text:
    Curran Milliken and others v. Lessee of Lyne Starling, Jr.
    A pateht for land from the United States will not be declared void merely because the evidence to authorize its emanation is deemed insufficient by the court.

      A deed made under a sale for taxes in 1827, and before the date of the patent, can not be given in evidence afterward, to defeat title under the patent.
    This is a writ of error, directed to the court of common pleas of Fayette county.
    *The original action was ejectment, and the cause was submittod to the court, instead of a jury, for trial.
    The plaintiff below gave in evidence on the trial a patent from the United States for the land in controversy. Tho patent, dated May 24, 1844, was issued to Lyne Starling, Jr., the lessor of the plaintiff, as assignee, in consideration of military service performed by William Fleming Gaines, a captain in the Virginia line on continental establishment, in pursuance of an act of Congress, passed August 10, 1790, entitled “ an act to enable the officers and soldiers of the Virginia line on continental establishment, to obtain titles to certain lands lying northwest of the river Ohio, between the Little Miami and Scioto, and other acts amendatory thereto.”.
    Alter the introduction of' this patent, the plaintiff rested ; when the defendants offered in evidence certain pajoers, attached to a certificate of tho commissioner of tho general land-office, dated October 23, 1844. It was in this certified that the papers were true exemplifications of certain title papers on file in his office, on which a patent was (then) lately issued in favor of Lyne Starling, Jr.
    One of the papers so referred to, is a certified copy from the records of the Virginia land-office-at Richmond, of land-office warrant No. 456, directed to the principal surveyor of any county within the commonwealth of Virginia, and empowering him to survey and lay off, in one or more surveys, for William Fleming Gaines, his heirs or assigns, tho quantity of 4,000 acres of land due to said Gaines in consideration of his services from January, 1777, to January, 1783, agreeable to a certificate from the governor in council, received into the land-office. This is dated June 28,1783, and at the foot are these words : “ Voucher says continental establishment.”
    Another of the papers so certified, is a copy of survey No. 1,361, dated May 22, 1798, and examined and recorded June 1, 1798, which copy shows the survey to have been made for Henry Gaines, one of the assignees through whom *tho plaintiff’s lessor claims his title to the warrant, and shows the land to be the samo in quantity, part of the same warrant, and described and bounded as set forth in the patent.
    The other papers are copies of transfers, wills, etc., tracing the title down to the grantee of the patent, who is the lessor of the plaintiff. This evidence was rejected by the court when offered by the defendants below.
    They then offered a deed from the auditor of Fayette county, founded on a sale .of the land in controversy for taxes, in the year 1827, by the treasurer of that county. This deed was also rejected, and a judgment was then rendered for the plaintiff in ejectment, to reverse which judgment this writ is prosecuted.*
    Richard Douglass and J. H. Thompson, for plaintiffs in error, quoted the following authorities:
    9 Crunch, 87; 3 Cond. U. S. 286; 5 Wheat. 293; 4 Cond. U. S. 650; 11 Wheat. 380; 6 Cond. U. S. 358 ; 2 How. 318 ; Lindsay et al. v. Lessee of Miller, 6 Pet. 673; Turney v. Yeoman et al., 14 Ohio, 207; Douglass v. Dangorfield, Ib. 522.
    Swan & Andrews and E. Backus, for defendant in error, submitted the following authorities:
    Lessee of Holt’s Heirs v. Hemphill’s Heirs, 3 Ohio, 232; Hoffnagle v. Anderson, 5 Cond. U. S. 271; Lessee of Stewart v. Parish, 6 Ohio, 476; Lessee of Wallace v. Seymour, 7 Ohio, 156, pt. 1; Niswanger’s Lessee v. Gwynne, 13 Ohio, 74; Lessee of Carlisle v. Longworth, 5 Ohio, 368.
   Avert, J.

The plaintiffs in error claim that the certificate and

papers from the general land-office, offered as evidence by them upon the trial, ought not to have been rejected, as they would have proved the patent void, and thus have prevented a recovery in the action. Such a result, it is said, must follow, because there is a defect of evidence to justify the issuing of the patent, and even proof in the evidence *itseif that the patent ought not to have been issued. To the first part of the objection it must bo replied that the sufficiency of the proof is a question to be settled by the proper authority vested with power to issue the patent. The legal title may pass from the government by the grant, and be held in trust for the owner of the equity, and the equitable right to the land will bo afterward inquired into and determined by the court. As to the remaining part of the objection, the evidence, it is believed, does not establish the position which is taken—does not show that the warrant was not given for services in the Virginia line on continental establishment. On the contrary, there is a direct reference to vouchors recognizing the services, as on continental establishment. There is no doubt that a case may arise in which our courts would declare a patent from, the United States to be void, and decide, in an action of ejectment, that no legal title had passed by it. The authorities cited by the plaintiffs counsel, would, in a proper case, sustain such a decision. But the present, we think, is not a proper case. It does not present the facts, which, according to the authorities referred to, or any within our knowledge, would justify the court in pronouncing the patent void. There was no error in rejecting this evidence by the court of common pleas. Was there any error in rejecting the deed conveying the tax title? The tax sale under which the defendant in ejectment claimed, took place in 1827 ; the patent from the United States, showing the plaintiff’s title, which was the first legal title granted, was not then in existence, but was dated in 1844. Now it is very clear, as a general proposition, that no moré equitable title is admissible in evidence in an action of ejectment, though it be earlier in date, to defeat a legal title. Did the law which authorized this tax sale overturn the settled principles governing the action before?

This law, it is true, provides that the deed shall convey to the tax purchaser a good and valid title, both in law and equity. The deed, nevertheless, did not, according to all former notions of the law, convey any legal title. If it is *claimed-that it does so under this law, it must be because a new description of legal title is here created, or a. new principle introduced in the law governing ejectments. I do not know that in behalf of a tax purchaser any unusual mode of interpretation is to bo adopted by the court. This law, like all others of the kind, was intended to operate upon the land owned by the tax-payer, and liable to be sold for the tax. Over his title, both equitable and legal, it is conceded the legislature had ample power and control, and to enforce the payment of taxes might at any time, when necessary, have sold it. Now it is well, known that the legal title to a large body of the land having passed by grant from the government, was already vested in the tax-payers; and that a largo class of eases existed in which the legal title was in one person and the equitable interest in another. In such a state of things it was natural enough for tho legislature, intending to tax the land and resort to the land for payment, to insert a provision in the law that the purchaser should take the title, both in law and equity. Such a provision would be applicable in numerous eases, and likely to stimulate the owners, both of the legal and equitable title, to he prompt in paying the taxes.

Wo may give to this tax law, then, a general operation, such as was doubtless contemplated at the time of its passage, without construing it to have introduced a new and strange definition of a legal title, or assumed to exercise control over a legal title, while it yot remained in the United States, and not subject to be taxed.

Under this view of the tax law, according to the provisions of which tho premises were sold, it will appear, that there was no error in rejecting the tax deed. The judgment, therefore, of the common pleas is affirmed.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    *Patrick H. Gary and others v. John F. May and others.
    A deed of trust executed to indemnify the oestui que trust as a surety for the grantor, the grantor being dead, the cestui que trust having oxecuted a new note with indorsers and taken up the old one, and having assigned his interest in the trust deed to his indorsers to indemnify them, and such indorsers having been compelled to pajr the debt, they may pursue the trust-fund against the heirs of the original grantor, without making his personal representatives, or his widow, or the assignor of the trust-deed, parties.
    On a hill of review, the court will not reverse a decree taken pro confesso, and where there had been a reference to a master to state an account, merely because some irregularity may have occurred in not exhibiting in the record the whole proof upon which the master based his report; hut to authorize a reversal of such decree, positive error must appear.
    Notice of publication, if so specific as to advise the respondents of the nature of their interest, sought to bo affected by the proceeding, is sufficient.
    Taxes paid by a cestui que trust are a lien upon the land, and may be paid out of the trust-fund.
    A decree will not be reversed on bill of review, because a defense may have existed, of which the party neglected to avail himself.
    If tile debt is barred by the statute of limitations at law, the court will not on that account deprive the cestui qui trust of his equitable security, and refuse to compel an execution of the trust.

