text:
    Jacob S. Atwood v. The Bank of Chillicothe.
    In an action against a bank for the recovery of its notes or bills, it is sufficient to declare for money had and received, and on trial the plaintiff may give in evidence any notes or bills of the bank which he may have in possession, and recover the amount thereof, under the act of January 28, 1824. And, in such case, if the bank has suspended specie payment, he will be entitled to interest on the notes or bills from the time of suspension.
    This is an action of assumpsit from the county of Eoss.
    The declaration contains a single count for money had and received, to which the defendant pleaded the general issue. The issue thus joined was submitted to the court on the following agreed statement of facts:
    527] *“ On April 19, 1841, the Bank of Chillicotlie ceased, and refused to redeem the notes issued and put in circulation by said bank, with good and lawful money of the United States. On the 21st of April aforesaid, the plaintiff presented to the cashier of said bank at its counter, within banking hours, divers notes of said bank, which are produced in court in evidence, and then and there demanded payment of said notes, with good and lawful money of the United States, the said notes being payable on demand, and amounting to the sum of $719. But the cashier then and there refused to make payment of the same or any part thereof in such money so demanded. The plaintiff brought this suit in the court of common pleas of said county, and on the trial of the cause in said court, produced in evidence the identical notes aforesaid, amounting to said sum of $719, which are nowin evidence; and also the further sum of $4,080 in other notes of said bank, payable on demand, owned and held by the plaintiff at the time of said trial, which latter sum of $4,080 the plaintiff now produces here in court in evidence in this cause, in the identical notes aforesaid. All said notes were duly signed and executed by the president and cashier of said bank, are the genuine notes of said bank, and all bear date prior to the said 19th of April' last. No demand of payment of said last-mentioned notes, amounting to $4,080, has ever been made of said bank by the plaintiff or any one on his behalf, and the plaintiff was not the holder of said notes, amounting to $4,080, at the commencement of this suit.”

      The ease was argued at length by Thurman and Massie, for the plaintiff, and by Stanbert, Creighton, and Green, for defendant.
   Hitchcock, J.

Two questions are raised for the consideration of the court in this case:

1. Whether the plaintiff is entitled to judgment for the amount of notes acquired by him subsequent to the ^commence- [528 ment of the suit, and which are now giyen in evidence?

2. If he is entitled to such judgment is ho entitled to interest, and from what time should the interest be computed?

As a general rule, it is well settled that the rights of parties litigant must be adjudicated as they wore at the commencement of the suit. And if a plaintiff has no cause of action when his writ is issued, ho can not subsequently acquire a right which can be enforced in such suit. Apply this principle to the present case, and the plaintiff could only recover a judgment for the amount of notes which he demanded on the 21st of April, with interest from that date. He would be precluded from the recovery of the 84,080.

It is supposed, however, by his counsel that a different rule prevails where a suit is brought against a bank to recover upon its notes or bills, and they refer to the act of January 28, 1824, “to regulate judicial proceedings where banks and bankers are par.ties,” and rely upon this act as sustaining them in this position. It is perhaps a little singular that although this law has been in force for seventeen years, and was preceded by a similar law as early as 1819, this court has never before been called upon to give to it a construction. A case was reserved in Cuyahoga county some two or three years since for the express purnose of obtaining the opinion of the court upon this law, -but it was settled by the parties, and never brought before the court. But perhaps this is to be accounted for by the fact, that from the passage of the law until within three or four yeai’S past, the banks of the state redeemed their notes when demanded.

The legislature, in the enactment of this law, intended to give an easy and effectual remedy to those who held the notes of a bank which did not redeem its promises, and to make it the interest of all such institutions to deal honestly and fairly. If there is anything of apparent severity in the law, it can not be attributed to any prejudice existing in the body who passed it 529] against banks. No such prejudice existed. They *were supposed to be institutions necessary to the welfare and prosperity of the country. There was the same disposition to do justice to them as to individuals. According to our understanding of the law, there is nothing in it which will operate unjustly. It may change some of the rules of pleading and evidence as known to the common law, but it is done only for the furtherance of justice.

The first section of the law, and this is the only section with which we have anything to do in the present case, provides, That in all actions brought against any bank or banker, whether of a public or private character, to recover money due from such bank or banker, on notes or bills by him or them issued, the plaintiff may file his declaration for money had and received generally, and on trial may give in evidence, to support the action, any notes or bills of such bank or banker, which said plaintiff may hold at the time of trial, and may recover the amount thereof, with interest lrom the time the same shall have been presented for payment and payment thereof refused, or from the time such bank or banker shall have ceased and refused to. redeem his notes with go'od and lawful money of the United States.”

This section would seem "to be sufficiently explicit in its terms, with respect to the rights of a plaintiff in introducing evidence, and in securing to him a judgment for the entire amount of notes and bills given in evidence. If is strongly urged, however, by the defendant’s counsel, that this statute should not have a literal construction, so far as to secure to a plaintiff a judgment for any greater amount than he was entitled to at the commencement of the suit. In other words, that the statute shall not be so construed as to infringe the general rule, that the rights of parties shall be adjudicated upon as they wore at the commencement of the suit. And it is claimed that the intention of the legislature was to permit a plaintiff who had in his possession notes or bills of a bank at the time of the commencement of a suit, but had afterward disposed of them, to give in evidence notes or bills of an equal amount, which he might have acquired at a subsequent period, but pre580] vious *to the trial. This certainly would be a forced construction of the law, and would equally interfere with the rule referred to. New rights would have been acquired, and those new rights would be the rights adjudicated.

Tho legislature passing this law intended undoubtedly to interfere with this rule. They, entertained the opinion that no bank ought to enter into obligations beyond what it could meet, nor ought it to throw into circulation a currency which would be irredeemable. To prevent such course of conduct they intended to give to a bill-holder a speedy and effectual remedy to redeem the amount of bills in his hands, not only such as he might have on hand at the time of the commencement of the suit, but such as might subsequently and before judgment come into his possession. It is not perceived that there is anything wrong in this. The paper of a bank is intended and designed, when issued, to pass and circulate as money; it is loaned as money, it is received as money) and if it fails in fulfilling the object for which it is intended, those who have it in possession ought to have every needful facility furnished by law for changing it into money.

It is true, that under this law it is possible that a judgment may be recovered against a bank upon its paper, when it has never refused to redeem it. But such institutions have nothing to fear. No man having a bank note will ever commence suit upon that note if he can receive its amount upon demand. Nor if he has commenced a suit, will he collect in other paper, merely for the purpose of enhancing the amount of his judgment. But even should such an event happen, it can do the bank no essential injury. The only difference it will make will be that the institution will have to redeem its paper in the hands of tho sheriff instead of the bill-holder, with perhaps a little additional cost.

There may be, and undoubtedly are, circumstances occasionally occurring which may in some measure excuse one of theso institutions in a temporary suspension of-the redemption of its paper. But when such is the fact they are less likely to suffer than individuals placed under like circumstances. Let *this be as it [581 may, however, there is no more reason why the courts of justice should be closed against those who have claims against banking institutions, than against those who have claims against other corporations, or against individuals.

In any view which we can take of the subject, it seems to us clear under this statute, that in a suit against a bank, the plaintiff “ may give in evidence, to support the action, any notes or bills of such bank which said plaintiff may hold at the, time of trial, and may recover the amount thereof.”

But it is said, by giving this construction to the act, it will conflict and be inconsistent with many parts of the act regulating the practice of the judicial courts. And reference is more particularly made to those parts of the practice act, which require that the cause of action and the amount due shall be indorsed on the writ, and that the plaintiff shall, upon demand, furnish a bill of particulars. Without going into a particular examination of these objections, it is sufficient to say that the practice act prescribes general rules for the practice of the court. The same power which prescribed these rules, may dispense with them in a particular class of cases. The act of 1824 is limited to a particular class of cases, to wit, cases in which a bank or banker is a party. And if, in order to give effect to this law, as applicable to this class of cases, it becomes necessary to depart from any of the general rules of practice, it must be done. Whether it is in fact necessary, we do not now undertake to decide.

The second question raised in the case is, whether the plaintiff is entitled to interest, and if so, from what time shall interest be computed.

In the disposition of this question, there is more difficulty. The statute provides that the plaintiff may recover the amount of the notes and bills given in evidence, “ with interest from the time the same shall have been presented, and payment thereof refused, or, from the time such bank or banker shall have ceased and refused to redeem, his notes with good and lawful money of the United States.”

The defendants in this case do not object to a judgment for 583] ^interest upon such notes as have been presented for payment, and payment refused, but the objection is to a judgment for interest on the whole amount of notes given in evidence, whether the same had or had not been presented for payment. The provision of the law is, that a demand of payment shall entitle tho holder of a note to interest from the time of such demand, or that a general refusal to pay, or general suspension of payment, shall i confer the same right from the date of the suspension. Under this latter provision the counsel for plaintiff claims that he is en- ' titled to interest, as well on the $4,080 as on the $719.

With a view to ascertain the meaning of the legislature upon this subject, it may be well to look at the previous legislation. The first act which we find in the statute book, “To regulate judicial proceedings where banks and bankers are parties,” was enacted on February 5,1819. Chase’s L. 1076. The first section of this act is like the first section of the act of 1824, so far as respects the form of pleading, the evidence to be given on the trial, and the amount to be recovered. But it differs with respect to the interest. The plaintiff is entitled to recover the amount of notes given in evidence with interest on the whole, or any one or more of such bills or notes, from the day the same was presented for payment,s and payment thereof refused. This act was repealed on February 18,1820, by an act of that date of the same title. Chase’s L. 1134. The first section of the act of 1820 is like the act of 1819 as to the pleadings and evidence, precisely the same as to_ interest. By these statutes it is clear that no interest'could be computed until after demand made. Although notes might be given in evidence which had not been demanded, and their amount might be recovered, yet it was without interest. The' law of 1824 was intended to change this rule as to interest.

