text:
    *Zenas Kent and others v. Lucius V. Bierce and others.
    It is not necessary on the dissolution of an injunction and dismissal of the . bill, where the injunction did not operate, to stay execution upon a former decree or judgment, to sue execution against the complainant, before a suit can be sustained on the bond against the securities.
    Payment of costs of original bill no bar to the action on such bond.'
    An injunction may be continued on the complainant’s application, upon the terms of giving a new bond with new security; and if such be the terms of the order, the first bond is discharged.
    On general pleadings court can not take any cognizance of the commencement or termination of the terms of a court of law.
    A joint demurrer to two pleas — one held good, judgment goes for the party pleading the pleas. . Amendment allowed.
    This case was adjourned here for decision from the county of Portage. The action was debt upon a penal bond, subject to the condition that Bierce (one of the defendants) had obtained an injunction in chancery restraining the obligees from erecting a meeting-house on two lots in the village of Ravenna; and if he should fail to prosecute his bill to effect, and pay all damages, losses, or injuries the obligees-might sustain by reason of the injunction, the bond should be void.
    The plaintiffs assigned' the following breaches under the statute r
    1. That the bill of injunction was dismissed in the Supreme Court at the complainants’ costs.
    2. That before the injunction the plaintiffs had procured materials for-building the meeting-house, and employed workmen, who bad been and were actually engaged upon said building, and was prevented by the injunction from continuing the work from that time until the dismissal of the bill, whereby the labor and materials were injured and lost, to the amount of seven hundred dollars.
    Pleas: 1. That the court of common pleas, while the cause was pending there, and after the date of the bond, by interlocutory decree, ordered the injunction continued upon condition that Bierce give bond as an indemnity and security to the plaintiffs, if the injunction should bo dissolved, in the place of, and as a substitute for the bond declared upon; that in pursuance oi the order, bond was given, with sureties, in the penal sum of one thousand five hundred dollars, conditioned to be void if the injunction was dissolved, which bond was delivered and accepted in place ofj and as a substitute for, the bond declared upon.
    2. That the decree dismissing the bill of injunction was against the complainants therein for costs only,'without further *or- [337 der, and that the defendants have since paid the costs in full of the decree.
    To these pleas there is a general demurrer which is joined.
    C. Pease, for the plaintiff.
    The first plea we hold insufficient, because the order of the court to give additional security did not vacate, satisfy, or cancel the first bond; nor can the court, by a mere order, cancel the deed of a party; it can be done only by the act of the obligee, expressly releasing or otherwise canceling it.
    But if this were otherwise, I see no reason why the first bond should be vacated by the second, anymore than'special bail by appeal bail, or appeal bail by bail on an injunction; they are additional security; and what principle of law; justice, or equity forbids holding both bonds in force, when the united penalties' might be insufficient to indemnify the injured party?

      But, certainly, to make the second bond a satisfaction of the first, it ought to be accepted as such by the obligee; this he has not done. It does not appear from the plea who accepted it, but the inference is that the clerk did it. This can not destroy the right of the obligee, nor can there be a tacit acquiescence, because the order was made at the October term, 1831, and ought to have been immediately complied with as a condition precedent to the continuing of the injunction, but it was shuffled off to the 15th of February following, as appears by the plea. The obligees had no opportunity to make any obligations until the spring ¡session of the court, when it would have been perfectly useless to .set up a clamor about an insufficient bond, after the other party, by his chicanery, had obtained his object of continuing the injunction.
    A debt may be merged in a higher security taken for the same ■debt, but not extinguished, for it exists in the new security; but a debt can not be merged or extinguished by taking a new obligation, when that new obligation is designed for additional security, and not the satisfaction of a liquidated debt.
    The second plea is insufficient, because it does not answer the whole declaration ; it makes no answer to the damages sustained in consequence of the injunction, which is the gist of the action. 338] It neither denies, nor confesses, and avoids *them. Now, if it is competent to secure by an injunction-bond a compensation for the damages which a party may sustain by reason of an unjust* .and vexatious injunction (and who can doubt the equity, policy, or legality of such security), then the bond in suit is one which deserves the countenance of the law. The plea, that they have paid the costs decreed, is no answer to our claim for a compensation for damages.
    The subject of consequential damages was not before the court of chancery; there was no allegation in any part of the pleadings or proceeding by which that subject was in issue, or presented to the’ notice of the court. It was no part of the case, although a ■consequence resulting from those proceedings. It is provided for by contract, and the remedy is plain and adequate at law.
    In what manner should chancery proceed? Should they, on the suggestion of the defendant that he had sustained damage, refer the matter to the master to take evidence and report upon whatever happened to appear, without any statement of facts or pleadings to guide him? When will it terminate? The damages may be constantly accruing. If referred to a master, he can not report in advance, before the damages have accrued, and what accrues after taking the evidence and before the decree would not be provided for, unless the master was directed to make supplemental inquiries, and then he could n.eyer undertake his case. If the court should direct a supplemental or cross-bill to be filed, stating the facts which constitute the damages, and a new series of pleadings to bring the matter fairly, and understandingly before the court, shall the injunction-bond be made part.of the case and the sureties brought in as new parties? If so, it will be a new way of giving chancery jurisdiction in actions of debt, and would, in fact, be a new case with the parties reversed. If proceeding against the original complainant aloné is had tó get the damages assessed by a master, in order to bring suit at law on the bond to •charge the securities, this would be no great saving of time, or expense, or multiplicity of actions; and, it may be asked, would the securities be bound by such an assessment of damages, or could they claim their constitutional right of a trial by jury? Such a course of proceedings would be novel and absurd in the extreme. The damages, although a consequence of the chancery proceedings, are totally de hors the case. They form a new and distinct subject of controversy, in form ex contractu, *for which the law [339 furnishes a complete and adequate remedy, and a jury is the proper tribunal to decide the facts and assess the damages.

