text:
    Frederick Willyard v. William Hamilton.
    A company incorporated to construct an extensive line of canal, are engaged in making a public work, for which private property may be taken as in the case of other public uses.
    The value of property taken for public uses may rightfully be assessed by . commissioners, that not being a case for the trial by jury secured in the constitution.
    This was an action of trespass for cutting timber. The defendant justifies, as an agent of the Pennsylvania and Ohio Canal Company, under the act incorporating it. The plaintiff demurs, and for cause, shows that the plea does not show *that the damage has been assessed, or that any provision is made for assessing the same. Secondly, because the Pennsylvania and Ohio Canal is a private and not a public improvement, and, therefore, the company has no constitutional right to take private property without the consent of the owner.
    Bierce, for the plaintiff:
    Relied on article 8, section 4, of the constitution of Ohio; 5 Ohio, 120; 4 Ohio, 284; 5 Petersd. 3 ; 1 M. & S. 32. He contended that the rule laid down by Cbancellor Kent, in 20 Johns. 735, does not apply in this case, because this is not a public work.
    Todd, for the defendant:
    Argued that this could not be considered a private work. The canal is to be a public highway. The act so declares. As to the mode of assessing the damages, the case of Cooper v. Williams, 4 Ohio, 253, settles the matter. The charter provides for the purchase of the whole interest in the canal by tho state. It is not necessary that compensation should be assessed before a public work can progress. 5 Ohio, 118, and authorities there cited. Private property may be taken for the .construction of bridges, turnpikes, etc., if provision is made for compensation, 5 Ohio, 488, and provision is made in this act. The right of trial by jury ought not'to be so construed as to include the matter in question in this suit.
   Judge Grimke

delivered the opinion of the court:

This case presents some questions of very great importance, and yet, I believe, most of them have been already settled by this court. As, for instance, in 5 Ohio, 488, it has been decided that bridges, turnpikes, and highways, are public works, and in 4 Ohio, 253, and 5 Ohio, 118, that where private property is appropriated to public use, it is not necessary the damages should be assessed before the appropriation, and that the mode of assessment by commissioners is constitutional. It is very true that precedents are not of such binding authority that they may not be overruled, but they are naturally of very great weight. It is as necessary that there should bo a law to restrain the court, as that there should be *rules to restrain the conduct of individuals, and precedents constitute that law. The great principle on which society is constructed in this country is, that the welfare of the community is superior to that of private individuals, which is just the reverse of what it is in most other countries, where the welfare of the community is considered as subordinate to that of private individuals. Hence, the spirit of public improvement has been carried further in the same period of time, in this country, than in any other. Highways, turnpikes, and canals are constructed, because the public have an interest in them, and it is of more importance that the public should not be deprived of the right to have them constructed, than it is that private individuals should nqt be deprived of any of their privileges. And the security to the individual members of society is almost perfect where there isa genuine exercise of the right. But what shall be the test, whether a work is to bo deemed a public improvement? It can not be the fact of its having originated with the legislature, or of its being conducted exclusively by agents appointed by them; for roads constructed under the authority of the county commissioners, are as much public works as state roads which have been established by the legislature. The inquiry, then, must necessarily be what are the objects to be accomplished; not who are the instruments for attaining them. A canal, traversing the whole length of the state, may be constructed by an incorporated company, while a road of twenty miles may be laid out under the authority of the legislature. Would the community have less interest in the former than in the latter? If they would have only as great an interest, then the question is answered, and the difficulty is solved ; for the character of a work must depend upon its nature and not its nature upon the name which is given to it. It is supposed that a good deal of difficulty and uncertainty will be the consequence of this construction. But he who has to deal with the affairs of men, has necessarily some difficulty to encounter. Human interests are not like mathematical abstractions. If they were, there would be no opportunity for the display of prudence, judgment ■and discretion, nor for the exercise of distributive justice in its various forms. There does not, however, appear to be much room for uncertainty in this case. Here is a canal eighty miles in length, connecting the Ohio with the Pennsylvania canal. It is, in reality, a branch of the former. Suppose *the original design had been to connect our great canal with the Pennsylvania canal, and that afterward the canal from the lake had been cut s,o as to intersect it, then the Pennsylvania and Ohio canal would have been called the principal work, and the other only an appendage to it. But the time when these two improvements were undertaken, can not make any difference in the character of public utility which belongs to them. So that if it is the nature of an undertaking which is alone entitled to give a name to it, there is neither difficulty nor uncertainty in the application of the rule. It is a consideration of great importance, too, that this canal is declared to be a public highway. It is, indeed, one which is decisive of the matter.

The constitution declares that private property may be appropriated to the public use, provided a compensation is made to the owner. This right to take private property is called, by writers on public law, the eminent domain of a stato, and there is a great difference of opinion among them upon the question, whether the state is bound to make compensation. The clause in our constitution was inserted for the purpose of settling these doubts, and not as has been generally supposed, for the purpose of rendering the compensation a condition precedent. It is intended, as a public declaration in answer to the opinions of some European writers on the subject, that the owner is entitled to compensation, and was not intended to convey the idea that he must be paid beforehand. InMcGowen v. Starke, 1 Nott & McCord, 387, the Supreme Court of South Carolina have decided that the state is not bound to make compensation in such a case, and this is in consequence of their constitution containing no provision on the subject. It may be asked, what security is there that compensation will be made,, unless it is made .before the property is taken.. Precisely that degree of security which exists in a multitude of other instances of infinitely greater moment, in which the citizen reposes a volun tary and unlimited confidence in the good faith of the state. Not’ to mention the case of the public creditors, who are never sure-that they will be reimbursed until payment is actually made; the-people are dependent from year to year on the legislature for the-enactment of laws which are intended .to answer their most pressing wants. And if any selfishness is to be suspected on the occasion, there is less reason to apprehend its existence in *this case, because the state does not make compensation out of its own funds in the first instance, but compels it to be made by the company. It is of infinite importance that the citizens of' the state should not consider themselves as merely isolated individuals, having no bond of connection with the common weal.. • They should consider themselves as united together for the advancement of the interest and happiness of the whole community,, and not be disposed to repine at every little inconvenience which» their patriotism may occasion them.

The charter of the Pennsylvania and Ohio canal contains very ample provision for the assessment of damages to the plaintiff. Section 9 declares that “ whenever the owner of property and the-company can not agree as to the amount and can not also agree on some person or persons to appraise the same, that then the legislature shall appoint commissioners for that purpose.” So that the act not only authorizes the appointment of a tribunal, in the selection of which the party has an immediate participation, but on failing to make the appointment, the legislature bind themselves to make another. But, in this event, it is the plaintiff himself who must first move in the business. They have given him an election to have the dispute settled by the simple and quiet arbitrament of his own neighbors. And if he does not accept this, he should make application for the appointment of commissioners.. How then can he complain that an act has not been done, in the performance of which he is to be chiefly instrumental?

It is immaterial in the shape which these pleadings have now assumed ; but I understand that commissioners have actually been appointed. But it is said that the right of trial by jury is violated by the appointment of commissioners. This is an objection which I have heard repeated ever since my earliest recollection of such matters; and yet it has always been made with that degree of hesitation which denotes that the objector is not altogether sure of "the ground on which he stands. It has been constantly made in the progress of every public improvement which has been executed in the United States ; and yet every one seemed to feel that Although it was striking and plausible, yet that it could not possibly be maintained. The constitution declares that the right of ■trial by jury shall be inviolate ; and the only way in which we can ascertain the true meaning of this clause, is by ^making inquiry whether, before the constitution was framed, jury trial was known in such cases in the territory of Ohio. And one of the first •acts, which I recollect, is that of December 13, 1799, by which five commissioners are authorized to take the land of private individuals, where the public convenience requires that a road should be conducted over it, and declaring that any three of the five may agree in the assessment of damages to the owners. This act is of great importance; for here were a people living under a republican form of government with almost every form of civil polity, the same as at present, who afterward frame a constitution for themselves, and who, in effect, declare that jury trial shall be held inviolate as it was before; and yet the intervention of a jury, in such cases, was not only unknown, but, by necessary implication, was absolutely prohibited. If it should be supposed that the term of our territorial government was too short to settle the true import of the term jury trial, the constitution and laws of the other states may afford us some light. Rut in examining these, it will be found that although the constitutional provision is generally the same as ours, yet that there is the greatest variety in tho procedure which the laws authorize. In some of them, throe commissioners are appointed; in some five, and in others a greater numbei*. In some the appointment is made by the legislature ; in others by the Supreme Court, and in others again by a county court. And this has been the case, notwithstanding some of these states have changed their constitutions in the intermediate time, and have guarded the provision by no additional or explanatory declaration. Perhaps there is no constitutional question which has ever been ■ discussed in this country, which has been so completely settled by ^contemporaneous construction and universal acquiescence. On ■what principle is it that juries are dispensed with in the greater number of our courts, in courts of equity, courts of admiralty, courts martial, and courts of justices of the peace. Magna charta declares that no man shall be deprived of life, liberty, or property, but by the judgment of his peers, or the law of the land. Mr. Sullivan (secs. 39, 40) remarks that as juries were unknown in those courts before the great charter, their disuse constituted a part of the law of the land; and, therefore, although that charter was the first great instrument which solemnly guaranteed jury trial to Englishmen, yet it *has never been supposed that "that institution constituted a part of thp machinery of those courts. And I believe it would be equally difficult in that country to find an instance of the intervention of a jury, in the proper acceptation .of the term, in a case like the present. In the Governor and Company, etc. v. Meredith, 4 D. & E. 794, which was an action of trespass like the present, the defendants had acted under an act of parliament, authorizing the straightening the streets of a town; the act also appointed commissioners to assess the damage done to individual proprietors. The court were unanimous that the action would not lie. Buller remarked that where the public welfare required it, private property might be taken without making compensation, and that, therefore, on general principles, the action would not lie, but that, at any rate, as commissioners had been provided to estimate and pay the amount of compensation, that that Alone was a sufficient answer to the action.