By the law of 1824, the legislature manifestly intended to provide for two classes of cases: 1. Where a bank is in the practice of redeeming its notes, if suit is brought against it, although the plaintiff may give in evidence any notes or bills of *whieh [533 he is in possession, and may recover a judgment for the full amount of such notes, still he shall recover no interest unless payment of such notes shall have been previously demanded, and then only from the time of demand. 2. Where a bank shall suspend payment generally in lawful money of the United States. In such case, if sued, it must pay interest on its notes or bills from the time of such suspension. In this latter case a demand is dispensed-with, because it would be of no avail. It seems to have been contemplated by this law, that from the time of suspension by a bank,, its notes and bills in circulation should be upon interest, and if suit bo brought this interest may be recovered, and it is provided in section 11 of the act, “ that when any bank or banker shall commence and continue to redeem their notes and bills with lawful money, the interest on their bills and notes shall cease from the commencement of such redemption,” etc.

Is there anything unjust in all this ? Individuals not complying with their contracts are compelled to pay interest, and it is not improper that the same measure of justice should be meted out to banks. It is.only when they fail to fulfill the object of their creation that they incur this liability; when they return'to the-path of duty the liability ceases. They ought to be, and must be, fully protected in all the rights secured to them by their charters of incorporation. Beyond this they can claim no special indulgence.

It is true there seems to be some impropriety in giving to a man who may have been possessed of the notes of a bank but for a day or a week, interest upon such notes for six months or a year, especially when he may have received them at their nominal value or at a discount. But this is not a matter of which the bank can complain. It is liable for the interest, and it can make no difference as to whom it is paid. The same difficulty always occurs when a promissory note or other contract for the payment of money has been transferred at a discount..

But it is complained by defendant’s counsel that this construction of the law will bear peculiarly hard upon a bank 584] *which bas issued notes after a suspension, if they are compelled -to pay interest upon such notes from the time of the suspension, or, in other words,.from a time anterior to their having been issued. Possibly, if the notes bear date and were proven to have been issued after the suspension, interest would only be computed from the date of such note. But should it be otherr wise there is no cause of complaint. This law now under consideration is no new enactment. It has long been in force. It is known to the officers of banks, and if they will, having tho law before them, issue paper, they must do it at their peril. A l^ank which can not redeem the paper which it has in circulation, certainly ought not to issue any more. Duty requires of it to contract, instead of expanding its circulation. If it pursues a different course, it must do it at tho risk of consequences.

Tho case of Goodman v. Duffield, Wright, 455, has been rited by both parties as an authority in this case. In that case the notes given in evidence were all in possession of the plaintiff before tho commencement of the suit. The court say the lav of 1824 does not change the law of the action as respects parties and privies. Nor does it, for without that law the holder of banknotes could maintain an action against the bank if payment was refused. He would be the only proper person to maintain the action. Tho rule of evidence as prescribed in the statute is fully recognized in that case.' The case itself was decided in favor of •the defendant, not on account of any defect in plaintiff’s proof, but because the proof exhibited by the defendant was such as to show clearly that the plaintiff had no right of action.

According to the construction which we give to the act of 1824, the plaintiff is entitled to a judgment for the full amount of the notes given in evidence, together with interest from April 19, 1841. Judgment for the plaintiff.


source: Caselaw Access Project

author: Lane, C. J.

license: Public Domain

text:
    *The State of Ohio, ex rel. the Prosecuting Attorney of Hamilton County, v. The Commercial Bank of Cincinnati. The Same v. The Lafayette Bank of Cincinnati. The Same v. The Franklin Bank of Cincinnati.
    A hank incurs no forfeiture by mere suspension, where a penalty for suspension of twelve per cent, damages is given to the holder of its notes, both by its charter and the general law.
    The right to issue post notes is secured to the Commercial Bank of Cincinnati by its charter.
    Contracting by a bank to take a higher rate of interest than six per cent. •where illegal, works no forfeiture of its charter.
    Expansions and contractions of circulation, and disproportionate loans to officers, work no forfeiture.
    The suspension of specie payment by a bank may be carried so far as to afford evidence of entire misuser of powers and extinguish its chartered privileges.
    There was no law in force in 1840 which forbid the Eranklin Bank of Cincinnati from issuing notes of the denomination of one, two, and three dollars, or of orders on the Branch Bank of Terre Haute, designed to circulate as money.
   Lane, C. J.

An information was filed, by leave óf the court, against each of these defendants to show cause by what warranty they exercise certain franchises.

The information against the Commercial Bank recites, that this corporation for six months last past, without warrant, grant, or charter, have used, and still use, the following liberties and franchises, viz: acting as a bank, owning a fund for the purpose of issuing notes, of receiving deposits, making discounts and carrying on banking operations, etc., and likewise issuing notes intended to circulate as money, payable in twelve months after date, "and also loaning such notes at the same rate of interest and paying them for debts in the same manner as notes payable on demand. ‘Whereupon the prosecuting attorney prays process against said corporation, to show by what warrant they exercise these privileges, liberties, and franchises.

Another count charges the corporation with the franchise of a bank, and conducting the usual business of such institutions without grant, warrant, or charter.

536] *The defendants, by plea, protesting against the insufficiency of the information, aver that they have not issued notes, intended to circulate as money, and payable twelve months after date, set up the act of incprporation and the amendatory acts, and aver a due organization under them, by which authority they have set up and used the several liberties therein conferred upon them. The defendants proceed to aver, that out of the profits earned by the bank since filing the information, two dividends have been made to the stockholders and taxes upon each paid to and accepted by the state.

The replication, after the usual pretexts, avers the following matters:

1. That defendants have issued and put in circulation $300,000 of notes, intended to circulate as money, payable twelve months after date.

2. That the defendants suspended the payment of their notes in coin from June 1, 1837, to August 1, 1838, and also from March 4, 1840, to April 23, 1840, and until the filing of the replication.

3. That they made loans of their bank notes, payable at a . future day, in the same manner and at the same rate of interest as of notes payable on demand, by which they received interest at a greater rate than six per cent, per annum.

4. That they expanded their circulation to an amount greater than four times the amount of the coin in their vaults, “and suddenly withdrew a great part of it from circulation.”

5. That they loaned a large portion of their funds “to their officers and a few other individuals.”

To each replication the defendants have filed a several demurrer, and likewise a special demurrer to tho whole for duplicity.

Without stopping at this time to examine the objections to the forms of the pleadings, the record, bringing forward the act of incorporation, by which this corporation derived its existence, distinctly presents the question, whether a forfeiture was incurred by the commission of any of those acts of which the prosecutor complains.

*It is admitted by the demurrer that the sum of 1300,000 [537 was issued in bank notes of following form :

“ Cincinnati, March 6,1840.
“The Commercial Bank of Cincinnati promises to pay five dollars to E. T. Coolidge or order, at their banking house, twelve months after date.-
“Jas. Heth, Gash. J. S. Armstrong, Pres’t.”

These notes are averred to have been issued on March 6, 1840, and at divers other days before and subsequent. This statement extends no further than an averment of the issue on the 6th ; it is therefore not embraced by the statute of 1840, which took effect on the 23d March of that year. Eor the prosecutor demanding a forfeiture must bring his case by averments plainly within the operation of the law. It is, therefore, not necessary to consider, in this case, how far a prohibition of the legislature may avail against privileges conferred by charter; the rights of these defendants are to be adjudged by the laws in force at the time when the act complained of was done.

The charter of this institution was passed on February 11,1829. It made it lawful for the company among other things, to discount upon banking principles and usages bills of exchange and post notes, and to issue notes payable to bearer on demand and at its own office, and to draw and issue post notes and bills of exchange, payable to order at such place and at such time or day as the directors may deem expedient. 3 Chase’s L. 2059. The' bill whose issue is complained of, is a post note, the right to issue which is among the enumerated powers conferred by the charter upon the company. The statute of 1824 (Chase’s L. 1420) did not render such notes void, but rendered them payable on demand; and it is not to be construed so as to take away a power expressly and specially given by a subsequent act of tho legislature. There is nothing, then, in the issue of these post notes on March 6,1839, beyond the legitimate authority of the company.

588] *The next act complained of, consists in suspending specie payments from June 1,1837, to August 1,1838, and from March 4, 1839, to April 23, the day of filing the information, and afterward until the filing the replication.

If the suspension of specie payment works a forfeiture of a bank charter, this effect is .produced either by the operation of some statute, or from the intrinsic nature of the act of suspension.

The legislature of this state have nowhere declared, by express statute, that the act of suspension is a forfeiture of the franchise.0 of banking. By the statute of February 25, 1839, certain acts are. declared forfeitures, as refusing an inspection to the bank com' missioners, refusing answers under oath, neglecting to furnish monthly statements; and when a bank is finally closed by the operations of that statute, its charter is pronounced “ a dead letter.” So the neglect to furnish the documents provided by the statute of March 23,1840, shall be taken to be a forfeiture. We do not now decide anything of the effect of these measures, but cite them to show that while the legislature have declared that a forfeiture would ensue from some omissions, the refusal to pay coin is not among the number.

