginia, and consequently are not found in our own collection of land laws. In May, 1779, a general law was passed providing for granting warrants to those entitled under the. laws, and describing the evidence upon which the grant should be made. It would seem that the case of Pai’ker did not come within these general provisions, and therefore a special resolution was passed, directing a warrant to be issued to him, as for services performed in the Virginia line, upon continental establishment. The evidence adduced, in this case, shows that he performed very nearly three years’ service in that line, and that he performed other approved military services, in the commonwealth of Virginia, upon account of which the special resolution was adopted.

The same legislature that voted the resolution, at the same session, passed the law reserving the lands between the *Miami and Scioto rivers to satisfy the military bounties the state had engaged to her citizens. Aud at the same session, the law was passed consenting to cede the territory northwest of the Ohio to the United States upon the terms proposed by Congress. On March 11, 1784, the deed of cession was executed and accepted. This deed contains a provision that the land between the Miami and Scioto rivers should be appropriated, if necessary, to satisfy the legal bounties so engaged. The terms of the reservation are as follows: “That, in case the quantity of good lands, on the southeast side of the ,Ohio, upon the waters of Cumberland river, and between the Green river and Tennessee river, which have been reserved by law for the Tirginia troops upon continental establishment, should, etc., prove insufficient for their legal bounties, the deficiency shall be made up to the said troops, in good lands, to be laid off between the Scioto and the Little Miami, on the northwest side of the Ohio river, in such proportions as have been engaged to them by the laws of Tirginia.”

At the time this reservation was stipulated and made, Parker held his warrant, under the resolution, for services actually performed as one of the Tirginia troops upon continental establishment, and it seems to us that his case is fairly covered by the terms of the reservation. He was entitled, under the laws of Tirginia, as Tirginia had herself decided, and he was in possession of the appropriate evidence of his right. That right was not less predicated upon the laws of Tirginia, because the evidence of it issued in conformity to a resolution, instead of a general law. The services actually performed, were the foundation upon which it rested, the consideration upon which it issued, and it stood as fairly upon the law as any other ease whatever. Ve see no principle to distinguish it from the great mass of claims to be satisfied out of the lands reserved. But if any difficulty existed on this ground, it seems to have been entirely removed by the legislation of Congress on the subject.

The act of March 3, 1807, fully recognizes the validity of these resolution warrants, so far as they were issued upon resolutions passed previous to the cession from Tirginia to'the United States. The proviso of the first section of that act must be understood as relating to warrants issued upon resolutions ^adopted subsequent to the cession. Rights confirmed at the time of the cession are not contemplated by it. Por it would be highly unjust and improper that Congress should institute an inquiry into the validity of individual rights, completely vested when the right of the United States accrued.

Section 2 of the act of March 1, 1823, revives the act of March 3, 1807, and gives four years from January 4,1823, to return the surveys and obtain patents on location upon resolution warrants. Within this period the survey was made and returned. So that, according to the provisions of the act of Congress, the title has been consummated in the complainants. The patent obtained by the defendant upon a junior entry stands upon no better footing than if the complainant’s entry was on a warrant issued in the ordinary manner, for services performed in the Virginia line upon continental establishment. The case is not analogous to an entry predicated upon a warrant for services in the state line.

In the cession to the United States, no reservation was made in favor of those to whom bounties were engaged, for military services in the state line. Consequently they, were excluded from making location in the reserved territory northwest of the Ohio. But those claiming under resolution warrants, for services performed in the Virginia line, upon continental establishment, were included in the reservation, and their rights are not distinguishable from others, in whose favor the reservation was made.

By deciding that the entry of the complainant is a good and valid entry, which entry ought to be sustained against an elder patent founded on a junior entry, we do not impeach the decision of the Supreme Court of the United States in the case of Miller v. Kerr, cited by the defendant’s counsel. And in respect to this case, it is pertinent to remark, that from the doctrine advanced in Hoofnagle v. Anderson, decided at the next subsequent term, it may well be doubted whether the court were entirely satisfied with their resolution in the former case.

It is evident that the title of the defendant commenced in 1823, when the complainant was in actual possession, and was originated with a view to speculation alone. It is not an accidental confliction of title, where the latter locator honestly ^supposed he was appropriating unappropriated lands. In this state of the case, he is entitled to no favor in a court of equity. He stands upon his legal rights altogether. And these are to be decided upon with the severest scrutiny into their absolute obligation. All equitable considerations operate in favor of the complainant, whom, we conceive, entitled to a decree for the conveyance asked by the bill.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Administrators of Gavit v. Chambers and Coats.
    In Ohio, owners of lands situate on the banks of navigable streams running through the state, are also owners of the beds of the rivers to the middle of the stream, as at common law.
    This was a writ of error brought to reverse the judgment of the court of common pleas of Sandusky county, and adjouimed here for decision. The plaintiff in error was the plaintiff in the original suit, which was an action on the case for erecting a dam over the Sandusky river, and flowing back the water in the bed of the river upon the plaintiff.
    At the trial the plaintiff proved that he owned certain lands bounded by the river and situate on its western bank. He also proved that by the erection of the dam the water was flowed back in the bed of the river, opposite the lands of the plaintiff, so as to stand four feet deep on a stone-quarry, in the bed of the river, between the plaintiff’s land and the middle of the stream. It was also proved that in making the original surveys the river was intersected by the lines, but the area of the river to high-water mark sub tracted from the integral survey, and only the lands on the shores paid for, to the United States, by the purchaser. It was also proved that the plaintiff was-in possession of the land claimed, and had used the stone-quarry in the bed of the river before the erection of the dam, and notified the defendants not to raise their, dam so as to flow the water back upon him.
    The court of common pleas charged the jury that the plaintiff could set up no right, in consequence of owning the lands on the shore to the use or ownership (if the bed of the river adjacent to such lands. The plaintiff excepted to this ^charge, and the jury gave a verdict for the defendant, upon which the court rendered judgment for him, to'reverse which this writ of error was brought.

      Platt Brush, for defendants in error,
    argued that as the San-dusky river was declared a navigable stream no individual could acquire an exclusive property in its bed.
    No argument was submitted on the other side.
   By the Court :

The question presented for decision in this case is, has the proprietor of lands, bounded on a navigable stream, a separate and individual interest or property in any portion of the bed of the river?

The cession of the United States of the lands within the territory of which Ohio is now a part, was made subject to no condition with respect to navigable streams. But in the first frame of government, commonly called the ordinance, which is fundamental in its character, it is stipulated that “ navigable waters leading into the Mississippi and St. Lawrence, shall be common highways, and be forever free” to all the people of the United States. The legislation of Congress, for the disjDosition of the lands, has strictly conformed to this stipulation. The lands within the beds of navigable rivers have not been sold to individuals as land to be paid for. And whether the rivers have or have not been made boundaries of surveys, the land usually covered by water has been deducted from that upon which the purchase money was charged. This, it is argued, is a fact conclusive to establish the position that the individual purchaser acquires no right to the bed of the river .adjoining his lands. But we do not think it properly attended with such consequence.

It is, we conceive, vitally essential to the public peace and to individual security, that there should be distinct and acknowledged legal owners lor both the land and water of the country. This seems to have been the principle upon which the common law doctrine was originally settled, that where a stream was not subject to the ebb and flow of the tide it should be deemed the property of the owners of the soil ^bounding upon its banks. The reason upon which this rule is founded, applies as strongly in this country as in any other. And no maxim of jurisprudence is of more universal application than that where the reason is the same the law should be the same.