The provision in magna charta, which I have referred to, is transcribed into the ordinance, omitting only the word life. And if the last six articles of this instrument are of perpetual obligation, then we have in Ohio the same law and the same course of proceeding as in England, and very nearly the same as in the other states of the Union. If the law were otherwise, no courts would have time sufficient to try the infinite multitude of actions which would arise. It is sometimes said that the utility of any political arrangement is no reason for committing an impropriety; but public utility itself becomes sometimes a great rule of justice. They who make the constitutional objection in this ease,- do not recollect that if twelve men were selected, they could not be used in the way in which juries ordinarily are. Having no relation to any court of justice in the state, there would bo no rule for appointing them in the way that common law juries are chosen, nor any reason for composing them of twelve rather than of any other Dumber, Dor for requiring unanimity in their decisions. And. above all, there could be no presiding law tribunal, the conjunction with which is the peculiar and valuable feature of jury trial; so that after all, persons appointed for the purpose of assessing-damages would be nothing more than commissioners, as they now are, whatever name we might be pleased to give them. He who-will take the trouble to examine our laws, as well before as since-the formation of *our constitution, will find that they are-uniformly regarded as an appendage to the courts only. No juries are ever mentioned but such as are auxiliary to the administration of justice in some court; and, on the whole, the conclusion to which we are justified in arriving is, that there is nothing repugnant to the constitution in the law under which, the defendant defends himself. Objections of this kind should ever bo listened to with attention and earnestness. For, although, to decide upon the constitutionality of a law is a duty which no judge should, court, yet it is also one from which no judge should shrink.


source: Caselaw Access Project

author: Judge Hitchcock

license: Public Domain

text:
    Hector and Henry Smith v. Josiah Barber et al.
    In making partition among several tenants in common of several tracts of land, owning in the same proportions, it is regular to assign to any one, or to each one an entire tract.
    The prosecution of two writs of partition, at the same time, and for the same object, does not vitiate the regular proceedings in one, upon which parti-, tion is made.
    A deputy sheriff, summoned for that purpose, by the principal sheriff, may legally act as one of the commissioners of partition, although he after, ward make the final return.
    This is a writ of error brought to reverse a judgment of the-court of common pleas of Medina county.
    The record shows that at the March term of the court of common pleas, 1824, Richard Pratt filed his petition, setting forth that, he was seized as tenant in common in fee simple, with certain-other persons to him unknown, of all that part of township No. 2, in range 18, of the Connecticut Western Reserve, and tract num;ber 4, in range 19, annexed to said township in the original draft ■and classification of the Connecticut Western Reserve, of which partition had not previously been had-; that the proportion of .said petitioner in the township and annexation was two hundred and twenty acres, and praying for partition, and to have his share set off to him in severalty.
    Satisfactory proof being made that legal notice of the application had been given, the court, after examination of the petitioner’s title', granted the prayer of the petition, and appointed Abel Dickinson, Abraham Freese and Isaac Sage, commissioners, and Abraham Freese, surveyor, to make partition, and the case was continued.
    At the next succeeding term of the court, in September, 1824, Josiah Barber, John Balls, William Eldridge, and Hezekiah Latimore, filed their petition in said court, setting forth that they also were tenants in common with the said Richard Pratt and others, unknown owners of said township and annexation, ^setting forth also their several shares in proportions, and praying, according to the statirte in such case made and provided, to be allowed to come in and be made parties to, and join in the petition of the said Richard Pratt. Upon the hearing of this last petition, it was ordered that the prayer thereof be granted, and that partition be made accordingly. And it was further ordered that a writ of partition bo issued to the sheriff of the county, requiring him, by the -oaths of Abel Dickinson, Abraham Freese, and Isaac Sage, judi-cious freeholders of the county, to cause partition to be made, etc., ¡and the cause was again continued.
    At the next term of the court, to wit, at February term, 1825, it was ordered that Isaac Dimend be appointed in place of Abraham Freese, and that his name be inserted in the writ of partition accordingly.
    During the same February term of the court, two writs of partition were issued, bearing date the 28th day of that month, requiring the sheriff to cause partition to be made by the oaths of said freeholders, Dickinson, Sage, and Dimend. These writs were returned on March 2, 1825, and during the said February term of •the court. And accompanying.said return, and constituting a part thereof, was a report of the freeholders, showing that they had set -off to the said Pratt, Barber, Bolles, Eldridge, and Latimore their proportions of said township and annexation in severalty within the limits of the township. The said several proportions are described by metes and bounds, and protracted on a map or plat accompanying the report. The return shows further that the freeholders were duly sworn. It is signed S. G-. Potter, sheriff, by Abel Dickinson, deputy. It appears that Dickinson was summoned by sheriff Potter, and the other two freeeholders by Dickinson as deputy sheriff.
    Afterward, at the same term, the court having examined the report, accepted aud approved the same, ordered that the partition made be final and perpetual, and that the costs should be paid by the petitioners in proportion to the land claimed and aparted to them severally.
    The plaintiffs in error are the heirs and representatives of one-of the owners of the undivided part of said township and annexation.
    The following errors are assigned :
    1. It appears that the demandants were tenants in common, *with others in township number 2, range 18, and in tract 4, range 19, and their shares or proportions have been set off in one of the tracts of which partition is demanded, and is not shown that the whole of said two tracts were owned by the same proprietors and in the same proportions.
    2. Two writs of partition were issued and returned.
    3. The sheriff acted as one of the committee.
    4. General errors.
    Humphrey, for plaintiffs in error.
    Otis, for defendants.
   Judge Hitchcock

delivered the opinion of the court:

In order to a correct understanding and correct decision of this-case, it is necessary that we should have reference to the manner in which lands in the Connecticut Reserve were originally partitioned or divided among the original proprietors or purchasers'from the State of Connecticut. This tract of country containing three millions of acres was sold by the state of Connecticut to a. company of individuals denominated the Connecticut Land Company, with the exception of five hundred thousand acres, now-constituting the county of Huron. It was conveyed to three individuals in trust to be by them conveyed in severalty to the several members of the company in proportion to their respective interests, so soon as the particular lands to which they were entitled, should be ascertained. For the purposes of partition and division, the whole country was surveyed into townships of five miles square. A number of these townships were again subdivided into smaller tracts, and were usually denominated equalizing townships. Where an entire township was not of average value, one of these smaller tracts was classified with it and called an annexation. In the final division the owner of the township owned the annexation; and if there were different proprietors, as was often the case, they owned the same proportion in the annexation as in the township. It seems that tract number 4, in range 19, was classified with or annexed to township number 2, in range 18, and that to this township there were several owners or proprietors. Of course these several proprietors must have owned in tract number 4, in the same proportion that they did in the township.

*In considering the first error assigned, the question which first presents itself for consideration is, whether in proceedings for partition, where there are different tracts of land owned by two or more proprietors, the proportion of one of those proprietors can be set off in one of the tracts thus owned; or whether each one of the proprietors shall be compelled to take a proportion of each and every tract. This question, however, is fully settled by the statute. These proceedings were had under the “ act to provide for the partition of real estate,” passed February 16,1820. Chase’s Stat. 1162. In section 4 of'this act it is provided, that “ when partition of more than one tract is demanded in the petition, the freeholders appointed to make partition shall set off to each of the petitioners his proper proportion in each of the several tracts of which partition is demanded, unless the several tracts, of which partition-is demanded, shall be owned by the same proprietors, and in the same proportions in each tract; in which case the whole share of any proprietor in and to all the several tracts may be set off to such proprietor in any one or more of said tracts, if, in the opinion of said freeholders, such partition will be more advantageous to the proprietors generally than to set off to each proprietor 'his proportion in each of the several tracts.” And this provision of the statute is in accordance with the common law. “If two mesnes descend to two parceners, and one mesne is worth twenty shillings per annum and the other ten shillings per annum, in this case partition may be made between them in this manner, to wit: the one parcener to have the one mesne and the other parcener the other mesne; and she which hath the mesne worth twenty shillings per annum, and her heirs, shall pay a yearly rent of five shillings, issuing out of the same mesne, to the other parcener and her heirs forever, because each should have equality in value.” Lit.'Tenures, 251. It is said, however, that it does not appear affirmatively in this case that the two tracts were both owned by the same proprietors and in the same proportions. True, it does not so appear very explicitly, nor does the contrary appear. We know, however, as a matter of fact, from the manner in which the Connecticut Reserve was partitioned among the original proprietors, that this township and annexation must have been owned originally by the same proprietors and in the same proportions; and the presumption is that the same state of things exists. Further, %e are bound to suppose that the court of common pleas would not have confirmed this partition until satisfied by competent proof that both tracts were owned by the same proprietors and in the same proportions. To justify this court in reversing a judgment of the court of common pleas, it is not sufficient to show that by possibility there may have been an error. The error itself, if, as in this case, an error in law, must be apparent upon the face of the record.

The second error assigned is that there were two writs of partition. This was unnecessary, and is perhaps an irregularity; but still it makes no difference in the final result. The petitioners have obtained their several proportions of land precisely the same, if not in the same manner they would have done had there been but one writ of partition. Besides, admitting that it were erroneous, what injury have the present planitiffs sustained thereby? Are they in any worse situation than they would have been had the same lands been set off under one writ? We do not see that they are. As a general rule, no one can complain of an error in a record or judgment exeept he who has been injured thereby. We do not suppose, however, that in this there is anything erroneous.