But that the legislature did not intend such forfeiture should ensue from a mere suspension, is plain, because they provided a different penalty. In the organic law of this company, the due payment of its notes is intended to be secured by creating a liability to pay twelve per cent, damages. Chase’s L. 2060, sec. 4. The same provision is introduced into the act of 1839, creating the board of bank commissioners. And the legislature of 1838 (36 Ohio L. 18, secs. 3, 4) removes all doubt from this matter; it is to provide a remedy for the then existing suspension, and instead' of contemplating a forfeiture of charters and a liquidation of its business for any causes then existing, it looks forward to a resumption of payments and a continuation of the exercise of their franchises when the Eastern banks resume the payment of specie 539] on their notes, *and it provides no penalty for failure except a discredit of their paper in payment at the public offices.

Since, then, we find no forfeiture of rights from the direct action of the legislature, we must next inquire whether the nature of the act of suspension itself is such as to produce it.

We entertain no doubt that the suspension of specie payments may be continued long enough and be carried far enough to work an entire forfeiture of banking franchises and to authorize the sovereign to resume the powers it has conferred on a corporation. For a bank of circulation is created to provide by its credits a currency which may serve as money; whenever this currency becomes discredited, irredeemable, inconvertible, so that it no longer fulfills this end, there is a misuser of its powers, such as upon common law principles may work a forfeiture. How far this failure to accomplish the end of its creation must be carried to be attended by this result, whether this consequence follows a mere refusal to pay its debts, or whether such omission to pay must be carried to the suspicion of insolvency, are points of difference among the judges of New York, as to which, perhaps, our legislature may properly iurnish a rule, as the legislature of New York has done, but which we need not decide in this'case. 6 Cow. 196.

For forfeitures of rights and privileges are not to be incurred except under express limitation or plain abuses of powers by which the corporation ceases to fulfill the design of its institution, and forfeitures are not to be favored when the legislature has provided other remedies adequate to correct the evils. The legislature, in the charter of this bank, looking to this event, have provided such a remedy, believing that it was better to secure to the holder of its notes twelve per cent, damages for a neglect to pay its debts, instead of the multiplied inconveniences and derangements involved in a liquidation and close of its business. Until, .therefore, an entire derangement of the business of the company shall occur, there is no necessity for us to look out for causes of forfeiture when the legislature plainly did not intend to exact it.

*The next ground of forfeiture is the loan of its post [540 notes, in the same manner and at the same rate of interest as if they had been payable on demand. Without denying that such an act, if a part of' the contract, might admit being interpreted into a taking of more than six per cent, interest on a loan, it still is to •be inquired if this be an act of forfeiture. It admits two answers.

The charter of this bank contains no restriction as to the rate of interest. Singular as it may be that no such a provision exists, there is no other check upon the contract against the receipt of any rate of interest except the general law; and by their general power to make contracts, they have the same right to stipulate concerning interest on their lawful contracts as individuals; and their contract, like the contracts of individuals, are not void, although judgments will be rendered for six per cent, interest only. There is, then, no illegal act done by the company, even if it be proved they have taken such interest.

But if there was such a restriction upon their power to contract as is contained in most other b'ank charters, it is not a ground of forfeiture. It is a case whore the contract itself is void for the want of powers; but the attempt to do what they are unable to do does not destroy their power of doing what they lawfully can do.

4. The expansion of their circulation to a sum four times greater than the amount of their coin and suddenly withdrawing a great part of it.

Without adverting to the extremely ambiguous terms of the charter, by which the privilege of owing at least twice the amount of its capital is secured to the company (Chase’s L. 2059, sec. 3), a specific remedy is provided for this, in making the directors personally responsible for this excess. The act of February 25, 1839, sec. 10, makes this provision a general law, and yields the fair inference that the legislature deemed this a sufficient security without creating any disability in the institution itself. As to the sudden return of its circulation, I suppose this was not an act of 541] the company, *but was produced by the natural operations of business, and one which I doubt not the officers of the corporation resisted to the utmost of their power.

The complaint, that a “ large portion of their loans have been made to their officers, and to a few other individuals,” need hardly be noticed, even if alleged with greater certainty. It might be well if restrictions were imposed by the legislature, upon the amount of its loans to its officers, and oven to others, but until such rules are prescribed by the sovereign power, the selection of its debtors, and the distribution of its loans, are confided to the discretion of the managers.

The last ground which'the prosecutor assumes, is, that all banks constituted by states are unlawful institutions, because the constitution of the United States declares no state shall issue bills of credit. After the existence of such corporations, over since the existence of the constitution, and the actual circulating medium ■which our country has lived by, ever since my earliest recollection, I can not regard this as now a judicial question.

We have then considered this ease upon its merits, without regard to any objection to forms, and we find no ground for a forfeiture of its chartered rights. As this is the first proceeding under the statute of quo warranto, it affords us an opportunity to say something concerning the forms of proceeding.

We think the prosecutor may pursue two courses. He may disclose in his information, the specific ground of forfeiture, or he may adopt the mode of pleading in this case. Here, the information, in general terms charges the defendant with exercising certain sjiecified franchises without authority, and calls upon him to show by what warrant he possesses these powers. The plea should deny the facts, or sot forth the authority. The replication may then bring forward the acts upon which the prosecutor relies as working the forfeiture, which may be denied or demurred to, in the rejoinder. By this form of pleading, the authority to act is disclosed by him who claims to possess it, and the acts claimed to be unauthorized are averred by the party who complains of their exercise.

*It is not necessary for us to advert to the defects in this [542 replication, although sufficient certainty is found in hardly one of its averments; because the facts complained of, however set forth, are no ground of forfeiture.

In the case of the Lafayette Bank the same questions are presented, and in both eases the demurrer to the replication is sustained and judgment is entered for the defendants.

The case of the Franklin Bank is nearly identical with the two just disposed of. It is only necessary to look to the points of difference.

The act of forfeiture assumed, is not in the issue of post notes, •but in the issue of orders on the Branch Bank of Terre Haute, in Indiana, in the form of bank notes, and designed' for circulation. The time averred is in January, 1840.

This charter does contain a restriction on the issue of notes payable to bearer at any other office than their own on demand; and it inhibits the issue of any notes, payable to bearer and on demand, for less than five dollars, except of the denomination of ones, twos, and threes. The note set forth is payable to order, and for ten dollars, and thus not within the terms of prohibition. It is rendered illegal by the general law only, and no such general prohibition is found, until the act of March 23,1840, a period after the commission of this act. Now the employment of this means to extend their circulation is not to be approved, and prudent men will view an institution which recurs to it with distrust, but there is no room to claim a forfeiture of privileges until the act becomes illegal.

J. T. Crapsey, Prosecuting Attorney.

N. Wright, for the Commercial Bank.

S. P. Chase, for the Lafayette Bank.

E. S. Haines, for the Franklin Bank.

Judgment for the defendants.

The other ground of complaint, differing from those in the other cases, consists in the issue of notes whose denominations are one, two, and three dollars. The right to issue such notes appear to be conferred by section 2 of the charter. Chase’s L. 2078. The law of 1838 permitted such issues; the law of 1840 forbid them. Now this issue is alleged to have been made during all the time in said information mentioned,” and the information avers a time in which ,543] it was permitted. It is *not necessary, then, for us to determine whether the law be stronger than the charter, unless the case be clearly brought within it by pleading.


text:
    Edmund Farrington v. Gallaway and Myers, James Gallaway, Jr., and George Myers.
    In a joint suit on a note against several defendants, one of them can not set up as a defense at law that he was a surety and the principal gave time for payment. His remedy is in equity.
    This was an action of assumpsit, tried on the circuit in 1841, in the Supreme Court of the county of Fairfield.
    The suit was brought on the following note:
    “ $1,040. Six months after date, we or either of us promise to pay E. Farrington, or order, ten hundred and forty dollars, for value rec’d.”
    Signed by all the defendants.
    Plea, the general issue,

      On the trial the defendant, George Myers, offered to prove that he executed the note as security for the other defendants ; that the plaintiff at the time knew it; that when the note became due, the plaintiff, in consideration of the payment by the *principals in the note of a large sum for usurious interest, [544 agreed with them to give further time till the 14th of April then next, to pay the note. This evidence was rejected by the court, and a bill of exceptions taken.
    Application was made for the allowance of a writ of error, but a non allocatur was indorsed by the four judges, on the ground that as the suit was brought against the defendants jointly and the matter offered in evidence was not a good defense as to all the defendants, one of them could not take advantage of it to defeat the action at law, but his remedy was in equity..
    Ewing, for the plaintiff in error.
    H. H. Hunter, contra.


author: Grimke, J.

text:
    Augustus A. Bennett, for the use of another, v. Daniel S. Morley and Ebenezer Griffith.
    Under the plea of nul tiel record in an action of debt on a judgment from a sister state against two defendants, both of whom appear by the record to have been served with process, evidence is not admissible to show that one of the defendants was not in fact served.
    Whether such evidence be admissible under a different state of pleading, qucere.

    This is an action of debt from the county of Trumbull.
    The suit is brought upon a judgment of the court of common pleas of the county of Genesee, in the State of New York.
    The declaration is in the common form.
    Daniel S. Morley, the only defendant served with process here, pleads nul tiel record. **
    The plaintiff, on the trial, produced the original record from New York, regularly authenticated, showing that both defendants were arrested in that suit.
    The defendant offered, in evidence, a document, accompanying the deposition '-f the clerk of the court in New York, *which, [101 in addition ro- Uie record, contained a copy of the capias ad re spondendum. with the return indorsed upon it, “Not found as to Morley.”

      The question is, whether this evidence is admissible under the plea of nul tiel record.