If, in the case before us, the owners of the lands bounded on the banks of the Sandusky river, do not own the fee simple in that stream, subject only to the use of the public, who does own it, and what is its condition ? The ordinance reserves nothing but the use. No act of Congress makes any reservation in relation to the beds of rivers. We find no provisions ¡but those of section 9 of the act of 1796, which are confined to reserving the use of navigable rivers, and to declaring the existence of the common law doctrine, in respect to streams not navigable.

A river consists of water, bed, and banks. At what point does the right of the owner of the adjoining lands terminate? On the top, or at the bottom of the bank ? At high or at low-water mark ? Does his boundary recede and advance with the water, or is it stationary at some point? And where is that point? Who gains by alluvion, who loses by the direptions of the streams ? No satisfactory rules can be laid down, in answer to these questions, if the common law doctrine be departed from; and if it be assumed, that the United States retain the fee simple in the beds of our rivers, who is to preserve them from individual trespasses, or determine matters of wrong between the trespassers themselves? It can not be reasonably doubted, that, if all the beds of our rivers supposed to be navigable; and treated as such by the United States, in selling the lands, are to be regarded as unappropriated territory, a door is opened for incalculable mischiefs. Intruders upon the common waste would fall into endless broils among themselves, and involve the owners of the adjacent lands in controversies innumerable. Stones, soil, gravel, the right to fish, would all be subjects for individual scramble, necessarily leading to violence and outrage. The United Slates would be little interested in preserving either the peace or the property, and, indeed. would be powerless to do it, without an interference with the policy of the state, as unsuitable for the Union to exercise, as it would be inconvenient, -if not dangerous, to state sovereignty.

*We do not believe that it was the intention of the United States to reserve an interest in the bed, banks, or water of the rivers in the state, other than the use for navigation to the public, which is distinctly in the nature of an easement, and all grants of land upon such waters, we hold to have been made subject to the rule of the common law, which, in this case, is the plain rule of common sense. And it is this: He who owns the lands upon both banks, owns the entire -river,- subject only to the easement of navigation, and he who owns the land upon one.bank-only, owns to the middle of the river, subject to the same easement. This is the rule, recognized not only in England, but in our sister states. 20 Johns. 90; 17 Johns. 195; 3 Caine, 319; 2 Conn. 481. The case in 20 Johnson is full and clear in point. There is nothing in the trust vested in Congress, and executed by them, and nothing in the manner of executing it, to warrant the establishment of a different principle here. The charge of the court of common, pleas was, in our opinion, erroneous ; the judgment must, therefore, be reversed, and a venire de novo awarded.


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    David Young and Sarah his wife v. The Surviving Executors of J. M’Intire.
    Devise to widow “one-half of all the personal property,” and subsequent, devise to widow one-half profits of all bis estate for life. Devise to daughter, after widow’s death, profits of all my Z. O. and M. Co. stock, for life; to daughter’s heirs, aall the stock aforesaid." The stock does not pass under the devise of “personal property."

    This was a bill in chancery, brought to compel the assignment of thirty-five shares of stock in the Zanesville Canal and Manufacturing Company, which the complainants claim under the will' of John M’lntire, deceased. The bill states that M’lntire in his-will devised to the complainant Sarah one-half of the personal property of which he should die possessed, except his clock, and directed that the personal property should be valued by three men chosen for that purpose by his executors ; and that the will further directed that the said Sarah should make choice of the same if she thought proper, if not, that the whole should be sold and one-half the proceeds paid to her.
    The bill alleged the decease of M’lntire, the proof of the *will, and the qualification of the executors, and their taking upon them the execution of the will, and obtaining possession of' his entire estate. It claimed that the complainant, Sarah, was entitled to one-half of the seventy shares of stock owned by J. MTntire, in the stock of the Zanesville Canal and Manufacturing Company, and prayed a decree that the executors transfer it to-them, the said Sarah having since intermarried with the complainant David.

      The answer admitted the will, the devise, and that they took upon, themselves the executorship, and received a large amount of property, and submitted to the court, upon a case stated, whether the complainants were or were not entitled to a transfer of the stock.
    The facts of the case, as agreed by the parties, were as follows: MTntire owned a tract ofland which he agreed to sell to the company for stock. The stock agreed upon as the capital of the company was seventy thousand dollars, tobe divided into one hundred and forty shares, of five' hundred dollars each. Of these shares seventy were subscribed by MTntire, to be paid in the land. The other seventy were subscribed by others, to be paid in money. The agreement was that M’lntire’s shares should draw dividends only upon so much of each as should be actually paid in upon each of the other shares. That so soon as the other shareholders should pay in the one-half of their shares, and give security for the payment of the residue, MTntire should convey to the company the land sold, with the entire privileges of the water. Under this contract the company took possession of the ground, and commenced their works, in the lifetime of MTntire, but did not entitle themselves to a conveyance until long since his death. The conveyance has been made by the executors. The complainant, Sarah, who was the wife of MTntire, agreed to take under the will, and received one-half the personal estate, except this stock, agreeably to the directions of the will.
    The material provisions of- the will are these :
    “ In lieu of my wife’s full dower at law, I give, devise, and bequeath to her, absolutely, the one-half of all the personal property I may dispossessed of, except .my clock, which is not to be sold, but remain in my dwelling house so long as it shall go.” “ All my personal property is first to be valued by three men, chosen by my executors. Then my wife Sarah is to make her choice of the one-half, or should she not take the one-half, the residue is to be sold, and she is to get the money arising from the sale.”
    *The use of the mansion house is then given to his wife, and the executors are authorized to sell certain lands and pay his debts with the proceeds. Then the will proceeds:
    “ After which debts are paid, my executors are to pay to my wife, Sarah, annually during her life, the one-half of the rents, interests, and profits of all my estate, both real and personal.” “ The money arising from the sale of my real and personal estate, after the payment of my debts, as aforesaid, is to bo by my executors vested in stock in the Zanesville Canal and Manufacturing Company.” Some legacies excepted.
    Directions are then given for the sale of real estate, after the death of his wife, and investing the money in canal stock, “As my other money is ordered to be invested.” And the will proceeds:
    “I give and bequeath to my daughter, Amelia M’lntire, at the death of my wife, my mansion-house, with the premises before described, provided she leaves heirs of her body. Also, I give and bequeath to her and the heirs of her body, and their heirs forever, all the rents, issues, interest, and profits of all my Zanesville Canal and Manufacturing Company stock, which are to be paid to her annually, during her life, by the president and directors of said company, on her own personal application and no otherwise. She is not at liberty to sell, under the pain of forfeiture, any part of said stock, nor is the same ever to be liable for the payment of her debts which she may contract, or which her husband, should she marry, may contract. Should she leave an heir, or heirs of her body, then at her death the house aforesaid to be vested in them, in fee simple, and Aim the stock aforesaid, to do with as they may think proper.”
    Silliman, for complainants.
    Goddard, for the executors,
    submitted the question of construction to the court, they only wishing such decision as should protect them in making a disposition of the stock.
   By the Court :

The first clause of the will would doubtless be sufficient to vest the widow with one-half the canal stock, were there no other provisions in the will in direct repugnance to it. The stock is personal property, notwithstanding it is connected in some manner with the realty. But if we decree one-half this stock to the widow, we inevitably defeat what appears to have been the great and leading design and intention of the testator.

That it was not intended to comprehend the canal stock m the bequest of “personal property,” is manifest from almost *every part of the will. In the first place the “personal property ” included is all to be valued by three men, and the widow, upon such valuation, is to take the half. If she does not take it, it is to be sold, and the proceeds paid to her. That it was not intended to subject the canal stock to sale is indisputable, because the proceeds of the personal and real estate are to be invested in canal' stock, and the widow is to receive “ one-half of the rents, issues, interests, and profits of all the estate;" because, too, it is subsequently provided that, after the decease of the widow, the daughter shall receive all the rents, issues, interests, and profits of all the canal stock, and that the heirs of the body of the daughter after her death should have all the stock aforesaid. It is impossible to give the widow half and the daughter all; and we can not reasonably suppose that any such absurd intention was entertained by the testator.