      This is a bill of review, reserved in the county of Delaware.
    The bill is filed to reverse a decree of the court of common pleas of that county. The original bill was filed in that court by John F. May, of Virginia, on April 6, 1840, and was in substance as follows:
    “That on or about August 7,1820, Thomas E. Gary, then of the Commonwealth of Virginia, but since deceased, proposed to borrow from the Bank of Virginia, in Petersburg, about the sum of $4,000, which proposition was accepted by said bank, and the money loaned was secured to be paid by one or more negotiable notes signed by said Gary, as principal, and Edward H. Boisseau, as his surety; that on or about the same August 7, 1820, the *said Gary, in order to indemnify and save harmless the said Boisseau, on account of his said suretyship, together with his wife Rebecca JEL, executed a deed to John W. Jones, then, and ever since a non-resident of the State of Ohio, authorizing and empowering the said Jones, in case the money so loaned should not be paid, or the said Boisseau should be required to pay the same as such surety, to sell the lands in such deed mentioned, and apply the proceeds thereof to the discharge of said debt, which said lands are particularly described, being about 1,000 acres on Whetstone, and the undivided moiety of 2,000 acres on Mill creek, “in the county of Delaware ;” which deed of trust was duly recorded, and made part of the bill. That the money so loaned from said bank remained unpaid, until at length, about sixteen or eighteen years ago, the said Gary died insolvent, and loft the said Boisseau, his surety, to provide the best way he could for the payment of the money; and thereupon a new note was given for said money to said bank, in which the said Edward H. Boisseau was principal, and his brother, Peter F. Boisseau, first indorser, and the complainant second indorser. At length the said Edward H. Boisseau became insolvent, and about the month of January, 1829, the last-mentioned note was protested for non-payment, and notice duly served on complainant May; but by a mistake in the notary, the notice intended for his co-indorsers was sent to a wrong post-office, and so the said Peter F. Boisseau avoided his responsibility; and thereupon complainant paid up said note to said bank, with the interest thereon, no part of which has ever been refunded to him. That in order to indemnify May as indorser of said note, the said Edward H. Boisseau assigned to him his right and claim under said deed of trust. That he had in a friendly manner requested the said Jones as trustee to proceed and sell the said lands; but the said Jones refused to act at all in the premises. That he had expended large sums of money in paying taxes, and other incumbrances on said lands. That said Gary left Patrick H. Gary ‘and others,’ non-residents of the State of Ohio, *his heirs and legal representatives, having died intestate.” The bill prayed notice by publication, “ that an account might be stated and the balance due him ascertained; that the lands might be sold, and out of the proceeds, the said May paid his lawful demands,” and for further relief, etc.
    The following instrument was filed with the original bill, viz:
    “An indenture made this August 7, a. d. 1820, between Thomas Edmund Gary and Rebecca H., his wife, of. the town of Peters-burg, of the first part; John Winston Jones, of Chesterfield, of the second part, and Edward Hill Boisseau, of the county of Chesterfield, of the third part. Whereas, the said Gary is about to obtain a loan or accommodation for the sum of about 11,000, from the office of discount and deposit of the Bank of Yirginia in Peters-burg, upon one or more negotiable notes to be made by him, and to be indorsed by the said E. H. Boisseau, for that purpose, which loan it is contemplated and intended will be continued for some time, according to the usages and regulations of said bank, upon other notes made and indorsed as aforesaid; and, whereas the said Gary is desirous, and has agreed to secure and save harmless his said indorser, by conveying the property hereinafter mentioned in trust for that purpose. How, this indenture witnesseth, that the said Gary and wife, in consideration of the premises, and of the sum of one dollar, the receipt whereof, etc., have granted, bargained, and sold, and do by these presents, grant, bargain, and sell unto the said John W. Jones, the lands and premises following, that is to say” (here follows the description of theN land). “ To have and to hold tho said lands and appurtenances, and every part and parcel thereof, unto him, the said John W. Jones his heirs and assigns, but in trust, and upon condition, nevertheless, that it shall be lawful for the said Gary to hold, possess, and enjoy the said lands and appurtenances as fully and effectually in all respects as if this conveyance had not been made, until the said Edward H. Boisseau shall require *a sale thereof as hereinafter providod, and whenever the said E. H. Boisseau shall require the said Gary to pay tho said debt to the Bank of Virginia, or otherwise to release him of his responsibility as indorser, then if the said Gary shall fail to relieve the said Boisseau from such responsibility, it shall and may bo lawful for the said John W. Jones to sell the said lands or any part or parcels thereof, from time to time, at public or private sale in such manner and upon such terms as he shall deem expedient, and out of the proceeds, after paying all costs, charges, and expenses, attending the probate hereof and the execution of tho trusts above declared, to pay to the said bank whatever may be due from the said Gary for which the said E. H. Boisseau may be responsible as his indorser as aforesaid, and also pay to him whatever amount he may have paid by reason of his said indorsations, together with all customary expenses of discount, interest, and charges of protest and suit, if any there be, so as wholly and fully to indemnify and save harmless the said E. H. Boisseau from any and all loss on account of any indorsation of any note or notes of the said Gary, negotiable at the said office of the Bank of Virginia, and the surplus, if any, to the said Gary; and it is distinctly understood and agreed between the parties, that the said Jones is to have the power of appointing one or more attorneys in fact, for the purpose of executing the trusts herein confided to him, in as full and ample manner as he could in proper person ; but no public sale of the lands aforesaid shall be made unless at the town of Columbus, or in the county of Delaware, in the State of Ohio, and the said Gary for himself and his heirs, the lands and appurtenances aforesaid, unto the said John W. Jones, his heirs and assigns, for the purposes and upon the conditions hereinbefore declared, shall and will warrant,” etc.
    On tho back of this instrument is tho following indorsement, viz :
    “John E. May, having bocoflie my indorser for the debt within ^mentioned, I assign my claim under this deed to him for his [70 indemnity. (Signed,) Edward H. Boisseau.”
    At the April term of tho court of common pleas, 1840, it was “ordered that notice of the pendency of the suit and of the substance of the bill and prayer thereof be published for six consecutive weeks in the Olentangy Gazette,” etc.
    At the June term, 1840, the following entry was made : “Proof of publication made herein as por file and cause continued.”

      The following is the notice published under the above order:
    “John W. Jones, Patrick Gary” (and others, the defondants), “are hereby notified that on April 7, A. d. 1840, John E. May, of the commonwealth of Virginia, filed, in the court of common pleas of the county of Delaware and State of Ohio, a bill in chancery, wherein they are 'defendants, tho object and prayer of which bill is to enforce the sale of certain lands described in a deed dated August 7, 1820, made by Thomas E. Gary and wife to said John W. Jones and others, and duly recorded in said Delaware county, and, out of the proceeds of said sale, to refund to said May, certain moneys paid by said May in behalf of said Gary; and the said defendants are further notified that unless they appear and plead, answer, or demur to said bill within sixty days after tho next term of said court, the said complainant, at the term next after the expiration of said sixty days, will apply to said court to take the matters of said bill as confessed, and to decree thereon accordingly.
    “ April 10. P. B. Wilcox, Sol. for Qompt’s.”

    There is indorsed on this notice, under date of June 10, 1840, a certificate of publication signed “ A. Thompson,” with the following entry thereunder, viz: “ Sworn and subscribed before mo, June 17, 1840. S. Pinch, master.”
    *At the September term of said court in 1840, it was “ordered that the bill be taken as confessed, and the court being advised in tho premises, do find the equity of the case with the complainant, and thereupon it is ordered and decreed that this cause stand referred to S. Pinch, Esq., master commissioner of this court, to state an account and report the amount due to said complainant,” and to cause the premises in the bill described, to be appraised “ as upon executions at law,” etc.
    At tho April term, 1841, the master reported that there was due the complainant on April 10,1841, $7,711.88, and that on tho same day there was due to complainant on account of money paid for taxes on tho land, $363, together with his appraisement made part of his report; whereupon, it was ordered “ that said report bo in. all things confirmed, and that unless the said sum of $8,074.88 be paid in ten days, the master should proceed to sell the lands as upon executions at law.
    Among the files is a paper purporting to be an affidavit of “ George W. Stainback,” not signed by any one except “ Stephen G. Wells, mayor,” made in the town of Petersburg, Virginia, in reference to notes executed by Gary and others, to the Bank of Virginia, under date of October 17, 1840. Also, another paper signed in like manner by said Wells, purporting to be the affidavit of John F. May, the'complainant, under the same date, “that the statement of Stain back is true to the best of his knowledge and roceliection,” and that he, through his agents, had paid taxes, etc., Avhich he desired to charge to the proper parties in his case then pending. Also, a receipt signed “Demás Adams,” for money received from “ W. Thomas” for certificates of tax purchases of lands in Union county, transferred to “Dyne Starling, Jr.,” with the following certificate, signed “ L. Starling, Jr., viz: “The above tax titles were purchased jointly by Thomas H. Baily and myself, and $330.11£ was paid .by Wray Thomas, as agent of Baily, August 27, 1839.” Also, what purports to be a receipt for taxes on the same lands, from Dyne-Starling,. *Jr., for the years [72 1839 and 1840, signed “ A. Pollock, T. TJ. C.,” and dated “Marysville, November 28, 1840.” These, and the deed above set forth, were all the evidence in the case. None of these papers have any other authentication.
    The following, in substance, are assigned as errors in the original proceedings, viz:
    1. That the personal representative of Gary was not a party.
    2. ThatE. H. Boisseau was not a party.
    3. That the wi dow of Gary was not a party.
    4. That the demand was stale, and barred by the statute of limitation, of both Virginia and Ohio.
    5. That it is not alleged that Gary, in fact, borrowed any money from the Bank of Virginia.
    6. That it appears by said bill, that said deed contained only a naked power to sell, which was revoked by the death of Thomas E. Gary.
    7. That it is not alleged, that the deed was ever delivered to, or the trust accepted by Jones.
    8. That it is not alleged, when the assignment was made, from Boisseau to May, and no proof of its execution.
    9. That there was no proof of the execution of the deed.
    10. That the‘deed and its condition are variant from the allegations of the bill.
    11. That it is not alleged that Boisseau or May ever required Gary, or his personal representative, to pay the debt to the bank, or otherwise release them, or that they refused to do so.
    12. That it is not alleged that Boisseau had not been paid, or otherwise indemnified.
    13. That the claim was never liquidated against Boisseau nor Gary’s estate.
    14. That the sum paid by May to the bank is not stated, nor is the amount of the notes given to the bank.
    15. That no time is alleged when the notes of Gary and Boisseau, or of Boisseau and May, were taken up.
    *16. That it is not alleged that Gary’s administrator had not assets.
    17. That the bill is generally uncertain in all its material allegations, and is devoid of equity.
    18. That there are no sufficient allegations nor proofs on which an account could be stated, or a decree founded.
    19. That there is no prayer in the bill for answer from the defendants.
    20. That there was no publication of' notice, or proof thereof, of the pendency of the suit, and of the substance and prayer of the bill.
    21. That there were no facts in the bill on which the master could state an account, nor was he directed to take proof; yet ho admitted ex parte statements of the plaintiff and others, without authentication, as the basis of his report.
    22. That the master’s report, and the decree, allowed May interest on the notes said to have been substituted for Gary’s.
    23. That the report and decree allowed May $363 for taxes paid without any prayer therefor in the bill, or proof of their payment.
    24. That the defendants were not called, or defaulted in court.
    25. That the prayer of the bill and final decree are not in conformity with the case made in the bill.
    26. That the decree does not direct execution of the trust, according to the terms of the deed.
    27. That the decree was not made against any specific person whose duty it was declared to be to pay the money mentioned in it.
    28. That the deed makes no provision for any disposition of any surplus that might arise from the sale.
    29. The general error.