    Whittlesey and Newton, for the plaintiff;
    Exemplification offered in evidence shows, that both defendants in the suit in New York were served with process ; and the only question is, whether, under the plea of nul tiel record, the defendant here, by evidence dehors the record, can contradict it, and show that in fact process was not served on him.
    The rule is, that a record in itself imports absolute verity. Under the act of Congress, the record is to have the same force and effect here as in New York where the judgment was rendered. In that state the judgment would be conclusive. In the Bank of Columbia v. Newcomb, 6 Johns. 97, which was an action of debt on a joint judgment against two, when one only had been served with process, the defendant plead nul tiel record, and a special plea setting up the want of service. The court on demurrer gave judgment against the defendant. The same principle is recognized in Dando v. Tremper, 2 Johns. 87; Meacham v. Dudley, 6 Wend. 514; Grasebrook v. McCreedie, 9 Wend. 437.
    Whether the defendant might protect himself under a different state "of pleadings, is a matter not now to be considered; but it would violate all rules of law as to the force and effect of a record» to permit it to be impeached by secondary evidence, on the plea of nul tiel record.

    Todd and Hoeeman, for the defendant,
    insisted that the record was void as to this- defendant. They cited Spencer v. Brockway, 1 Ohio, 122; Goodrich v. Jenkins, Wright, 348; Weyer v. Zane. 3 Ohio, 305; Commonwealth v. Green, 17 Mass. 543; Hampden v. McConnell, 3 Wheat. 234; Mills v. Duryce, 7 Cranch, 481; Bissell 102] v. Briggs, 9 Mass. *462; Kilburne v. Woodworth, 5 Johns. 37; Robison v. Ward, 8 Johns. 86; Tayler v. Phelps, 1 Gill & Johns. 492; Shumway v. Stillman, 6 Wend. 447; Jacobs v. Hull, 12 Mass. 25 ; Andrews v. Montgomery, 19 Johns. 162; Thomas v. Robison, 3 Wend. 267 ; Hitchcock v. Aicken, 1 Caine, 460 ; Armstrong v. Carson, 2 Dall. 302; Buford v. Buford, 4 Munf. 241; Shumway v. Stillman, 4 Cowen, 292; Hall v. Williams, 6 Pick. 232; Woodward v. Tremere, 6 Pick. 354; Case of the Marshalsea, 10 Rep. 70; Grumon v. Raymond, 1 Conn. 40; Thurbur v. Blackbourne, 1 N. H. 243; Kibbe v. Kibbe, Kerby, 119; Bartlett v. Knight, 1 Mass. 405.
   Grimke, J.

That the plea of nul tiel record puts in issue only the existence of the record is one of those maxims which admits of no exception. It is true the doctrine with regard to the effect of a judgment of a sister state, has undergone as many and as important changes as any other in the law, but on this precise question, whether on the single plea of nul tiel record, to an action of debt on such a judgment, you can go out of the record, there never has been any departure from the rule originally established. It Dando v. Tremper, 2 Johns. 87, where a suit was brought against two defendants, but the writ as to one of them was returned not found,, the plaintiff having obtained a judgment by default against both defendants, which was regularly entered according to the statute, brought an action of debt on this judgment, to which the defendants who had not been served with process pleaded nul tiel record, it was held that the original judgment being in force against both, the plaintiff was entitled to judgment against both on this plea. In that case both the original suit and the suit upon the judgment were brought in the State of New York. But the constitution and laws of the United States have declared that full faith and credit shall be given in one state to the records of another; the meaning of which has been determined to be that they shall be taken to import absolute verity. This was so settled in the case of Mills v. Duryee, 7 Cranch, 481, and this determination produced an immediate change in *the-decisions of the vari- [103 ous states. In Mills v. Duryee, the defendant had been served with process, and it was held in general terms, that the judgment of another state stood upon the same footing with domestic judgments, or rather that they were to all intents and purposes domestic judgments, and that nul tiel record was the only plea which could be plead of matter not arising subsequent to the judgment. But very soon a class of cases came before the same court, where the defendant had not a day in court, and a distinction was then .taken between such judgments, and those which had been rendered after personal notice. Mayhew v. Thatcher, 6 Wheaton, 129.

In Hall v. Williams, 6 Pick. 232, Parker, C. J., says, this court yielded a painful deference to the decision of Mills v. Duryee, without that close examination it would have received if presented to them otherwise than incidentally. In Hall v. Williams there were two defendants; they pleaded, first, nul tiel record; second that they had no notice of the original action; third, one of them pleaded separately that he never was an inhabitant of the' state in which the original suit was prosecuted, or a resident therein, etc. To the second and third pleas, there was a replication averring that the defendants are estopped from denying an appearance by the record, which shows that they did appear. The record was set forth, and it did not show the fact which was alleged as a matter of estoppel, the appearance of both defendants; judgment was therefore given against the replication setting up the estoppel. So in Starbuck v. Murray, 5 Wend. 148, it was held that to an action of debt on a judgment rendered in a sister state, commenced by attachment of goods, a defendant may plead in bar that no process wa’s ever served upon him in the original suit in which the judgment was rendered, and that he never appeared in person or by attorney, although in the record it was averred that the defendant appeared to the suit. These decisions necessarily followed after the qualification which had been given to the case of Mills v. Duryee, by the very court in which it was heard. They seemed to be indispensable, in order to give import and meaning to the distinc104] tion which had *been established between those proceedings where the party has had a day in court, and those where he has not. But not one of them has in the least degree varied the rule first laid down that where ml tiel record is the only plea, the existence of the record is the only matter put in issue. It is unnecessary to decide whether the evidence offered in this case would have been proper under a different state of pleading. It is enough to say that it is not admissible under the plea pleaded.

      In Aldrich v. Kinney, 4 Conn. 380, to an action of debt on a judgment of the Supreme Judicial Court of Rhode Island, the defendant plead, that the writ in the original action was no otherwise served on him than by attaching “ certain turnpike shares,” which were not his. The plaintiff replied that process was served on the defendant according to the laws of Rhode Island, and that he appeared to the action by his attorney, John B. Snow, plead the general issue, and after a judgment against him, appealed therefrom to the Supreme Court. The defendant, in his rejoinder, denied the facts set out in the replication; and upon these allegations issue was joined. The court allowed the defendant to show that the attorney of record had no authority to appear for him; and also to prove the other facts contained in the plea. Hosmer, C. J., in delivering the opinion of the court, says: “No sufficient objection arises from the expression, that the defendant appeared by hia attorney. The attention of the court is seldom, if ever, called to the inquiry, unless specially directed to it, whether a person claiming to be the attorney of the party, is really such; and the record, by the management of the plaintiff, need never be destitute of this affirmation.” See Harrod v. Barnetts, 1 Hall, 155, where a similar plea was held bad, on demurrer, because it contained no positive averment that the defendant had not appeared, in the original suit.


author: Wood, J.

text:
    *Vance P. Bonham v. S. C. Taylor, J. Blickensderfer, and John Hilat, Jr.
    To post the rates of toll at each end of the bridge, is a condition precedent in the charter of the Dover Bridge Company, and until performed the exaction of toll is unlawful.
    This is an action for an assault and battery from the county of Tuscarawas.
    It was submitted to a jury at the September term of the Supreme Court, 1837; a verdict was given for the plaintiff for $27, subject to the opinion of the court on the law of the case, arising on an agreed statement of facts.
    : By the agreed case, it appears, inter alia, that the plaintiff on April 24, 1825, attempted to pass the Dover bridge without paying toll, the same being demanded. As the gate of the bridge was opened for others, the plaintiff passed through without permission, and immediately after passing through the gate was seized by the defendants,'who attempted to detain him until ho paid the usual toll demanded of foot-passengers, and a struggle ensued, in which the clothes of the plaintiff were torn and injured.
    It is further agreed that on April 24, 1835, the new bridge, which is calculated and framed for two tracks, had but one track finished, and that there was, at that time but one board with the rates of toll thereon, put up at or upon the said bridge, and that was put up at the western end, at which end the plaintiff entered and passed through the gate, as before stated.
    It is agreed, that if, on this statement of facts, the defendants had a right to demand toll of the plaintiff for passing said bridge, on the 24th of April aforesaid, and on his refusal to pay, to stop him, and prevent him by force from passing, that judgment is to be entered for the defendants;, otherwise, for the plaintiff.
    109] *Atherton & Peck, for the plaintiff.
    S. W. Culbertson, for the defendant.
   Wood, J.

Section 3 of the act of incorporation under which this company has its legal capacity to receive tolTprovidos, “That the aforesaid company is hereby authorized to ask, demand, and receive from travelers and passengers that may cross the said-bridge the following rates of toll, to wit: for every,foot-passenger, six and. one-fourth cents,” etc.

. Section 5 provides, “That the aforesaid company shall, previous to receiving toll, set up and keep, on each margin of said river, near the aforesaid bridge, a post and board, on which shall be printed or painted, in a conspicuous manner, the aforesaid rates of toll,” etc. 17 Ohio Local L. 18. No other parts of this statute are necessarily connected with our present inquiry. This company being a private corporation can exercise no power but such as are expressly given to it by its charter, or such as are necessary to carry into execution those powers conferred by express provision. A corporation is an artificial being, which exists only in legal contemplation. A mere creature of the law, it possesses only those attributes which the act creating it confers, or such as may be implied as essential to its existence. Dartmouth College v. Woodward, 4 Wheat. 518; Comm’rs Gallia Co. v. Holcomb, 7 Ohio, 232, pt. 2. The right to ask, demand, and receive toll is one of its enumerated powers, and as a necessary means to enable it to enjoy this franchise, the power to prevent any person from passing the bridge, liable to the exaction of toll, but refusing to make payment, must, from the necessity of the case, be implied in this corporation. Without this implication, the privileges granted could not with certainty be enjoyed; and it would seem to iollow, that any endeavor to pass the bridge without payment might legally be opposed with such reasonable force as would be necessary to prevent the act. But the defendants do n'ot ^appear to us [110 to exactly occupy this position. By the agreed case it will be seen that the plaintiff had passed the bridge before he was seized by the defendants, and his clothes were injured. Whatever force would be justified by the law to prevent the act, when the bridge was once passed by the plaintiff, the defendants had no other remedy than such as the law would give by action to recover the amount due for toll. The defendants, after the act was done, could not take the measure of justice into their own hands, nor would force to the plaintiff be then justifiable.