Throughout the whole will a marked distinction is made between the canal stock and ordinary personal property. The intention to extend the amount, and to preserve it for the use of the wife and daughter, during their lives, is clear and manifest. And this intention must be defeated if the canal stock was included in the first devise to the wife, as part of the personal property to be divided.

It is urged that the canal stock, being legally personal property, the devise of it is in express terms, and an express bequest is not to be defeated by implication. But whether is that devise more express which is supposed to comprehend the stock in the general term personal property, or that which specifically names the stock and bequeaths the profits of all, the whole, to the daughter ? Surely the terms of the latter devise are at least as specific as those of the former. There is no implication or inference necessary to understand them. And the intention to give them effect is too clear to be mistaken or disputed. The widow claims upon general terms, and seeks an interpretation contrary to the evident intention. The daughter claims upon a bequest in express terms of the specific subject — and her claim comports with the whole intention. If the two bequests be absolutely repugnant, the latter must prevail. If they are not so repugnant, they must be reconciled by deciding that the widow took a life estate in the profits of one-half the stock, and the daughter a life ^estate in the profits of the whole, subject to the widow’s right in half — the whole remainder to the heirs of the body of the daughter, or to the charitable uses. In either cases the complainants must fail.

Bill dismissed.


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    J. and G. R. Gilmore v. The Miami Bank and others.
    Practice under section 59 of the act directing the mode of proceeding in chancery.
    This cause came before the court, by adjournment from the county of Hamilton. It was a bill in chancery, under section 59 of the law “directing the mode of proceeding in chancery.” The Miami Bank was the principal debtor, and the object of the bill was to subject certain debtors of the bank to the payment of the money due the complainants. Their whole claim, when the bill was filed, amounted to about thirteen thousand dollars. The aggregate of debts due to-the-bank from the debtors summoned amounted to about forty-five thousand dollars. W. H. Harrison made no objection to his liability. J. Burnet answered that, when served with process in 1824, he was indebted to the Miami Bank in the character of indorser; that the evidence of this debt had been long before pledged with the Bank of the United States as -collateral security, for the payment-of a debt due from the Miami Bank to that institution, and that in the month of March, 1825, he had paid the amount to the Bank of the United States.
    Hunt, Riddle, Piatt & Co. alleged that the debt due from them to the bank was paid in after bill filed by Martin Baum, a partner, not made defendant in the bill, and that consequently such, payment was available for them against the complainants. As the decree is only against the defendants here named, it is deemed unnecessary to notice the defenses of the other defendants.
    It was fully proved that the alleged payment from Martin Baum of the debt of Hunt, Riddle, Piatt & Co., was by a discount in the Miami Bank of his individual note, indorsed by other members of the company.
    *The cause was argued by Hammond and Storer, for complainant, and by Y. Worthington, for Burnet. No argument was submitted for the other defendants.
    The court ruled that when a creditor summoned the debtors of his debtor, to an excessive amount, the debtor should apply to the court to compel the complainant to select whom he would hold, and, in default of his making such selection, the court would assign who should be holden, and discharge the residue. That if no such application be made, all the defendants remain bound. That, if pending the suit, the summoned debtors make payment to the principal debtor, they must held liable to the complainant sub modo—he who last paid to be first liable. It was also held that Martin Baum, not being made a party to the suit, could not affect the rights of the complainants, unless the matter had been regularly pleaded in abatement of the suit. The decree entered was in the following form, which is inserted as a document which may be •useful to the profession, as a precedent, in future cases.
    “This cause came on to be heard upon the bill, answer and exhibits, and arguments of counsel, which being seen and heard, the court are of opinion that the complainants are the legal owners of the judgment in the bill mentioned, rendered in favor of Samuel •Sullivan, treasurer of the State of Ohio, against the president and directors of the Miami Exporting Company, and are entitled to recover of the defendants last named the sum now due thereon, amounting to twelve thousand five hundred and eighty-six dollars •and twenty-three cents, being the principal and interest due on said judgment up to the 18th day of December, instant. The court are also of opinion that the complainants are entitled to recover of the defendants, the president and directors of the Miami Exporting Company, the amount of the ju'dgment, rendered at March term, 1824, in the bill mentioned, which, with interest to the 18th of December, present, amounts to three thousand nine hundred and sixteen dollars and eighty cents—the aggregate thus due to the complainants from the said defendants, the president and directors of the Miami Exporting Company, being sixteen thousand five hundred and three dollars and seventy-three cents. The court *are further of opinion that the complainants are well entitled in equity, under the statute in that case made and provided, to have a decree and execution against the debtors of the said defendants, the president and directors of the Miami Exporting Company, parties to this suit^as is prayed in the complainants’ bill, and therefore the court proceed to decree, in respect to the other named defendants, as to the court here seems just" and according to equity. As to the defendant, George N. Hunt, it being suggested to the court, that he hath departed this life since the filing of the bill, and his representatives not being made parties to this cause, as to him it is considered to be abated. As to the defendants, Woodward and Stitt, the court are of opinion that there being a just judgment at law against them and their creditors, rendered before the commencement of this suit, for the debt due from them to the president and directors of the Miami Exporting Company, they can not be charged in this bill; the court do, therefore, award, order, and decree, that as to the said Woodward and Stitt, the bill be dismissed. As to the defendants, Jesse Hunt, Riddle, Longworth, Bechtle, Findlay, Spencer, Sloo, and the administrator’s of J. H. Piatt, it appears to the court that the defendants, Longworth, Bechtle, Findlay, Sloo, and the administrators of J. H. Piatt, are in default for answer, as to whom, the court proceed as upon their confession of the matter in the bill stated; but as it appears to the court, that the administrators of J. H. Piatt, deceased, can not properly be joined in a decree against the other defendants, partners in the firm of Hunt, Riddle, Piatt & Co., it is ordered, adjudged, and decreed, that as to the said administrators the bill be dismi ssed; and the court are further of opinion that the debt due from the defendants, the late firm of Hunt, Riddle, Piatt & Co., to the defendants, the president and directors of the Miami Exporting Company, at the time of the filing of this bill, is subject to the payment of the debt due the complainants as clai med by them. The court are further of opinion that the debts due from the defendants, Harrison and Burnet, to the president and directors of the Miami Exporting Company, at the time of filing the complainants’ bill, are subject and liable to the payment of the debt due the complainants as allowed by them; and by consent of the complainants, the bill, as to the defendants, *Green, and Guilford, and George W. Jones, is dismissed without prejudice.
    The defendant, Harrison, having failed to answer the complainants’ bill, it is ordered, adjudged, and decreed that, as to him, the bill be taken as confessed, and it appearing to the court, from the-testimony of Oliver M. Spencer, that on the 7th day of May last, there was due from the said Wm. H. Harrison to the president and directors of the Miami Exporting Company the sum of eleven thousand five hundred and fifty-five dollars, eight thousand dollars-whereof was principal debt, the additional interest upon which sum, to the 18th day of December instant, is two hundred and ninety dollars, the court do therefore award, order, and decree that the complainants recover of the defendant, Harrison, the sum of eleven thousand eight hundred and forty-five dollars, for the making of which, with interest, the said complainants shall have •execution against the said Harrison, as upon a judgment at law, that the amount, when paid, shall be credited upon the sum hereby together with the costs of execution ; and it is further ordered, decreed to be due to the complainants from the defendants, the president and directors of the Miami Exporting Company, and shall also constitute a credit in favor of said Harrison against the debt due from him to the said company. And it appearing to the court, from the testimony taken in the cause, that at the filing of this bill, the defendants, Hunt, Riddle, Piatt & Co., were indebted to the defendants, the president and directors of the Miami Exporting Company,- a ■ sum which, on May 1, 1826, amounted to nineteen thousand forty-seven dollars and twenty-eight cents, the court do award, order, and decree that the complainants recover of the defendants, Jesse Hunt, James Riddle, and Nicholas Longworth, Henry Bechtle, James Findlay, Oliver M. Spencer, and Thomas Sloo, Jr., the said sum of nineteen thousand forty-seven dollars and twenty-eight cents, for the making of which, with interest, the said complainants shall have execution against the said last-named defendants, as at law, together with the costs-of execution; and it is hereby ordered that, until the sheriff shall return upon the execution to be issued under this decree against the defendant Harrison, that he can find neither goods nor chattels, nor lands, whereof to levy the amount of said execution against said ^Harrison, the clerk shall indorse upon the execution against said defendants, Hunt, Riddle, Longworth, Bechtle, Findlay, Spencer, and Sloo, that it is to be levied only for the sum of four thousand six hundred and fifty-eight dollars and seventy-three cents, and interest thereon from the date of this decree, and cost of execution. But if, at any time, the sheriff shall return -upon the execution, against the defendant Harrison, that he can not find goods or lands whereof to levy, then no such indorsement shall be made, but the clerk shall indorse on said execution the amount actually due upon the entire decree hereby named, in favor of the complainants, and the sheriff shall levy such amount with interest and costs only. And it further appearing to the court, from the admission of the answer of the defendant, Jacob Burnet, that, at the filing of the bill in this cause, the said Burnet was indebted to the defendants, the president and directors of the Miami Ex■porting Company, a sum, which, on March 18, 1825, amounted to nine thousand eight hundred and six dollars, the court do award, order, and decree that the said complainants recover of the defendant Burnet the sum of nine thousand eight hundred and six dollars aforesaid, for the making of which, together with the costs ■of execution, the complainants shall have execution as upon a judgment at law, and it is hereby ordered, until the sheriff shall return upon the execution, to be issued under this decree against the defendants, Hunt, Eiddle, Longworth, Bechtle, Findlay, Spencer, and Sloo, that he can find neither goods nor lands whereof to levy the amount of said execution, no execution whatever shall be issued upon this decree against said Jacob Burnet, and after such return be made, if execution be issued against the said Burnet, the clerk shall indorse the sum remaining due to the complainants upon the entire decree hereby rendered in favor of the complainants, and the sheriff shall levy of the said Burnet such amount, with interest and costs of execution, and no more. And it is further ordered ■and decreed that the said sum of sixteen thousand five hundred and three dollars and seventy-three cents, with interest thereon when paid, whatever of the said defendants it may be levied, shall •be in satisfaction of the two judgments in the bill mentioned, and the court do further award, order, and decree that the complainants recover of the defendants, *the president and directors of the Miami Exporting Company, their costs in the prosecution of this suit expended. And it is further ordered that the clerk of •the Supreme Court for Hamilton county, upon receiving a transcript of this decree duly certified, enter the same upon his journal, and proceed, upon application of complainants, to issue executions as in this decree directed.