      To the bill of review the defendants demur, and the ease *is reserved for decision here on the issue raised by the demurrer.
    T. Ewing and Smythe & Sprague, for complainants in review:
    The following authorities are relied on by the complainants in review, in support of the principal points in the case, viz:
    1. The objections for want of parties. Story’s Eq. Pl. (1 ed.) 74; 7 Crunch, 69 ; Story’s Eq. Pl. 66, 137, 155, 161, 162; Powell on Mort. 815, 816, 824, 825 ; 1 Atk. 487 ; 8 Ohio, 379; 4 Porter, 245 ; 5 Ohio, 204, 248; 6 Ohio, 555 ; Story’s Eq. Pl. 148, n.; Story’s Eq. Jur. 306 ; Story’s Eq. Pl. 76, 77; 3 Munf. 29; 2 Atk. 234; Story’s Eq. Pl. 87, 168, n. 2.
    2. Total want of equity in the case (being objections 10 and 11) in the construction of the deed. 1 Story’s Eq. Jur. 114; Sug. on Vend. 66, 97, 393; 4 Kent’s Com. 319; Sug. on Vend. 13, 21; 2 Black. Com. 154; 1 Atk. 376; 1 Ver. 83; Sug. on Vend. 44, 209, 210, 213, 228, 241, 242, 263, 264, 267; 4 Kent’s Com. 333; Ib. 310, 311; 2 Hen. & Munf. 95.
    3. The absence and insufficiency of notice of the pendency of the original proceedings. Swan’s Stat. 701; 1 Cow. 711; 6 Wheat. 119; 1 Hill, (N. Y.) 141.
    4. That the decree was rendered without proof. Bank of the United States v. Ritchey et al , 7 Pet. 128 ; 7 Leigh, 271; 4 Hen. 6 Munf. 476 ; 1 Hopk. 471; 2 Ohio, 381; Ib. 415, 420; Am. Ch. Dig. 205; 2 Bligh, 170; Chit. Ind. 956; 1 A. K. Marsh. 325; 3 Johns. Ch. 595 ; 4 Mad. 379 ; 5 Johns. Ch. 449 ; Halst. Dig. 173 ; 1 Paige, 648; 2 Dess. 629; 3 Johns. Ch. 115; 3 Litt. 339; 10 Wheat. 188 : 3 Stew. 243 ; 1 Root, 273, 466, 521; 10 Yer. 41.
    5. General uncertainty of the bill, and want of material allegations. 2 Bibb, 4; Ib. 26 ; 4 Ohio, 321; 3 Dana, 179 ; Story’s Eq. Pl. 210; 8 Ves. Jr. 398; Ib. 401; Story’s Eq. Pl. 206, sec. 241; Story’s Eq. Pl. 24; Ib. 28, 206, 210, 218; 2 Atk. *632; 16 Wend. 460 ; 1 Vt. 312 ; 10 Mass. 458; 12 Mass. 461; 4 Day, 395 ; 4 Johns. Ch. 521; 1 Rice’s Eq. 13; Story’s Eq. Pl. 213, 214, 219 ; 220; 7 Wheat. 522 ; 1 Bland, 248, 255 ; 4 Call, 361; 12 Pick. 55 ; 3 Ohio, 62; 6 Cow. 37; 8 Gill & Johns. 171 ; 2 A. K. Marsh. 317; 10 Wheat. 181; 3 Ves. 343 ; 6 Munf. 20 ; 4 Dana, 624; 1 Root, 273 ; Ib. 466, 521; 10 Yer. 41 ; 3 Yer. 81.
    6. Staleness of the demand and statutes of limitation. Story’s Eq. Pl. 389; Ib. 378, 379, 390, 485, n.; 3 Atk. 225 ; 4 Ves. 479. 19 Ves. 180 ; 1 Bibb, 73 ; 7 Paige, 198; Ib. 373; 5 Johns. Ch. 521 ;
      Ib. 551, 552; 7 Johns. Ch. 283; 4 Wash. C. C. 631; 3 Brown, 640 ; 9 Pet. 405 ; Ib. 416 ; 13 Pet. 381; 1 McL. 105, 160; 10 Pet. 177 ; 10 Ohio, 24; 10 Wheat. 152; 5 Johns. Ch. 184; 2 Story’s Eq. Jur. 735; 736, and notes; 7 Yer. 222; 8 Yer. 238; 1 Hill’s N. Y. 53; 3 Ohio, 276; 5 Wend. 85; 3 Cow. 272; 6 Cow. 297; 11 Johns. 409 ; 15 Johns. 241; 1 Johns. 580; 3 I. Con. 322; 4 Johns. 41; 11 Ohio, 341 ; 7 Wend. 94; 9 Dana, 139; 10 Yer. 350 ; 8 Porter, 211; 8 Paige, 195; 3 McCord’s Ch. 428; 7 Johns. Ch. 111; 3 Johns. Cas. 170 ; 1 Bald. 394.
    Swan & Andrews, and P. B. Wilcox, for defendants in review, cited the following cases:
    David v. Graham, 2 Har. & Gill, 94; 3 Barb. & Har. Dig. 100; Story’s Eq. Pl., secs. 175, 179; 3 P. Wms. 333, n.; 2 Brown’s Ch. 276, 279; Slaughter v. Foust et al., 4 Blackf. 379; 3 Pow. on Mort., Rand’s ed. 969; Bradshaw v. Outram, 13 Ves. 239; Daniel v. Skipwith, 2 Brown’s C. C. 155; 3 P. Wms. 311, n.; 5 Eq. Ab. 119; Story’s Eq. Pl., secs. 1, 231, 229, 212; Thomas v. Harvey's Heirs, 10 Wheat. 146; Whiting et al. v. Bank United States, 13 Pet. 14; Dias v. Burchard, 10 Paige, 445; Crane v, Deming, 7 Conn. 387; Story’s Eq. Pl., sec. 74, (a) 3 ed.; Ib., sec. 237; Sanford v. McLean, 3 Paige, 117; Niemcewicz v. Gahn, Ib. 614; Capes v. Middleton, Tur. & Russ. 229; King v. Baldwin, 2 Johns. Ch. 554 ; Polk v. Gallant, 2 Dev. & Balt. 395; Thompson v. McDonald, Ib. 463; *Story’s Eq. Pl., sec. 191; Whitney v. McKinney, 7 Johns. Ch. 144; Trecothiek v. Austin, 4 Mason, 16; Miller v. Bear, 3 Paige, 468; Fenton v. Hughes, 7 Ves. 287; Whitworth v. Davis, 1 Ves. & Bea. 545; Lockwood et al. v. Wildman et al., 13 Ohio, 430; Mitchell v. Gazzam et al., 12 Ohio, 315, 335 ; Sheets v. Baldwin, 12 Ohio, 120; Knapp v. Alvord, 10 Paige, 205; Maddox v. Jackson, 3 Atk. 406; Angerstein v. Clark, 3 Swanst. 147; Cockburn v. Thompson, 16 Ves. 326; 11 Conn. 160; 8 Dana, 284; 1 Johns. Ch. 11; 1 Hopk. Ch. 471; Mitford, 130, n. 1.
   Read, J.

Out of abundant caution twenty-nine errors have been assigned in this case. All that are material to be considered will come under one of the following heads:

I. Lack of proper parties.

II. Want of due notice and proof of publication, to bring the respondents into court.

III. Want of proof to sustain the decree.

Before considering these points it may be remarked that if the facts set forth in the bill are true, and the proper parties were before the court, the decree was properly rendered.

1. It is claimed that the personal representative of Gary should have been made a party. Gary died in Yirginia and had no personal representative in Ohio. If necessary, one might have been appointed. But in this case the heirs only, and not the personal representative, had an interest in the land sought to be subjected. It is true that where the realty is charged with incumbrances which should be discharged out of the personal estate, and suit is brought to enforce payment out of the realty, the heir has the right to demand that the personal representative should bo made a party to such proceeding to determine the question of assets, which should be first applied. But when the realty is primarily liable and the creditor is authorized to look directly to that, it is only necessary to make the heir, or real representative, a party.

In this case, a deed of trust was executed to Jones *with authority to sell the land thus conveyed to protect Boisseau, security for Gary in the sum of $4,000 to the Bank of Yirginia. This is a trust coupled with an interest. If Gary did not pay this debt, Boisseau, the cestui que trust, was authorized to direct Jones, the trustee, to sell the land in such manner as he might deem expedient to raise money for its discharge. The land, by the express terms of the deed of trust, was the fund out of which the debt was to be discharged. Boisseau was not bound to look elsewhere, nor could the hei r compel him to seek satisfaction out of the personal assets of Gray. By the terms of the deed, Boisseau had the right to demand a sale of the land on failure of Gary to pay, and direct the proceeds to be applied to discharge the debt of the bank. Without having first discharged such debt himself, under these circumstances, he would have had no claim against the personal assets, and it would not be contended that if he had filed a bill to compel an execution of the trust, before he had paid the debt to the bank, that he could properly have made the personal representative a party. Indeed, under no circumstances was Boisseau compelled to look for indemnity to any other source than the land thus conveyed in trust. Hence, it was not necessary, and would not have been proper, to have made the personal representative a party in a suit, brought to subject the land merely. But it is contended that the personal representative should have been made a party, because perhaps, he had discharged the debt in whole or in part, out of the personal assets. If such had been the fact, the heir might have shown such payment, in whole or in part, to discharge the trust wholly or pro tanto. That is mere payment, and the evidence of it could be produced, as well by the heir as the administrator. But it is said if an administrator had been appointed in Ohio, he must have had notice, and in the rightful discharge of his duty, must have had communication with the administrator in Virginia, which would have brought home to the absent1 parties, actual notice of the pendency of this suit. This reasoning is not valid, ^because if the administrator was not a necessary party, from the nature of the interest involved in litigation, the law neither directs nor permits the appointment of an administrator, and the making him a party to a suit, for the purpose of more certainly bringing homo notice of its pendency to absent parties.