But aside from this view of the case, the charter imposes on the company, as a condition precedent to any right to receive toll, the obligation to keep up a board on each margin of the river, near the bridge, on which shall be printed or painted in a conspicuous manner, the rates of toll provided for in the act. Without this obligation is performed, there is no legal capacity to demand, nor any legal right to receive toll, in the company. The agreed case shows there had been no full compliance with this provision, but a board on the west side of the river, and at the west end of the bridge only. It must not, however, be supposed that any casual interruption in keeping up the rates of toll, by violence or otherwise, and for a brief period, would deprive the company of any right, provided they had once performed the duty imposed by the act, and were guilty of no unreasonable delay in keeping within its provisions. Nor is it easily preceived what benefit a board posted up at the east end of the bridge would have been to the plaintiff, who entered the bridge at the west end. But it was, nevertheless, such a precedent condition as the legislature had the power to impose, and until complied with, the authority to demand toll was not vested in the company. Corporate.rights must be strictly construed, and this company received this charter on the condition of a compliance with its obligation; and if such obligations remained unperformed, and the company in its discretion threw open the bridge to the community, it-was a trespass in the defend-111] ant, Blickensderfer, *one of the corporators, to thus seize the plaintiff, for refusing to pay, and a trespass in the other defendants who acted by his direction, and under his authority. Judgment must therefore be entered on the verdict of the jury.

Judgment for the plaintiff.


text:
    The Lessee of James Moore and others v. Armstrong and Chandler.
    A disability, which, under the act of limitation, saves the estate of one of several heirs, is no protection to the co-heirs.
    One whose estate is thus saved can not recover it in a joint demise with others whose rights are barred.
    This is an action of ejectment, on an agreed case, from the county of Ross.
    The declaration is upon a joint demise from the heirs of Porgus Moore.
    12] *On the trial, the legal title was shown to be in the lessors of the plaintiff.

      The defendants then proved an adverse possession in themselves of more than twenty-one years.
    The plaintiff then showed that.Mrs. Fleming, one of his lessors, had been a feme covert ever since the adverse possession commenced.
    Thus two questions are made:
    I. Whether the disability of Mrs. Fleming protects her co-heirs against the bar of the statute.
    II. If not, whether she can recover her share of the estate upon the joint demise.
    H. H. Hunter (H. Stanbery was with him), for the plaintiff:
    At common law, tenants in common could not make a joint demise. Tillinghast’s Adams on Ejectment, 210. But this rule is changed by our statute (3 Chase’s Laws, 1681), and a plaintiff here has the same right to recover on a joint, as-on several demises.,. Doe v. Fleming, 2 Ohio, 301.
    At common law, on a joint demise, the title must be joint, or the plaintiff can not recover. Taylor v. Taylor, 3 Marsh. (Ky.) 19 ; 4 Moore, 365; 7 Moore, 230. And in Langdon v. Rowlston, 2 Taunt. 446, it was held, that the entry of one tenant in common not barred by the statute on account of disability, would not save the bar as to the other tenant in common who was not under any disability.
    But our statute expressly authorizes a joint demise, and unless the disability of one saves all, his right who is under disability is lost, by the operation of the rule, that a joint demise demands a joint title.
    In all other actions the disability of one operates for the benefit of all, and there seems to be no good reason to except the action of ejectment. This court has held, on the circuit, *that the [13 disability of one tenant in common will enable all to join in an application to redeem lands sold for taxes. The form of the remedy can not affect the principle.
    A. G. Thurman, for the defendants:
    The language used in the act of limitations is too plain to admit of construction. All actions are to,be barred after twenty-one years, but if any person or persons labor under any one of the disabilities specified, then “such person or persons” may sue, etc. The right to sue after twenty-one years is saved to the person under disability, and is barred as to all others.

      This is not like the case of Wilkins v. Phillips, 3 Ohio, 49. That was a writ of error, in which the law requires all to join. This alternative was there presented to the court. The disability must save all, or it could save none. All, or none, must sue the writ of error. The right to sue it was expressly saved to the infant by the statute, and that right could only be enforced by joining his co-plaintiffs with him in the writ. But here no such necessity exists. It is optional with a plaintiff in ejectment to count either on a joint or a single demise, but having made his election, he must abide the consequences.
    The question is settled in England, and in the United States. The rule is, that a disability, which saves the estate of one of several heirs, affords no protection to his co-heirs. Roe v. Rowlston, 2 Taunt. 441; Doolittle v. Blakesley, 4 Day, 265; Sandford v. Button, 4 Day, 310; Doe v. Barksdale, 2 Brock. 436; Thomas v. Machir, 4 Bibb, 412; Johnson v. Harris, 5 Haywood, 113.
    The plaintiff, then, having counted on a single joint demise, and failing to show a, joint title, can recover nothing.
   Grimke, J.

Does the disability of Mrs. Fleming prevent the statute from running, not only as to herself, but as to all the other lessors, is the first question. And whatever doubt may once have been entertained on this subject, it is 'now conclusively settled, 14] both in Great Britain and the United States, *that the statute is saved in favor only of the person laboring under the alleged disability. This is the rule with respect both to coparceners and tenants in common. In Jackson v. Perry, 4 D. & E. 516, where the question was whether the statute would run against all the joint plaintiffs, if any of them were free from disability, Lord Kenyon observed, that it was remarkable it was the first time the question had been made in'the English courts. The action was by partners, and it was held that inasmuch as the suit, to be sustained at all, must necessarily be a joint one, that the statute run against all the joint plaintiffs, although some of them were free from disability. In Marsteller v. McClean, 7 Cranch, 156, which was an action by joint plaintiffs for the recovery of mesne profits, a similar decision was made. It was held that where once the statute runs against one of two parties entitled to a joint action, it operates as a bar to all. Great reliance, however, is placed upon the form of the pleading. There was a joint replication to the statute of limitation, and it was said that inasmuch as it was bad in part, it was bad in the whole. These were, both of them, cases in which the interest of the plaintiffs was joint. But that is not the case in the present instance. The title is joint, but the interest is several and distinct. Accordingly, in Langdon v. Rowlston, 2 Taunt. 440, which was an action of ejectment brought by heirs, it was held that the disability of one of them operated in her favor, although it did not prevent the running of the statute as to the other, and inasmuch as there was a separate demise from the one whowas protected by the statutej the plaintiff obtained judgment for one-half of the land. In Doé v. Barksdale, 2 Brock. 486, this case was recognized as one of great authority, and the same decision was made upon precisely the same' state of facts. It was an ejectment by heirs. The declaration contained both joint and several demises, and it was held that where one of several co-heirs, who labors under no disability, fails to bring his action within the time limited bylaw, although his right of recovery will be barred, it will not affect those who were under disability; and judgment was accordingly rendered for *so much of the land as was [15 claimed by those lessors who were within the saving clause of the statute.

In Sandford v. Button, 4 Day, 310, which was also an ejectment by heirs, a different view seems to have been taken of the law from what was entertained in the two former. There can be no question, it is said, that it is the rule of the common law that, on a joint suit, the disability of one will save the rights of all the others. Jackson v. Perry, and Marsteller v. McClean, had decided that if the statute had barred the right of one, it would bar that of all the others; and Langdon v. Rowlston, and Doe v. Barksdale, had simply decided that if the statute had operated to bar one or more, it would not prejudice the rights of the others. But Sandford V: Button goes much further, and decides that the rights of none are prejudiced. This proceeds on the idea that the action at common law must necessarily be joint. But as the interests of coparceners are several, although their title is joint, it is plain that they may sue either on joint or separate demises. In Sandford v. Button, it is said, the practice peculiar to the State of Gonneeticut has varied the rule on this subject — has authorized separate demises to be laid where coparceners sue; and that, therefore, if one or more labor under disability, there is no reason why, in that state, the protection should be extended to the others. The rule with regard to the form of declaring, whero joint tenants, coparceners, and tenants in common sue, is sometimes thus expressed: that the two former being seized, per my et per tout, deriving by one and the same title, and having a joint possession, must join in the action, and that tenants in common, having several and distinct titles and estates independent of each other, must count upon separate demises. Boner v. Juner, Ld. Raym. 726; Morris v. Barry, 1 Wilson, 1; Heatherly v. Weston, 2 Wilson, 232. But we have seen that, in Roe v. Rowlston, and Doe v. Barksdale, the demises were separate and were from coparceners, and they were held to be the only ones on which they could recover. Perhaps it would be more correct to say, that joint tenants must join, coparceners 16] may either join or sever, *Jackson v. Sample, 1 Johns. Cas. 231; and tenants in common must (independently of the statute of Ohio, which authorizes them to join) sever. Even this last rule, so far as regards joint tenants and tenants in common, is, in practice, annulled in Great Britain ; for if a joint tenant bring an ejectment without joining his co-tenant in the demise, it is considered as a severance of the tenancy, and he will be allowed to recover his separate proportion of the land. And if all the joint tenants join in the action, but declare upon separate demises by each, it is held that they may recover the whole premises; because by the several demises the plaintiff has the entire interest in the whole subject matter, although the joint tenancy is severed by the several letting. Doe v. Pearson, 6 East, 173; Doe v. Lonsdale, 12 East, 39; Doe v. Read, 12 East, 57; Doe v. Fenn, 3 Campb. 190. And so tenants in common might, at common law, join in a lease to a third person, stating the demise to the plaintiff to have been made by that lessee. The English cases, however, consider joint tenants as standing upon different ground from coj>arceners or tenants in common. Their interest is considered so indissoluble, that if one or more are barred by the statute, all are barred. In Ohio, coparcenary and tenancy in common are the only species of joint estate known to the law. For the statute permitting partition among joint tenants, and more particularly the statute of wills, which permits them to devise, have by necessary implication abolished the estate of joint tenancy; by destroying its distinguishing feature, the right of survivorship, it has reduced it to a. mere tenancy in common; so that the rule may be laid down generally, and without exception among us, that where one of several persons having a joint estate, labors under a disability which is within the saving of the statute, he may take advantage of it, but none others can.