The third error assigned is that the sheriff was one of the committee. This assignment is not supported by the record. It does ■appear, however, that Abel Dickinson, one of the freeholders appointed by the court to make partition at the March term, 1824, ■•did, in this particular case, act as deputy sheriff, when the partition was actually made, in March, 1825. There is nothing in the law to prevent a deputy sheriff from being appointed, and even ■acting as one of three freeholders to make partition of real estate. Even should the sheriff himself be one of the number, I should not feel disposed to reverse the proceedings on that account. There would seem, it is true, to be some impropriety in such course of proceedings, as the writ is directed to him. The only duty, however, which he has to perform is to summons or notify the freeholders, see that they are sworn, and make return of the process. The partition itself is made by the freeholders. In this -case the sheriff has returned that he summoned Dickinson him.self, and that he summoned the other freeholders, by Dickinson, his deputy, and the general return is signed Samuel G-. Potter, sheriff, by Abel Dickinson, deputy. In this we see no error.

*Upon a careful examination of the record in this case we have not been able to discover any error, the proceedings and orders of the court of common pleas will therefore be affirmed with costs.


author: Judge Wood

text:
    Samuel Grindle, by his next Friend, George W. Grindle, v. Leonard Rush and Randolph R. Greene.
    In an action against surgeons for misconduct in setting, a fractured bone, an. allegation in the declaration tbat the defendants promised to perfect & cure, can only be sustained by positive proof of an express promise. Tha law does not raise, by implication, such an undertaking.
    This cause was adjourned from Greene county.
    •Odlin and Smith, for the plaintiff:
    A. Harlan, for the defendants.
   Judge Wood

stated the case, and delivered the opinion of the court:

In this case the plaintiff, by his prochain ami, declares against the defendants as physicians and surgeons, and sets out as an inducement to the action an injury and fracture of his leg, and that he retained the defendants, partners in their profession, carefully and skillfully to set the broken bone of his leg, and to manage, take care of, and cure the same, for a certain hire or reward, in a careful, skillful, and proper manner; and the said Rush and Greene being so employed, upon their promise and undertaking, to cure and manage said leg in a skillful and proper manner, did, as surgeons and physicians, enter upon and commence the business and undertaking of managing and curing said leg in a skillful and proper manner; and avers that although they undertook to set and cure said leg in a skillful, careful, and proper manner, yet in so doing the defendants so badly, carelessly, and negligently managed and conducted the said leg, in setting the said broken bone, and in binding up the said leg, that by reason of’ the improper treatment,-negligence, carelessness, and malpractice of the defendants, the plaintiff lost his log by amputation, etc.

The second count sets out a promise to cure the leg, and avers-a breach, as in the first count, and loss of the limb by amputation, per quod, he, the plaintiff, sustained damages to the amount of ten thousand dollars.

*To this declaration the defendants plead not guilty, and the cause was submitted to the jury on the last circuit, who found a verdict for the plaintiff.

The counsel for the defendants then moved the court for a new trial. First, because the verdict was against the evidence; and. second, because the defendants’ counsel moved the court to charge the jury that they must be satisfied, before they could find a verdict for the plaintiff, that there was a contract and special promise made by the defendants to attend upon and cure the leg of the plaintiff,and that the declaration was not sustained by proving-that the defendants were called on as physicians and surgeons to visit the plaintiff in the ordinary way, which instruction the court refused to give, but charged the jury that the declaration was-sustained by proving that the defendants held themselves out to-the world as physicians and surgeons, and .that they called and attended the plaintiff as such, and that no promise to cure the leg need be proven. This motion for a new trial is reserved for-decision here.

The first point made by the motion may be disposed of at once.. The judges who tried the cause are fully impressed with the belief that the verdict is sustained by the evidence given on the-trial. The remaining point is, perhaps, more difficult, and although we have been able to unite our minds, our opinion may' not be in unison with the impressions of a respectable portion of the bar.

The undertaking in each count of the declaration is laid as an-absolute undertaking and promise to set the bone and cure the' leg! Does the law imply any such contract ? This point was decided in the case of Hardin v. Matthews, in Geauga county,, several years since, in the negative, and the plaintiff nonsuited. It was afterward so decided in Bliss v. Long, in Cuyahoga county. Hardin v. Matthews was a case of tinea capita, and Bliss v. Long a case of obstetrics. In the first the declaration charged an absolute undertaking to cure, and in the last to deliver; and the-court were of the opinion that the law implied no such undertaking, and as no such express promise could be proved, the plaintiff could not recover. In the case of Gallagher and Wife v. Thompson, Sup. C. 466, the declaration, among other things, averred a promise by the defendant, who was a physician and surgeon, to set and cure Mrs. Gallagher’s leg. Evidence was introduced to prove the surgeon’s retainer, in the usual way, *and his attendance, that the leg was not cured, but was rendered nearly useless. A motion was made by the defendant for a nonsuit, because there was no evidence of an express promise to cure, and the law did not imply such promise, and the motion was sustained. So far as we can learn, then, the decisions have been-uniform on the circuit whenever the question has been presented. If a lawyer is retained, there is an implied'obligation to bring to his client’s aid integrity and ordinary judgment and skill, but not that he shall conduct his client’s cause to a successful issue.

The surgeon engages the ordinary skill of the profession in reducing a fractured bone, and diligence and care in his subsequent treatment, and to use his exertion and endeavor to cure, but a cure itself is frequently beyond his physical power. It depends not on him. The accoucheur engages the skill of his profession, and that he will endeavor safely to deliver, but there is no-positive obligation to produce this result. The event is in the hands of Him who giveth life, and not within the physical control of the most skillful of the profession. On the whole, we are of the opinion the court erred in not giving to the jury the instruction sought, that there should have been evidence of an express undertaking to cure before the jury could legally have found for the plaintiff, -as the the law raised no such absolute undertaking. Motion for a new trial granted, costs to abide the event. Plaintiff leave to amend his declaration in ninety days, and to pay all costs since -filed, and every thirty days thereafter a rule day.


author: Judge Lane

text:
    Linus Bascom v. Clarissa Bascom.
    Bill of review does not lie on a decree, in a petition for divorce.
    This case was adjourned from the county of Darke. It was a -petition in the nature of a bill of review, the object being to reform a decree previously pronounced between the parties upon a petition for alimony and separation. Wright, 632. The original decree gave the wife seventy-five dollars per annum, alimony, and .assigned to her the custody of an infant child, the issue of the marriage. The petition for review alleged that the cruelty charged in the original petition was not sustained by proof, and that the allowance for ^alimony was excessive. A demurrer to ■this review was interposed, upon which the ease was adjourned.
    J. H. Crane, for petitioner.
    McNutt, for defendant.
   Judge Lane

delivered the opinion of the court:

The statute of March 1, 1834 (vol. xxxi, 38) declares that all proceedings under the acts concerning marriages and divorces -shall be as in chanceryl Under this law it is claimed that all the incidents of a suit in chancery attach to these proceedings, and .among others the right of review.

It seems plain to us that such could not have been the intention. ,-of the legislature. Where a divorce is granted, upon which one -of the parties contracts new relations, and a third party acquires eights, it can not be that a process could be had to reverse a decree, the consequence of which would be a severance of all those-new relations. Such anomalous mischief can not be engrafted on-the practice of our courts, except by clear and explicit legislative enactment. That, we feel confident, can never take place.

But the different modes of proof between suits in chancery and petitions for divorce show that a bill of review is inapplicable. The former, where all the testimony is in writing, can be presented to the same or to a different tribunal in the same light, and with the same advantages of judgment, as at first. The latter depending more or less upon oral testimony given at ^the hearing, can not possibly preserve its original aspect upon a second hearing. All the reasons that render a decision upon-facts by a jury conclusive between the parties, unite in requiring' that the decision of a court, upon facts, on the hearing of a peti-tion for divorce, should be final, and stand beyond the reach of judicial revision. The demurrer is sustained.


author: Judge Grimke

text:
    *Joshua Woods v. Beverly McGee.
    Where a part of an undivided lot of property is sold, and an order given for its delivery, there must he- some act of selection under the order, before the right of property is changed.
    This was an action of trover for three hundred barrels of flour, originally the property of Henry Swearingen. The plaintiff produced an order from Henry Swearingen, on the defendant, who was his warehouse-man, directing him to deliver six hundred barrels of superfine flour, of his brand, to Levi Hutton. On the back of this order was an assignment, by Hutton to James Gordon and Eli Sidwell, of all his interest; also an assignment by Gordon to Joshua Woods; the plaintiff. The order was dated April 23, 1835. The assignment by Hutton, was of the same date, and the assignment by Gordon was May 1,1836. On the back of the same order is a receipt by John Quail, acknowledging to have received three hundred barrels of flour, on account of Joshua Woods, dated May 21, 1835. Also, a receipt of the same date by Eli Sidwell, in which he acknowledges the receipt, on his own account, of three hundred barrels • of flour of Beverly McGee, on the within order. And it was for this last three hundred barrels that the action was brought. It was proved that James Gordon, after he had sold his proportion, was authorized by Sidwell to sell his part also, and that he ■ did sell to the plaintiff, in conformity with the instructions of Sid-well. But there was no evidence that this sale was ever communicated to McGee, the defendant.
    - It was proved that at the time Swearingen drew the order, he had flour in McGee’s possession which would satisfy the description in the order, varying in value from twenty-five to fifty cents .a barrel, and that he had fifteen hundred barrels altogether there.
    The receipt signed by Sidwell, bears date before the suit was brought, but Swearingen testified that it could not have been written until afterward; that he had the order in his possession on May 21st, and kept it two or three days, when he gave it to McGee, who, a week or two after that, returned it to him with the indorsement upon it. A nonsuit was moved for, and granted, in the county where the cause was tried, and a motion was then made to open it, and for a new trial, which was adjourned, to be decided in bank.
    The cause was argued by Collier and Stanton, for the plaintiff, and by Loomis, Metcalf, and Sutherland, for the defendant.
    *But as the case finally turned upon a single point, it is unnecessary to insert the arguments.
   Judge Grimke

delivered the opinion of the court:

The question is, whether there has been a sufficient designation of this flour to authorize trover to be brought for it. Some of the English decisions teach a doctrine which is very latitudinarian, while others, and those the most recent, adhere to the settled principle that where a part of an undivided mass of property is sold, it is necessary that some further act should be done, specifying and identifying the part sold, before the action of trover will lie. In Whitehouso v. Frost, 12 East. 614, whore a man having forty tons of oil in one cistern, sold ten tons to B., and received the price, and B. sold the same to C., and took his acceptance upon it, but no actual delivery was made of the ten tons, which continued mixed with the rest in A.’s cistern; it was held, that as between B. and C., the subvendee, the delivery was complete, and that trover would lie. .Jackson v. Anderson, 4 Taunt. 24, was decided the year after, and it was there held, that trover might be maintained for nineteen hundred and sixty-nine dollars in a keg containing forty-seven hundred dollars. No separation was made of the parcel claimed by the plaintiff, but the defendant had sold and converted the whole keg; and on this ground Mansfield, C. J., placed the right of the plaintiff to recover. The next in order, is the case of Austin v. Craven, 4 Taunt., where trover was brought for fifty hogsheads ■of sugar, and it was decided that it would' not lie, because there was no specific quantity of loaves in esse, and so no identification ■of the part sold. The case of the oil is noticed with evident disapprobation. White v. Wilks, 5 Taunt. 176, presented the same state of facts as Whitehouse v. Frost. It was a sale of twenty tons of ■oil, out of a much larger quantity contained in cisterns, and it was held that trover would not lie. The determination in Austin v. Craven is ratified, and that in Whitehouse v. Frost is directly overruled. Shepley v. Davis, 5 Taunt. 616, was a sale of ten tons of hemp, part of a larger quantity. It was held, that until the part sold was weighed, the sale was incomplete. Busk v. Davis, 2 M. & S. 397, was a sale of ten out of eighteen tons of flax. It was held, that not being weighed and the part sold ascertained, that there was not a sufficient identification of this, to authorize ^trover to be brought. These are the leading cases in England, and it is easy to see that the weight of authority is against the action. The case of Pleasants v. Pendleton, 6 Rand. 473, is, however, a very strong case the other way. But it is impossible to hide from oneself, that the fact of the small difference between one hundred and twenty-three barrels, the whole quantity, ■ and one hundred and nineteen barrels, the number sold, may have gone a great way to influence the judgment. It was a hard case, and hard eases always make shipwreck of principles. It is impossible to answer the difficult inquiry. If a part only of the flour had been burnt, in that case, on whom would the loss have fallen? If A., being the owner of two thousand barrels of flour, sells one thousand to B., but without anything being done to ascertain the identity and individuality of the part sold, and one thousand barrels are consumed by fire, what is there to determine that that one thousand are the property of the vendee, and that he shall bear the loss? Until this question can be answered, we must adhere to the later English cases ; or rather we must adhere to principle, which, looking to every consequence which may arise from any given combination of circumstances, establishes a rule which shall be liable to as little fluctuation as possible. Motion overruled.


text:
    In the Matter of Ebenezer Prentiss, Petition for Partition.
    "Where one tenant in common has made separate conveyances of the entire-right, in various parcels of the land held in common, so that each purchaser’s title and possession is separate and distinct, the other tenant in common can not sustain a joint suit for partition against such purchasers,, but must bring a separate suit against each.
    In error from Huron county.
    The record in the case shows that, at the November term of the court of common pleas of Huron county, 1833, Ebenezer Prentiss, preferred his petition in said court, representing that he was seized in fee simple of one-third part of all lands granted by the state of Connecticut to one Abigail Elliot, a sufferer by the-depredations of the enemy, in the war of the revolution. That he derives title from one Anna Larouche by deed, the said Anna being one of the three heirs of the said Abigail Elliot. That the-interest of said Abigail Elliot was classified in the township of Berlin, or township No. 5, range 21, of the Connecticut Western Reserve, in the partition made by the Sufferers’Land Company, so-called, to which partition the petitioner assents. That the petitioner, in virtue of his purchase *of the said one-third of the interest of the said Abigail Elliot, has become tenant in common with the other proprietors of said section to him unknown. That the right of the said Abigail bears the same proportion to-the whole section as four hundred and ninety-six pounds thirteen shillings and ten pence does to one thousand three hundred and four pounds six shillings and four pence half penny. The prayer-of the petition is, that one-third of the right or interest of the said-. Abigail Elliot may be set off to the petitioner in severalty.
    Legal notice of the pendency of the petition was given, by publication in the Western Intelligencer, a newspaper in general circulation in the county of Huron, and the cause continned from term to term, until the March term of the court, 1835; at which term John O. Miner, Jos. Otis, Jacob Mingus, and nineteen others appeared in court, and were permitted to filé answers, in which they denied the right of the petitioner, and claim to hold each one for himself in several parts and portions of said section. And: the case was again continued.

      At the June term of the court, 1835, the case was submitted to the court upon the petition, answers, exhibits, and an agreed statement of facts which is also made a part of the record. In this statement of facts, it is admitted that Abigail Elliot was the grantee of the State of Connecticut, as stated in the petition; that the petitioner has received a conveyance of one-third of this right from Anna Larouche, who is admitted to be one of the three heirs of the said Abigail Elliot, and that the right of the said Abigail Elliot was located in said section, and that neither the petitioner, nor those under whom he claims, were ever in the State of Ohio until within five years last past. It is further admitted that the right of said Abigail Elliot was sold for taxes assessed by the fire-land company, incorporated by the State of Connecticut, and conveyed in pursuance of such sale on January 29, 1798, by the collector of said taxes, to Frederick Miner, which deed was duly executed and recorded. That the present defendants possess the several parcels of land by them claimed under deeds from the said Frederick Miner, and that the defendants are the legal owners of that portion of the said Abigail Elliot's right not claimed by the demand-ant. That the defendants and those under whom they claim, have had the control of the land since the tax sale in 1798, and have been *in actual possession, making improvements, for the last twenty-five years.
    On hearing, the court of common pleas dismissed the petition, because there were many persons in said section claiming to hold distinct parcels of said land in severalty, by virtue of titles derived from Frederick Miner, whose entire right to said section is not disputed except as to one-third part of the share of Abigail Elliot, and the petitioner claims to have an undivided and common interest in the whole section.
    To reverse this order of dismissal the writ of error is brought.
    The case was elaborately argued by Webb, for the plaintiff, and Boall and Worcester, for the defendants.
   Judge Hitchcock

delivered the opinion of the court:

It will be seen, by a careful examination of the statement of facts, that tbére is no controversy but that Frederick Miner and those claiming under him have the legal title to two-thirds of the interest originally granted by the State of Connecticut to Abigail Elliot. Whether this title was acquired under a sale for taxes or otherwise, it is immaterial to inquire, so long as its legal existence is admitted. -The record shows that the section in which this interest was classified, and in which partition is now demanded, has been surveyed into lots containing about one hundred acres each, and that these lots or parts of them have boon conveyed by Miner or his grantees to the defendants in severalty. So far as these defendants claim, therefore, they claim npt as tenants in common in the whole, but as tenants in severalty of separate and distinct tracts. Now, admitting the right of the petitioner to one-third of the interest originally vested in Abigail Elliot, there can be no doubt that he is tenant in common to the extent of that interest in each and every one of these several tracts or parcels, because to that extent he is tenant in common with the other proprietors of the whole section.

Having an interest in common in the whole section, it is insisted by his counsel that his co-tenants could not convey any part of •their interest in a separate tract in the section, so as to vest in the .grantee any title to the part so conveyed. This subject was fully •considered by the court in the case of Lessee of White v. Sayer, 2 Ohio, 110, in which case *it was settled that a tenant in .common could convey a part of his undivided estate; and that a deed by a tenant in common, purporting to convey in severalty, is ¡a good conveyance for the grantee’s undivided part within its boundaries. The correctness of this principle is recognized in the ■case of Green’s Lessee v. Emerick, 6 Ohio, 391. Upon the authority of these two cases we take the law to be settled in Ohio, that a tenant in common can convey a part of his undivided interest ,in the whole land, or'his whole undivided interest in a part of the land. True, the counsel for the plaintiff has commented upon the before-cited cases with considerable warmth, and some little asperity; but his argument has not satisfied the court that those cases were improperly decided. Nor is there anything in the nature of the case now before us to lead to the conclusion that more substantial justice could be done by a different decision.

Such, then, being the law, there is but one question in this case, and that is, whether, under our partition laws, an individual who has an interest in common in several tracts of land with others, who have no common interest with each other in those several tracts, can enlorce partition unless by separate proceedings against those who, together with him, own those separate tracts. For instance, A. is tenant in common with B. in one section of land, and with C. with another, can he join the two together in one petition ? It seems to the court clearly that he could not, and for the reason that he is joining together in the same suit those who have no common interest. In order to sustain the proceedings the petitioner must have a common interest, and those of whom partition is demanded must have a common interest in all the lands sought to be divided.

It follows that the court of common pleas did not err in the judgment complained of.