    P. Hitchcock, for defendant:
    The first question raised by the pleadings in this case, is, whether the declaration of the plaintiffs is sufficient in law ? In this state the most material rules of practice, both in law and chancery, are established by statute. If, in any respect, these rules are variant from the English rules, the latter must give way. Either in chancery or at law, a cause may be removed from the common pleas to the Supreme Court, by appeal. But the appellant is required to give bond with security to the opposite party. The condition of this bond makes the obligors liable for the amount of the decree or judgment in the Supreme Court, upon tho contingency that the appellant fail to satisfy the judgment or decree. tinder what circumstances, then, or at what time will the obligor have a right of action upon the bond? It was formerly held that he might have an action immediately upon the rendition of the judgment or decree, and it is still so held with respect to a bond, conditioned to prosecute a writ of error. 5 Ohio, 175. The legislature, however, considering it unjust that bail should be made liable, while the principal was perfectly responsible, in the session of 1826 and 1824, enacted, that before suit should be brought upon such bond, an execution should be issued against the appellant, and if, upon the return of said execution, it should appear that the principal person, against whom the judgment or decree was entered, has not property from which the same could be satisfied, then suit might be commenced upon the bond. Chase’s Ohio L. 1302. A similar provision is found in the revised laws of 1831; 29 Ohio L. 108.
    This law was intended to correct an evil supposed to exist in practice, of sustaining suits upon appeal bonds, before an effort had been made to obtain payment from the principal debtor. Declarations upon appeal bonds, previous to the enactment of this law, were required to set forth not only the bond, but the judgment; it seems to me to follow, that since 1823, it is necessary to set forth that an execution has been issued and returned no goods, chatties, lands, or tenements. The law says, that this “shall" be done, and the fact that it has been done, constitutes a part of the plaintiff’s right or title to recover.
    *1 am aware that special bail is not liable until a ca. sa. has been returned non est. And I am further aware that it is a point which has been much controverted, whether it should be alleged in the declaration against special bail; that the return of non est had been made upon a ca. sa.; or whether it would be matter of defense that it had not been done. Should the court, incline to the opinion, that such would be merely matter of defense, it can make no difference as to the proper form of action upon an appeal bond. This bond is required by a-statute, which provides that no suit shall be commenced upon it, until there has been an execution, and a return of no goods, etc.
    If I am correct with respect to appeal bonds, the same rule applies to injunction bonds. Both are put upon the same footing by the legislature, and I presume will not be separated by the court. Before suit can be sustained upon either, an effort must be made by execution to enforce the judgment or decree. In this case, although the suit is upon an injunction bond, there is no allegation in the declaration that any effort has’ been made to enforce the decree, nor is there even an allegation that the principal debtor has, in any respect,, failed or refused to comply therewith. And should a judgment be entered for the penalty of the bond, that judgment would be discharged by a compliance with the original obligor in the Supreme Court, and the payment of the costs of this suit, 29 Ohio L. 108. From these considerations, I insist that the declaration is defective, and shows no right of action.
    It is argued that section 27 of the judgment and execution law, applies only to bonds given to stay proceedings on judgments at law. What is the language ? “ In all cases where judgment shall be rendered in the Supreme Court against the appellant, or an injunction dissolved in the court of common pleas or Supreme Court, the successful party shall, before he brings suit upon the appeal or injunction bond, issue execution against the principal debtor,” etc. The legislature have said in “all cases." Where does the counsel for the plaintiff find authority to interpolate between the words “injunction” and “dissolved,” the words “to stay proceeding upon a judgment at law.” Is it in the expression that “ execution shall issue against the principal debtor?” If any inference could be drawn favorable to the interpolation from these words, it is ^rebutted- by a subsequent clause of the [341 section, which provides that, even after judgment rendered upon the bond, that judgment “shall be discharged by the payment of the original judgment or decree,” etc. But no such inference can, with fairness, be drawn. After a decree, either for the payment of money, or the payment of costs, the individual against whom the decree is made, becomes a debtor. He is “ the principal debtor,” and against him the execution must issue.
    The whole subject of injunctions is provided for in the act regulating the practice in chancery, .commencing at section 41 and closing at section 50, 29 Ohio L. 87. But a careful examination of all these sections will show that there is nothing to interfere-with the construction I insist should be given to section 27 of the act regulating judgments and executions. It is true, that by these sections no bond is absolutely required, except where the object is to stay proceedings at law. But section 50, which authorizes the judges to allow injunctions where it is usual for courts to-interfere in this way, authorizes it to be done upon such eonditions as the judges making the allowance may think proper to prescribe. And if the condition prescribed is, that a bond shall be executed, the bond thus executed becomes an injunction bond, and the obligors must be made liable in the same manner with ■other obligors who have signed injunction bonds.
    If I am right, with respect to the declaration, there is an end of the case; but as the court may differ from me in this, it is proper for me to proceed to the consideration of the pleas.
    The first plea alleges, that during the pendency of the case in ■chancery, to wit: at the October term, 1831, of the court of common pleas, the court, as a condition upon which the injunction ■■should be continued, made an order that the complainant in chancery should enter into bond with security, to be approved by the ■clerk of the court, in the penal sum of fifteen hundred dollars, “in place of, and as a substitute for ” the writing originally executed, and upon which this suit is brought, etc.; and that the defendant did enter into.and execute such bond as was directed by the court.
    Now, it seems to me that the only question presented by the demurrer to this plea, is whether a court of chancery has power to make an order or decree like the one therein named? If the court possesses the power, then the plea is sufficient. If not, the plea is no defense.
    *Mv friend, Judge Pease, can not have examined this plea with his usual sagacity. He speaks of an order of court, to give “ additional security.” No such order is stated. The order set forth is an order that the complainant should enter into bond, “in place of, and as a substitute ” for the one originally executed. The only object of the court seems to have been to compel the complainant to give a bond in a larger amount, not as an additional se■curity,but as a substitute forthe security previously given. Whether it was or was not necessary that the second bond should vacate the first, is out of the question. So long as it was given as a “ substitute” for it, it must have that effect.
    It is objected to this plea, that it contains no allegation that the second bond was received by the obligor in satisfaction of the first. To this I reply that such was not the order of the court. As between two individuals, it may be admitted that the second bond must be received in satisfaction of the first before it will operate .as a bar; but this case is entirely different. It is not a matter of contract between two parties. Yiew it in whatever aspect we may, it is a question with respect to the power of a court of chancery.
    I agree, that although it is the peculiar province of chancery to order contracts between parties, when a proper case is made, to be given up and canceled, yet it would be an arbitrary act of power to order this to be done without sufficient cause. And as we are bound to believe it will not be done without such cause, it is, perhaps, not going too far to say that it can not. But an injunction bond, as in this case, is entirely different from the ordinary case of a bond given by one person to another in the course of business. It is not delivered to the obligor, nor does it in fact become his until there is a final disposition of the injunction. It remains in the custody of the officer of the court, and may or may not become available to the obligor, according to circumstances. There may be a change of circumstances which would require a bond for a greater amount, and may not the court order it? Another change may render it proper that the amount should be less, and may it not be reduced ? And, if the amount is increased, must the new bond be “additional ” and not as a “substitute? ” Suppose the case should be such that the defendant in chancery should move for an increase of the bond and the court should make the order, can he afterward complain that^tbe [343 order is wrong, as interfering with the contract ? And, therefore, that a bond given at his own request shall not operate as a substitute, but merely as additional security? There seems to be some absurdity in such a course of 'reasoning. If, in any possible case, the court might make such an order, it will be presumed that ease has occurred in the present instance. In other words, this court will not presume that the court of common pleas have done wrong when, by possibility, they may have done right. But, in principle, I can see no objection to this course of practice. The bond is, at most, but a part of the proceedings, and, like the other proceedings, is within the control of the court. It is not required by statute, but merely at the discretion of the judge allowing the injunction. Where the injunction is to stay proceedings at law, the amount of the bond is fixed.by statute, and the court or the judge making the allowance could not fix upon a less sum. But even in such case, if there should .be any doubt as to the security first taken, there can be no question but the court might and would, on motion, and as a condition for continuing the injunction, order that new security should be given, which, when given, would operate to discharge the old.
    The second plea sets forth in substance, that after decree made in the original case in chancery, the defendant complied with and performed that decree as by the condition of his bond he waa bound to do.
    This plea again presents' the question which I have discussed upon the insufficiency Of the declaration. If under section 27, of the judgment and execution law, a compliance with the decree would discharge a judgment rendered for the penalty of an injunction-bond, surely such compliance before suit brought, must be a bar to any action upon the bond, and if so, this plea is sufficient.
    It is objected, however, that this plea does not answer the whole declaration. The plaintiffs seek to recover damages for loses sustained, as they say, in consequence of the chancery proceedings, and as to these damages the plea says nothing. Was it necessary ?' Take the ordinary case of an injunction to stay proceeding at law. The creditor may have sustained damages in consequence of being delayed in the collection of his money — damages far exceeding the amount of debt, interest, and penalty. Tet he can recover nothing beyond this — nothing in this state, beyond what has been 344] decreed him by *the' chancery -court. In this case, it is possible that the plaintiffs may have sustained damages, beyond the amount of the costs decreed to them in the original suit; but since that decree has been made and complied with, can they recover those damages? We suppose, that if such damages were sustained, the fact should be ascertained and the amount liquidated by the chancellor, and a decree entered accordingly. This amount would have been secured by the bond, and in a suit upon it, the decree would be conclusive as to the sums for which execution should issue.
    Counsel for the plaintiffs entertain the notion that these damages are to be recovered in a distinct suit, brought upon the bond, and in which no reference can be had to the original chancery proceeding, any further than to ascertain whether the injunction has or has not been dissolved; and something is said about the “ absurdity ” of a chancellor’s inquiring into the amount of damages a man may have sustained. I will not say that there is absurdity in the course proposed by the other side, but it strikes me there is difficulty in it. The condition of the bond is not only that the complainants in chancery shall indemnify the opposite .party against losses, but that they shall comply with the decree of the court. In declaring upon such a bond it would be necessary to mingle matters of record with matters in pais, which might, by possibility, create confusion. I do not perceive the force of the remark, that a “ master could never overtake his case,” or how there would be any more difficulty in his doing it than there would be with a jury. The injury is complete when the injunction is dissolved, and when this is done the extent of that injury can be ascertained either by a jury or by a master.
    The whole matter is resolved into a question of practice, and that course should be adopted which will lead to the most speedy and complete attainment of justice, always being careful, however, that no positive rule of law is violated.
    When a case is before a chancello!’, propriety requires that anything and everything therewith connected, should so far as can be done, be settled by him, and the rights oí all concerned ascertained. Take then a case like the present.- An injunction is allowed to prevent a person from doing a particular act. But as the party to be restrained may sustain a loss, in consequence of that restraint, the opposite party is required to give bond conditioned 345] to indemnify him against such loss. ^Eventually this injunction is dissolved. Can not the chancellor enter such decree as will, in connection with the bond, indemnify the party upon whom the injunction operated ? The only objection is, that damages can not with propriety be ascertained in chancery. True, if the original object had been to recover damages. In such case the ■court would have no jurisdiction. But the case being properly before the court, there is sufficient power vested in the court to do what equity requires. If damages have been sustained, a master can ascertain how much. If this be not the most eligible course, the case can be sent to a jury under a feigned issue for the purpose of informing the conscience of the chancellor. And in either way right and justice will be done.
    Pease, in reply, contended :
    That section 27 of the statute has reference only to decrees for the dissolu tion of injunctions against judgments at law, particularly those provided for in section 44 of the chancery act. Against whom, he asked, must the execution issue by virtue of said section 27? The principal debtor. What is meant by the principal debtor? Surely not a complainant against whom costs alone have been decreed.
    The provisions for allowing injunctions are all contained in those sections of the chancery act cited by Judge Hitchcock. Sections 41 and 42 provide for staying waste and judgments at law; 43 requires bonds; 44 what decree to be rendered; 48 and 49 punish the defendant for disobedience; 50 allows injunctions in all proper cases on equitable terms and conditions; and section 3-gives the courts full power to establish all proper rules and regulations.
    I can find no rules laid down in our statutes, by which the defendant in chancery can have any specific redress for the damages sustained in consequence of an injunction to stay waste, to prevent the sale of lands, or to collect rents, to build houses, mills, or do any other ordinary business, by which he sustains a loss. And why is it not done ? The answer is obvious. The principles of the common law are amply sufficient to give the adequate and appropriate redress by a suit upon the injunction bond. The whole case will be spread before the court by the pleadings, by which they will be informed what facts are in issue to be tried. And. the legislature must have considered it the safest course to leave 346] the parties in all such eases to their *remedy at law. It is more beneficial for the securities, as they have an equal chance with the principal in making a defense, which they might not. have if the principal is first to be tried, and the securities only brought in afterward to foot the bill.
    If this is orthodox doctrine, why delay a suit on the bond to recover the damages which have accrued, and to which the obligee has a just right from the moment the injunction is dissolved, until an attempt can be made by execution to collect a bill of costs, which may not amount to the hundredth part of the damages, especially when the plaintiff claims nothing on account of the-costs, and which attempt may be defeated by the complainant by paying off the costs before execution ?
    Counsel endeavor to sustain the first plea upon the strength of certain expressions set forth in the order of court, that the new bond should be “in place of and as a substitute for” the bond in-suit Should the court think this sufficient to sustain the first pica, we have humbly to ask leave of the court to reply thereto, for the plain and simple reason, that the order of court is a very different thing and contains no such expressions, nor would it, if they had made profert of it, as they ought to have done, sustained their plea; but I can hardly believe the court will sanction such doctrine. . '
    When the first bond was given and the injunction granted, the injunction was the consideration of the bond and the obligee being restrained in his natural and legal rights, became interested therein the obligation was his property. From that moment he had a vested right, which it was not in the power of the court to divest him of upon a mere order without his consent. It is not like a recognizance of bail, which is matter of record and the act of the court. This is a contract, the act and deed of the obligors. How often has the Supreme Court, when an appellant wanted to introduce his appeal bail as a witness, and offered to substitute other and better bail in his place, refused the application on the ground that it was out of their power to cancel a bond as they might a recognizance.
    How appears this proceeding by the plea? The court ordered a continuance of the injunction, on condition of the complainant giving a bond of fifteen hundred dollars as an indemnity and security to the respondents, to the acceptance of clerk, etc., which was delivered to and accepted by the clerk and no one else.
    If it is not competent for the court to cancel a bond without the obligee’s consent, without a bill filed for the purpose, and if *they can not constitute the clerk of the court his agent to [347 do it for him, then this bond is not canceled. Besides, as I stated in opening, it does not appear that the order of court was complied with. The court can not from anything stated in the plea, ascertain whether the second bond was any indemnity or security to the defendants in ohancery; .they will not take the defendant’s legal conclusions, but judge for themselves from the facts stated; the tenor and condition of the bond ought, therefore, to have been set out.
    The order to continue the injunction, must have been made at the instance of the complainant; but whether the condition annexed to it proceeded from the application of the defendant or the kind and provident care of the court, does not appear, nor is it any way material, especially sinoe it has not been complied with.
   Judge Wright