text:
    State of Ohio, for use of A. Stone, v. F. Sherman, G. Dunlevy, and M. German.
    Suit may be maintained against commissioner of insolvents and his securities, on their official bond, without creditor establishing his debt by judgment.
    This was an action of debt upon a bond-given by the defendant, Sherman, as commissioner of insolvents, and by the other defend* ants, as his sureties. The declaration set forth the bond and the condition; and assigned as a breach that while Sherman officiated as commissioner, one Turner applied for the benefit of the act for the relief of insolvent debtors—that a certificate was granted, and a large amount of property transferred to the commissioner, which - he proceeded to sell and convert into money—and received the-sum of five thousand dollars. But, that after the sale, the commissioner wholly neglected to advertise a meeting of Turner’s creditors, as required by law. It was then averred that Stone was, at the time of the insolvency, and from that time to the commencement of the suit, a creditor of Turner, for money paid, laid out and expended, at his special instance and request.
    And, for further breach of the condition, the declaration alleged, that afterward the commissioner received notes and money to a large amount, arising from the sale of said Turner’s property. But did not, at the expiration of six months, or at any time thereafter, or at any time since, make distribution according to law, among the creditors. The whole concluded with the usual averment, that an action had accrued, etc.
    The defendants demurred generally, and the cause was adjourned, here for decision from the Supreme Court of Washington county.
    *H. Stanbery argued in support of the demurrer..
    S. F. Yinton, against it.
   By the Court :

We conceive that the argument for the defendants proceeds upon a totally mistaken view of the case. It assumes that the commissioner of insolvents stands, in relation to the parties interested, and their claims, in the same condition as an executor or> administrator. That, in relation to the effects of the insolvent, he may sue or be sued in the same manner as the personal representative ot a deceased party. If this assumption was correct, the argument founded upon it would be conclusive. ' But we do not consider it as sustainable upon the statute.

Section 2 of the law defines the powers of the commissioner. He is to take charge of all property, including the credits of the. insolvent. He is empowered to sell and dispose of them, and dis. tribute the proceeds. He is also empowered “ to determine and adjust all controversies that may arise in the settlement of such estate, by compromise or arbitration; and may prosecute and defend any suit ” he may deem necessary. Suits pending at the time of assignment shall not abate. “Any new suit which may be commenced shall be brought in the name of said commissioner, or in the name of the insolvent, as the case may require.”

We do not understand this section of the law as subjecting the • commissioner to any action, in behalf of a creditor, upon account -of the transactions of the insolvent, previous to the assignment. • Suits pending when the assignment is made are to proceed as if no assignment had been made. New suits are to be brought in the name of the commissioner, or in the name of the insolvent, as the -case may require. This provision does not, in our opinion, refer to suits against the insolvent, or against his estate. It relates solely to cases where th e insolvent, or the commissioner, in his right, brings a suit. If a chose in action,, not assignable by the statute upon that subject, be delivered to the commissioner ; or if a claim to property, for which trespass or trover only would lie, be .delivered to him, and an action became necessary for the recovery, then suit must be brought in the name of the insolvent. *But if notes or bills of exchange be delivered and assigned, then a suit in the name of the commissioner would be the proper one. Or if & cause of an action accrue under the proceedings of the commissioner himself, then suit could only be brought in his name.

With respect to claims against the insolvent, existing at the time of assignment, the law does not contemplate the commencement of a new suit to adjust them. Section 5, amongst other things, provides for this case. The last proviso of the section is in these words : “Any dispute or contest arising between said commissioner .and any creditor of said insolvent, relative to the settlement of said creditor’s claim, may be appealed to the next court of common pleas, by said creditor, on his giving a written notice to said commissioner to that effect; which notice shall state the particular cause of exception or complaint; and said court shall settle, and determine, and adjust the same in a summary way, without pleadings.”

If any difficulty arise between the commissioner and a creditor, as to the justice or the amount of a claim against the insolvent, it is to be settled as here pointed out, and not by a -suit against either the insolvent or the commissioner. The proposition, therefore, that no creditor can entitle himself to an action against the securities of the commissioner, until the debt against the insolvent is established, by a judgment, seems to us wholly inadmissible.