I am not prepared to say, however, that the petitioner can have no relief except by separate proceedings under our partition laws against all these defendants. It is possible that by bill in chancery, where Miner and all claiming under him were made defendants, he might obtain relief. And that if a sufficient quantity of land to satisfy his claim remains in the hands of Miner, it might be decreed to him. This, however, is a mere suggestion, and upon this point it is not intended to express any opinion.

The judgment of the court of common pleas is affirmed, with costs.


text:
    *Walter Bogan v. Henry Stoutenburgh.
    Replevin can not be sustained against a plaintiff upon whose suit in attach, ment a constable has seized goods and retains them, in a case where the writ of attachment issued irregularly.
    Reserved in the county of Delaware.
    The declaration was for several bags of wool and other articles of property. The plea non detinet, with notice that the property was in the custody of the law.
    The facts of the case appear to be these: Stoutenburgh commenced a suit by attachment, before a justice of the peace, without filing the affidavit required by the statute (vol. xxix, 203, sec. 1), against the plaintiff, and delivered the writ to Grigsby, a constable, who, by the direction of Stoutenburgh, and by virtue of the attachment, seized the property in dispute. Bogan, the defendant in the attachment, was in the county when it issued, and then brought this action of replevin against Stoutenburgh and the constable for the property so seized. The cause was submitted to the jury ón the last circuit in Delaware county. On the trial, the plaintiff discontinued his action as to Grigsby, and the above facts being proved, the court charged the jury the plaintiff could not recover. The jury, however, found a verdict for the plaintiff, and the case was reserved for decision here, on a motion filed by the defendant for a new trial, because the verdict was against the charge of the court, and the question now is, did the court err in such instruction ?

    Powell, for the plaintiff;
    Swan and Sweetzer, for the defendant.
   Judge Wood

delivered the opinion of the court:

The statute (vol. xxix, 128, sec. 1) provides, that if any person shall wrongfully detain the goods and chattels of another, the owner, or his agent or attorney, may file a precipe containing a description of the property to be replevied,” etc., “ and shall file an affidavit stating that he has good right to the possession of the goods and chattels described in the precipe, and that they are wrongfully detained by the defendant,” etc., “ the clerk shall issue a writ of replevin.”

In England, this action will only lie where there has been a taking of the goods and chattels. It will not lie where they have been delivered on a contract, whatever may be the character of any subsequent detention. 4 Bing. 299. Under the statute above ■ referred to, it is a wrongful detention, without ^regard to the taking of the property, whether such taking is lawful or unlawful, that gives the right of action in Ohio. Indeed, a tortious taking, without a subsequent wrongful detention, would not support the action. The writ can not issue without the affidavit of the party, or his agent or attorney, of such unlawful detention. The question then arises, in this case, can a party wrongfully detain the possession of the property, who has not the possession, either actual or constructive ? Without such possession, there is no power to deliver the property, and, consequently, no legal liability could accrue from a non-delivery. What possession had this defendant, the plaintiff in the attachment? If the attachment issued without affidavit, the plaintiff, especially if he directed the seizure of the property, would be liable in trespass, because he was bound to see that all his own previous steps were legal; but so far as the constable was concerned, his attachment was a good justification for him. Ho was not under obligation to ascertain whether an affidavit had or had not been filed. He must perform the duty his precept requires, when no want of jurisdiction appears on its face. The constable, then, having seized the property, it is not in the possession of the plaintiff in the attachment. The constable must cause an inventory and an appraisement to be made, and he holds the property not for the plaintiff in the attachment alone, but for the benefit of all, who shall file in and prove their claims, and the justice is required to make a pro rata distribution of the property; and the claims of other creditors, filed under the attachment, are not affected by a discontinuance of the original suit. 29 Stat. 208, secs. 18, 19. When the property is once taken by the constable, it is very clear the plaintiff has no power nor control over it. He can not deliver it. It is not wrongfully detained by him, but is in the custody of the law. The court did not err then, in our opinion, in their charge to the jury; and as the verdict is expressly against the instructions given by the court, a new trial is granted with costs to abide the event of the suit


author: *Judge Lane

text:
    *Lessee of Bryant, Thornhill, and others v. Alexander McCandless.
    Dedications of land for public or charitable uses are good without a donee to take title, and in such cases, a trustee may be appointed by the legisature.
    This was a suit in ejectment in Licking county, in which a verdict for the plaintiff was taken, subject to the opinion of the court, upon the following proved facts:
    In 1804, one hundred and nine persons, residing in Connecticut, associated themselves together under the name of the New England Licking Land Company, and purchased a tract of the United States military land, lying in Licking county, to be occupied and partitioned after the rules prescribed in the articles of association. In 1806, partition was made among them by deed, signed by the members of the company, in which sundry tracts of land are appropriated to public objects. Among these dedicated lands, the tract in controversy is described as follows: “Fifty acres from the southeast corner of section 2, township 4, range 13, which” (with others) “are'given by said proprietors, to be a perpetual fund for the support of the ministration of the gospel on the premises of the company, the avails to be equally divided among the ecclesiastical societies thereon, in proportion to their ratios of taxes, which is the only use for which said land is designed by said donors.” Ho trustee was created by this deed. In 1834, the plaintiffs, by an act of the legislature of this state, 32 Ohio L. L. ,223, are appointed trustees “ to take charge ” of these lands, and are authorized, after giving bonds for the faithful discharge of their duties, “to take possession and rent or soil it,” for the use of the inhabitants.
    In January, 1835, forty-six persons, members or heirs of members of that association, in which after reciting the appropriation, the want of trustees, and the act of the legislature appointing the plaintiffs, they convey to them all their right in the land for the purpose of carrying into effect the original use, with power to rent or sell.for that purpose.
    The defendants show no title. The plaintiffs gave no bond as required in the act, until since the commencement of this suit. They are entitled to judgment, if these facts show they hold the legal title.
    Thrall, for plaintiff.
   *Judge Lane

delivered the opinion of the court:

It is the received and settled law that a dedication for public, pious, or charitable uses requires no donee to give it effect. 6 Ohio, 308; 7 Ohio, 221. It is an equally well-settled principle in chancery, that a trust shall never fail for want of a trustee, but that the necessary appointment may be made by the court. 7 Ohio, 221.

Since then, the original use is a good one; since a court of chancery may appoint a trustee, if necessary, no objection presents itself to the exercise of the same power by the legislature, in a proper case to secure the object to which the land was devoted, especially when the title is questioned by a stranger.

It is objected that the trustees acquired no authority until the requisite bonds were given. We think it not necessary to decide this question, since if the act had not passed the legal estate to the trustees, the fee remained in the donors and their heirs subject to the trust, and has been conveyed by a part of them by deed to these plaintiffs to attain the ends contemplated in the statute, by which they have received a sufficient legal estate in at least a part of the premises, to recover possession against a trespasser.

Judgment for plaintiff on the verdict.


text:
    Lessee of W. A. Adams and others v. W. Turner.
    It is error if a person owning exclusive title to lands unite with himself, in a joint demise in ejectment, persons having no title.
    This case was submitted to the court without argument. There . was but a single point, which is fully stated in the opinion óf the court.
    Goddard, for the plaintiff.
    Stillwell, for the defendant.
   Judge Grimke

delivered the opinion of the court:

This is an action of ejectment. The declaration contains one count, which is on a joint demise from W. A. Adams and four others. It is '.dmitted that the deed for the land in controversy was made to Adams alone, and that the plaintiff can show no title in any of the other lessors. It is supposed that *this mode of declaring is authorized by section 54 of the judiciary act. That section declares, that “ in all actions of ejectment, the plaintiff shall have the same benefit from a joint demise that he could Irom several demises, and separate demises shall only be laid in the names of tenants in common.” A real difficulty had beiore been felt with regard to the form of the demise, where the lessors of the plaintiff were tenants in common. At common law, coparceners and joint tenants were obliged to lay a joint demise, while tenants in common were forbidden to lay any other than separate demises. It is perhaps difficult to give a reason which shall be perfectly satisfactory to the mind, why such a distinction was originally made, since the same objection, to wit, that the estates of tenants in common are several and distinct, and that there is no privity between them, 2 Wils. 232, would seem to be equally fatal to their uniting in one action on separate demises. But, with the exception of one solitary decision in New York, such has been the established law from time immemorial. However numerous, then, may have been the tenants in common, they must, before this act was passed, have counted on separate demises. And it was to remedy this defect, to give simplicity to the form of declaring, and to release the pleadings from all unnecessary prolixity, that section 54 of the act was inserted. Its language is by no means as clear and precise as could be desired; but its true intention can not be mistaken. The plaintiff, however, would have us go much further than this. He insists that although these lessors have no species of joint interest whatever, they may unite in a joint demise; in other words, that although William A. Adams alone possesses title, he may arbitrarily select as many persons as he please, and combine them in a joint demise with himself. If this may be done, it would be a very remarkable departure from principles of law the most firmly established without, at the same time, possessing the merit of remedying any defect or inconvenience of which I am aware. Although the demise is a fiction, yet the title of him who pretends to make it is no fiction. S. Adams, 186, n. 2. The view which the plaintiff takes proves even too much ; it would go to abolish separate demises where the titles were distinct, and where, undeniably, this was always the proper form of declaring. When the statute declares, then, that the same advantage shall be had from a joint, as from separate demises," it means to say that*as tenancy in common was the only species of joint interest in which separate demises must be laid, that hereafter a joint demise should be equaLly proper. And when it declares that “ separate demises shall only be laid in the names of tenants in common,” it means to say that tenancy in common is the only species of joint interest in which such may be the form of declaring. By giving this construction to the law, we give it, in reality, the only sensible interpretation of which it is capable, because the remedy is thus made to operate upon the only pre-existing inconvenience which could be complained of. Judgment for the defendant.


author: Jqdge Hitchcock

text:
    Anthony and William Ewing v. John Hollister, Administrator of Samuel Ewing, deceased.
    The proceedings in the court of common pleas, by executor or administrator, to subject decedent’s lands to sale for the payment of debts, may be reviewed in the Supreme Court on certiorari.