delivered the opinion of the court:

The first question discussed involves the inquiry, whether a suit upon an injunction-bond can be sustained without averring that execution bad issued against the principal debtor, for the sum claimed. By section 27 of the act regulating judgments and executions, 29 Ohio L. 108 (identical with the act in force when this bond was taken, 2 Oh. O. Stat. 1302), it is provided, that in all cases where judgment shall be rendered in the Supreme Court against the appellant, or an injunction is dissolved, the successful party shall, before he brings suit upon the appeal or injunction bond, issue execution against the principal debtor; and if it appear by the return, that he has not sufficient to satisfy the execution, he may then commence suit upon the injunction bond, and take judgment for the penalty, which maybe discharged on the payment of the original judgment or decree, with interest and costs. It is urged that the provision so changes the common law rule, that a declaration upon an injunction bond does not show a right in the plaintiff to sue, unless it contain an averment that execution has been issued and has been returned.

What class of eases was in the contemplation of the general assembly in enacting this law? Evidently those where the relation of creditor and debtor subsisted, and as to which a judgment or decree was had on which an execution might issue. The provisions requiring an execution against the principal debtor, and for 348] discharging the bond on paying the original ^judgment or decree with interest and costs, make this clear to our minds ; but they do not stand alone. The chancery act contains express provisions for three classes of injunction. 1. To stay waste. 2. To stay proceedings at law, before or after judgment, 29 Ohio L. 87. 3. In all other cases where it is usual for courts of equity to interfere by injunction, 29 Ohio L. 89.

There is no limitations in our statutes upon the issue of the first class of injunctions, and their issue is regulated by the common usage of chancery. In the second class, it is provided, that the injunction shall not operate until bond be given with security conditioned for the payment of all money and costs due or to become due in the. suit or judgment enjoined, and all moneys decreed against the complainant in case the injunction be dissolved; and if the suit enjoined was for the recovery of money only, the court on dissolving the injunction is required to decree the plaintiff at law the amount he received, at law, with interest and costs and five per cent, penalty. The court in allowing the last class of injunctions (which embraces the one in controversy), is authorized to impose such conditions upon parties obtaining them, as shall seem equitable. Our chancery courts are authorized to enforce compliance with their decrees for the payment of money by the common process of execution issued by the courts of law. Where the injunction operates upon a money demand and delays its payment, it is without effect, except security be given for the debt, and the costs to accrue with interest, in a penalty to cover contingencies. When the party was so abundantly secured, the legislature seemed to think a slight protection to the security called for, and provided that in case the bond become forfeit, the obligee should, as he had a judgment already against the person in equity bound to pay, first take his execution against him, exhaust his property, if he had any, and only resort to the bond, by suit against the security, in case of failure to make the money. Bonds given under our laws to remove causes from the courts of common pleas, after judgment, by appeal to the Supreme Court, are required as seeuritj'- for the judgment to be recovered in the appellate court. The injunction and the appeal both operate to delay creditors, in cases where the amount has been reduced to certainty by judgment, and is capable of execution by the usual process. These two cases were, therefore, not only on the same footing in reason and the nature of things, but, in our understanding, are *the only two classes em- [349 braced in section 27 of the judgment and execution law referred to. By no other construction can we give effect to the obvious intention of the legislature. This view is strengthened by the consideration that suits on appeal and injunction bonds are coupled together in the section; that it is required, upon judgment recovered in the appeal case, on dissolution of the injunction, where judgment had been before recovered, and execution stayed, that execution shall be first issued against the principal debtor. This can not have been intended to embrace a case of injunction -to stay waste, or any other kind of injunction than one restraininga recovery at law, because, in such case, there would be no judgment upon which to issue execution. But it is urged that the legislature has expressly provided that in all cases of injunction or appeal, the execution shall issue against the principal debtor, and that it would oppose the plain and obvious meaning of the words used, to limit them so as to except any case from the general provision. The proper answer to this is, that courts are not to presume the legislature intend to require an impossible, vain, or useless thing to be done; or impose a limitation to the remedy upon a legal obligation, that would defeat the very object for which it was exe cuted. It would be useless, „if not legally impossible, to issue execution when there was no judgment or decree; and if without execution, the obligee of an injunction bond is without remedy, the only object of the bond, security to a party from damage by the injunction, is defeated. "We, therefore, construe the act as if it read, in all cases of injunctions where there is a judgment at law, or deci’ee for a sum certain, an execution shall issue on the judgment or decree before suit is brought upon the bond.