Section 5 of the law directs the commissioner to sell the insolvent’s effects upon credit, and to take notes, with security, giving a limited credit. It then provides that, immediately after the sale} he shall call together the creditors, and settle and adjust their claims. It also provides, that, at the end of each succeeding six months, he shall continue to make distribution in money or property, as it may come into his hands. Until a meeting of the creditors was called for settling and adjusting their accounts, it could not be known that any dispute or contest would arise between a creditor and a commissioner. The failure to call this meeting was a palpable breach of the bond; for upon such call depended the periods of future accountability. The defendant’s argument not only requires a suit to be brought, which the law does not contemplate, but its unavoidable consequence is, to ^suspend the liability of the parties in the bond, until such suit should be deteimined. An absurdity which nothing but the clearest statutory-provision could induce the court to recognize.

The demurrer is overruled, and the cause remanded for further proceedings.


author: By the Court:

text:
    Administrators of Tullis v. P. Sewell.
    Assumpsit can not be maintained on an award, made in pursuance of a submission by covenant under seal.
    This cause was adjourned here for decision, by the Supreme Court sitting in Champaign county. It was an action of assumpsit upon a submission and an award._ The declaration set out a submission, without specifying whether in writing or by parol, and set out an award in writing. Plea, non assumpsit. The submission produced at the trial was a covenant under seal. And whether assumpsit could, in such case, be maintained, was the question reserved for decision.
    Mason, for defendant:
    The question reserved for decision in this case is, whether assumpsit will lie on an award, when the submission was by deed. I maintain it will not; and that the whole current of authorities sets strongly against the action. It is laid down in 1 Chitty’s Plead. 95, that assumpsit lies specially upon awards where the submission was not by deed—and that it is the peculiar remedy on an award, to perform any act, except to pay money, unless the submission were by bond. Where the submission was not by bond, and the award is for doing of any act, other than the payment of money, assumpsit is the only remedy. Debt lies on an award for a sum of money, awarded upon a submission, either by deed or in writing, without deed or by parol. 2 Saund. 62, n. 5.
    When the submission is by deed, the remedy is by debt or covenant. 2 Chit. Plead. 119, and the cases there cited; 2 Saund. 61, n. 2; Kyd. 276, 280.
    *No case is found where this action is sustained on an award made pursuant to a submission by bond; but it well lies where the submission is in writing or by parol. The bond offered in evidence to prove the submission in the case under consideration ought to be rejected; and as the objection taken to the bond appears on the face of the award, the award itself is also inadmissible.
    J. H. James, for the plaintiff:
    The objection made to the form of the action is, at first view, sustained by the references to Ohitty ; but it will be found on examination, that the rules there laid down are given without authority, and can not be sustained. He says (1 Pl. 95, ed. 1825), that- “ the action of assumpsit lies specially on awards where the submission was not by deed,” and refers to his second volume. He there says (p. 117, n. d), that “when the submission is by deed, the remedy is by debt or covenant, unless the award be made after the limited time,” and cites 3 Term, 592. The case in Term Eeports is given in a note, and was an action on an arbitration bond, in which the time was limited for the arbitrator to make his award; the time was afterward enlarged, and the award made. It was held by the court that the penalty of the bond did not extend to an award made under a new agreement. This being the only reference he makes, the rule stands as a mere dictum of the compiler ; and the dicta of Mr. Chitty, as the court have heretofore said, are not authority, unless clearly sustained by reference to reported cases.
    To maintain the position taken, the defendant also refers to 2 Saund. 62, n. 5; Kyd. 276-280. The note in Saunders only shows that debt will lie on an award for money, whether the submission were by deed, in writing, or by parol. The language in Kyd. 276, is only a repetition of the note in Saunders.
    It is not a sufficient objection to the action that debt would also lie ; nor should we be concluded had it been ruled in some ancient case that assumpsit would not lie; for this liberal remedy was at first regarded with strictness by the courts, and held inapplicable where it is now most readily admitted; as in case of awards for the performance of acts *other than payment of money, made under parol submission, which were for a long time held to be without remedy. No decision, however, can be cited to impeach the present remedy as far as we have examined. The court are not required, by a compliance with previous decisions, to overthrow, nor forbid, by_any principle, to sustain the action.
    It can not be said that there is a security of a higher nature on which the action should be brought, for that would imply that the debt was merged in it, and require that the action should be founded on it, when it is without dispute that the action may at all times be on the award itself. In debt thereon, it is sufficient to aver the fact of submission without setting forth the manner of it. The bond is not the foundation of the action, nor is it matter of inducement. The bond is good evidence of submission, and better than any parol proof. In debt on the award, the form of action for which the defendant contends, the bond would be only matter of evidence to prove the submission, and it is conceived to be equally proper in the present case, and for that purpose was it offered. It would formerly have been held that a special promise, independent of the submission, should have been proved; but by degrees the courts relaxed the rigor of the rule, and now consider that the submission itself implies a promise to perform the award.
    There are several analogous cases which show that this action is proper. It has been held to lie on an award made under a rule of court. Bonner v. Charlton, 5 East, 139. A submission by record, of as high a nature as a deed, should, on principle, be equally fatal to the action. Thus where two enter into articles of partnership by deed, and covenant to adjust and settle their aocounts at stated times (and here the covenant is, that the ai'bitrators shall settle them),' and the parties in pursuance thereof come to a settlement, and a balance is struck and agreed upon, the party to whom the balance is due, may maintain air action of assumpsit against his copartner, notwithstanding the deed. As in Foster v. Allanson, 2 Term, 479.
    So, in the case of administrator’s bonds, where the administrator settles his account, and there is a balance in his hands. The heir has its election to sue on the bond, or to bring an action of assumpsit on the account stated for his distributive *share. Heirs of Waldsmith v. Adm’rs of Waldsmith, 3 Ohio, 160.
   By the Court:

It is objected, by the defendant, in this case, that the submission .being by specialty, can not be given in evidence to support an action of assumpsit. In answer to this objection, it is urged that the action is founded on the award, and not upon the submission. That it is sufficient in declaring to set forth the award, and state in general terms' that the parties made the submission, and that the .award not being, under seal, assumpsit may well lie upon it.

The answer to this argument is, that the award of itself imposes mo obligation on the parties. Without their act of submission the arbitrators could possess no power over them, or their business, 'Consequently it is not the award, but the submission, that is the •foundation of the action. If the submission were not averred, the declaration would be as defective as if it failed to set out the .award itself. •

The liability of the defendant originates in the contract of sub.mission that necessarily must precede the award. It is from this contract that the arbitrators derive their authority, as judges ■whoso decision is to bind the parties. By it they must be governed iu their proceedings. A departure from its stipulations renders their decision inoperative, being void for defect of power to act It is the submission, therefore, that is the foundation of the right claimed by the plaintiff, and it is only in virtue of the submission that the subsequent proceedings have a binding force. The action originates in the submission, and ought to correspond in character with it. If it is by deed, the remedy should be by debt or covenant. If by parol, or writing not under seal, it may be by assumpsit.

It is asked, if the submission is by parol, and the award under seal, what is the action? The reply is, that assumpsit-may, in that case, be well-sustained. The seals of the arbitrators are not the seals of the parties, and can impose no obligations upon them as such. The contract that binds them is by parol, and the remedy must conform to that contract, and can not be varied by the fact of the arbitrators adding or omitting seals to the award.