    In proceedings to sell decedent’s real estate, by oxecutor or administrator, persons in interest, though not named in the petition, if they enter an appearance, are properly parties on the record.
    In proceedings to soli decedents’ real estate, by executors or administrators, it is sufficient if infant heirs appear by their general guardian.
    Certiorari from the county of Wood.
    At the October term of the court of common pleas of the county of Wood, 1825, John Hollister, administrator of Samuel Ewing, deceased, preferred his petition to said court, setting forth that the personal goods and chattels of the intestate were not sufficient to pay the debts due from the estate, and praying for an order of the court for the sale of certain lands of which the said Samuel died seized. Samuel A. Ewing and John A. Ewing, infant sons and heirs of the intestate, were made defendants, and the petition was continued until the next November term of the court. At the last-mentioned term a citation was ordered to be issued to the said Samuel A. and John A. Thomas Powell was appointed guardian ad litem, and the cause again continued.
    On February 23, 1826, a citation was accordingly issued, and subsequently served on Paine C. Parker, guardian of the said infant defendants, and at the April term of the court, in the same year, Hiram P. Barlow, guardian of Anthony Ewing and William H. Ewing, infants, and said to be heirs of the said Samuel Ewing, deceased, appeared in court and acknowledged service of notice of the pendency of said petition. The court upon examination of the accounts of the administrator, found the estate to be alto> gether insolvent, and ordered the land described in the petition to be offered lor sale, in pursuance of the statute in such case made and provided. It was sold accordingly.
    *To reverse this order of sale, this writ of certiorari is prosecuted ; and the error assigned and relied upon is, that the said Anthony Ewing and Wm. H. Ewing are the heirs at law of the said Samuel Ewing, deceased, and were not made parties to the petition filed by the administrator for the sale of real estate.
    Coffinbury and Spink, for the plaintiffs in certiorari,
    insisted : That the plaintiffs in certiorari should have been made defendants in the petition. That such was the provision of the statute, and should be literally complied with, as the effect of the proceeding was to divest heirs of property descended to them from their ancestor.
    They further insisted, that it was not sufficient that the guardian of the heirs should appear before the court and acknowledge notice. He has no right to defend for bis ward in any case, unless appointed guardian ad litem. The proceeding is in the nature of a chancery proceeding, and the same notice should be given; that is, notice to the infants themselves.
    They cited 3 Ohio, 364; 1 How. Oh. Pr. 73, 104; 3 Bibb, 525; 3 Johns.'368; Cooper’s Equity, 108, 324; 2 Johns. 192; 4 Bibb, 96; 1 Marsh. 474 ; 2 Marsh. 158, 235.
    Wilcox and Andrews, for the defendants:
    Proceedings for the sale of land by an administrator, for the payment of debts, are of a probate nature, and under the constitution and laws of Ohio are within' the exclusive jurisdiction of the court of common pleas, and, of course, such proceeding can not be reviewed-in this court by appeal, certiorari, or writ of error. Constitution of Ohio, art. 3, secs. 2, 5; 29 Ohio L. 56; 6 Ohio, 500 ; 4 Burr. 2532 ; Tidd’s Pr. 330, 333; 1 Ld. Raym. 580.
    But if such proceedings can be reviewed by this court, it should be done by writ of error rather than certiorari. Certiorari is the remedy in those cases in which error will not lie. Wilcox’s Forms and Practice, 243; 1 Ld. Raym 469, 580.
    A writ of certiorari is a matter of discretion with the court, and ought not to be allowed alter great lapse of time, as in the *present instance, after a lapse of ten years. 2 Douglas, 749; 2 Term, 89; 4 Burr. 2459.
    The error assigned is, “ that the said Anthony Ewing and William H. Ewing are the heirs at law of the said Samuel Ewing, deceased, and are not made parties to the petition of the said administrator.” If this be so, then the plaintiffs can not sustain this writ, for none but parties or privies can prosecute error or certiorari. If, however, the reverse be true, and the plaintiffs are substantially parties, then the statute has been complied with, and there is no error.
    There has been a substantial compliance with the statute, and the notice given was sufficient. It would be sufficient even in a chancery proceeding. The real guardian of these plaintiffs appeared before the court and acknowledged' notice, and such acknowledgment is equivalent to a waiver of any further or different notice. 7 Ohio, 202; 2 Madd. Ch. 201; 9 Ves. 357; 1 Chit. Eq. Dig. 483.
   Jqdge Hitchcock

delivered the opinion of the court:

An exception is' taken to the jurisdiction of the court in this case, upon the ground that the proceedings sought to be reversed are of a probate nature, and consequently within the exclusive jurisdiction of the court of common pleas. There is much plausibility, at least, in this argument; but wo incline to the opinion, as, since the act of February 11, 1824, defining the duties of executors and administrators, 2 Chase’s Stat. 1308, proceedings by administrators for the sale of real estate are somewhat in the nature of adversary suits, that those proceedings may be reviewed in this court, and further, that the proper mode of reviewing them is by certiorari. The difference between writs of error and certiorari is not well defined in our practice. But so far as there is any general rule upon the subject, the former is the appropriate remedy where the proceedings are according to the course of the common law; the latter, where the proceedings are of a different character. In either case there must have been, however, what is equivalent to a final order or judgment of the inferior tribunal, before the writ can be issued.

It is again insisted by the defendant, that the assignment of error shows that the plaintiffs have no right to prosecute this suit; because that assignment is made upon the hypothesis that the plaintiffs are not parties to the record, and, of course, *are in no way affected by the order complained of. That none but parties or privies can prosecute a writ oí error will not be denied. But if I rightly understand the assignment, counsel are mistaken. The error complained of is, not that the plaintiffs are not parties to the record, but that they are not parties to the petition. Wero they not parties to the record, there might be some difficulty in the case, as there is no extrinsic evidence to show that they are the heirs of the intestate, or that they had ever any interest in the land. But it is said that, although their names appear upon the record, yet they were not inserted in the petition, and section 19 of the article above referred to, provides “that when the executor or administrator shall apply to the court under this act, for authority to sell the real estate of their testator or intestate, the application shall be by petition, to which the lawful heir, or the person having the next estate of inheritance of the testator or intestate shall be made defendant.” Such being the letter of the law, and these plaintiffs being heirs, it is claimed that before they can have been divested of their right, it must have been literally complied with. The objection, to say the least of it, is extremely technical. But where the value of property has increased as rapidly as it has done-in the county of Wood within a few years past, and where the spirit of speculation is abroad in the land, a person seized of real estate can not expect to be safe in his title unless it can be defended against the most trifling technical objection. In such times, the principles of abstract justice are lost sight of, and he who can accumulate the most property, is the most honored, no reference being had to the means by which it was acquired.

Prior to the act of February 11, 1824, proceedings in the court of common pleas, for the sale of intestate lands to pay debts, were wholly ex parte. Nothing more was requisite than for the administrator to satisfy the court, after having filed his petition, that such sale was necessary. This was done by producing the inventory and schedule of debts due the estate, and a schedule of debts due from the estate. If the latter overbalanced the former, an order was made ior the sale of lands. Sinoe June, 1808, lands in this state have been assets in the hands of administrators and executors, as well as personal estate, for the payment of debts; with this difference, that the personal estate must be first exhausted, and the ^further difference, that lands could not be sold without an order of the court of common pleas. True, upon the death of the ancestor, the lands descend upon the heir, but subject to the debts of that ancestor. As before remarked, previous to the act of February 11, 1824, proceedings to procure an order of sale were ex parte. But by section 19 of that act, it is provided that applications for an order of sale shall be by petition, “to which the lawful heir, or the person having the next estate of inheritance of the testator or intestate, shall be made defendant.” Chase’s Stat. 1311. This quotation, it is believed, constitutes the only material change upon this subject from the pre-existing law. Although the heir is to bo made defendant, yet it is not expressly provided that he shall have notice of the intended application, or the filing of the petition. And pursuing the statute literally, the interest of the heir could be no better protected than under the previous law. This difficulty is remedied by the act upon the same subject of March 12,1831, which requires that the same notice shall be given in proceedings for the sale of land by administrators as are given in proceedings in chancery. 29 Ohio L. 237. This latter act, too, requires the widow of the testator or intestate (if there be any), as well as the heirs, to be made defendant. Under the act of 1824, however, I have no doubt that the heir should have notice. To insert his name in the petition merely, without permitting him to know of the proceeding, would be but mockery. It was so unquestionably the intention of the law, that those who were interested in the estate should have an opportunity to show that no necessity existed for the sale of lands, and this intention would have been entirely defeated upon any other supposition than that notice should be given. But as the form of giving this notice was not prescribed in the law itself, it must, of necessity, be done by the practice of the several courts. Such being the case it would not be surprising that the practice should be different in different circuits. But if the practice adopted was such as to afford the heir a fair opportunity to contest the application, it ought to be held sufficient, and we should hold it so,' even if, under similar circumstances, we should have adopted one that was different.