But it is assigned for error that Boisseau was not a party. Gary died insolvent, without having paid the debt, and left Boissoau, his security, to pay it as ho best might. Boisseau gave a new note to the bank, with his brother, Peter F. Boisseau, and May, the complainant, as indorsers. Boisseau became insolvent; his brother was discharged for want of proper notice to charge him as indorser, and the whole debt fell upon May, the complainant in the original bill. May discharged this debt, which was about $5;000.

Boisseau had assigned to him, as indemnity, his entire interest in the deed of trust to Jones. Boisseau thus parted with his entire interest in said trust, and May paid the whole debt, for which Boisseau was liable to the Bank of Virginia. Why then should Boisseau be made a party to a proceeding instituted by May to 'indemnify himself out of the proceeds of the sale of the land, by enforcing the trust? Boisseau had no interest in the matter, further than that May should be paid out of the land. This would discharge Boisseau from any liability to May, his accommodation indorser. Now, it appears from the record, that Boisseau was •insolvent; that May paid the debt; and that Boisseau had assigned to him his entire interest in the deed of trust. What, then, is there in all this that would require Boisseau to be made a party in a proceeding to sell these lands? It is said that there were ■certain contingencies, upon which the right to sell depended ; such as that Gary must have failed to pay, etc. It is sufficient to say, upon this point, that all the contingencies have happened in the fact that all failed to pay the debt who were originally bound, and that it has been discharged in full by May, and he is the only party directly interested in enforcing indemnity to himself out of the land. But it is urged that ^perhaps' Boisseau has paid May, and therefore has an interest in the trust fund, and hence should be made a party. The record shows that Boisseau was insolvent, and that May paid the whole debt, and that no part of it had been refunded to him. Hence, Boisseau had no interest whatever under this trust deed, and it was not necessary to make him a party. He had assigned his whole interest to May. The case of Johnson v. Hart, referred to in 3 Johnson’s Cases, is not like the present. There Hart took an assignment of a note and mortgage for a larger sum, to secure the payment of a less sum; hence, Johnson was entitled to the surplus, and was a necessary party.

It is said that the widow of Gary should have been made a party, as she has a dower interest in the land. It is sufficient answer to that, that if she has such dower, it is not affected by this decree, and she is at full liberty to file her bill to have dower assigned, or to pursue any other interest she may have. It is not necessary to open up this decree to permit her to pursue her equity.

We find, then, no want of proper parties.

2. As to notice arid proof of publication. There is proof of publication ; but it is contended that the notice itself is not sufficiently full and accurate. * We regard it sufficient under the statute. It certainly contains a “summary statement of the object and prayer” of the bill, sufficient to put the respondents upon inquiry, and advises them as to what interest of theirs is sought to be affected by'the proceeding.

3. As to the proofs upon which the decree was rendered. The bill was taken as confessed, the trust deed exhibited, and the cause referred to a master to take an account. The report was made and confirmed by the court. We are not advised upon what evidence the master made up his report. But the amount was found by the master, and decreed by the court. It was the duty of the court,—and the presumption is that the court performed its duty —not to render a decree except on satisfactory testimony. At all events, we are not disposed to inquire, upon bill of review, into all the *small details of practice. Unless it appear from the record that error has been committed, wo will not presume it.

It is urged as error that taxes paid by May upon the land have been allowed when not claimed in the bill. A claim for taxes paid is made in the bill. But, at all events, taxes are a lien upon the land, which are entitled to be discharged out of the proceeds of sale, whether specified in the bill or not.

It is argued that the original debt is barred by the statute of limitations, and therefore that equity, in analogy to the law, will not enforce the trust deed executed as indemnity. The deed itself is valid, and in full force. The right to enforce it is perfect. The cestui que trust lias paid the money for which it was executed as 'an indemnity. But it is said that, because at law he could not sue for and recover-the money which he has paid for the use of another, a court of chancery will not enforce his equitable rights. This is a most unreasonable defense, and without foundation in a court of equity. The statute bars the debt at law, from the nature of the evidence to support it. But, as cestui que trust, he has an equitable interest in lands conveyed in trust as an indemnity, and it is contended that the trust will not be enforced because an action is barred at law by the statute of limitations. It has been held in Connecticut, that where there are two securities for the same debt, the one of which is barred at law, and the other not, the latter may be pursued in a court of equity. Equity will not deprive a cestui que trust oi rights which have attached under a trust deed, because such interest could not bo pursued in a court of law in consequence of the statute of limitations. To do so, would be to compel a cestui que trust to yield up an interest held as indemnity, without satisfaction, and would dejirive him of an equity which controls the legal estate, to confer it upon another without consideration.

But if the respondents had a defense to the bill upon this or any other gi’ound, they should have appeared and applied to have had the decree opened up under the statute. All %e look to, upon bill of review, is to ascertain whether there is error in the record. It is no ground to support a bill of review, that a good defense might have been made, but was neglected.

So far as appears from the record in this ease, we have not been able to detect any error which would authorize a reversal of the decree. Demurrer sustained and bill dismissed.


author: Avert, J.

text:
    The Portsmouth Insurance Co. v. John T. Brazee and others.
    Abandonment is not always necessary in cases of salvage of total loss.
    Upon such loss, the sum insured in a valued policy is the measure of damages, and is not to he reduced on account of any expenses required in the management and sale of the damagod property.
    This is a writ of error, directed to the court of common pleas of Scioto county.
    The action in the court below was assumpsit, on a policy of insurance, and upon the trial before the court, on an agreed case,, the court found due to the plaintiff, now defendant in error, $1,556.20, whereupon the defendant below moved the court for a new trial, for the reason, first, that the court erred in finding for the plaintiff, and, second, in finding the amount. But the court overruled the motion for a new trial and rendered judgment for the sum above stated, to reverse which, this writ is prosecuted.
    The following is the agreed statement of facts.
    It is agreed by the parties, that plaintiffs are residents of Lancaster, Ohio; that the office of defendant is kept at Portsmouth, Ohio, whore her directors reside.
    That the defendant executed and delivered to plaintiffs, a marine policy, dated February 17, 1846, on 1,935 barrels of *flour; two hundred and fifty-three of which were on fiat-boat No. 21, and the residue, sixteen hundred and eighty-two barrels, on flat-boat No. 27.
    That the flat-boats Nos. 21 and 27, above mentioned, were the property of Smith & Davis, of Portsmouth, Ohio, who had contracted with plaintiffs to freight said cargoes (which where the property of plaintiffs) therein, from Portsmouth aforesaid to New Orleans, at forty-five cents per barrel freight.
    That said cargoes were consigned to Martin & Rogers, of New Orleans, with directions to them .to re-hip the same to Clement Wyllis, of Boston, in the State of Massachusetts, unless upon their arrival in New Orleans, said consignees could sell said cargoes at $4.50 per barrel, with the addition of the above-mentioned freight and the commission for selling, of which instructions it is not admitted by defendant that she had notice until after the happening of the loss hereinafter mentioned.

      That the protest under, date of March 10,1846, signed and sworn to by Chauncey Shaw, captain, and by the rest of the crew of said boat, states truly tho time, place, cause, and consequences of the wrecking of the above-mentioned flat-boat No. 27.
    That by reason of the steamer Yorktown running into said flatboat No. 27, said flat became and was thereby destroyed for all purposes of navigation. That after said cargo was taken out of the river, as in said protest is stated, the said Shaw sold twenty-five barrels thereof, to pay expenses, for $81.25, and as soon as practicable shipped tho residue of said cargo to New Orleans (the nearest and best place for the sale of such damaged cargo), on four steamboats. That as each of tho steamboats aforesaid arrived at New Orleans and landed the flour, Martin & Rogers, the consignees thereof, caused the same to be appraised, advertised, and sold to the best advantage, for the benefit of all concerned, at tho times, for tho sums, and under the circumstances stated in the papers filed herewith.
    *That by reason of the wrecking of said boat, said cargo was submerged in the Mississippi river, as in said protest is stated; that the price of sound flour at the port of New Orleans, upon the arrivals of said cargo, was as in said appraisements is stated, and that by reason of said flour being damaged as aforesaid, it became necessary for the interest of all concerned, that tho same should be sold as soon as practicable. That said flat-boat No. 27 would have arrived at New Orleans within ten or fifteen days from the time of the disaster, had not that disaster, nor any other after that time, occurred. That had said flat-boat arrived at New Orleans without accident, tho price of sound flour, when she would so have arrived, was less in that market than the price at which the consignees were authorized to sell the flour by tho instructions aforesaid. That plaintiffs have not paid to Davis & Smith the freight upon the cargo in boat No. 27, nor any part thereof, and Davis & Smith do not claim that freight has been earned, or that plaintiffs are under any liability to them by reason of said contract. That the gross proceeds of the various sales
    of said cargo, amount to........................ $5,733 28
    The expenses after the disaster were as follows,
    viz........................................................ Steamer’8 freight on flour.............................$1,055 20 Expenses at the wreck................................ 58 05 Martin & Rogers’ commission 2J por cent...... 243 33—1,256 58 Brought forward..............$4,476 70
    That the port wardens, appraisers, printer, and other charges at New Orleans amount to........................... 241 78
    Leaving the net proceeds of said sale at........................$4,234 92
    That all the above-mentioned charges are admitted to be reasonable, and the usual charges for the like services; but defendant denies her liability to pay the $143.33 commission to Rogers & Martin. That the whole amount of said charges, including the commission of $143.33 to Bogers & Martin, were paid out of the proceeds of said flour.
    *That the amount insured upon said 1,682 barrels of flour, being $4.50 per barrel, is $7,569.
    That immediately upon defendant’s hearing of the sinking of said boat as above stated, she sent James Davis, one of her directors, to look after the cargo insured. That the plaintiffs were at the same time informed by letter from said Davis & Smith, that an accident had happened to said boat, the particulars of which were not then known.
    That before said Davis arrived at New Orleans, all the flour had been received there and sold in the manner above stated. That said Davis procured from Martin & Bogers their draft on New York, payable to plaintiffs, for $4,256.20, being the aforesaid nett proceeds of said sale, with the premium of $21.28 thereon.
    That said Davis, upon his return to Portsmouth, on the 9th of April, sent by letter of that date to plaintiffs, at Lancaster, said draft on New York. That the amount of said draft, deducted from the amount insured upon said flour, leaves a balance of $3,312,80.
    That, on the 20th of April, the plaintiffs visted the office of defendant and demanded the payment of the difference between the amount insured upon said flour, and the above-mentioned net proceeds of the same, being the sum of $3,312.80, subject a deduction of 2J- per cent, as per policy, which defendant refused to pay ; but paid to plaintiffs, on account, $1,726,87, leaving a balance of $1,585.93, subject to the deduction aforesaid, demanded by plaintiffs, but not paid by defendant.
    W. Y. Peck and C. O. Tract, for plaintiff in error, submitted the following authorities :
    Lewis v. Rucker, 2 Burr. 1070; Stevens & Beneck on Av. 39 51, 284, 285, 287-289, 295, 296, 329, 330, 342, 355, 359; Bosby v. Chesapeake Ins. Co., 3 Gill & Johns. *450; Fulton v. McCall, 1 Yeates, 464; S. C., 2, Dall. 219; 2 Phil. Ins. 7, 215, 217, 222, 231, 238; 4 Pet. Cond. 231; 3 Mason, 36 ; 3 Wheat. 103; Kinnie’s Comp. 546; Park on Ins. 102, 103, 111; King v. Beach, 3 Bos. & Pul. 308; 2 East, 581; Hughes on Ins. 281, 282 ; Marshall on Ins. 203; Clark v. United States Ins. Co., 7 Mass. 369; Lawrence v. New York Ins. Co., 3 Johns. Ch. Cas. 217; Watson v. United States Ins. Co., 3 Wash. C. C. 1.
    John T. Brazee, for defendants in error, submitted the following authorities:
    1 Kinnie, 583; Moses v. Columbian Ins. Co., 6 Johns. 219; 2 Phillips, 222; Gordon v. Mass. F. & M. Ins. Co., 2 Pick. 261; Gordon v. Browne, 2 Johns. 158; Cambridge v. Anderton, 9 E. C. L. 224; Pringle v. Hartly, 3 Atk. 194; Columbian Ins. Co. v. Catlett, 6 Cond. U. S. 547; 1 Kinnie, 534; 7 Ohio, 283, pt. 1; 2 Phillips, 27; Suydam et al. v. Marine Ins. Co., 2 Johns. 238; 2 Phillips, 216.
   Avert, J.