*In assumpsit upon an award the general issue, non assumpsit, necessarily puts the fact of the submission in issue. It would be an anomaly in pleading, that the making of a deed should be put in issue by such a plea. Yet this is inevitable, if assumpsit can be maintained in such a ease. The great object of pleading would be defeated. Neither the declaration nor the plea would present the real foundation of the action. It would come before the court collaterally, without direct affirmance or denial by either party. When the declaration is in covenant, it must recite a submission by deed, and when it is in debt, and the submission is by deed, it should so recite it. The defendant could then plead no other general issue, that would control the submission, but non est -factum, for the plea of no such awards would admit the submission, so that, in the proper form of action, the regular modes of pleading would be preserved, whilst in the mode now attempted it would be wholly subverted. This alone is a decisive argument against the present action. In the opinion of the court, principle and precedent both 'concur in conducting to the conclusion, that the action is erroneously conceived.

Judgment must be for the defendant.


text:
    Miami Exporting Company Bank v. P. Turpin and others.
    Judgment creditor can not come into equity to set up or enforce the judgment-lien against the real estate of a debtor who dies after judgment, the existence of the lien, and the method of enforcing it, being purely legal matters.
    This case was adjourned here for decision, from the Supreme Court in Hamilton county. Ic was a bill in equity, to which the defendants demurred generally. The material facts, alleged in the bill, were as follow :
    At December term, 1814, of the common pleas of Hamilton county, the Miami Bank obtained judgment against Hopkins and Halley for one thousand five hundred dollars. After suit commenced and process served, but before judgment rendered, Hopkins left the state and has not since returned. After judgment execution issued to April term, 1815, which was returned, “stayedby plaintiff’s attorney.’’ Another execution issued to August, 1815, which was returned with the same indorsement. No *other execution ever issued. In 1816, Halley died intestate, and administration was taken on his estate. The administrator, in 1817, sold, as the real estate of Halley, the land which the bill seeks to subject, under the order oí court, for the payment of debts. The sale was effected subject to the lien of the bank judgment, and it is so expressed in the administrator’s deed. Ruffner, the purchaser, entered into possession, who sold to Pultney, and Pultney to Turpin, who is in possession. The money arising from the purchase was distributed to other creditors ; no part was offered to or received by the bank. Nothing further was done until February, 1826, when the present bill was filed. The bill charges, that the money is still due to the bank ; that Halley’s estate is insolvent; that the administrator and his securities are insolvent, and that the complainants have no remedy by enforcing the lien of the judgment upon the lands, and they pray a decree to that effect.
    Storer. and Hammond, in support of the demurrer, contended:
    1. That if the complainants had any remedy, it was at law. The lien, if it existed, was a legal one, and there was a legal mode of enforcing it. The judgment must be revived at law, not in equity. A court of chancery can not set up a judgment lien, lost by the neglect of the party.
    2. That the administrator’s sale discharged the lien. When the administrator sold the land, he could not be authorized to carve out and sell a less estate than the whole, or to sell subject to conditions. The lien was to be secured by a preference in distribution, not otherwise.
    3. That the lien was lost by lapse of time. If a judgment is suffered to become dormant, and is revived upon scire facias, the lien is not revived with it. Gilbert’s Law of Ex’rs, 12; 2 Call, 187.

      4. That the case was not variod by the recital in the administrator’s deed; that recital contained no contract on the part of the grantee to bind the land. It could have no effect, except to conclude the purchaser should the lien be enforced.
    *Guil3?orjd, for complainants :
    The complainants ha%re certainly no remedy at law. Halley died soon after judgment against him, and his heirs removed from the state beyond the jurisdiction and process of the court. The administrators, supposing that the judgment operated as an indefensible lien upon the property, which no sale by him would discharge, sold it subject to the lien, expressly stipulating in the terms of sale that the purchaser must take it subject to, and pay said judgment; and reciting in the deed to the purchaser that the property conveyed was subject to the lien and payment of the judgment. Acting upon the supposition that complainants’ judgment was in this way provided fox’, the administrators settled up the estate and distributed all the effects among the other creditors without making any payment, or even assigning any dividend of the estate towai'd satisfying the judgment. The estate, the administrator, and his bondmen, all being insolvent and the hoix’S nonresidents, the complainants certainly have no remedy at law.
    The judgment lien was not discharged by the sale of the administrator. The statute then in force recognized every judgment rendered in the liletime of the intestate as binding the real estate of the deceased, and the lien could only be discharged by the payment of the judgment. And in this particular case the lien, by express contract and stipulation with the purchaser, was acknowledged, assented to, and reserved as a charge upon the estate sold, the purchaser deducting the amount of the judgment from the price bid for the land; so that he could not be considex-ed as discharged by the sale, when it was expressly agreed to the contrary.
    Nor has the lien been lost by lapse of time. Thex*e appears to be no limitation, by statute pr otherwise, to a vested lien. Nor could the not issuing of an execution against the intestate or his representative be considered as a waiver of the lien. The issuing of an execution would have been useless when nothing could have been seized upon it. The judgment was revived against the administrator, but the land in question could not be taken upon it without making the heirs parties, who were not in the state.

      *It is contended that both Pultnej7 and Turpin, who hold under Ruffner, the purchaser at the administrator’s sale, are bound by the notice of the existence of the judgment, which is matter of record; by the stipulations in the terms of sale, which were the official acts of the administrator, and form a part of the record of the proceedings in the case, existing and filed in the clerk’s office; and more especially by the recital contained in the administrator’s deed to Ruffner, that the property was bound by and subsequent to a payment of complainants’ judgment. The subsequent purchasers are bound by the proceedings of the administrators, and have constructive, if not actual, notice of the existence of complainants’ lien upon the property, and, therefore, stand in precisely the same situation that Ruffner would have done had he never sold the land.
   By the Court:

The bill seems to proceed upon the hypothesis that the purchaser from the administrator, under the circumstances of this case, took the property as it would have descended to the heir, subject to the judgment lien. As it contains no allegation of a contract on the part of the purchaser to discharge the lien, none that a portion of the price of the land was left in his hands for that purpose, it can only be sustainable upon the general ground stated. It is unnecessary for us now to say whether this is or is not a correct position. Let it be conceded, and it seems to us that the inevitable consequences must be that the complainants are not entitled to the relief they seek for. The lien could have been enforced at law. By a scire facias against the heir and purchaser, sued in proper time, the lands could have been subjected to sale in satisfaction of the judgment. Whether the administrator’s sale, taken with the circumstances that attended it, operated to destroy the lien, was a question triable at law upon the scire facias. If it can not still bo tried in this manner, it must be in consequence of the negligence of the complainants to assert their rights. And it is a novel proposition that a court of equity may be rightly called upon to assert them. The lion, if it exist, is a legal lion. And an existing lion, created by a judgment at law, *may be enforced at law. If it once had existence and is lost, equity can not restone it. The reasons assigned in the bill why proceedings can not be had at law are not substantial. That the proper parties defendants, aro absent makes no difference. The return of two sci. fas. nihil would be tantamount to a service. That the debtors, the administrator, and the administrator’s securities are all insolvent, can confer no new rights upon the complainants, either as to the lien itself, or the privilege of resorting to a court of equity to set it up or to enforce it. A court of chancery does not acquire jurisdiction merely because process at law can not be executed, nor does the fact of the insolvency of the parties of itself give it jurisdiction. Wo can perceive but a single question in this case. And it is — nave the complainants a lien upon the property named in the Dili to secure the payment of their debt? The lien claimed is not an equitable lien founded upon trust and originating in contract. It is a legal lien. Whether it exist or not is a purely legal question. If it exist, the law that gives it life is competent to effect its objects. Chancery, therefore, can not interfere. On this ground we dismiss the bill.