Counsel for the plaintiff seem to suppose that a proceeding by an administrator to procure an order of sale, is in the nature of a suit in chancery, and that the same strictness and *technicality is required. But it is not so. It is merely a mode provided by statute to change the lands of the intestate into a fund for the payment of his debts. Nothing is taken from the heir which belongs to him, because the lands descend upon him incumbered with those debts. It is proper, however, that the heir should have an opportunity to contest the application. So far as relates to the infant defendants named in the petition, in the case before the court, the mode adopted of giving notice was by serving a citation on their guardian. It seems to the court that this was sufficient. It was the duty of the guardian to protect the interests of his wards, and notice to him would be more effectual for all beneficial purposes than notice to the infants themselves. In truth, the only effect in giving notice to infants in any case is, that it usually conveys information to their friends, and those who would be disposed to attend to their interests. Further, the obligation of the legal guardian to defend his ward would be much stronger than that of a mere guardian ad litem. If the service of a citation upon the guardian would, under the law of 1821, be sufficient notice of the pendency of the petition, surely the appearance of the guardian, and his acknowledgment of notice, must be sufficient. For I take it to be a good general rule, that a defendant may, if he think proper, waive process and appear voluntarily in court.

It is objected, however, that these plaintiffs were not mads defendants in the petition. True, they were not, nor were they subsequently made defendants by a formal amendment of the petition. But that which is equivalent was done. They are parties defendant upon the record, made so bjT the voluntary appearance of one who had the custody of their persons and property, and whose duty it was to attend to their interests. They had a day in court, and the law under which the proceedings were carried on has been substantially complied with. It was so decided by this court in the case of Lessee of Ewing v. Higby, 7 Ohio, 198, in which this identical question was raised and discussed. In justice to the court of common pleas by whom the order of sale, which is now sought to be reversed, was made, I am bound to say that peculiar solicitude appears to have been manifested in attending to the interests of all concerned, and in complying with the law; and if these proceedings were to be reversed, it is apprehended that of the numerous sales which have been *made of intestates' lands since the act of 1824, but few could bo sustained.

The order of the court of common pleas is affirmed with costs.


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    Samuel B. Harris v. John Carlisle and Andrew Carlisle.
    "Where a respondent in chancery admits an allegation in the bill, which he is called to answer, and alleges other and new matter to avoid the effect of such admission, the proof of such new matter rests upon the respondent who introduces it.
    Bill of review, reserved in Ross county.
    The original bill was filed in 1824, under the provisions of the act of the 22d January of that year. 2 Chase’s Stat. 1278, sec. 10. The bill states that the complainant had recovered a judgment at law against John Carlisle, on which an execution had been issued and returned nulla bona; and that Andrew Carlisle was indebted to his co-defendant lor moneys received to his use, for goods, wares, and merchandises, and then had in his possession, goods, wares, and merchandises belonging to his co-defendant, which could not be reached at law. The bill charges a fraudulent combination to keep the property and moneys beyond the roach of creditors, and seeks an appropriation of it in payment of the complainant’s judgment.
    John Carlisle, in his answer, admits the complainant’s judgment, execution, and return, as stated in the bill, his inability to pay, and denies all other matters charged. Andrew Carlisle, in his original answer, filed January 4, 1825, denied having any property of his co-defendant in possession. He speaks of a settlement between them on July 3, 1824, at which time he was indebted ; but gave his notes to individuals whom his co-defendant was owing for the amount, and states that since that time, John ‘Carlisle had become indebted to him for a balance of one hundred dollars, as by his account rendered. This answer was excepted to, the exception sustained, and an amended answer filed on July 14,1825. In this amended answer, this defendant states a partnership with M. Woodsidos, in the mercantile business, in 1822, and that priorto that partnership, he had received nothing from his co-defendant. That on forming that partnership John Carlisle agreed to pay fora moiety of the goods, but afterward became embarrassed, was unable to do so, and made *bim noadvances, otherwise than by loan. That during the existence of this firm, it fell in debt to John Carlisle in the amount of one thousand three hundred and fourteen dollars and sixty-five cents.. The partnership was dissolved, and this defendant agreed to pay Woodsides for his interest one thousand six hundred and seventy-five dollars twelve and a half cents, and this agreement was so modified that he agreed to pay John Carlisle’s debt. That in February, 1823, he commenced business for himself, and exhibit “ A,” he says, shows the transactions between him and his co-defendant to July 1, 1824. On that day a settlement took place, and a balance was found due his co-defendant of two hundred and seventy dollars, for which he executed his note to one Brown, to whom his co-defendant was indebted, at his request. This answer need be pursued no farther to arrive at the point in controversy. A replication was filed, and several depositions taken; but it is on./ necessary to refer particularly to those of Moses Dimmitt and William Mann Carlisle.
    Dimmitt testifies that John Carlisle furnished Andrew with a large sum of money about the time Andrew was to leave for Philadelphia, in 1823. The amount, he believes, was eleven hundred dollars. A part of this sum, he supposed, was appropriated to pay John Carlisle’s debts, but he did not know that such was the fact.
    W. M. Carlisle swears that on his return from New Orleans, in 1823, Andrew received of John a sum of money, which he understood to be about eleven hundred dollars. On this evidence, the court of common pleas dismissed the bill. It came by an appeal to the Supreme Court, and was tried on the same evidence at the November term, 1827. The Supreme Court determined the equity of the case was with the defendants as to all matters, except the eleven hundred dollars and another item, not now necessary to notice, and referred the ease, as to those items, to a master. No report was made, and at the November term, 1828, the defendants filed amended answers, and a new reference was made of the items in dispute. It is to be observed that on exhibit “A,” referred to by Andrew Carlisle in his first amended answer, and made a part of it as a statement of the accounts between the defendants, there is neither a debet nor credit of eleven hundred dollars, but a credit, under date of November 1, 1823, of six ^hundred and eighty-eight dollars and seventy-five cents, as a balance of cash borrowed.
    Andrew Carlisle, in this last amended answer, admits the receipt of the eleven hundred dollars proved by Dimmitt and W. M. Carlisle. He says, explaining more fully the credit of November 1, by balance of cash borrowed, six hundred and eighty-eight dollars and seventy-five cents, that it is a part of the eleven-hundred dollars proved by the witnesses, which he received when going to Philadelphia. That the amount was not entered at the time on book, but on a separate piece of paper; and when he returned, certain amounts he had paid for and advanced to his co-defendant were deducted, and the balance credited, which is the credit on exhibit “A.” The amended answer of his co-defendant sustains him in the statement thus made. On this statement of the case, at the November term, 1829, the master commissioner reported in favor of the defendants, and the bill was dismissed on the ground, so far as the eleven hundred dollar item was concerned, that it was accounted for by the last amended answers of the defendants in the payment of John Carlisle’s debts, small-sums advanced to him, and by the credit on exhibit “A,” six hundred and eighty-eight dollars and seventy-five cents. The counsel for the complainant suppose the court erred in dismissing the-bill, and seek a review and reversal of that decree.
    B. G-. Leonard, for complainant.
    R. Douglass and U. H. Hunter, for the defendants.
   Judge Wood

delivered the opinion of the court:

Did the court err, in this case, in receiving the last amended answers of the defendants as sufficient evidence to discharge them from accountability to the complainant for this eleven hundred dollars, and proceeding to render the decree now sought to be reversed? The rule is, that when the answer admits a fact, and is responsive to the bill, the answer must be disproved by the complainant, if he would avoid the effect of such admission; but if it be necessary for the defense to avoid it, and the answer set up new matter, in avoidance, such new matter must be proved* aliunde. Is not this the case before us? To avoid this item of eleven hundred dollars, proved by two witnesses to be in Andrew Carlisle’s hands, in *his third answer he admits it, but says he paid a part of it to and for his co-defendant, and the balance-is the credit of November 1, 1823, on exhibit “A,” six hundred and eighty-eight dollars and seventy-five cents, which credit this amended answer is more fully to explain.

In Hart v. Teneyck, Chancellor Kent refers to a case before Lord Cowper, where creditors filed a bill against an executor for an account of personal estate. The executor answered that the "testator left eleven hundred pounds in his hands, and that afterward, on a settlement, he gave his bond for one thousand pounds, .and the other one hundred pounds was given him by the testator for his care and trouble. There was no other evidence in the case ■of the eleven hundred pounds being deposited with the executor. 'The answer was put in issue, and it was resolved by the court, "that when an answer was put in issue, what was confessed and .admitted by it need not be proved; but that the defendant must make out, by proof, what was insisted on by way of avoidance. Of this case the chancellor remarks, it is undoubtedly the long .and well-established rule iñ chancery, and that it was determined, in Talbot v. Rutledge, that if a man admits, by his answer, that ■he received sums of money at certain times, and states that he paid away those sums, at other times, in discharge, he must prove his discharge, otherwise it would be to allow a man to swear for himself and be his own witness; and I am satisfied, says he, the rule is perfectly just, and that a contrary doctrine would be pernicious. In Thompson v. Lambe, 7 Ves. 587, Lord Eldon •said he was clearly of opinion a person charged by his answer, •could not by. his answer discharge himself, not even on his examination before the master, unless it is in this way: If the answer or examination states that, upon a particular day, he received a sum of money and paid it over, that may discharge him; but if he says, on a particular day he received a sum of ' money, and upon a subsequent day paid it over, that can not be ■used in his discharge; for it is a different transaction. There are many authorities to support this rule. 1 Wash. 224; 1 Mum. 373; Green v. Hart, 1 Johns. 580. In the court of errors this doctrine is carried to the full extent. Hart charged in his bill that he paid a full and valuable consideration for a note indorsed to him ■by Green, who, in answer to this charge and the interrogatory founded on it, alleged that part of the consideration for indorsing the note *was usurious. Chancellor Lansing held that the .allegation of usury was in avoidance merely, and not sufficient without other proof, and such was the opinion of the court.