The distinguished counsel, who has argued this cause for the defendants, seems himself pressed with the difficulties of the construction he advocates. The statute expressly provides for the-discharge of the injunction bond in the cases contemplated upon the payment of the original judgment or decree. It would seem to follow that cases, where there was no original judgment or decree, were not within the view of the law-maker. Yet the law authorizes injunctions in cases where there is no original' judgment or decree, upon such conditions as shall seem to the court equitable. It seemed to the court of common pleas equitable to allow the injunction in the case under consideration, upon bond S50] and surety, to indemnify the enjoined *party from injury to result from the interruption of his business, in case it should be adjudged by the court that he was right. The injunction is dissolved, and no other decree is rendered than simply a decree for the costs of the suit, which are paid. The injury against which the bond was intended as indemnity, is collateral to the inquiry in. the injunction suit, and remains unnoticed in the decree.

Counsel admits it possible that in such cases injury maybe sustained beyond the costs, but urges that, inasmuch as they were not included in the decree, it is too late to ascertain and recover their amount in the suit on the bond. It is, indeed, the usual method of ascertaining the extent of injury in the common law courts; but if one of the conditions of the bond sued upon, refer to an injunction allowed by a chancellor, the rule, it is urged, is to be departed from.. To avoid the palpable injustice of limiting such bonds to the mere payment of taxable costs, to the exclusion of the principal matter intended to be secured, it is urged that they must be-assessed by the chancellor with the aid of a master or a jury, and a decree entered for the amount, and execution issued before resort can be had to the bond. This method is unusual. It is less convenient to assess damages in chancery than at law. It would seem less just to the security on the injunction to assess the amount to be recovered of him, in the chancery suit to which he is not a party, and thus conclude him, than to leave the question open and offer him an opportunity to litigate, and see that the amount is fairly and truly adjusted in the suit on the bond to which he is a party. Besides, th e matter is not within the case made in the proceedings and issues, and if inquired into, would require a new and supplemental proceeding. If, therefore, we were to admit that the chancellor might have pursued the course suggested (though upon that point we do not intend to express an opinion) the objection by sureties, that a course of proceeding least advantageous-to themselves had not been pursued, would challenge little favor. Moreover, the law does not require of the chancellor to assess damages in such cases; it is unusual and inconvenient to do so; it was not done in the case under consideration. The court, adopting the common usage of chancery, dissolved the injunction, and left the parties interested to litigate and adjust the matter at law. In doing so, we suppose the rights of the parties to the bond were not effected, but left to be governed by the rules of the common law.

*The next question arises upon the third plea. It sets up [351 as a bar to the suit the payment of the costs decreed in the chancery suit. If we are right in the view taken of the declaration, that it is not essential to the plaintiff’s title for him to aver the issue of an execution against the principal obligor, then the matter of this plea does not reach the entire action, but looks only to a portion of it. It is not directed to either breach assigned, and of course, if it neither answers the right set up in the declaration, the execution and legal obligation of the bond, it must answer the breaches assigned, or one of them, or be bad as a bar. The breach is, that the injunction was dissolved and the parties injured by the loss of labor and materials. It is no answer to this to say the obligor paid the costs decreed, paid a sum which it is not urged he withholds.

The remaining question regards the sufficiency of the first plea, which is, in substance, that while the chancery suit was still pending after the date of the bond declared upon, the court continued the injunction upon condition that another bond should be given in a larger sum, as an indemnity to the respondents, in “ the place of, and as a substitute ” for the one declared upon, which was so delivered and accepted. Counsel for the plaintiffs argue, upon this order for a new bond, as if it was described to be for mere additional security. It is not so. The allegation is, that the order was made and the new bond delivered and accepted as a substitute for the first one. If the court had power to make the order for a new bond, it was in fact delivered and accepted as a substitute for the old one, and we do not perceive how the old bond can be held obligatory. We deem it within the province of a chancellor, in continuing an injunction, to require additional, or new security, or a bond with new and enlarged conditions, calculated completely to indemnify the parties affected, if the injunction bo finally adjudged to have been allowed without right. Having the control of the papers and parties in the ease, the most familiar province of a chancellor is to do complete justice between the parties, and power can not be denied in making the interlocutory order preliminary to the final decree short of what is yielded to him in pronouncing the final decree.

But it is said the court has not the power to accept the second bond as a satisfaction of the first, that none but the obligee, the person having the legal interest in it, can discharge it. So far •352] from this being true, we all know it to be *an undisputed head of equity jurisdiction to order the surrender of deeds and other instruments, to cancel them against the will of the obligee, and to compel obedience to the order by imprisonment, if need be. The plea asserts the order for the bond to be one for a substitute, .and the acceptance of the second bond to have been in lieu of the first. This the demurrer ‘admits to be true. If, therefore, such order could be legally made, and the bond was executed and accepted according to the order, the question is at rest. It is said the acceptance is averred to have been by the clerk, and not by the obligee. That is true, and such was the order of the chancellor-as set out, to give to the acceptance of the clerk, and the fact •does not affect the case.

It is still further objected to this plea, that it alleges the order made at October term, 1831, as a condition precedent to the continuance of the injunction, and the bond not executed until Febary following, and therefore the bond was not given in compliance with the order. This objection supposes this court can take judicial notice of the length of the October term of the common pleas in 1831. How can we know the term, commencing in October, did not continue until February ? By the allegations of agree - ment of the parties to the suit, we have neither in the case before us. If such, however, was the decretal order, the objection would fail for the reason given, and for another one, that the plea avers-the bond was given in compliance with the decree. If the factsvaryfrom those alleged in the plea admitted true by the demurrer, the plaintiff must open some other way for considering the objection than the one before us.

We think the declaration and the first plea of the defendant good. The second plea we hold to be bad. But the plaintiff has-demurred jointly to both pleas, and as one is good, the rule in such cases overrules the demurrer, and entitles the adverse parties to a judgment. There is, however, an application for leave to amend. Leave is giyen the plaintiff to withdraw his demurrer, and reply on paying all the costs since filing the demurrer.