author: Judge Sherman:

text:
    Arthur Critchfield v. John Porter.
    When an attorney appears for a party in a suit in court, without authority, the party is not concluded by his acts, but may be relieved against them.
    When no process is served on a defendant, and an attorney enters an appearance for him without authority, and judgment is rendered against him, the court rendering such judgment, on the defendant’s motion, may set it aside at a subsequent term.
    This cause was adjourned here for decision from Athens county. It was a bill in chancery, the-object of which was to obtain a new trial in a case where judgment had been rendered against the complainant here, who was defendant at law.
    The bill states that the defendant, John Porter, of Athens county, in April, 182-1, commenced an action of trover, before a justice of the peace in Athens county, against Amos Thompson, Joseph McMahon, and the complainant. No notice was given to the complainant, by summons or otherwise, of the-pendency of the suit. The case was afterward appealed, and at the trial term a judgment had against the complainant alone, for fifty-nine dollars damages, and forty-seven ^dollars and eighty-one cents, costs of suit. This was at the September term, 1824, of the common pleas for Athens county. Execution issued upon, this judgment against complainant to the sheriff of Licking county, Ohio; twenty-four dollars made, January, 1825, by sale of his personal property. That complainant was resident in Licking county during the pendency of suit, had no notice of it, and was never served with process. An attorney at law, who was employed by the other defendants, but not by complainant, filed a plea for complainant through mistake. That complainant has a meritorious defense to the action. Prayer for a return of the money made, perpetual injunction-of the judgment, and for general relief.
    To this bill there is a demurrer.
    S. F. Yinton, for complainant.
    A. Nye and H. Stanbery, for defendant.
   Opinion of the court, by

Judge Sherman:

The questions made upon the demurrer to the bill of the complainant are: 1. Do the facts stated in the bill furnish a'ny ground to interfere with the judgment at law sought to be enjoined ? 2. If the complainant is entitled to relief, whether a court of chancery is the proper tribunal to afford it?

Upon the first question, the defendant contends that the complainant is bound by the act of the attorney, although unauthorized, and 1 Salk. 86-88; 1 Bibb, 89; 6 Mod. 16, and 5 ¡Mod. 205, are cited in support of this proposition. These authorities show the liability of an attorney to the person who has sustained damages through their neglect or misconduct; and some of them recognize the doctrine that his acts are conclusive upon the person for whom he has appeared, unless the attorney is insolvent, or in suspicious circumstances. They appear to be founded upon reasons of policy, that, as the attorney is a sworn officer of court, he is himself responsible to the person for whom he appears, and as the opposite party is in no fault, and has no adequate means of ascertaining the authority of the attorney, he ought not to be delayed or iujured by the unauthorized act of such attorney, if he is *of sufficient ability to respond in damages to the person for whom he undertook to appear. This reasoning is certainly plausible, and worthy of some consideration, but does not furnish any sufficient ground why one of the most obvious and well-settled principles of law, as well as justice, should be departed from—that no person is to be bound by the act of a stranger, in whom he has vested no authority, or reposed any confidence, and over whom he can exercise no control. The admission and oath of an attorney is for the safety and advantage of the suitor, but does not of itself authorize him to appear in any cause. His authority to appear is essentially derived from the party, and dependent upon him for its continuance; and, although it is not the practice of our courts, in ordinary cases, to require the attorney to produce either a warrant or other authority from the suitor, before he is permitted to appear, yet its production may be, and, under certain circumstances, undoubtedly would be, required by the court. Courts act on the presumption that the attorney is authorized by the party, and it is in virtue of this authority that he is permitted to appear and prosecute, or defend, and not merely because he is an officer of court, admitted by them, and sworn to discharge his duty.

There are many officers in our country, admitted to act as such, and sworn to a faithful discharge of their duties, by public authority, who derive their power, in each particular case, from the individual for whom they act. The office oí an auctioneer is of this kind. They are appointed, commissioned, and sworn by the officers of government, and nó one will pretend that they could sell or transfer the property of an individual without or against his consent, and yet any argument derived from considerations of public policy or convenience in favor of considering the acts of an unauthorized attorney conclusive upon the suitor, applies with equal force, in so considering the acts of an unauthorized auctioneer, upon the persons interested. ■

The mischief that might follow from holding that the acts of the unauthorized attorney are conclusive upon the person for whom he appears, would induce the court to hesitate long before they would establish such a rule. It would, in some degree, subject the property of every individual in the community to the mistake or malice of a particular class of men.

*If the doctrine contended for by the defendant was now fully recognized by the English courts—and it appears, from the cases cited, to have been at one time—it could not long have remained a rule of decision, as we find a number of cases, in their reports, where parties have obtained relief against the acts of unauthorized attorneys. In the ease of Robson v. Eaton, 1 Term, 62, Lord Mansfield expressly states the doctrine, that a party to a suit is not bound by the act of an attorney not employed by him ; and decided that when, as in that case, the defendant had paid money to the attorney, who had brought a former suit and appeared for the plaintiff, he was liable to pay it over again if it appeared the attorney was not employed by the plaintiff. In Denton v. Noyes, 6 Johns. 298, the Supreme Court of Now York hold, that judgment obtained against the defendant, not served with process, in consequence of the appearance of an unauthorized attorney, was not conclusive upon the defendant; and the proceedings were reversed and ho was permitted to make defense.

Whatever might formerly have been the rule of the English courts, their practice would now seem to be not to consider the act of an attorney conclusively binding unless he is employed by the person for whom he appears, 3 Shaw, 166; Archb. Plead.; and the decisions of the courts in the United States, when the point has been made, have been in accordance with such practice, so far as they have fallen under my observation. Plaintiffs may sometimes suffer inconvenience by the appearance of an unauthorized attorney for the defendant; but courts, to avoid this evil, ought not to run into the opposite extreme of subjecting the interest and rights of such defendant to the uncontrolled acts of a stranger neither employed nor trusted by him. In affording a remedy to a defendant so situated, courts will be careful to protect the plaintiff in any right he may have acquired, and interfere only so far with the judgment or other proceedings as may be necessary to afford the defendant an opportunity of making defense.

The second ground of demurrer to this bill is, that whatever relief the complainant is entitled to should have been sought in the court rendering the judgment and not in chancery.

It is an unquestioned principle, that a court of equity will not interfere when the party seeking their aid can have the *same relief in law as in equity; and the court are of opinion that this principle applies to and must govern this case.

There is nothing in the .bill showing that the complainant could not obtain the same relief upon motion to the court rendering the judgment that ho now seeks by his bill in equity. The ground taken in the bill for the interference of a court of equity is, that the complainant was not served with process in the suit at law, and that an attorney of the court, without his knowledge, or any authority from him, appeared for him, pleaded, and went to trial; whereupon a verdict and judgment was obtained against him. There is no pretense of any fraud or collusion on the part’ of the defendant, the plaintiff at law, that he had any knowledge of the attorney’s not being authorized, or that the trial, on his part, was not fairly and properly conducted. If, upon these facts being shown to the court rendering the judgment, they were competent to set it aside or suspend it, and let the .complainant, the defendant at law, in to make defense, he had complete and adequate remedy at law, and chancery will not entertain jurisdiction. And this court does not doubt but that it was fully competent for the court at law to afford the complainant, upon motion, all the relief he could obtain in a court of equity. The jurisdiction of courts of law, in setting aside judgments improperly obtained, or suspending their operation for a time, has been too long exercised, is too reasonable in itself, and attended with too many beneficial effects, to be now seriously questioned. It has become one of the regular, plain, and accustomed remedies of a court of law to afford full and adequate relief against a judgment.irregularly or improperly obtained, when there has been no fault or negligence on the part of the judgment debtor. In the case of Denton v. Noyes, before cited, the Supremo Court of New York, in a case very similar in its principal features to the one now under consideration, suspended, on motion, the operation of the judgment and permitted the defendant to plead, leaving the judgment to stand as a security for the plaintiff, in case ho should, upon a future trial, obtain a verdict. They proceeded upon the principle that now almost uniformly governs courts in giving relief in cases of this kind, that of doing right and justice between the parties. The relief which is now given by courts of law, upon motion, is equitable in its ^-'character, extended upon equitable terms, and so framed us to protect the rights of one party without sacrificing or jeopardizing those of the other. It may be afforded in the court rendering the judgment with more facility and more certainty of doing justice than in a distinct tribunal, and the party injured can then obtain all the relief he is justly entitled to without subjecting the other party, against whom there is no complaint, but having, as ho supposed, in due course of law, obtained a judgment in his favor, to the delay and expense of a chancery proceeding, There may be cases where, from the fraud or collusion of the party obtaining the judgment, or from peculiar circumstances, it may be proper that a court of equity should entertain jurisdiction and afford relief; but there is nothing in this bill showing that the complainant has not complete remedy at law by application to the court rendering the judgment.