This was a valued policy. The number of barrels of flour in both of the boats was 1,935, and the value stated in the policy $8,707.50, being $4.50 a barrel.

The court, in determining the loss on the cargo sunk in flat-boat No. 27, estimated the value as inserted in the p>olicy, and after deducting the payments actually made by the company to the insured, and the two and a half per cent, addition, according to the terms of the policy, rendered a judgment in favor of the insured for the balance. In adopting such a basis for their judgment, the common pleas erred, it is said; the particular errors are pointed out, and it is insisted :

1. That tho market value of flour in New Orleans, at the time the flat-boat would have arrived there, if no accident had happened, should have been the basis. Because it is claimed, according to the agreed case, that the flour was *to be sold there; and if the insured should obtain the price, in the New Orleans market, that would be just the amount they would have realized, had the cargo arrived in safety, and though this is less than the price at the place of shipment, yet, upon the principle of indemnity, said to be the true principle under the circumstances, this market value should have governed in estimating the loss. But such does not appear to us to be the correct rule. When the contract of insurance was executed, neither party could have known what would be the value of the article insured, at the time of its reaching the place of destination. Whether it would find a rising or a falling market could not bo foreseen ; and the contract ought not to bo subject to the uncertainties arising from continual fluctuations in the'market. The present suit is upon a valued policy; and according to the authority of our own court, as well as that1 of others, the value fixed by the parties in the contract is binding, unless there be proof of fraud or misrepresentation on the part of' the insured. The judgment in the court below is the same as in a ease of total loss and abandonment by the insured; and in this, according to the facts appearing upon the record, no error is discovered. There was no actual abandonment indeed, but this is not always necessary. The facts were not known to the insured, until their ownership in the entire property was at an end. Under the law, it w'as taken and sold, without any agency of theirs • there was nothing left but the money which the purchasers had paid ; and it would have been an idle'ceremony to attempt a formal abandonment. The boat, by the accident, had been sunk and destroyed, the whole cargo damaged, and as soon as practicable, after the accident and after the captain’s protest, the flour was shipped to New Orleans, the nearest and best place for the sale of such damaged cargo. The necessity for a quick transportation was so pressing, that, without regard to additional cost, four steamboats were suddenly employed to take this cargo to a place of sale. If the insured had been present, at the time the injury occurred, *lhere can be no doubt, but what they would have made the abandonment; and wo think it right to calculate their damage as upon a total loss. The flour had been consigned to Martin & Rogers, at New Orleans, and their service became necessary in order to make sale of it. Eor these services they charged commissions to the amount-of $143.33; and these charges are proved to be reasonable, by the evidence in the case. It is, however, objected, that- these commissions ought to be paid by the insured. Had the flour arrived uninjured and been sold by these consignees, it is very certain that the commissions would have been deducted from the proceeds, before transmitting them to the insured. But they originated from the fact, that the flour was in a damaged state, and constantly becoming less valuable. For if it had arrived in a sound state, there would have been no sale, and no such expenses incurred, because, at the price, the consignees would have had no right to sell it, as is shown in the agreed statement.

It is insisted also that the freight in the flat-boats, set down at $756.90, should be deducted from tho claim of the insured; that this, had the boat taken the' flour to its destination, must have been paid by the freighters, who were the insured; and in such ease, of course, the amount would come out of the proceeds of the flour. Besides, it is now ascertained that Davis & Smith, the owners of tho boat, have abandoned their claim for the freight; and therefore it is but just, that the sum in this matter saved, be allowed to the insurers. If the principle of indemnity were alone to decide between the parties upon this point, there might be some excuse for deducting this sum from the insurer’s loss. But not applying that principle, we can see nothing in the case to justify us in transferring to the insurers the rights or benefits, whatever they may bo, of a contract with which they never had any connection or concorn. Upon the whole, then, tho decision of the court seems to have been in conformity with the laws applicable to the case, and a new trial is denied.


author: Birchard C. J.

text:
    *Samuel Haywood v. Sally Foster.
    A witness, in narrating a conversation held between, himself and another, can not be permitted to testify what he meant by the questions asked by himself ; but his meaning must be gathered from the import of the language, without tho aid of a subsequent explanation of his own meaning.
    On a plea of the general issue in an action of slander, the defendant may give, in evidence in mitigation of damages, any circumstances tending to show that he spoke the words under a mistaken construction placed upon conduct which was, in fact, no justification.
    This is a writ of error, directed to the Supreme Court of Ashtabula county.
    Tho original action was slander, for speaking words imputing to the defendant unchastity and bestiality. The general issue, denying the speaking of the words, was the defense relied on.
    A verdict was rendered for defendant, and judgment was entered at the August term, a. d. 1846. On the trial several exceptions were taken to tbo ruling of tho court, which are presented by the record, and on which errors are assigned. These are sufficiently stated in the opinion of the court.
    ■Wilder & Woodbury, for plaintiff in error.
    B. Owen, for defendant in error.
   Birchard C. J.

Tho defendant, on the examination of a witness to prove the speaking of the words laid in the declaration, was allowed to ask of the witness what he understood the plaintiff to mean by the language ho usod. The first assignment presents tho inquiry, was this erroneous? In this case the words spoken had a plain, natural, and obvious meaning. In that sense the jury must have taken them. *They could have been understood in one sense only, with or without the explanation of the witness. It is difficult to see how the plaintiff could have been injured by an answer to tho question; and if he has sustained no injury, tho judgment should not be reversed on that account. There are very respectable modern authorities to sustain the ruling of the court. Tot the more numerous and older decisions are against it. As we consider the question not material to the correct determination of this cause, we give no opinion upon it.

The error secondly assigned presents tho inquiry, whether the court erred in overruling his objection to a question put to a witness, inquiring of him what he meant by a question which ho had put to the plaintiff, and which had been answered, and which conversation had boon previously narrated to the jury. This was undoubted error. It will never answer to permit one to be made liable for his conversations in this manner. There are too many means of misapprehension. The party answering a question has a right to have his answer interpreted as a roply to tho question, understood according to tho natural import of the words as comprehended and accepted by mankind in general. He is supposed to have understood them according to their common acceptation, and to have answered them in that sense. Wore the rule otherwise, it might happen that a person would bo condemned for convoying a slanderous imputation without over having made or designed it; but solely from the misfortune of having held a conversation with one who propounded questions, using words and phrases of known signification, with a hidden, secret, and forced meaning. No man can be hold responsible ior that of which he could have no knowledge, and no man can be presumed to have any knowledge of what another means by words, unless they are used according to their accepted and natural import. If the question asked of the plaintiff tended at all to enable the jury to comprehend the import and force of the plaintiff’s answer thereto, it was because the answer had ^reference to the obvious import of the querist. What that was could only be gathered from his words, literally or substantially detailed.

The next error assigned, and the only one remaining to be considered, is the rejection of evidence tending to show that the' defendant was seen in the situation stated by the plaintiff, but under such circumstances as not to justify the slanderous words as spoken. It is well settled, that under the general issue, a justification can not be given in evidence, and that less than a justification is not a defense, in whole or in part, when plead. But there are frequent cases, where words are spoken under circumstances which, at the time, induced belief in their truth, and when those circumstances are afterward investigated, the speaker becomes satisfied of the falsity of the conclusions which he drew too hastily, and uttered too rashly. It is right that a jury, in passing upon such a case, should be placed in possession of the mitigating circumstances. In actions of slander, the damages should be proportioned, to some extent, to the malice and wantonness of the slanderer. The same measure of damages should not be given against him who negligently, or from mistaken information, wrongs his neighbor by words prejudicial to bis reputation, that would be assessed against one that willfully and maliciously utters falsehood, while laboring under no misapprehension. The party had a right to give in evidence the circumstances which influenced him in speaking the actionable words, in order thereby to reduce the damages. This right was violated by the rejection of the evidence, and for that also there must be a reversal of the judgment.