source: Caselaw Access Project

author: *Lane, judge,

license: Public Domain

text:
    *Eleanor Connell v. Samuel Connell.
    To bar tbe dower of a wife by a deed, executed under the act of 1805, it is necessary that the certificate of acknowledgment should show the wife was made acquainted with its contents.
    This cause was adjourned for decision, in the court’in bank, from the county of Belmont. It was a bill in chancery, in which the complainant claimed dower of the defendant in real estate sold by her husband, now deceased, in his lifetime, and conveyed to the-defendant. The matter reserved arose upon the form of acknowledgment in a deed. This acknowledgment was in these words :
    “Personally came John Connell and Eleanor his wife, before me, John Barrett, one of the justices of the peace for said county, and acknowledged the within indenture to be their voluntary act and deed, for the purposes therein expressed; the said Eleanor, when being privately examined, separate and apart from her hus* band, acknowledged that she signed the same of her own free will, without any compulsion from her husband, and so freely relinquished her right of dower.”
    Hubbard and Cowen for complainants:
    The question in this case is, whether the certificate of the justice on the back of the deed on file states all the facts relative to the .acknowledgment, and knowledge of the contents of the deed, by the complainant that must be proved to bar dower.
    As to the argument of counsel, based upon the supposition that there may be an equitable right in the defendant to the dower interest, the complainant capable of being enforced ,in a court of -equity without a legal right, good at law, it is believed that it needs no argument to illustrate its fallacy. A bill in ohancery to •compel a widow to the specific performance of an executory contract made while she was feme covert, would be an anomaly in the United States, and in that country from which we have derived our principal notions of law and equity.
    When this deed was executed, and at the date of the certificate of acknowledgment, the act for the execution and acknowledgment of ■deeds of February 14, 1805, was in force. See 8 Ohio L. 398. By 854] that act, if the principle that the law must *be substantially complied with to bar dower, prevails to constitute a good and operative relinquishment of dower by a feme covert, the feme and her husband must seal, deliver, and execute a deed for the premises, and after such execution appear before a judge, etc., and acknowledge the same — that is, the sealing, delivering, and execution : and the officer taking the acknowledgment must read or otherwise make known to the wife the full contents of the deed, and examine her separate and apart from her husband, and upon such separate examination she must declare that she did voluntarily, etc., seal, and as her act and deed deliver, etc. And of these acts of tho officer and declarations of the grantor there must be the official certificate of the officer on the back of the deed.
    We take for granted in this case that nothing is competent to prove any of these facts hut the justice’s certificate, and that those facts which that certificate does not prove never had an existence in judical contemplation.
    The certificate in this case proves that the husband and wife, -when*present together, acknowledged the deed, by tho style of an indenture, to be their voluntary act and deed for the purpose in the deed expressed, and that the wife, on her separate examinaation, acknowledged that she signed the deed freely, and so freely relinquished her right of dower.
    It does not prove that the justice read or otherwise made known to .her the full contents of the deed. It does not prove that on her separate examination she declared or acknowledged that she sealed or that she delivered the deed. If the certificate does not prove either of these facts, it is most clear that there has been no operative relinquishment of dower.
    It is said that the wife acknowledged the deed to be her indenture — that this proves the acknowledgment of the sealing. But this declaration was not when she was separate from, but present, and jointly acting with her husband.
    It is said that the possession of the deed by grantee proves' the delivery. This may be a good answer to the fancied objection that there has been no delivery. But it is no answer to the real objection that there is no evidence that the wife, upon her separate examination, declared that she freely delivered it as her act and deed. The fact of a delivery of the deed is not sufficient. The law requires that the wife, on her separate examination, shall declare that the act of delivery, which must have been previously performed, was on her part free and voluntary.
    *Again it is urged, that the acknowledgment that she “ so [355 freely relinquished her right of dower,” proves the delivery. The principle contended for is, that a declaration of what is intended by an act determines the legal effect and operation of the act— that to declare, that by signing without sealing or delivery, you mean to convey a legal title to real estate is, with the signing, equivalent to the sealing and delivery. This principle has not been and never can be recognized as law, and it is believed that unless it is, the position mentioned can not prevail.
    The law requires that the wife should declare that she freely signed and delivered the deed. The proof to this point is, that she declared that she signed it, and so (thus, in this manner, by such signing) freely relinquished her right of dower. This only proves that she acknowledged the signing of the deed — it proves no other act; wbat else is said is of the effect and consequence of that act, what she by signing did.
    What is stated about contracts making the law, can have no application to this case; nor can we suppose that if one thousand other widows have not relinquished their right of dower, or have relinquished it, that this court will, instead of administering the law as it is, assume the business of legislation, and make a new or alter the old law.
    In the case of Brown v. Farran, 3 Ohio, 154, Judge Burnet, in delivering the opinion of the court, says upon the question, how far the magistrate may deviate from the words of the act, that “ his certificate must contain the substance of every thing required by the law, no substantial part of the provision can be dispensed with.” He further says, as to the rules to be observed in construing the certificate of acknowledgment, that “ it must appear expressly, or by irresistible inference from the language of the certificate, that the wife was acquainted with the nature of the deed, that she was examined apart from her husband, that she acknowledged the deed, and admitted that it was her voluntary act, in such terms as necessarily excluded the influence of fear or coercion.”
    It is difficult to perceive any objection that could be made to the principle of law, and the rule of construction here given. "What the law has made necessary to be done, must be proved to be done; and where the law has made an official certificate the necessary evidence of a fact, no other evidence can be received, and no presumptions can arise to supply any defect in the evidence. 356] *It certainly does not appear expressly, that the substance of what the law requires has been done. Does it appear by irresistible inference, that the complainant was acquainted with the nature of the deed, that when examined apart she acknowledged the deed, or the sealing and delivery ? Not only this, but it might be unanswerably asked, if, by the most liberal construction of the words of this certificate, it can be forced to convey any such facts ?
    The question is put by counsel, will the court under the circumstances say, that the sealing was obtained by fraud and violence? Ve answer that there is no evidence before the court to prove that the complainant ever put her seal to the deed. Nothing will prove this but the official certificate of the justice. Without it, so far as the complainant is concerned, it is as a blank paper.
    George W. Thompson, for defendant:
    Dower is an equitable right, and in this state is only enforcibla in equity, and -whatever is an equitable bar should be a good defense. The execution of a deed, and the acknowledgment of the relinquishment of dower, although it may be informal, bear upon the face of them the evidence that the full consideration has been paid for all rights and claims pertaining to the land. In this state the doctrine has been held by some that the statute regulating the taking of these acknowledgments is directory and must be complied with. We do not see any difference between them and the execution of any other deed. And if a deed in this state has been executed without a due reference to the directory provisions of the statute, still does not that deed give the vendee such a right that he can enforce in equity a specfic performance of the contract according to the original intention of the parties. What is the difference here: the husband has received the full consideration for the land, and it has passed to the benefit and use of his family, and may have been invested in other property, out of which the widow is now enjoying dower. The court must be satisfied of certain facts, and although those-facts aremot Certified in a proper and statutory manner, still, if they are so certified as to show a fair and full intention to relinquish dower, we presume it is all that the law requires, and we are certain it is all equity can demand.
    *But supposing the case of Brown v. Farran, 3 Ohio, 154, [357 narrows us down to a more strict and technical construction of the statute, we deem that we are within the equity of that decision. The certificate bears upon the face of it the declaration, of those facts which are necessary for our defense. ' It contains-' evidence that she knew the character of the instrument which she signed, and the consequences to herself which were to flow from, her act. She acknowledged it to be an indenture (the highest instrument known to the law which an individual can execute^ and an indenture can not be perfect until it is written out, signed, and sealed. And an acknowledgment “ of the within indenture to be her voluntary act and deed for the purposes therein expressed,” is an acknowledgment within its terms of the signing and sealing. And supposing that this would be stretching the meaning of the terms, “indenture,” and “act and deed,” beyond their legitimate use, will the court say, that although the signing; was fairly obtained, and testified to by witnesses and the justice! of the peace who took the acknowledgment, still that the sealing was obtained by fraud and violence.
    It is objected there is no delivery. It is a legal presumption that when‘a deed is executed, an'd the possession of the deed is in the vendee, that it is not an escrow, but that it is operative for all the purposes intended. It is one of those facts which speaks more conclusively, than any other form of words can do. But is there not on the face of this acknowledgment the certificate of a sufficient delivery — “and so freely relinquished her right of dower?” The language here is very broad, and taking the word “relinquish ” in its technical and proper sense, or in its more popular meaning, it will embrace the “delivery,” as there could be no relinquishment of her dower without it. Would it not be doing extreme violence to the justice of this cause to say, no delivery had taken place, when from the rules of law and the language of the certificate, no other presumption is properly inferable?
    It may be true that “the law makes the contract,” but it is also true that “contracts sometimes make the law.” And when there has been an inveterate use, the court will respect the rights and immunities which have grown up under it. And I think we may safely say, that considering the time when this acknowledgment ■was taken (1812), it is unusually full and correct..
   *Lane, judge,

delivered the opinion of the court:

The certificate of acknowledgment, in this case, does not state ¡that the wife, the present complainant, was made acquainted with ¡the contents of the deed; nor does it state that she sealed and deilivered it, unless this can be gathered, by implication, from the terms “she acknowledged the within indenture to be her act and -deed,” which acknowledgment she is certified to have made conjointly with her husband.

The statute of 1805 regulates the acknowledgment of this deed. A construction was given to this statute, in the case of Brown v. Farran, 3 Ohio, 140, referred to by the counsel on both sides in this ca^e. In that case, it is held that the certificate of acknowledgment must show, either in express terms, or by necessary implication, a compliance with every substantial requisition of law. Before the rights of the wife to lands are affected, section 2 requires. 1. A separate examination, 2. That the wife be made acquainted with the full contents of the deed. 3. An aeknowledgment that she voluntarily sealed and delivered it. In this ease, we are not compelled to decide, whether the facts of sealing and delivery are shown, either directly, or by “irresistible inference ” from the acknowledgment of the indenture as her deed. It is sufficient for present purposes that the certificate of acknowledgment does not show that the contents of the deed were made known to the wife. This is a fatal omission, which prevents the acknowledgment from barring the complainant’s right to recover.