It has been contended, by the counsel for the complainant, that the principles recognized by this court, in the case of Atkinson v. Commissioners of Pickaway County, 1 Ohio, 375, would prohibit the court of common pleas from either setting aside or suspending the judgment previously rendered by them, unless it was done at the term it was rendered. This court decided in that case that the court of common pleas could not, at a term subsequent to the rendition of a judgment, amend it in a substantial and material part. In the report of that ease, the reasons upon which the decision was founded are not very fully stated. For some years anterior to 1823, courts were expressly authorized by statute to amend their judgments. At the revision of 1824, this provision was omitted by the legislature, and as the court believed, intentionally, and not from inadvertence, as the bill proposed bjr the committee of revision, and sanctioned by both' branches of the legislature, providing for the amendment of judicial proceedings, was the same as the former law, with the exception that the power to amend judgments was omitted. The power of courts to amend their records, in matters of substance, after the term in which final judgment was rendered, is not a part of the ancient common law, nor were the court aware that the courts of any of the United States exercised this power over the records of their judgments, unless given them by statute. Courts have supplied *omissions or defects in their records by entries of judgments, or other proceedings nunc pro tunc, but this bears but little analogy to amending the record of a judgment perfect on its face, so as to make its operation and effect essentially different from what it originally was.

Our peculiar system of jurisprudence seemed to require that the court of common pleas should not possess the power of amending judgments in matters of substance, after the term in which they were rendered. It has been the uniform policy of our laws, to give to a party dissatisfied with the judgment of the court of common pleas, a privilege of appealing to the Supreme Court within a short time after the term, and thereby vacate the judgment and have another trial upon the merits. But if a judgment with which the party was satisfied may, after the period for his appealing has elasped, be amended in substance so as greatly to increase his liability, as was the ease cited from 1 Ohio, 375, he will be bound by it, without the benefit of an appeal, or a second investigation, by a superior tribunal. It is the same as respects writs of error. A judgment may be rendered in the common pleas against a defendant and the- proceedings evidently be erroneous, and yet the party consider it of too little importance to sue out a writ of error within the time limited by statue, and if, after the expiration of the period, the judgment may be so amended as greatly to enhance the amount, tbe party would sustain serious injury, without any remedy either by writ of error or appeal. But these objections do not exist, nor can these inconveniences ever result from the court of common pleas exercising jurisdiction in setting aside, for irregularity, a judgment previously rendered. The cause will then stand as if no judgment had ever been entered ; the issue made by the parties will be tried by the proper forum; the judgment of the court given, and either party can avail himself of his right of appeal, or writ of error, as he may be advised. A party can not, by this course, be deprived of any right or privilege granted him by law, the delay and additional expense being the only loss or inconveniences he can suffer. The court are of opinion, that the complainant had adequate remedy at law, and for this reason, the demurrer must be sustained.


author: *By the Court :

text:
    *The following cause was decided December Term, 1827, and by mistake omitted to be reported:
    James Robinson v. William Neil.
    Declaration in covenant of seizin, under the statute concerning covenants real, is bad, unless it aver eviction.
    This was an action of covenant, adjourned from the Supreme Court of Franklin county.
    The declaration contained two counts. The first set forth an indenture, made October 7,1822, between the defendant of the one part, and the plaintiff of the other part, by which the defendant conveyed to the plaintiff, for the consideration of five thousand dollars, a certain in-lot in the town of Columbus; after reciting the indenture the plaintiff further stated, “that in and by the said indenture it was further witnessed, that the said William did covenant and promise, to and with the said James, his heirs and assigns, that the said promises thereby conveyed were free and clear of all incumbrances, and that he, the said William, would warrant and truly defend the same unto the said James, and unto his heirs and assigns forever, against all claims whatsoever, which said last-mentioned covenant of the said William, contained in the said indenture, by virtue of the statute of the State of Ohio, entitled an act declaring the law in certain cases of actions upon covenants real, and for other purposes, passed January 2,1815, has the force, effect, and operation of a covenant, that he, the said William, was at the time of the making said indenture seized of a good and indefeasible estate in fee simple, in the aforegranted premises. And the said James in fact saith, that the said William was not at the time of the making said indenture, nor hath he been at any time since, seized of a good and indefeasible estate in fee simple, in the aforegranted premises, but on the contrary thereof, certain other persons, at the time of the making the said indenture, 'and continually from thence until the present time, had and still have, lawful right and title to the said premises, contrary to the form and effect of the said indenture, and of the said last-mentioned covenant therein contained, operating as aforesaid by virtue of the statute aforesaid.” ^The second count was the common count upon a covenant of seizin. The defendant craved oyer of the indenture, and made it part of the record. The indenture contained, in fact, no covenant of seizin, nor other covenant except those specified in the first count, to wit: the covenant against incumbrances, and the common covenant of general warranty.
    The defendant pleaded: 1. Non est factum; 2. That the premises were free and clear of all incumbrances, and that defendant had well and truly warranted and defended, etc.;. 3. That defendant was seized of an indefeasible estate in fee, etc.; 4. That the plaintiff, on October 7,1822 (the same day on which the deed in the declaration mentioned was executed), in consideration of five thousand dollars, sold and conveyed to the defendant the same in-lot, by deed, with full covenants of seizin, general warranty, etc.; 5. That on the same 7th October, and before the plaintiff had sustained any damages, the plaintiff, by deed of mortgage, to secure the payment of three thousand dollars, sold and conveyed said in-lot to the defendant, with full covenants of seizin, general warranty, etc.; 6. That a scire facias was issued on said mortgage, a judgment had, and the premised were sold, before this action was brought, to the defendant, for a sum not sufficient to satisfy the judgment, etc.; 7. In the seventh plea, the defendant set forth the mortgage mentioned in the sixth plea, and averred-that the condition had not been complied with, and that the mortgage money was yet unpaid, etc., whereby the estate became absolute at law, etc.
    The plaintiff took issue upon the first and third pleas, and demurred generally to the second, fourth, fifth, sixth, and seventh.
    Wilcox and Hammond, for defendant,
    insisted that the declaration was bad: 1. Because the statute referred to in the declaration, is wholly void for its uncertainty; 2. If the statute means anything it is a declaratory act, reviving the old remedy of warrantia charted — which could only be sustained, before eviction, by the tenant of the freehold, which tenancy ought to be set forth in the declaration.
    Ewing, for the plaintiff, contra.
   *By the Court :

The doctrine settled at this term, in the case of Adm’rs of Bacchus v. McCoy, decides this case. Judgment must be for the defendant.