Judgment reversed.


author: Hitchcock, J.

text:
    *Steamboat Champion v. Frederick Jantzen.
    Under the act “providing for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name,” an action for assault and battery, committed by one of Us officers while the craft is beyond the territorial jurisdiction of this state, can not he maintained.
    This is a writ of error, directed to the court of common pleas of Hamilton county.
    The action below was for an assault and battery. It was commenced in the court of common pleas of Hamilton county, under the law “providing for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name,” and was submitted to the jury on the plea of the general issue. On the trial, a verdict was returned by the jury in favor of the then plaintiff, and the damages assessed at $325. A motion was made by the plaintiff in error for a new trial, which was overruled by the court, and a judgment rendered upon the verdict.
    A bill of exceptions was then tendered by the plaintiff in error, and allowed by the court, which is as follows:

      Be it remembered, that on the trial of this cause in the court, and at the term above named, the plaintiff offered to prove to the jury, that in the month of June, 1844, while the steamboat Champion was on a voyage from Cincinnati, Ohio, to New Orleans, Louisiana, in the trade between which ports she was then employed, the mate of said boat committed an assault against the plaintiff at the town of Hawesville, íd the State of Kentucky, where the boat had been temporarily landed for a supply of fuel; that at the time of said assault, the plaintiff, who had shipped on said steamboat at Cincinnati aforesaid, in the capacity of a fireman, was on a wharf-boat assisting to carry coal aboard said steamboat.
    ♦The plaintiff further offered to prove that the said mate committed another assault against him.on board said boat while the same was in the Mississippi river, at the city of Yicksburg, in the State of Mississippi, where the said boat had been landed for the purpose of discharging freight; and that, said second assault was committed while the plaintiff was performing the duty of a fireman. And also that the said mate compelled the plaintiff to leave the said boat at a plantation in the State of Louisiana, where the said boat had been landed for the purpose of discharging some freight.
    Which said acts of said mate constituted the trespasses complained of by the plaintiff; and all of which occurred without, and not within the jurisdiction of the State of Ohio.
    To the admission of all testimony as to the said trespasses, the defendant, by her attorneys, objected at the times when the same was offered, but which objections were overruled by the court, and said testimony was admitted; to which ruling of the court and admission of testimony, the defendant, by her attorneys, excepted.

      Be it also remembered, that on said trial of this cause, the evidence on both sides being closed, the .defendant, by her attorneys, moved the court to instruct the jury :
    1. That the statute under which this suit was instituted (Swan’s Stat. 209), has no extraterritorial operation.
    Which instruction the court refused to give, and instructed the jury, that as to contracts, the statute was intraterritorial in its operation, but as to torts the rule was different, and an action could be maintained under the statute for a tort committed without the jurisdiction of the state.
    2. That an injury inflicted by the mate of a, steamboat, upon a hand of said boat, can not be given in evidence against said boat in an action under the said statute, where the infliction of the injury took place without the jurisdiction and far from the limits of the State of Ohio.
    This instruction the court refused to give.
    3. That the waters of the Mississippi river are not “ waters within or bordering upon the State of Ohio ; ” and *that an injury inflicted by the mate of a steamboat upon a hand of said boat, while said boat was navigating the Mississippi river, can not be given in evidence against said boat in an action under the aforesaid statute.
    The court instructed the jury that the waters of the Mississippi were not “waters within, orbordering upon the State of Ohio,” and refused to give the remainder of the instruction ; but charged the jury that in such an action, a recovery might be had for torts committed on the Mississippi river.

      4. That the mate of a steamboat is an agent of the owners of the said boat, who are liable for his acts only so far as they fall within the scope of his agency. That willful assault and battery of a hand is not such an act as falls within the scope of such an agency, unless directed or approved by the owners themselves.
    5. That the torts complaned of having been committed without the jurisdiction of the State of Ohio, the defendant, the steamboat “Champion,” can not be held liable in this action, unless the owners of the said boat would be liable in an action by the plaintiff against them for the same injuries.
    The court refused the above instructions, and charged the jury that the mate of a steamboat is an agent of the owners, and that the owners of the boat are each liable for a willful assault and battery committed by such mate against a hand of said boat, while such mate was exorcising the authorit}'- of a mate over such hand, although such boat was, at the time of such trespass, without the jurisdiction of the State of Ohio.
    The court further charged the jury that any violent laying on of hands is an assault and battery; and that the mate of a steamboat, when such boat is navigating waters without maritime jurisdiction, can not lawfully use any force toward a hand of such boat to compel obedience to his orders.
    The court also charged the jury that, in determining the ^measure of damages, they would consider not only the actual injury received by the plaintiff, but also the character of the assault as to malice or otherwise, and all the circumstances connected with the trespass complained of.
    To all which refusals and opinions of the court, the defendant, by her attorneys, excepted.
    The defendant, by her attorneys, therefore prays that this bill of exceptions in her behalf may be allowed, which is accordingly done; and on motion of defendant’s attorneys, the same is ordered i'o be made a part of the record in this cause.
    “ William B. Caldwell, [l. s.] Presiding Judge. Robert Moore, [l. s.]
    John A. Wiseman, [l. s.] James Safein, [l. s.]

      Associate Judges.”

      Upon this record the following errors are assigned:
    1. The court erred in admitting testimony objected to by the plaintiff in error, as set forth in the bill of exceptions.
    2. The court erred in refusing to give to the jury the instructions prayed for by the plaintiff in error, as set forth in the bill of exceptions.
    3. The court erred in giving the instructions which were actually given to the jury.
    4. The general error, that judgment was given for the plaintiff when it should have been given for the defendant.
    Tart, Net & Mallon, and Walker & Nebler, for plaintiff in error.
    Strait & Hart, for defendant in error.
   Hitchcock, J.

The decision of this case depends entirely upon the construction which shall be given to the act under which the

original suit was brought, to wit, “the act providing *for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name.” Without that act, no one would ever have thought of commencing an action of trespass for an assault and battery, in a common-law court, against any water-craft by name. But by the act referred to, this mods of proceeding seems to be authorized in some, if not in all cases,. Section 1 of the act is in these words : “ That steamboats and water-crafts, navigating the waters within or bordering upon this State, shall be liable for debts contracted on account thereof, bj the master, owner, steward, consignee, or other agent, for materials, supplies, or labor in the building, repairing, furnishiug, or equipping the same, or due for wharfage; and also for damage arising out of any contract for the transportation of goods or person»,; or for injury done to persons or property by such craft; or for any damage or injury done by the captain, mate, or other officer thereof, or by any person under the order or sanction of either of them, to any person who may be a passenger or hand on said steamboat or other water-craft, at the time of the infliction of such injury.”

Counsel for the plaintiff in error contend that in order to obtain redress for an injury to the person, the injury must have been inflicted while the craft was actually navigating the waters within or bordering upon the state; while, on the other hand, it is insisted that it matters not upon what waters the injury was inflicted, so that the craft is subsequently found “ navigating the waters within or bordering upon this state.” Of this latter opinion, it would seem, were the court of common pleas.

Which is the true construction? It will be seen that the statute has no reference to the place whore the craft was built or where she may bo owned. It is not designed to apply to boats, the property of our own citizens, and to no other. The only words used as descriptive of the craft is, “steamboats or other water-crafts navigating the waters within or bordering upon the state,” such craft, under such circumstances, so navigating, is by the statute made liable for ^certain torts of the master, mate, or other officer. Water-craft navigating other waters, waters entirely beyond or without the jurisdiction of this state, would not be reached by any legislative enactment of this state.. Nor can any legislative act with propriety be construed as intended to effect any such object, unless such intention is clearly and explicitly expressed. As we understand the statute, the intention of the general assembly was to render boats liable for the torts of its officers, committed while such boats were upon our own watersfo?4upon waters bordering upon the state—to make the boat liable civilly for the tort, where the officer committing it would be liable criminally within our own jurisdiction. Perhaps the last remark is not precisely correct. A boat or vessel upon the Ohio, or upon Lake Erie, within the limits, where those waters are boundaries of the state,- would be within the statute, although the act complained of may not have been committed within the actual jurisdiction of the state.

In the case before the court the trespasses complained of were committed entirely beyond the territory of this state, and not while the boat was navigating the waters bordering upon or within the state. It is not a case within the meaning of the statute. The plaintiff might have had an action at common law in our courts for the injury, but he can not obtain redress by a proceeding under the statute.

Such being the construction, which this court give to the statute, it follows that in our opinion the court of common pleas erred. The judgment of that court is therefore reversed, and the cause remanded for further proceedings.


author: *Read, J.,

text:
    *William Johnson v. Benjamin Bentley and others.
    Since the repeal of section 23 of the act of 1824, to regulate judicial proceedings where hanks and hankers are parties, the stockholders and officers of an unauthorized hanking association are liable, in their individual capacity, for the hills and notes of such association issued and intended to pass as money, although issued prior to the repeal of said section 23.
    Said section 23 did not declare such notes and hills void, hut only withheld the remedy.
    The question of the forfeiture of a charter will not he inquired into collaterally.
    This is an action of assumpsit, reserved in Wayne county.
    The declaration is in assumpsit.
    The first count seeks to recover the amount of certain notes put in circulation by the defendants, as an unauthorized banking association under the act of 1816, entitled an act to prohibit the issuing or circulation of unauthorized bank paper.
    The second count seeks to recover against the amount of the notes described, upon the ground that they assumed to act under the charter of the German Bank of Wooster, and avers that such charter had become forfeited by a non-user of over twenty years, and that in 1838 the defendants assumed to act under such forfeited charter, and therefore acted without authority, and were illegal bankers under the act of 1816, and responsible under that act jointly and severally in their individual capacity.
    To these counts defendants interposed a general demurrer.
    All the notes declared upon were issued prior to the repeal of section 23 of the act of 1824, to regulate judicial proceedings where banks and bankers are parties.
    T. W. Bartley and R. P. Spalding, for plaintiffs.
    John Harris and Levi Cox, for defendants.
   *Read, J.,

the demurrer raises two questions:

1. Does the repeal of section 24 of the act of 1824 authorize a recovery to be had upon bills or notes put in circulation by an unauthorized banking company, prior to such repeal, under the act of 1816 ?