Decree for complainant.


author: Judge Wright

text:
    McGregor & Co. v. Kilgore.
    Stipulation in a bill of lading that the shipper, in case of low water, may reship in other craft, does not vary his obligation to deliver safely. Such stipulation is for his benefit, and continues his liability if resorted to.
    Where the shipper is held liable for injury of the goods shipped, the rule of damages is the value of the goods at the place of delivery.
    This cause was adjourned in Hamilton county. It came before the court upon a special verdict. The action was case upon a bill of lading, dated July 5, 1832, for certain parcels of merchandise consigned to the plaintiffs, shipped on board the steamboat Chesapeake, to be delivered at Cincinnati *in good order (the [359 danger of the river alone excepted); “ but in case of the water not admitting the boat to proceed to Louisville, the owners of the goods to pay the expense of reshipping to that place from the point where they are reshipped, and the captain agrees they shall be forwarded without any delay.” Breach, that through the carelessness and negligence of the defendant, the goods were lost.
    Plea, not guilty; notice that the low water would not permit the boat to go up to Louisville, and, therefore, the goods were landed at Trinity, near the mouth of the Ohio, and were injured after they were so landed. The jury returned a special verdict, finding:
    1. The execution of the bill of lading, the shipment of a cask of cutlery to be delivered in Cincinnati according to the bill of lading, and the delivery of the cask in an injured state at Cincinnati.

      2. That the amount of the injury upon the sterling cost and insurance is.............................................$419 24
    The amount exclusive of insurance........................... 389 24
    The amount, adding sixty per cent, to the sterling cost...622 78
    The amount, predicated on the value at Cincinnati, and
    the proceeds of sale................................•.........789 58
    3. That the said cask of cutlery was landed at Trinity, at the mouth of the Ohio, and left in charge of the defendant — the boat having returned to New Orleans — was placed under a temporary shed erected for the purpose, near the river, and several days afterward, while the boat hands were attempting to remove it to another place of deposit adjoining, the cask being large and heavy, slipped away from the workmen and rolled into the Ohio river, and damaged the goods by the wetting.
    And if upon these facts the court is of opinion the law arising is with the plaintiffs, they find the defendant guilty, and assess the plaintiff’s damages to the amount of either of the sums returned, which in law is the true rule of damages, with interest to be counted and added as in law, is right. But if the court shall be of opinion that, upon the facts there is no legal right in' the plaintiff to recover, then the jury find the defendant not guilty. It was a conceded matter at the trial that the goods were landed because the water in the Ohio river was too low for the Chesapeake to ascend to Louisville.
    360] *A(ter the goods were landed at Trinity, the defendant wrote to the plaintiffs notifying them of the fact, and asking advice as to the shipment up. The following answer was sent to the letter:
    “ Cincinnati, August 14, 1832.
    “ Capt. Kilgore — Dear Sir: Your favor of the - instant,
    came duly to hand. You wish to know if you shall forward our freight to Louisville at fifty cents per one hundred pounds.
    “We do not wish it sent at such a high freight. There is now a rise of water which will enable any of the common boats to get to Louisville with considerable freight on board. Our loading is of such a heavy nature as will not allow the present high rates of freight. You will please to send it up as soon as you think the freight is at as low a rate as it will be at before the fall rise — say, twenty or twenty-five cents per one hundred pounds to Louisville. We are not very much in want of it. We hope there is no additional expense accrued at Trinity on the goods.
    “We understand there was some of our freight sent to Louisville some time ago — say, when the Chesapeake arrived last. We have not yet received it, nor have we heard from it. We hope, however, that the present rise of water will enable you to forward all the freight at fair prices. You will please engage it all the way to Cincinnati if you can.
    “ Respectfully, your most obedient servants,
    “ J. McGregor & Co.”
    E. S. Haines, for the defendant, insisted:
    1. That inasmuch as by the bill of lading the defendant was allowed the privilege of reshipping, in the event of. low water, and by the custom of the river he had a right to land and keep goods on land until opportunity for reshipment occurred, the landing at Trinity terminated the liability of the defendant as a common carrier.
    2. That on the landing of the goods at Trinity, the captain of the boat became the agent of the owner,.and liable only as a ware-, houseman, because the preservation of the goods thenceforward was for the convenience of the owner only. 4 Durnf. & E. 581; 12 Johns. 232, 233; 8 Taunt. 443; Story on Bail. 272, 343; 3 and 6 Cowen, 266; 7 Cowen, 497; 8 Cowen, 233; 8 Serg. & Raw. 552, 553.
    *3. In case the defendant is liable as a carrier, he is only [361 so liable to the amount of the invoice price, or the price at the port where the goods were shipped, without regard to the price at the place of delivery. 3 Caine, 219.,
    B. Storer, contra,
    cited Story on Bail. 359, 329; Abbott on Ship. 259; 1 Wils. 282; 1 Doug. 278; 8 Johns. 164; 3 Caine, 219; 14 Johns. 132; 1 Wash. 6; 6 R. 17; Abbott, 3 pt. chap. 3, sec. 10; 2 Molloy, ch. 2, sec. 14; 3 Kent, 175; 10 Johns.; 14 Johns. 171; 15 Johns. 38; 12 S. & R. 183; 1 Pet. 177.
   Judge Wright

delivered the opinion of the court:

It, was not contended on the trial before the jury, nor is it now insisted, but the water in the Ohio river was so low when the Chesapeake arrived at its mouth, as not to admit of her proeeeding to Louisville. There was no dispute then, nor is there any now, that the letter in evidence was written by the plaintiffs to the defendant, and received by him at Trinity after the goods were landed there. I therefore take these two facts as a part of this case, though not included in the finding of the jury.

The bill of lading was a contract to carry from New Orleans to Cincinnati, and deliver to the plaintiffs there in good order, with privilege to the carrier in case of low water to reship for Louisville in some other craft, and charge the increased expense of such reshipment to the consignee. The first point presented, it appears to us, is, did the landing of these goods at Trinity in order for their reshipment, put an end to the defendant’s connection with them as carrier under the contract, and convert him into a warehouse keeper and forwarder ? There seems no necessity for inquiring into the custom of the river when goods are transhipped, to land and protect them by temporary warehouses, if none other can be had, until a suitable craft arrive to take the lading up the river. The bill of lading gave the carrier the privilege of forwarding the goods on other craft than that in which they were shipped in one event, and it seems to us the right to land may bo conceded as incident to the shipment without at all affecting the questions before the court. It was but a privilege to the carrier, in the execution of his contract to convoy and deliver, inserted for his own benefit, to secure him the advantage of as great a por362] tion of the freight as ho could earn, and to throw *upon the owner any increase of expense. The relation of carrier continues from the shipment of the goods until their arrival at their destined port and delivery, unless that relation has been interrupted by some act of the owner or consignee. In that possible view of the case the letter alluded to was read in evidence. It is now claimed that that letter constituted the defendant the agent of the plaintiffs, and put an end to his duties as carrier. There is nothing in the case, and there was no evidence on the trial, to show that this letter was received by the defendant before the accident to the goods. If, therefore, the receipt of the letter was admitted to affect what the defendant urges, a state of things is not shown in this case in which the letter can bear upon the injury. The utmost that could be claimed for this letter, if received before the injury, would be to exonerate the carrier from injury while the goods were detained, under the letter, for lower rates of freight. It can not rea.eh back to influence an injnry which the goods received immediately after they were landed, and before the letter was received, or perhaps written. The defendant had these goods, as carrier, when they were injured, and is subject to the law of carriers. “A common carrier warrants the safe delivery of goods in all but the excepted cases of the act of God and public enemies.” 10 Johns. 7. carrier, in taking freight, is bound to use sound and proper hands and machinery for lading and unlading, and the safe handling and removing the goods; and if loss ensue from the failure in any particular the carrier must bear it. Abbott, 259; 1 Wil. 282 ; 1 Doug. 278. The injury in this chase resulted from the want of machinery to remove heavy aticles, or the carelessness, inattention, or want of strength in the hands employed.