These cases appear to us to bear a striking analogy to the one ‘before us. They are certainly no stronger for the application of the rule. In this case Andrew Carlisle is first charged, not by his own admission, but by the testimony of two witnesses, with the receipt of eleven hundred dollars, and it is then only that it is admitted and new matter set up to explain more fully the credit of November 1, 1823, on exhibit “A.”

In receiving the answers of the defendants as sufficient evidence to discharge Andrew Carlisle from accountability to the complainant for this sum of eleven hundred dollars, and thereupon dismissing the complainant’s bill, we think the court erred, and that the decree of dismissal should be reversed, with costs.


author: Dane, J.,

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    John Ford v. The Commissioners of Geauga County and Augustus Skinner et al.
    "When an execution is levied upon chattels sufficient to pay the debt, and subsequently the goods are restored to the defendant by consent of the plaintiff, the judgment lien on the defendant’s land is lost as against a purchaser during the continuance of the levy.
    This is a bill in chancery brought to review the decree in the case reported in 4 Ohio, 378.
    Hitchcock, for the plaintiff.
   Dane, J.,

delivered the opinion of the court:

In October, 1816, a judgment was recovered against French and others, by Skinner, in the name of the commissioners of Geauga county. French then owned a tract of land subject to a mortgage to Coit. In October, 1818, a levy was made upon personal property of French, sufficient to discharge the judgment, which remaining unsold in March, 1819, the levy upon it was released by the consent of Skinner and French.

In November, 1818, after the levy and before the release of the property, Ford purchased the land of French, and took a conveyance in fee. In 1828, the judgment never having been satisfied, a new execution was taken out and levied upon the land, upon which Ford brings his bill to enjoin the further ^pursuit of their levy, claiming that, by the acts of the parties to the execu-' tion, the land is discharged from the lien.

At the former hearing in bank, in January, 1831, two of the three judges concurred in dismissing the bill. Further examinations in the new light in which this case is now placed, have led me to change my opinion as to the correctness of the decree.

When land is purchased from a judgment debtor, the purchaser may -require the property of the debtor, or lands subsequently sold by him, to be exhausted in satisfaction of the judgment before his. 5 Johns. Ch. 325. And he may exact from the creditor a due and reasonable pursuit'of his remedies. A levy upon personal estate is a satisfaction of the judgment while it subsists, 3 Ohio, 224;. 5 Ohio, 173; and the land of the debtor may be lawfully acquired upon this presumption. 5 Ohio, 179. If the levy be set aside for-irregularity or casually lost without the negligence or misconduct of the creditor, the lien on the land is revived; for the equities are equal, and the earliest legal right should prevail. 10 Pet. 210. But where a creditor voluntarily surrenders his means of satisfaction to his debtor without the consent of those who have acquired later interests, it is a species of mala fides to attempt afterward to-subject them to his debt.

Such is the condition of the parties to this.suit; Skinner having-a valid and sufficient levy, released it to his debtor ; it is not right to permit him to disturb those who acquired rights, relying on his diligence and good faith.

Injunction decreed. Judge Hitchcock, having been of counsel,, did not sit in this case.


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    The Trustees of Section No. 16, in Township 14, Range 17, in Hocking County, v. Jesse Spencer.
    An action of covenant can not be sustained for rent against a lessee, in a lease sealed and subscribed only by the lessors, although such lessee has actually entered into possession under the lease.
    This was action of covenant upon a lease executed under seal-by David Funk and two other trustees, etc., to the defendant,, ■dated May 27, 1816, for a part of section 16. The lease purports to have been made in pursuance of a special act of the legislature, the premises thus leased being at the time of the lease in Fairfield county, but now in Hocking county. The declaration is in the usual form, except that it *does not aver that the defendant sealed the lease. It averred, however, acceptance and enjoyment ■of the lease by the defendant. Several special pleas were filed, which were demurred to, and the demurrers sustained. The defendant also plead: 1. Non est factum; 2. That the grantors of the lease were not, at the time, trustees of the township, and that the plaintiffs are not their successors; on which pleas issue was taken, and a verdict being rendered for the plaintiffs, the case was, by consent of the parties, adjourned to the court in bank, where motions in arrest and a new trial might be heard, and the questions of law be finally disposed of in that tribunal.
    Douglas, for the defendant:
    No decision, either English or American, can be found where an action of covenant has been maintained upon a deed poll against a defendant who has not sealed the instrument, unless it be founded upon some special custom. The leading cases cited by plaintiffs’ counsel are Brett v. Cumberland, Cro. Jac. 399, 522. These cases arose upon clauses in the queen’s patent, and are no authority for the present action. So by the customs of London and Bristol, an action of covenant may be maintained without a specialty. Com. Dig. tit. London, a. The next authority is Shep. Touch. 177, where Co. Lit. 231, a, and Dyer, 13, are cited. Platt, in his treatise on Covenants, has shown that these cases can not be supported. He shows that on a deed poll mutual covenants can not arise. The case in 2 Halst. 142, is also an authority in point.
    Hunter, for the plaintiff:
    'The action of covenant, it is true, can generally only be sustained upon a contract under seal, but the rule is by no means without exception that the defendant shall have sealed. In personal contracts, it is general, unless by some special custom. And, on the other hand, it would seem to be a general rule, that where the covenants run with the land, the action of covenant will lie, whether the defendant has sealed or not. 5 Co. 16; 1 Wash. C. ,375. So also covenant lies against the grantee of the king’s patent for rent reserved or for breaches of covenant running with the land. Cro. Ja. 399,522. So if a feoffment is made to two, and one does not seal, both *are bound by the covenants as much as if both had sealed. Co. Lit. 231; Dyer, 13; Com. Dig., tit-Covenant; 2 Stra. 1089. The declaration avers the acceptance of the lease by the defendant, that acceptance is evidenced by the assignment of the defendant of the lease to Worthington; actual possession was not necessary. Doug. 461, and note.
   Judge Grimke

delivered the opinion of the court:

The question arising in this case is a very important one, and is,, I believe, for the first time, presented for decision in this country. It is, whether a person may, by certain acts of his own, such as his-acceptance of an interest conveyed by deed, which he never executed, bind himself to perform all the conditions and covenants-which it contains, as effectually as if he had in a formal manner sealed and delivered the instrument. The general rule undoubtedly is, that the action of covenant can not be maintained, except against a person who, by himself or some other person authorized by him, has executed a deed under seal. Rut, although this is the-general doctrine, yet it is contended that there are exceptions to it, and that the exceptions are as firmly established as the rule itself. Saunders, in his work on Pleading and Evidence, seems to consider the law as thus established, though he does not undertake to examine the correctness of it. The leading authority which is usually relied on, is in Go. Lit. 231, a, where it is said that if a lease is made to A. and B., by indenture, and A. only execute it, but B-agrees thereto, and enjoys the premises by virtue of the demise,, an action may be maintained against both jointly. Mr. Platt, in. his very able treatise on the Law of Covenants, page 12, remarks, that the cases in the year books, which are referred to by Coke,, do not authorize the position that an action of covenant may be maintained against a person who has not executed the deed, but. who has availed himself of some benefit under it; that the two first cases cited, 38 Ed. 3, c. 8, a, and 3 H. 6, c. 26, were not actions of covenant, but of debt, and that the last, 45 E. 3, c. 11, 12, has still less relevancy to the doctrine. Indeed, Coke himself does not say that an action of covenant will lie, but only an action; and the reader is left to conjecture, what form of action he really intended. But the doctrine now contended for, has derived fresh importance from some observations which were made by Abbott, C. J., in the late case of Burnett v. Lynch, 5 B. & C. 602; S. C., 8 D. & R. 368. The ^action was ease and not covenant; but the chief justice, in delivering his opinion, declares that covenant may be sustained “under some very peculiar circumstances, such as those mentioned in Co. Lit. 231, a.” Yet it is evident that this is only an extrajudicial opinion, without examination of the cases on which the position rests ; and I think it is moreover evident that it is said hesitatingly and reluctantly.

Brett v. Cumberland, Cro. Jac. 399, 522, are also relied upon. These decide that covenant lies against the grantee of the king’s patent for rent reserved. These cases stand alone ; indeed, they are regarded by Blaekstone, in his Commentaries, as forming the only exception to the general rule. In Goodwin v. Gilbert, 9 Mass. 510, it is held that where land is conveyed by deed poll, and the grantee enters the deed, certain duties being reserved to be performed by him, as no action lies upon the deed, an action of assumption may be maintained against him. The case was argued by very able counsel, Dexter and Jackson on one side, and Otis and Sullivan on the other; and yet no allusion is made to the peculiar doctrine supposed to be laid down by Coke, although the defense rested principally upon objections to the form of the action. The doctrine was not noticed in any of the early editions of Chitty’s Pleading, but it has lately arrested his attention in consequence of its having been made the subject of a rigid scrutiny and examination; and in the edition of 1833 he seems to consider it as a departure from well-established principles. The doctrine with regard to covenants running with the land has evidently no application. No such covenants can be created or assigned, except by deed. A lessee by deed poll, or writing not under seal, who should be bound to the performance of certain duties relating to the land, could not therefore be sued in covenant, because those duties in order that they should be considered as covenants, must, in addition to their relation to the land, be created by deed. Their relation to the land does not convert them into covenants, but (provided something else is done) only characterizes them as covenants, which concern the realty. It would seem sufficient to stop here; for if such adoctrine is unsustained, either on principle or authority, in England, and has never been asserted until now in any of the courts of America, we bald it to be most fit that it should receive no countenance or sanction, and that the error should be be detected in the very beginning, *rather than the court should be called upon at some, future day to reconsider an opinion which was manifestly inconsistent with the most settled principles of law. It becomes unnecessary to examine any other questions made, as this disposes of the case. The plaintiff must therefore submit to a nonsuit.