2. Will the court collaterally inquire into the forfeiture of a charter of incorporation?

The act of 1816, to prohibit the issuing and circulation of unauthorized bank paper, forbids unauthorized banking, under a penalty of $1,000; defines what shall constitute an unauthorized banking company—who shall be regarded as officers; prohibits the passing or receiving the bills or notes of such company, under a penalty; provides that the mode of recovering such penalties shall be by action of debt or indictment; declares that all bonds, bills, notes, or contracts, which shall purport to be negotiable or payable at such bank, shall be null and void; that all bonds, bills, notes, or written contracts given to such bank, or discounted by such bank, or given to any person to be discounted at such bank, or for the purpose of obtaining money, or the notes, bills, or bonds of such bank, shall be null and void. It then declares no suit shall be maintained for the use of such bank.

Section 11 then provides that every stockholder, shareholder, or partner in such bank shall be jointly and severally answerable in their individual capacity for the whole amount of the bonds, bills, notes, or contracts of such bank.

Section 12 provides that the holder of any bond, bill, note, or contract of such bank may institute suit, and recover judgment thereon, against any part or the whole of the persons who were interested in such bank at the date of such bond, bill, note, or contract, or who became interested in such bank at any time between that and the commencement of such suit.

An easy mode of pleading is there presented, and judgment on a joint suit authorized to be taken against any one or all who shall be proven to be liable under the law.

*The act of 1824, to regulate judicial proceedings where banks and bankers are parties, provides that no action shall be brought upon any notes or bills hereafter issued by any bank, banker, or bankers, and intended for circulation, or upon any note, bill, bond, or other security given and made payable to any such bank, banker, or bankers, unless such bank, banker, or bankers shall be incorporated and authorized by the laws of this state to issue such bills and notes, but that all such notos and bills, bonds, and other securities shall be holden and taken in all courts as absolutely void.

So much of this section as declares that no action shall be brought upon suob bills or notes, is repealed by the act of March 23, 1840, to further amend the act of 1816.

Now the great question, in view of all these statutes, is whether section 24 of the act of 1824 renders the notes and bills, issued by unauthorized bankers, void, or only suspends the remedy under the act of 1816. Because if they are void, the repeal of that portion of.section 23 of the act of 1824, which forbids any action to be brought upon them, will not revive them so as to permit a recovery to be had under the act of 1816. The legislature has no power to set up a void contract and make it valid; to create a right, when none existed, by the act of the parties. An act which created no right and imposed no obligations as between parties, at the time that it was performed, can not be converted by any subsequent legislative authority into a legal right of binding obligation.

The act of 1824 did not repeal the act of 1816, it only suspended its action. If it had repealed it, the repeal of the repealing act would not have revived it. It is not pretended but that sections 11 and 12 of the act of 1816 are in full force since the repeal of that portion of section 23 of the act of 1824, which suspended their action. Section 12 of the act of 1816 authorized suits to be sustained in cases where otherwise they could not have been maintained, as being in violation of the policy of the law. Under the act of 1816, suits could be maintained *upon the notes and bills of unauthorized bankers. Section 23 of the act of 1824 declared that the courts should no longer entertain such suit. Section 11 of the act of 1816, which fixed the liability of illegal bankers upon their bills and notes, remained unaffected. But section 23 of the act of 1824 forbid the courts to entertain any suit or action upon such liability. Then, after the passage of the act of 1824, there was a liability without a right of action to enforce it. The remedy was denied—it has been restored by a repeal of the act of denying it. This is, then, a mere case of suspended remedy, and the legislature has the full power to restore it.

But it is argued that these notes and bills are void. They aro not declared void by the act of 1816, but are expressly declared to be valid against the illegal bankers. But it is said the act of 1824 declares them to be void. It is not so. Section 23 of the act of 1824 is a mere prohibition to tho courts. It forbids any action to be brought upon such notes or bills, and declares such notes and bills shall be taken in all courts as absolutely void. It does not declare that such bills and notes are void, but that in an action brought upon them, they shall be held to be void by the court. That is, they shall not support tbe action. It does not declare them void generally and absolutely, but that they shall be held and taken as void in court. If the legislature had intended to declare them wholly void, they would have used more apt words, and not employed words which express a mere denial of tbe remedy. In the act of 1816, where the legislature intended to declare contracts, given to illegal bankers, void, they employed a different sort of language, such as the following : such notes and bills ■‘are hereby declared null and void”—“shall be, and are hereby) declared null and void.” But in section 24 of the act of 1824, it is declared that no action shall be brought, and if action is brought, the courts shall hold the evidence to support it absolutely void, for any such purpose. This is the true meaning of the legislature, as gathered from the words *of the act, and comparing the words of this act with the words of other acts upon the same subject matter, when the design was to declare certain notes and bills void.

The whole scope, too, of the act of 1824, was to regulate the proceedings of courts; and section 23 is simply directory to the courts, instructing them as to what they shall do and what they shall not do,—in fact merely denying them jurisdiction in eases of this sort.

But it may be said, the legislature would have no reason for merely denying the remedy.

Det us look at the object had in view by all these laws. It was to prevent the circulation of unauthorized bank paper. To accomplish this, penalties were imposed upon the bankers themselves, and upon those who should knowingly receive and pass their paper. All contracts and securities given to the unauthorized banking companies were declared null and void. While thus the illegal bankers were punished, and all acts of theirs were declared void, they still were declared liable, jointly and severally, upon all their notes and bills to the holders, and an easy mode was provided for prosecution. Thus it was attempted, not only to restrain illegal banking by penalties, but to cut off all temptation to bank illegally, by declaring all contracts to them void, and on-forcing all against them. Tbo circulation of this illegal currency was also prohibited by penalty on any persons knowingly receiving and passing it. But finding that all this would not accomplish the end, it was provided that the holders of such paper should not be permitted to maintain suit upon it. It was not designed by section 23 of the act of 1824 to aid or protect the illegal banker, but merely to put another check upon illegal hanking. To legislature may, and undoubtedly did, in this last experiment, deem it prudent and right to test the policy of the law, and hold in their own hands the power to remedy any great or unforeseen mischief which might arise by refusing to permit suits to be maintained upon such paper. And, therefore, instead of putting it beyond their power to remedy *such mischief, if any should arise, the remedy was denied only, that it might be restored, if the public good should require it. But the illegal bankers come into court, and ask the statute to be construed as though its object had been solely for their benefit; when, in point of fact, it was designed to check their operations, and to prevent them getting a circulation by alarming the people, and refusing a remedy upon such paper. The legislature took this evident distinction between the masses of the people, who might be imposed upon by a fraudulent currency, and the crafty banker. In the one instance, it was the evident intention to create distrust in the public mind, to check the circulation of such paper; but still, so far as the public was concerned, the innocent holders of such paper, to retain the power, if it was deemed expedient, to furnish relief; but so far as the banker was concerned, to cut him down at once, by declaring that all contracts with him, in carrying on his illegal operations, were wholly void. Thus, in the one instance, the remedy was denied only, which might be restored; in the other, all was declared void, so that no relief ever could be given, for none was ever designed or intended, under any circumstances. But after a trial of the policy of section 23 of the act of 1824 for sixteen years, it was found that it did not cheek illegal banking. But banking was found so profitable, especially if the banks, or persons issuing their paper, were not bound to redeem it, that cupidity and avarice at once seized upon this mode of acquisition; dead charters were galvanized into life, and existing ones perverted. Library associations, intended to issue knowledge, issued paper money. Towns, corporations, railroad companies, and illegal associations of all sorts, at home and abroad, were pouring out their paper upon the community. The authorized banks had, by mutual consent, suspended specie payments; so that all paper money appeared to be alike good. Under these circumstances, all law for the restraint of legal and illegal banking was put at defiance, and the whole country flooded with illegal bank paper. If no -tremedy could be furnished, the people would have been plundered of millions, to enrich men who had acted in violation of law, and many from fraudulent motives. To have protected such men in their ill-gotten wealth, by section 23 of the act of 1824, would have been a species of legalized robbery. The legislature, therefore, repealed that clause of the act, which forbid suits to be brought by the holders of such paper. And the result has made manifest the wisdom of the legislature, in having only denied the remedy, and having held the power of relief under legislative control.

Thus, if wo look to the provisions of the act intended to prevent unauthorized banking, and the nature of the evil intended to bo remedied, we can see good reason why the legislature should have taken this distinction between the unauthorized banker and the community. The object was protection to the community, by the prevention of unauthorized banking, by punishing and depriving those engaged in it, of all power to acquire legal rights by such business.

It was well known to all familiar with the nature and history of a paper money circulation, how liable it is to abuse, and that the most cautious and stringent legislation has not been found able to restrain it within safe limits, or to check its evils ; so much so, that the idea is becoming quite general, that the only mode of guarding against its mischief, is to banish it altogether. It is well known, too, that in times of what are termed high confidence, and in times, too, when the authorized banks have failed to preserve their credit, and refused to redeem their paper, that the circulatiop is almost certain to become expanded beyond all reasonable limits. That unauthorized bankers are enabled, under these circumstances, to get into circulation millions of their paper, without the community being much in fault. Now, it was not the design of the legislature to invite and stimulate these frauds, by giving perfect impunity, by a surrender of all legislative power to remedy the mischief, and give relief to the holders of such paper; but, to make it *tho interest of the community to sustain 'the policy of the law, they withheld the remedy upon such bills or notes, but did not destroy the contract. In restoring this remedy, there has been no violation of constitutional right, or an improper assumption of legislative power, and certainly not of any principle of justice or moral obligation. But every man admits, that it is in accordance with justice, that those men who have put into circulation their notes and bills should be compelled to comply with their contracts. To do otherwise is a perpetration of a most gross fraud. Men of any elevation of sentiment or sense of justice would comply with the moral obligation of performing their contracts, although not enforced by legal sanction. Men of true tone and temper never evade their moral obligations, by skulking behind a legal protection. Hence wo find no objection to permitting a recovery upon these bills and notes.