It remains, then, only to inquire into the proper rule of damages in the ease. The goods were delivered at Cincinnati in an injured condition. The carrier earned full freight for their transportation. It would seem to he the dictate of natural justice that the person liable for their safe delivery should make good to the owner the injury they sustained while under his care and control. The owner was entitled to the goods at Cincinnati in their perfect state. But for the act of the defendant he would have had them in that condition. The carrier, in case he deliver the goods at the port of delivery, earns, and is entitled to demand full freights, notwithstanding they have been partially injured, and the consignee must look to his *bill of lading for indemnity. In [363 New York the rule is established that the measure of damage is the value of the goods at the port of delivery. 15 Johns. 38; 14 Johns. 171. The Supreme Court of Pennsylvania, upon full examination, held it best to remove from the carrier all temptations to fraud, and that was best done by making him liable for the value of goods lost at the place of delivery, and established that as the rule of damages in such oases, Founded upon authority, general convenience, and good policy. 12 S. & R. 186. These authorities are not shaken by those cited by the defendant. We think this is obviously the rule of law and justice. The jury have returned two valuations looking to this point.

1. The value, adding sixty per cent, to the sterling cost, as the iisual mercantile estimate in Cincinnati, to cover the charges, freight, and insurance from Liverpool.

2. The actual value of the goods in Cincinnati, deducting therefrom the proceeds of the goods, sold in their injured condition.

Which of these furnishes the rule of damages is the question? The first is the usual mode of ascertaining the net cost of such goods in Cincinnati. In the absence of other evidence, that would be taken as the value of the goods. But when the actual value is found, the supposed or presumed value yields. That is the case ■here, the jury have assessed the damages, as predicated on the actual, as well as the supposed value, the actual value measures the real injury, and is the rule of damage.

Judgment for the plaintiff for that sum, with interest.


author: Judge Lane

text:
    Keyser and another, for themselves and others, v. Stansifer and others.
    Where a religious society purchase.land, and the title vests in them in fee, as a corporation, the majority of the society have a right to control its use and occupation, of which they can not he deprived by any supposed error of doctrine.
    This was a bill in chancery brought here by adjournment from the county of Montgomery. The object of the bill was to obtain possession of certain property purchased, improved, and occupied as a place of worship, by a congregation of the Baptist denomination. The pleadings and proofs make the following state of facts:
    *On May 29, 1824, the First Baptist Church, of Dayton, was founded, a declaration of faith and rules of business in meetings of the church were agreed on and adopted. The form of faith established under this organization was that professed by those who call themselves Particular Baptists.
    On July 27, 1827, at a regular meeting of this society, these articles were unanimously abrogated, Keyser, one.of the complainants, being present, and new rules of faith and doctrine adopted.
    In September, L827, Keyser, Gosney, and Stansifer were elected trustees. On November 7,1827, they purchased a lot in the town of Dayton, and took a conveyance to themselves as trustees of the First Baptist Church, in Dayton, and to their successors in office. By the operation of the statute of 1825, vol. xxix, page 464, these trustees became a corporation, and the title in fee became invested in them by the conveyance. A house of public worship was erected upon it, partly from the contributions of the society, and partly by the aid of donations from others.
    On March 23, 1829, certain charges were preferred against Keyser, in a course of discipline, and he was excluded from the society by vote, and another trustee appointed in his place. On the 31st of the same month, all former creeds and symbols were abolished by the society, and a new covenant introduced, by which the New Testament was declared the only rule of faith" and practice.
    The bill brought by Keyser, the excluded trustee, and by Cox, charges that the defendants by abandoning their original declaration of faith, and'certain usages common to the Baptists, by embracing certain doctrinal errors, and by thus separating themselves from the general Baptist association, have ceased to be the First Baptist Church, of Dayton. That the First Baptist Church consists of themselves and their associates, who from their numbers, in part consisting of married women, and of such as have connected themselves with the schism, can not all unite in their bill. They ask to be permitted to prosecute the bill for the benefit of themselves and all concerned, and pray the court to decree an appropriation of the property in question to its legitimate use.
    F. Dunlavy, for complainants,
    cited 29 Ohio L. 81; sec. 1 and 2 Ohio Stat. passed January 3, 1825; reprinted vol. xxix, p. 464; *also 5 Ohio, old ed. 286; Methodist Church v. Wood, 4 [365 Ohio, 415, 542; Price and Others v. Methodist E. Church; Shotwell v. Henderson and Others (New Jersey case in chancery), Judge Ewing’s appendix, 40, 41; Id. 51. 52; Id. 76, 77; Id. 84, 85.
    Crane and Schenck, for respondents,
    cited 3 Mer. 418; 1 Term of Communion, 17.
   Judge Lane

delivered the opinion of the court

Upon what principles are the complainants entitled to reliefl If this were a donation made to accomplish a particular object expressed in the deed, the terms of the limitation would secure the use, and equity would take care it was not diverted from the end for which it was designed. But this land was purchased, it belonged to the society in fee, and it was held by them as their absolute property.

If this land became the absolute property of this association, subject to no use except its general purposes, it is incident to the very nature of a corporation to hold such property at the will of the majority, if the charter of incorporation does not otherwise provide. It is theirs to dispose of, to retain, or to occupy after their own pleasure. 5 Ohio, 205. They would not be permitted to exclude their fellow-corporators. But they may occupy and manage as they please, admitting the minority to the same benefits as themselves.

But this claim is not set up because the minority are excluded, but because it is assorted the majority have deserted the principles under which the association was organized, by which they have ceased to be the “First Baptist Church of Dayton.” It does not follow that they lose their property by ceasing to entertain certain opinions. The declaration of faith under which they were organized, contains no attempt to bind them to abide in the same belief. It is shown in proof that each Baptist church is in itself a whole, separate, and independent — at liberty to form its owm creed, and looking to others for counsel and social intercourse only. The opinions of such a body can not but change. To fix their fleeting wherries; to anchor them immovably in the stream of time is beyond human power; for the mind, at least, is free; ranging by its inherent strength through the boundless fields of knowledge, molding its belief according to its apprehension of the 366] truth, and incapable of *fixedness until the day when all truth shall be made known. And if it were possible, it were wrong; to limit activity of mind is to set boundaries to human knowledge.

No such effect appears to have been contemplated by these parties at the time of their original association. Their articles were not regarded by them as binding forever. They were changed by themselves, at the meeting of 1827, by an unanimous vote, to which one of the complainants was a party — the other not being a member of the church.. The land was not purchased until alter this change, and the society became no legal corporation before it; so that the original declaration of faith could raise no use nor prescribe the manner of holding the property. It was organized under the predominance of opinions which the complainant would now repudiate as heretical. They, the minority, at best, can have no right to divert it frota the uses to which it is devoted, by the expressed will of the corporation, upon account of any supposed errors of doctrine or of faith.

Bill dismissed.


text:
    Wallace’s Lessee v. Miner.
    Possession of land before patented can not be regarded as adverse to the government, and protected by the statute of limitations.
    Presumptions can not be received to contradict admitted facts.
    Declarations made before the commencement of title under which the party claims, are not evidence in ejectment.
    Becitals are not estoppels, where the deeds containing them are not operative.
    This case was adj'ourned' from the county of Ross. The plaintiff’s title, as offered in evidence on the trial, was as follows :
    1. A patent to the heirs of Powell, by name, dated November 4, 1818, for survey, No. 503, for eight hundred and sixty-five acres.
    2. Deeds from Powell’s heirs to the lessors of the plaintiff, covering the whole land included in the patent, and dated April 15, 1826, the other dated September 17, 1830.
    The defendant was admitted to be in the possession of one hundi’ed acres at the lower end of the survey, to recover which the suit is brought.
    *The defense set up was as follows:
    Powell’s survey, made in October, 1799, and recorded March 17, 1794, and the plat and certificate taken out of the land office by Gen. Massie, in order to get a patent.
    Proof, that Massie was in possession of the whole of Powell’s survey, in 1795, claiming title, and in 1808, conveyed to Abrams by deed of warranty with but one witness, in which the patent is recited.