In Kennedy v. Bruce, 2 Bibb, 371, it was held that under the act of Kentucky of 1797, declaring that entries for land shall become void, if not surveyed before October 1, 1798, with a saving to infants, if any one of the joint owners be under the disability, it brings the entry within the saving as to %ll the others. [17 The question, however, does not appear to have undergone much investigation, and the law undoubtedly was not so well settled then as it has been since.

There is another class of cases in which it has been held that the saving in the statute shall be extended to all, although one only may have labored under disability. Thus, in Kennedy’s Heirs v. Duncan, Hardin, 365, it was determined that if one of the persons against whom a decree is rendered be an infant, his infancy will prevent the statute of limitations from barring those who must necessarily join in a writ of error to reverse such decree. And the same decision, upon the same state of facts, was made in Wilkins v. Phillips, 3 Ohio, 49. Judgment of severance may be given in a writ of error, so as to permit those entitled to sue upon it without joining the others. But there seems to be this distinction, that if anything may be recovered by two or more plaintiffs in a writ of error, judgment of severance can not be given; but where a writ of error is brought by two or more plaintiffs to discharge themselves from some burden, judgment of severance may be given. Cro. Eliz. 649; Cro. Jac. 117, 616. In Wilkins'!;. Phillips, something was to be recovered, and the alternative presented was, that either none or all should be barred. The court yielded to the most favorable construction, and held that the rights of all were protected.

There is still another question which is presented: whether the plaintiff can recover the interest of Elizabeth Fleming, when she is united with the other lessors who are barred. The interest of one coparcener or tenant in common, whose right is saved, may be recovered in ejectment; but then it must be on a separate demise. If the demise is joint, those who are protected stand upon the same disadvantageous ground as in Jackson v. Perry, and Marsteller v. McClean, though not for the same reason. As it is competent to them to sue separately, if they choose voluntarily to confound their interests with that of others who have no rights, they must abide the consequences. Dickey v. Armstrong, 1 Marsh. 39. In 18] the Lessee of Adams v. Turner, 7 Ohio, 136, it *was held that a person possessing title can not combine with himself, in a joint demise, persons who have no title. The only difference between the two cases is, that in the former the defect was disclosed by the plaintiff, and in the present it comes out on proof by the defendant. But the evidence is as conclusive in the one case as in the other. Indeed, it is much more common for a plaintiff to be defeated by the strength of his adversary’s testimony than by the infirmity of his own.

Judgment for defendant.


author: Hitchcock, J.

text:
    The Lessee of Richard C. Nash v. Caleb Atherton.
    A conveyance of land purporting to be bounded on other lands can not be so construed as to embrace the lands on which it is bounded.
    This is an action of ejectment from the county of Brown.
    On the trial the plaintiff gave in evidence to the jury a 164] ^patent for certain real estate, which is claimed to be, in part, the land in controversy, dated in 1804, and purported to convey land surveyed for John Bartlet.
    The defendant claimed title under a patent bearing date at a subsequent period, and which was issued on the survey of Thomas Perkins.
    The question was a question of boundary, depending upon the construction of these patents, with the entries and surveys upon which they were based, in connection with other testimony in the case.
    The entries under which the respective parties claim are as follows:
    August 25, 1796. No. 2,798.
    “Thomas Perkins, assignee, enters 2,066-f acres of land, on a military warrant, No. 3,442, and part of 3,530, on the waters of Three Mile creek, beginning at the southwest corner of Humphrey Brooks’ survey, No. 1,690, running north 60° W. 900 poles, thence south 30° W. at right angles for quantity.”
    “August 25, 1796. No. 2,799.
    John Bartlet enters 400 acres of land, on a military warrant» No. 1,324, on the waters of Three Mile creek, beginning at the southwest corner of Thomas Perkins’ entry, No. 2,798, running north 60° W. 320 poles, then south 30° W. at right angles for quantity.”
    On August 19, 1797, this latter entry was surveyed in three separate parcels, the first of which was as follows : “ Surveyed for John Bartlet, assignee, 133J acres of land, on part of a military warrant, No. 1,324, on the northwest of the Ohio, and on the waters of Three Mile creek, beginning at a beech, sugar tree, and hickory, southeast corner of Thomas Perkins’ survey, No. 2,798, running with his line north 60° W. 107 poles, crossing a branch at 103 poles, to an ash, sugar tree, and buckeye, in Perkins’ line; thence S. 30° W. 200 poles to a walnut, beech, and buckeye; thence S. 60° E. 107 poles to an ash, elm, and walnut; thence N. 30° E. 200 poles, crossing a branch at .160 poles, to the beginning.” The ^second parcel was surveyed, commencing at the ash, [165 sugar tree, and buckeye corner in Perkins’ line, and called to run with his line as its northern boundary. The third parcel was surveyed, commencing at a corner in Perkins’ line, and like the second, calling to run with his line for its northern boundary.
    Perkins’ entry was surveyed on .October 5, 1801, as follows:
      “ Surveyed for Thomas Perkins, assignee, 1,866§ acres of land, on a military warrant, Ko. 3,442, and part of 3,530, on the waters of Three Mile and Eagle creek, beginning at two lynns, a sugar tree and white oak, southwest corner of Humphrey Brooks’ survey, 1,690; thence south 30° west 367J poles to a buckeye and two hornboans; thence north 60° west 227 poles to a white walnut, hackberry and buckeye, southwest corner of Benjamin Beasley’s survey,” etc. It is unnecessary to recite any more of this survey, as it is upon this last line that the controversy arises.
    The plaintiff introduced testimony conducing to prove, that although the entry and survey of Bartlet was dependent upon and called to be bounded bythelineof Perkins, yet that it was actually surveyed differently upon the ground, and as surveyed covered a part of the land included in Perkins’ entry and survey. There was no dispute but that the survey of Perkins was properly executed in conformity with his entry, nor could there be any reasonable doubt as to the locality of the south line of this survey.
    The jury was instructed that the southerly line of Perkins’ survey was the boundary of the plaintiff’s land under his patent. That having called for this line as his boundary, he must be concluded by it, and could not be permitted to go beyond it. If the defendant was in possession of land south of this line, they would be bound to find a verdict for the plaintiff, but if, on the contrary, he was not so in possession, he would be entitled to a verdict.
    A verdict was returned for the defendant, whereupon the plaintiff moved for a new trial for the following reasons, to wit: 1. That the verdict was against the evidence. 2. That the court mistook the law in their instructions to the jury.
    166] *M. Marshall & Fishback, for the plaintiff,
    in support of the motion, insisted upon the following positions:
    1. That the surveyor, in executing his surveys, shall be presumed to have done his. duty, in marking the corners and lines of all surveys which he certifies.
    2. The land which he actually surveyed, the lines and corners which he does actually mark, constitute the true boundaries, and the land passes by the patent calling for them to the grantee.
    3. The description given by the plat and certificate of survey is only prima facie evidence of what was done upon the ground, to be controlled by what was actually done, evidenced by the existence of those corners and lines found upon the ground.

      4. Mistakes of the surveyor, in describing in his certificate, the object called for, either lines, corners, course, or distance, may be rectified by the evidences to be found upon the ground, or which can be proven to have existed there, and like all other facts, susceptible of proof, by like evidence, and which the jury alone are to find.
    Assuming these principles to be correct, then if the surveyor did, in executing the survey under which the plaintiff claims» actually mark the lines and corners of that survey, and the land in controversy is included, and the grant therefor be anterior in date to that under which the defendant claims, the plaintiff should prevail in this action, notwithstanding the surveyor calls for Perkins’ line and corner before the survey of Perkins was made, oi boundary marked. The fact of such call before the making that survey and marking its boundary, is evidence of mistake in calling for it, and should yield to the evidence found upon the ground. The following authorities were cited: Francis v. Hazlerig, 1 Marsh. (Ky.) 96 ; Wallace v. Maxwell, 1 J. J. Marsh. 447; Helm v. Small, Hardin, 369; Baker v. Talbott, 6 Mon. 179; Baxter v. Evett, 7 Mon. 329; Dimmitt v. Lashbrook, 2 Dana, 2; McIver v. Walker, 9 Cranch, 173; Stringer v. Young, 3 Pet. 320; Boardman v. Reed, 6 Pet. 328; Wilson v. Rucker, 1 Call, 435; Herbert v. Wise, 3 Call, 239; *Baker v. Seekright, 1 Hen. & Munf. 177 ; Alshire [167 v. Hulse, Wright, 170; Avery v. Baum, Wright, 576 ; Jackson v. Livingston, 15 Johns. 471; Jackson v. Wilkinson, 17 Johns. 146; Jackson v. Freer, 17 Johns. 29; Loomis v. Jackson, 19 Johns. 449.
    G. Collings, for the defendant,
    submitted a written argument,' insisting that the call for Perkins’ corner and line could not be' rejected, but must be considered asa controlling call in the survey and patent under which the plaintiff claims. He also made several other points in the case, but the argument upon those points-is not abstracted, as they are not noticed in the decision of the case.
   Hitchcock, J.