I might cite 4 Serg. & Rawle, 356, and 17 Ib. 64, as authorities to support the conclusion; but I am not disposed to give to those cases the sanction of precedent, as they support a law which makes a contract, wholly void at the time of its being made, of valid obligation by subsequent legislation. This is beyond the limits of just legislation, and in violation of fundamental principles and constitutional rights.

As to the second count. This is defective. It assumes that the company acted under a charter, which had not expired at the time of the issuing of the bills upon which recovery is sought, but had become forfeited by non-user and misuser. This would be calling up the question of a forfeiture in a collateral way. But it has been urged in argument that the charter has been repealed. This would not alter the rights which existed before such repeal. The repeal of a charter is not a seizure of the property of the company to the state, nor does it impair any rights previously acquired. For example, the repeal of a charter of a road company does not give the road to the public; but converts it into the private property of the individuals composing the company, *to use as they see proper, without public control. If the state should seize it to public use, the constitution requires that full compensation should be made in money. Hence, the plaintiffs in this suit acquire no new rights against the defendants by the repeal of their charter.

The remaining are the common counts.

The demurrer is sustained as to the second count, and overruled as to the first. The defendants will have leave to plead if they wish it.


author: Hitchcock. J.

text:
    George B. Way and others v. Hillier, Bush, and others
    An original decree in chancery can not he stayed unless upon petition for review, and on motion to the court of the county in which such petition is filed.
    Such original decree can not he stayed hy the order of one or more judges of the court, or of the court in hank.
    This is an original motion, filed in this court.
    The object of the motion is to stay further proceedings upon a judgment at law, and on an original decree in chancery, both entered in the Supreme Court of Lucas county, in favor of the defendants, against the plaintiffs, until a hearing can be had in a bill already filed in the Supreme Court of Lucas county, for the purpose of reviewing the aforesaid original decree.
    T. Ewing and J. C. Spink, for plaintiffs.
    E. Lane, for defendants.
   Hitchcock. J.

The first question which presents itself to the

consideration of the court is, whether wo have jurisdiction or power to make the order sought for. While day after day we hear so much about the encroachments of another branch of government upon the rights of the people, and are so earnestly called upon to restrain by judicial action *the exercise of unconstitutional legislative power, it becomes us to remember that we too are bound by the same constitution which is intended to restrain improper legislativo action. The constitution was made not to 'act upon the legislative department alone, but upon every department of the government. And we must see to it, that while wo attempt to restrain the usurpation of others, we are not guilty of usurpation ourselves. While this court or its members will not shrink from the discharge of any duty enforced upon us, or tho necessary exercise of any power delegated to us, beyond that power we can not go. Nor will we consent to exercise even doubtful power.

Section 1 of article 3 of tho constitution provides, that tho judicial power of this state, both as to matters of law and equity, shall be vested in the Supreme Court, in courts of common pleas for each county, in justices of the peace, and in such other courts, as the legislature may from time to time establish.”

In section 2 of the same article, it is prescribed that the Supreme Court, and courts of common pleas, “shall have original and ap-pellate jurisdiction in such cases as shall be directed by law.”

By section 4, criminal jurisdiction is conferred to be exorcised “ in such cases, and in such manner, as may be pointed out by law.”

By section 5, “jurisdiction of all probate and testamentary matters, granting administration and the appointment of guardians,” is vested in the court of common pleas. .

By section 6, it is provided that “the judges of the court of common pleas shall, within their respective counties, have the same power with the judges of the Supreme Court, to issue writs of certiorari to justices of the peace, and to oause their proceedings to bo brought before them,” etc.

By section 7, judges of the Supreme Court are made conservators of the peace throughout tho state—presidents of tho court of common pleas, in their respective circuits, and associate judges of the latter court, in their respective counties.

*By the ninth, the right to appoint its own clerk is secured to each court.

This is all that can be found in the constitution relative to the power or jurisdiction of tho Supremo Court, or court of common pleas. Everything, or almost everything upon this subject, is left to future legislation. The courts, it is true, are created by the constitution. They are by the same constitution made capable of receiving jurisdiction. But that jurisdiction and its extent, and the manner of exorcising it, must be prescribed by the law-making power.

The constitution requires that one term of the Supreme Court shall be held in each county every year; a court so held is the court of the county. Its jurisdiction is confined to the county. Tho name of the court, tho fact that it is the highest judicial tribunal in the state, can not be construed to extend or enlarge its power. The judges of the Supreme Court, while sitting as a court in Franklin county, have no more right to exercise jurisdiction relative to other counties in the state, than has the court of common picas while sitting in the same county.

The general assembly have from time to time, pursuant to their constitutional power, passed laws regulating the powers, practice, and duties of the respective courts, and these laws have been changed as public policy seemed to require. By law, too, duties, to be performed by the individual members of the court, have been prescribed. It is unnecessary to go into an examination of these several statutes. By one, however, it may be proper to say, power is given to a judge of either court to allow an injunction to stay proceedings at law, either before or after judgment, the injunction to be continued until dissolved or made perpetual by the court, in which the bill praying such injunction is filed. I do not find, however, that any such power is delegated to enjoin the execution )f a decree in chancery. We know of no power, possessed by a judge in this state, by his order merely, to stay proceeding either <n law or chancery, unless upon bill regularly filed praying such order.

*If a party to a suit in chancery shall feel himself aggrieved by an original decree, he is not without remody. At any time within thirty days from the entry of any order or decree he may apply to two of the judges of the common picas, or either judgo of the Supreme Court who heard the case, by petition for rehearing, and if the rehearing is allowed, this of course suspends the execution of the decree. It is like a new trial at law, which suspends, or rather prevents a judgment.

If he can not obtain a rehearing, he may file his bill or petition for review. This he may do as a matter of course, if the errors complained of are errors in law, apparent upon the face of the proceedings. But if it bo for new matter discovered after the hearing on the former decree, “ it shall only, be filed with the leave of the court to which it is exhibited.”

Not with the leave of one of the judges nor of two of the judges of the court, but “with the leave of the court ” to which it is exhibited. And what court is this ? Unquestionably the court of the county where the original decree was entered, not the court of another county. The statute further provides, that “ in either' case, the court may, at their discretion, stay the proceedings on the former decree, until the further order of the court, or until final decree is made on the petition for review.” Swan’s Stat. 714, 715. When is this discretion exercised? The statute proceeds, “provided the motion to stay proceedings be made at the time at which the petition for review is exhibited, and with leave filed; or if filed in vacation, then at the next succeeding term.” At the term, then, at which the petition is exhibited, if filed with leave; or if filed in vacation, then at the next succeeding term, the motion must be made. And if not then made, it -can not be sustained afterward. Perhaps it may be thought that at any subsequent period the court might make such an order by its inherent power. But this inherent power is a thing I do not well understand. It may comprehend much, it may comprehend but little. I am satisfied *with the powers expressly delegated, and unwilling to assume any by implication.

By the motion before the court, it would seem that since the last term of the Supreme Court in Lucas county, the petition for review, alluded to, has been filed. At the next term in that county, then, according to the statute, the plaintiffs may move the court to suspend the execution of the decree claimed to be erroneous. But it is said that that will be too late—that before that time irreparable mischief will be done. And on this ground application is made to this court to interfere and grant temporary relief. Can we do it ?

As a matter of fact, the Supremo Court in bank is more limited, if possible, in its jurisdiction, than is the Supreme Court of a county, or the court of common picas. It is hardly a court of record. Eor years after its organization it had no clerk. That is, the law gave it no clerk. The clerk of the Supreme Court of Franklin county, as clerk of that court, discharged the duties of clerk. But as the law now exists we are accommodated with this necessary officer. But now as to the matter of jurisdiction.

By section 1 of the act of March 10, 1831, entitled “an ac.t to establish a court in bank,” it is the “duty of all the judges of the Supreme Court to meet annually in the town of Columbus, to hold a court in bank, for the final adjudication of all such questions of law as may have been reserved, in any county, for decision at the said term as hereinafter provided.” Swan’s Stat. 219.

Section 4 of the act points out or specifies what cases may be reserved, and includes as well cases in chancery as at law; and section 8 provides that the decision, when made, shall be transmitted to the clerk of the Supreme Court where such cases were reserved, “ and such proceedings shall thereupon be had, as if such decision had been made in Said county.”

' Such was the jurisdiction of the court by the law of 1831. It was confined to such cases as bad been reserved by the ^judges themselves on the circuit, and the judgment or decree was tho same as if it had been rendered in the county in which the case had been reserved.

It must be remembered that this was not the first law requiring a special session of the court at Columbus. This act conferred greater power upon the court than it possessed by the former law.

It authorized it to appoint a clerk and crier, if such officers should be deemed necessary. And further than this, it gave the court authority to establish rules of practice.

Now it will be seen that the present motion is not within the jurisdiction of the court, as prescribed by the act of 1831. It is an original motion, not a motion reserved from Lucas county. This act gave no original jurisdiction.

But additional power has been conferred from time to time upon this court. By one law any two judges may allow a writ of error to the Supremo Court of a county, returnable in bank; thereby, by a species of appeal, removing a ease from the court in a county to the court in bank. By another, writs of error, allowed by one or by two judges, in certain classes of criminal cases, may be made returnable to the court in bank.

Beyond cases reserved, and cases brought before us by writ of error, I am not aware that we have any jurisdiction.

>Sueh being the case, we feel that we have no authority to sustain the present motion.

It may bo that the present laws do not furnish sufficient safe- . guards against errors in judicial proceedings. If so, the proper authority can apply the remedy. But it is perhaps a matter worthy of consideration, whether the facility with which, under our present system, judicial proceedings may be, and frequently are delayed, is not fraught with more mischief than benefit. Injunctions are sometimes necessary and proper, but when granted for slight and insufficient causes, they have a direct tendency to pervert justice. The motion is overruled.