      That possession followed this conveyance, and with the title was regularly submitted to Joseph Kerr.
    Deeds were executed by Abrams to Finley in 1809 (with but one witness), and from Finley to Kerr, in 1814. Each of these deeds contain covenants of warranty.
    In 1816, a judgment was recovei’ed against Kerr, on which execution was sued out aud levied upon the one hundred acres in dispute as Kerr’s property, and in 1829 it was sold on the execution, and conveyed by the sheriff to Miner, the defendant.
    Miner brought ejectment in the Ross common pleas, and Wal-. lace, the lessor of the plaintiff, was admitted to defend. Judgment was recovered by the plaintiff in June, 1831, and Miner put into possession, and has since died.
    A deposition made by the lessor of the plaintiff in a suit ponding in the circuit court of Kentucky, in which the defendant states: that he was acquainted with Massie’s heirs and was acquainted with the title; that Powell sold the survey No. 503 to Orr, and Orr to Massie, for a given sum per acre. That Massie in his lifetime made affidavit and lodged it in the war office, which described the survey as assigned by Orr to Massie. That he, Wallace, believed Massie became owner of the survey by fair purchase from Orr, who bought it from Powell. That Massie, who was fully competent of such matters, gave Orr near four thousand dollars for the survey, and laid out part of the town of Chillicothe upon the land; which he would not have done if he had no evidence of Orr’s title. That in 1817, it first became known, that no patent had issued for the survey No. 503, and Watts had commenced suit against Kerr for the recovery of this land. McArthur made a new entry of one thousand acres upon the disputed land, and wrote to Col. Anderson, the surveyor of the Virginia military district, urging him to an immediate survey of the entry, and Kerr, finding this new enemy in the field, took out a duplicate of Powell’s survey, and from pure friendship received 368] McArthur’s survey from Col. Anderson *to carry it from him; but on his return forgot to deliver it to McArthur, until after he had obtained a patent in the name of Powell’s heirs, and then he congratulated himself upon having driven G-ea. McArthur from the field.
    On this evidence a verdict was taken for the plaintiff, subject to the opinion of the court, upon the law-arising upon the state of ease disclosed.
    T. Scott, for the plaintiff, insisted:
    That the deeds from Massie and Orr being defective, as conveyances, passed no estate to Orr and Kerr, which could be available after the patent issued. 5 Ohio, 190; 1 Marsh. 497, 501. That the legal title does not vest until a patent issues, arid could only be passed from one to another by deed. 1 Ohio, 244, 313; 3 Bibb, 70. Equitable interests in land are not held by the lien of judgments or liable to sale on execution. 1 Ohio, 314-320. Mere intruders are not allowed to question the validity of a patent under which the plaintiff claims. 3 Ohio, 236. Covenants merely pass no legal estate, though certain covenants contained in operative deeds of conveyance, where they pass any interest, estop the grantor from setting up an after-acquired title, and so in effect make it inure to the grantee; but it is essential to this effect that the deed pass some estate. Co. Lit. 45; 3 Bibb, 249, 250. The holder of a new equitable interest, though in possession, can not defend himself against the legal estate. 1 Ohio, 349 ; 2 Ohio, 264. The statute of limitations does not run against the government. 1 Marsh. 506; 4 Bibb, 63, 4, 554; 6 Pet. 672.
    R. Douglas, for the defendant:
    The right of the plaintiff to the possession of the premises is the true question in this action. It is a legal right, and different from a naked equity. 7 Term, 329 ; 1 Bibb, 129 ; 5 Cowen, 200 ; 2 Caines, 335; 6 Pet. 431; 3 Ohio, 59.
    Kerr’s title was a good legal title, and regularly came to the defendant.
    A patent to Powell, and a grant from him to Massie, must be presumed from the lapse of time the property has been adversely held. Both parties claim under Powell, the defendant, through his presumed grantee Massie, and the plaintiff, by conveyance from his heirs at law, the patentees. 1 Pet. 628, 638; *1 [369 Ohio, 395, 398,406, 412; Hardin, 19; Cowp. 102, 215; 3 Stark. Ev. 1201, 1202, 315, 318, 320, 326, 328; 1 Bos. & Pul. 400; 2 Saund. 175, a ; 7 Wheat. 109, 110 ; 2 H. Black. 263 ; 3 Term, 156, 159 ; 1 Ohio, 349; 2 Ken. & M. 370; 6 East, 215 ; 9 Johns. 102 ; 10 Johns.. 377 ; 6 Wheat. 504.

      The defendant is protected by the statute of limitations, his adverse possession has continued unbroken for thirty-seven years. This point is too clear for argument. 2 Salk. 421; 1 Ld. Raym. 741; 13 Johns. 40, 513; 1 Ohio, 342-349; 3 Ohio, 59, 254; 1 Burr. 119; 10 Johns. 377; 15 Johns. 159; 1 Wheat. 292, 296. Under a defective conveyance the possession commences at the date of the deed. 18 Johns. 355; 13 Johns. 113; Tit. Adams, 472-482; 5 Johns. Ch. 184; 2 Hen. & Mumf. 318; 1 Bay, 37; 10 Serg. & R. 303; 8 Cow. 589; 9 Cow. 580; 1 Pet. 628.
    Wallace obtained the deed from the heirs by fraud, which makes it void and inoperative as a conveyance. He was trustee of Massie’s heirs, and his purchase for himself inured to their benefit, if not absolutely void. In the ejectment against Kerr, Wallace claimed to be his landlord, and from his privity and connection with the title was admitted to defend. 1 Burr 395, 396, 474; 1 Stran. 664; 3 Ca. Rep. 77 ; Ambl. 436 ; 4 Term, 39 ; 1 Johns. Cas. 436; Peake N. P. 190, 191; Hardin, 36; 2 Bibb, 583; 2 Bibb, 220; 10 Johns. 457-462; 4 Mass. 488 ; 3 Johns. 216; 14 Johns, 493; 6 Pet. 328; 2 Ves. jr. 156; 3 Cow. 537; 6 Hen. & McH. 252, 255 ; 4 Ohio, 232; 1 Blk. 129.
    Wallace’s depositions contain his declarations and acts respecting the title to this land, and are good against him. 17 Johns. 335, 339 ; 4 Johns. 140, 230 ; 4 Pet. 83, 88 ; 3 Ohio, 110, 111; 5 Ohio, 178, 197.
   Judge Wright

delivered the opinion of the court:

The legal title to the land in dispute was granted by the government in 1818, by the patent to Powell’s heirs. The deeds from them transfer it to the lessor of the plaintiff. Since the emanation of the patent, time has not elapsed to protect the defendant in his posessiou. Before 1818, the legal estate was in the government, and no adverse possession could protect persons so holding as to bar the government of its claims. Statutes of limitation, without express provisions, never run against the government.

*It is claimed that from the lapse of time and other circumstances, a grant from the government must be presumed. It is a fact in the case that no patent did ever issue before 1818, and presumptions never obtain against positive facts, though they often supply the want of facts. The patent issued in 1818, and the deposition of Wallace, introduced by the defendant, both prove that no patent had before issued. The presumption, therefore, fails.

Wallace’s declarations made before the patent to Ppwell’s heirs, and his conduct since, while acting as a trustee of Massio’s heirs, it is insisted, are conclusive against the right now set up by him, and acquired under the patent from the heirs of Powell. Neither his declarations nor his conduct, whether it be moral and honest or the reverse, affect his legal title in this court, nor does the fact of his standing in the relation of a trustee to Massie’s heirs. Dishonest^conduct, and that relation may possibly affect him in another tribunal, a court of chancery.

No title passed from Powell to Massie, owing to the defective deeds having but one witness. The recital in Massio’s deeds, and that from Orr claiming under him, therefore, work no estoppel against Wallace, who asserts Powell’s right. He was in law, neither party nor privy to the covenants in those deeds. 5 Ohio, 190. If the covenants had been inoperative deeds of conveyance, the case would have been otherwise, they would have then run with the land, and been an estoppel to the grantors in them and those deriving title under them.

It seems to us, the law arising upon the verdict is with the plaintiff, and we must so apply it, though we dislike the appearance of the transaction, his trustee relation to the subject, and subsequent purchase.

At a subsequent period of the term the entry was opened, and a new argument directed at the next term,upon the following points:

1. Whether the statute of limitations will run to protect the possession of' land in the Yirginia military district, after entry and survey, before patent issued.

2. Whether the patent to Powell’s heirs in 1818, inured to vest the title in Massie and those claiming under him through the defective deeds.