This case involves principles which are important, and upon its correct decision must depend in some measure the security of titles within the Yirginia military district, which at the best, have been heretofore considered as somewhat precarious, and have been, and still continue to be, subjected to much litigation ; and we should extremely regret to make any decision which could be considered as an innovation upon any of the rules-which have been heretofore established with respect to these titles. And we have examined this case with more than ordinary care, in consequence of the confidence expressed by learned counsel, that the court upon the circuit had entirely mistaken the law of the case.

So far as respects the first reason assigned for a new trial, there can be no pretense that it is well founded. If the court were right with respect to the law of the case, the verdict of the jury was in conformity with the evidence, as applicable to that law. The evidence was conclusive as to the location of the south, or southerly line of Perkins’ survey, being proven by the testimony of the surveyor who m'ade the survey, and other testimony, and it was not even pretended that the defendant was in possession of any land south of this line.

The only question then is, whether the court was mistaken as to the law of the case, and committed an error in the instructions 168] *given to the jury. The point of law, as given to the jury¡ is this: The survey and patent under which the plaintiff claims title, calling for a corner’of Perkins, as the beginning corner, and calling for the line of Perkins, as one of the boundaries, must be controlled by these calls. And even admitting that the surveyor in executing the survey did commence at a corner made by himself, which was not a corner of Perkins, and did survey a line which is not in conformity with the line of Perkins, the call, in ■the survey and patent for Perkins’ corner and line, can not be rejected so as to give the plaintiff a part of Perkins' land.

It will be seen from the evidence in the case, that although the entries were both made on the same day, yet that of Perkins was ¡first made, and upon the entry of .Perkins the other was dependent, showing conclusively that .by this latter entry the locator did mot intend to interfere with that of Perkins. And the surveyor •in surveying this latter entry, if done before the entry of Perkins was surveyed, would be bound so to survey as not to interfere with .Perkins’ entry, but to leave him his full quantity of land. Such I say would have been the duty of the surveyor; and we are told by the counsel for the plaintiff, that the surveyor shall be presumed ■to have done his duty. The entry of Bartlet was first surveyed, ■and it is manifest that the surveyor intended, at least, so far to perform his duty as not to interfere with the rights of Perkins, for •he calls to begin at the southeast corner of Perkins’ survey, and to run westerly with Perkins’ line. He did not, as would appear from the certificate of survey, make any now corner in this part of the survey, nor run any new line as a boundary, but adopted a corner already made and a line already run. True, the line of Perkins had hot been then run, but his entry had been made, and when run would constitute the line of Bartlet. Before the patent emanated to the lessors of the plaintiff, as assignees of Bartlet, Perkins’ entry had been surveyed, its corners and line were fixed and known, and by one of those corners and lines the patent calls are bounded. The order of time in which these entries and surveys were made, and the patents *issued, are as follows: On [169 August 25, 1796, both entries were made, Perkins’ being first. On August 19, 1797, Bartlet’s entry was surveyed, and on October 5, 1801, Perkins’ entry was surveyed. In 1804, Bartlet’s survey was patented, and at a subsequent period Perkins’ survey was patented.

So far as it respects the survey of Bartlet, it may not be improper to remark that it was executed on entirely different ground from that covered by his entry, and of course must be considered as if no previous entry had been made. The entry calls to begin at the southwest corner of Pei’kins’ entry, whereas the survey was executed commencing at the southeast corner. But as this survey has been carried into grant, it is perhaps too late to question its propriety.

It is insisted, on the part of the plaintiff, that inasmuch as at the time of the execution of Bartlet’s survey, the survey of Perkins had not been made, the calls for this latter survey must be rejected, and the corner and line actually marked upon the ground must govern. And it is further insisted that the call for Perkins’ survey must have been a mistake, and that his entry was intended. If it were so, I do not see that it could make any difference. If the call had been, like the call in Bartlet’s entry, for a corner of Perkins’ entry, the corner thus called for must be a true corner of that entry. The surveyor of Bartlet’s entry had no right to fix the corners or the lines of Perkins’, and then to survey in such a manner as to destroy Perkins’ rights, while he professed not to interfere with them.

The real position taken by the counsel of the plaintiff is, that the survey actually made upon the ground is that which is to govern., and all corners, lines, courses, distances, and objects called for which are inconsistent with this actual survey, must be rejected or controlled by it. I presume counsel would hardly sustain this position when stated in this manner, but it does seem to me that this is the legitimate result of their argument.

In many instances there can be no doubt that the certificate of survey as returned may be corrected in many respects by the survey as actually made on the ground, and by natural objects 170] *ealled for in the certificate. Thus, if the call be to run a particular course, and there be a marked line of the same general course, although not specifically the same, the marked line shall control the call. So if the call be to run a particular course from one natural object to another, the course between these two objects is the true course, whatever may be the course called for in the survey. So if the call be to run from a particular point a certain distance to a particular object, the termination of the line would be at that object, let the distance be greater or less than that called for in the certificate of survey. Course and distance must yield to natural objects. And even where the natural objects called for and actually existing on the ground are such as to show that the survey must have been made upon the different side of a base line from that returned in the plat and certificate, connected with proof that the survey was actually thus made, the plat and certificate may be corrected so as to conform to the survey as made. But quaere, whether the plat and certificate could be so Corrected as to include land on both sides the base line, although there should be proof that the survey was so executed and natural objects could be found to sustain the calls of the survey. These principles are fully sustained by the authorities cited by the plaintiff’s counsel. They are the principles by which we have ever been governed, and ever intend to be governed, in this class of cases, nor shall we purposely deviate from them in the present case. But to our understanding they do not require of us to reject entirely the calls of a survey, and merely to inquire what land was included in the survey as actually made, disregarding the natural or artificial objects called for. If such be the law, it is useless in a survey or patent that there should be any calls for boundary.

Applying these rules to the case now before us, it is urged upon us to reject the calls for Perkins’ corner and line, upon the hypothesis that the surveyor made a mistake in calling for these ■objects. The design is not to correct the particular calls of the survey as to course and distance, by objects called for, but to correct the objects called for by the courses and ^distances [171 actually run, in connection with other objects called for, in a measure reversing the rule that course and distance shall yield to natural objects. Before doing this, however, it may be well to inquire what would have been the situation of those under whom the plaintiff claims, had the entry and survey of Perkins not been made and called for. Reject the calls for Perkins’, and how will Bartlet’s entry stand? What would have been its form? “John Bartlet enters 400 acres of. land, on a military warrant, No. 1,324, on the waters of Three Mile creek, beginning — running north 60° W. 320 poles, thence S. 30° W. at right angles for quantity.” Such would be a strange entry. In fact, it would contain none of the qualities of a good entry. It would be absolutely void. Take, then, the survey: “Surveyed for John Bartlet, assignee, 133J acres of land, on the northwest of the Ohio, and on the waters of Three Mile creek, beginning at a beech, sugar tree, and hickory, running N. 60° W. 107 poles, crossing a branch at 103 poles,” etc. Now this would not be quite so bad as the entry. But still I apprehend there would be difficulty in finding the land. It is northwest of the Ohio, on the waters of Three Mile creek, and somewhere on those waters, where are standing a beech, sugar tree and hickory. Find three trees of this description, and if there are nowhere on the waters of the same creek similar trees marked .as a corner, and you probably have found the beginning corner of this survey, and having found the beginning ‘corner there can be no further difficulty. Let it be recollected that this survey was made in 1797, when the country upon Three Mile creek was a wilderness. By rejecting the calls for Perkins’ corner and line in the patent, there would be the same uncertainty as to the location of the land. Reject these calls, then, and the entry of Bartlet would have been void, and the location of his survey and patent entirely uncertain. They can not be rejected, and if there be any mistake in the case, it is in this, that the surveyor mistook the location of the corner and line of Perkins, and this mistake is corrected by ascertaining the true corner and line.

*Let us test the principle contended for by plaintiff’s [Í72 counsel by a hypothetical case. Suppose an entry should bo made on one side of a river or creek, on the south side of Paint creek for instance, beginning at a particular corner, and running thence up the creek a specified distance, and then at right angles -ith the creek for quantity. Suppose this entry should be surveyed, and a plat and certificate returned, in which the surveyor certified that he commenced on the south bank of the creek, at the corner called for in the entry, and run thence up the creek to another corner on the south bank of the creek, thence other courses and distances all upon the south side of the creek, until he arrived at the point of boginping, and suppose this survey should be carried into grant. What would be the northern boundary of this survey? Can there be any doubt that it would be Paint creek. And would a person claiming under this patent be permitted to hold land upon the north side of the creek upon producing evidence to show that upon that side of the creek, and at some distance from it, there were trees marked as corners similar to those called for in the survey, and also a marked line connecting those trees thus marked as corners? Or even by proof that those trees and that line were marked as corners and as a line of the survey ?

‘If, in such case, Paint creek would be the boundary, then in the case before the court the line of Perkins is the boundary. There is no difference between the hypothetical case stated, and the case before the court, except in the one case a creek is called for as a boundary, in the other the line of a survey.

As before remarked, from first to last, from the time of the making of his entry up to the time of the emanation of his patent., it was manifestly the intention of Bartlet not to interfere with any of the rights of Perkins as acquired by his previous location. And yet it is insisted that we are bound to defeat this intention, because it is possible that by mistake the surveyor may have passed Perkins’ line, which he calls for as a boundary, and may have included land which belonged to Perkins, in the survey which he made for Bartlet.

In reality the case presents this simple question, whether 173] *when an individual in his patent or his deed is bounded by the lands of another, his patent or his deed can be so construed as to include those lands. As a general rule, we hold that they can not, nor do we find anything in tho Virginia military land law, intricate though it may be, which requires us to depart from this rule in the present case.

The motion for a new trial is overruled, and judgment will be entered on the verdict.

Judgment for the defendant-


text:
    Bank of the United States v. Mary Dunseth.
    Under the statute of Ohio now in force, the petitioner in dower can not recover damages.
    The manner of assigning dower is left to the discretion of the court.
    By the act. of 1831, the cost in proceedings for the assignment of dower are to he paid, one-third by the petitioner, and two-thirds by the owner of the inheritance.
    This is a bill of review from the county of Hamilton.
    The original case was decided in this court, in 1833 (6 Ohio, 76), when the right of the plaintiff was established, and the case remanded to the Supreme Court of Hamilton county, for the assignment of dower.
    The decree finally made gave her:
    I. The sum of $433.81, being the annual value of the estate, since filing her petition.
    II. The sum of $110 per annum out of the annual rents, issues, and profits.
    III. Costs.
    Storer & Fox, for the plaintiff:
    We insist that the court erred in allowing damages, inasmuch 19] as none are allowed by the statute. The allowance of *damages in dower, we suppose, is a matter of statute regulation, and can only be claimed when clearly provided for by the statute.
    It is clear, that at common law no damages could be recovered in an action of dower, because the action of dower is classed among real actions, in which no damages could be recovered.
    By the statute of Magna Gharta, dower was to be assigned in forty days; but Coke says, “ of little effect is that act,” for “that no penalty was thereby provided if it were not done.”
    The statute of Merton, however, provided for the recovery of damages from the death of the husband, but this provision only applied to cases where the husband died seized; and to this day damages can not be recovered of the alienee of the husband, except from the time an actual demand of dower is made. For it is said the widow “ can lay no default, in the feoffee, till she demand her dower upon the ground, and that the tenant be not there to assign it, or if he he there, that he will not assign it; for he that hath the possession of land whereunto any woman hath title of dower, hath good authority as against her, to take the profits till she require her dower.” Park on Dower, 301.
    As the right to damages depends altogether on statute regulation, if our statute has not provided for the recovery of damages in this case, this court can not decree damages.
    We have carefully examined the legislation on this subject, from the ordinance until the present time, and find that it has not been uniform. By the ordinance, no dower was allowed except in the estate of which the husband died seized, and on this subject the law of the ordinance could not be changed except by the legislature of the territory, and that the legislature did not act on the subject during the existence of the territory.
    The first act of Ohio, June 19, 1804, only gives dower in premises of which the husband died seized, and no damages are provided for.
    The act of February 12, 1805, gives damages from the time of demand made.
    *The act of January 26, 1824, makes no allowance for the [20' recovery of damages in any case. If, then, the right to recover damages depends upon statutory provision, and no such provision has been made, of course the court erred in decreeing damages, and the decree ought to be reversed.
    There is another very important question involved in the cause.. It is this: Can the court decree a precise sum as the amount of dower with which the estate shall stand charged ?
    Eents are continually fluctuating — real property, in times of prosperity, is worth a great deal more than in times of adversity. Should the property be set off by metes and bounds, the widow-shares in this rise and fall. But where a certain sum is decreed, she is freed from any of these fluctuations, and according to the principle of this decree, if the whole property should not produce the amount allowed to the widow, she must have her $110, or the property is subject to be sold. This appears to be incorrect. She is entitled to one-third of the annual value, but she is not entitled to more. If she was entitled to dower in a mill, it would be of the third dish. Her claim ought to be for one-third of the rents. It appears difficult exactly to decide how the decree ought to be worded.
    W. R. Morris, for the defendant:
    At common law, the widow could recover no damages; but equity has given her damages ever since the court of chancery has exercised jurisdiction in cases of dower. Curtis v. Curtis, 2 Bro. Ch. 620 ; 1 Story’s Eq. 580; 4 Kent Com. 63.
    In New York, the widow is entitled to mesDe profits from the time her title to dower accrued. Swain v. Perrine, 5 Johns. Ch. 487.
    Aside from the general doctrine of equity, our statute gives the court ample power to decree damages. It authorizes the court, “to give such decree in the premises as shall seem just and consistent with the rights of all the parties interested therein.” 29 21] Ohio L. 251, sec. 9. The court will not *so construe this act as to suffer the tenant to delay the assignment of dower until a final ■decree, and then give *him the benefit of his own delay. The ■legislature intended to authorize the court to do justice between 'the parties.
    S. P. Chase, in reply:
    The case of Curtis v. Curtis, 2 Bro. Ch. 631, does not support the position of the defendant. On the contrary, it merely adopts .and carries into execution the statute of Merton.
    In Swaine v. Perrine, 5 Johns. Ch. 487, there was a decree for rents and profits, but that decree rests upon a statute of.New York, which, in express terms, gives the widow damages. N. Y. Rev. Stat. 734, sec. 19.

      Section 9 of our statute, relied upon by the defendant’s counsel, merely authorizes the court to render such a decree as may be consistent with the rights of the parties. It does not permit the court to give either party new rights. The power to give or withhold damages belongs to the legislature and not to the court.
    The other question relates to the assignment of dower in rents and profits to accrue subsequently. The statute declares that “where no division can be made by metes and bounds, dower shall be assigned in a special manner, as of a third part of the rents and profits.” Now, does this provision authorize the court to charge the property with an annuity in favor of the widow ? Suppose that the estate be a lot of small value, but highly improved by the husband, who aliens and dies. The widow claims dower, and it is assigned to her in the shape of an annual charge upon the property, of one-third the whole amount of rent, at the time of assignment. After this the improvements are destroyed by fire, and the rent is gone. Can it be vindicated that the widow shall still have her annuity, and, if not paid, that she may sell the land for satisfaction ? It seems to me much more equitable, and much more conformable to the statute, that the widow shall be endowed *of one-third of the rents, and that the de- [22 cree stand as her security for the payment, leaving her to collect her proportion in the same manner as any other person similarly interested. There is no difficulty in other cases, where several are respectively entitled to certain proportions of rent; each is to receive his just part, and if any one receives more, he is liable to account to the others. All are subject to the same contingencies of depreciation or advance. Why, then, should a different rule be established as between the heir or alienee and the widow ?
   Lane, C. J.

The right of dower is not now contested, but objections are made to the form of the decree in three points:

1. The right of damages in dower.

At common law, dower was recoverable .in a real action, in which damages made no part of the judgment. The statute of Merton gave damages to the dowress, in certain cases, and since then, until lately, in England, both at law and in chancery, the profits in arrears, from the husband’s death, are given under this name. Such is the law in New York. But as the right of dower is inchoate and completed only by assignment, the damages for arrears of rent accruing before the title is mature, depend upon the statute.

Our first statute of dower, 1795 (Chase’s L. 187, sec. 2), gives “reasonable damages.” The second statute, 1803 (Chase’s L. 395), is silent as to damages, but gives “reasonable support ” out of the husband’s estate. The third, 1814 (Chase’s L. 472, sec. 11), restores the right of “reasonable damages.” The next law, 1824 (Chase’s L. 1315), is silent as to damages, and the same continues to the present time.

If we possessed the power of legislation, we believe the right to damages ought to be maintained, for it is the provision designed by law for her maintenance. 2 Brown. C. C. 682. But we can not supply an omission which we believe accidental. In this point the decree is erroneous.

23] *The next objection is, that a gross sum of $110 is given annually, and charged on the rents, instead of giving one-third the rents themselves.

We believe, that when dower is assigned in a special manner, it would be most convenient to all parties, to ascertain the gross value of the dower estate, derived by a computation of the value of the estate, and the risk of life of the dowress, and directing payment, by which the estate of the dowress is determined. For then the amount of the incumbrance is ascertained at once, and both the dowress and the tenant are relieved from the risk of much unpleasant collision. But the statute authorizes a different adjustment in a “special manner,” leaving the details to the discretion of the court, and where no palpable injustice is done, we should not disturb it.

The decree ought to have given full costs to the petitioner. The act of 1831 (29 Ohio L. 216, sec. 31) requires one-third of the costs to be paid by the petitioner, and two-thirds by the owner of the inheritance.

Decree reversed.

      In Pennsylvania, the widow is entitled to damages from the tenant of the freehold for the time being, to be estimated from the time of the death of the husband, where he died seized, although the defendant may have been tenant but a short part of the time. Thus, where the husband died in 1800, and his son entered and in 1816 sold to one Deever, who, in 1818, sold to Alexander Seaton, who continued in possession till 1822, when he died, having devised tbe lands to Thomas Seaton, who entered and remained in possession till his death, in 1831, when James Seaton, the present tenant in fee, entered_ the widow was permitted to reeover from James Seaton, the present tenant of the freehold, the entire damages from the death of the husband in 1800. Seaton v. Jamison, 7 Watts, 533.
      It is said by the same court, in Shirtz v. Shirtz, 5 Watts, 255, “that it is the duty of the sheriff, in conjunction with the inquest which he shall call to his aid in the execution of the writ of seizin, to lay off by metes and bounds one-third part of the premises mentioned therein, according to their value at the time of doing so, leaving out of the estimate merely the value of the improvements made thereon, if any, since the time of the alienation by the husband. If the rule -which ought to govern the sheriff and the inquest, in the execution of the writ of seizin, should happen to be misapprehended, or not observed by them, the court, on the writ’s being returned by the sheriff, at the instance of the party aggrieved, has it fully in its power to grant such relief as shall be necessary in order to do complete justice between the parties, and to obtain a due execution of the writ by giving to the demandant what is her just right, and no more.”