author: Avert, J.

text:
    Lessee of Snevely and Wife v. John G. Lowe.
    Where an intestate left at his death four children, one of whom was of age and the other three minors, and his administrators filed a petition to sell land for the payment of debts, naming as defendants in the petition three of the children, omitting to name the fourth ; hut the record showed that a guardian ad litem was appointed for the minor heirs of the deceased, and that the guardian ad litem appeared and acknowledged an appearance as such guardian. Held, that the order of sale was not void, though the name of the fourth child did not appear on the record.
    This is a writ of error to the Supreme Court for Montgomery county.
    The action below was ejectment, in which the lessor of the plaintiff claimed title as the heir of Joseph Brown, deceased, and the defendant, through the administrators of said Brown.
    The facts are not disputed. Joseph Brown died in 1823,. intestate, leaving four children his heirs, of whom Catharine, the lessor of the plaintiff, is the youngest. She was at that time about four years of age, and in the custody of her mother* the widow of Brown, who, with Lindsley, became one of the-administrators of the intestate.
    The personal property being insufficient for the payment of the debts of the decedent, the administrators applied, by petition to the court of common pleas, at September term, 1826,. for authority to sell the real estate. The petition is in the usual form, setting out the debts, etc., and the only exception taken to it is, that in naming the heirs of Brown, it, omits the name of Catharine, the lessor of the plaintiff.
    That part of the petition is in these words:
    “ The petition of David Lindsley and Rachael Brown, administrators of the estate of Joseph Brown deceased, represents * * * that the said Joseph Brown died,, leaving a widow, Rachael, your petitioner, and children to wit: Sidney, intermarried with William Symmes, who is of age;. Elizabeth and Thomas Brown, -who are minors, and who are his heirs and the persons entitled to the estate by descent.”
    None of the children had testamentary or statute guardians..
    Upon the filing of the petition, and without the issuing of process, the court appointed William Symmes, the brother-in-law of the children, and himself a defendant in the suit in right of his wife, guardian ad litem “ to the minor heirs of Joseph Brown,” and he came and acknowledged an appearance.
    The record is in these words, after setting out the petition : “ And thereupon, on motion, the court appoint Wm. Symmes guardian ad litem to the minor heirs of Joseph Brown, deceased. And the said William Symmes appeared in court and acknowledged an appearance as such guardian.”
    The land was thereupon appraised, decreed to be sold, sold, Rale approved, deed ordered and made, purchase money paid, •etc., in conformity with the statute.
    It is admitted that the defendant has all the rights that could have been acquired under the sale and subsequent proceedings
    Thomas Brown, one of the heirs named, has since died, a minor and intestate; and Catharine, the lessor of the plaintiff, is one of his three heirs.
    The court of common pleas — a jury having been dispensed with — gave judgment for the defendant, which was affirmed by the supreme court for the county: and this is the error complained of.

      Schenek Gonov&r, for plaintiff in error.

      M. E. Gunom, for defendant.
   Avert, J.

The record, which gives rise to the controversy in the present case, was offered in evidence in behalf of the defendant, in an action of ejectment. It is a record of the proceedings before the court of common pleas, upon the petition of administrators for an order to sell land, of which their intestate died seized, for the purpose of paying demands against his estate. The proceedings were had under the statute of 1824, which defined the duties of executors and administrators. The plaintiffs in the ejectment objected, at the trial, to the introduction of the record, because Sarah Ann, one of the plaintiffs, who also was one of the children of the intestate, was not a party to the record. There does not appear to have been any other cause for excluding the record, and we proceed to inquire whether the ground alleged was sufficient for that purpose ; and here it will be found that we are not without decisions in our own court, which have a direct bearing, and, of • consequence, must be allowed to produce their influence upon the point discussed in the case.

In Ewing v. Hollister, (7 Ohio Rep., 2d part, 138,) the petition named two only of the minor heirs ; but at a subsequent period, the guardian of two others appeared in court and acknowledged service, when the court proceeded to order a sale of the land of the intestate, but without causing the names of the last mentioned heirs to be inserted in the petition. The record, in that case, was brought directly before the court, upon a certiorari, and the proceedings were sustained — the court not finding any irregularity sufficient to call for a reversal. That case determined that it was not necessary to issue process against infants, provided their guardian entered an appearance for them; nor essential in such case, that their names should be found in the petition; and notwithstanding the alleged irregularities in both particulars, the interest of the minors passed by the sale.

It was decided in Robb v. Irwin, (15 Ohio Rep. 689,) that an order to administrators for the sale of real estate, would not be declared void, though there were no proof that the infants were served with process, if a guardian ad litem, appointed by the court, had appeared and answered for the infants. The judge, in delivering the opinion of the court, says: “ In truth, the whole matter resolves itself into this question : whether the court ordering the sale, had jurisdiction ? If it had, the proceedings are not void, and cannot be collaterally impeached.” The record, containing the order of sale, had been rejected at the trial, because it proved, in the opinion of the court, that jurisdiction over the person had never been acquired — the proof showing nothing further than the appointment and answer of a guardian ad litem. The judgment of the common pleas was reversed for rejecting that record.

The interpretation thus put upon the act of 1824, by these two decisions, was calculated, it must be manifest, to produce an extensive and most important influence. It would have the effect of quieting the title to numerous tracts of land, which had been purchased at public sales, upon the faith of judicial proceedings. It may be thought, perhaps, that some latitude of construction was adopted in the cases ; but it must be borne in mind that the court were examining, at the time, the records of proceedings before courts of extensive and general jurisdiction in the state — such as were deemed competent and trustworthy enough, both by the constitution and the laws, to decide upon all the highest interests of the citizen, in-the civil and criminal administration of justice, and in whose favor the existence of jurisdiction was always to be presumed. In ex amining the records of proceedings before those courts, upon the statute under consideration, no valid objection is perceived to giving consideration and weight to their early construction of the act, and their practice under it. The judge, in the case last noticed, uses, upon this subject, the following language:

“ I hold this to be a safe and a sound rule : when a statute law receives a construction by the judges constituting the judicial tribunals of the state, during the time, or where the courts adopt a practice under such statute, such construction and such practice become a part of the law. Rights are acquired, property is acquired, in the full confidence that, while the statute remains unchanged, the construction and practice under it will remain unchanged.” This court admits the correctness of all the principles established by the two cases cited, to the full extent of their bearing upon the case now under consideration ; and upon the strength of these authorities, it is believed that the judgment of the supreme court, under review, can be maintained.

The record .shows, that at a court of common pleas holden at Dayton, in the county of Montgomery, and State of Ohio, on the 25th of September, 1826, the following case was entered and pending before said court, to wit: “ David Lindsley & Rachael Brown, Administrators of the estate of Joseph Brown, deceased, v. The Heirs of Joseph Brown, deceased; petition to sell lands.” Then follows the petition for the sale of land to pay debts, in which it is set forth, “that the said Joseph Browrn died, leaving a widow, Rachael, your petitioner, and children, to wit: Sidney, intermarried with William Symmes, who is of age; Elizabeth and Thomas Brown, who are minors, and who are his heirs and the persons entitled to the estate by descent.” Then follows the entry, and, thereupon, on motion the court appoint William Symmes guardian ad litem to the minor heirs of Joseph Brown, deceased. And the said William Symmes appeared in court and acknowledged an appearance as said guardian. It is shown by the bill of exceptions, that Sarah Ann, one of the plaintiffs, was about eight years of age when the petition was filed in court by the administrators, and 'that Rachael Brown, the widow of the intestate and mother of Sarah Ann, one of the plaintiffs, was appointed with said Lindsley to administer upon the estate of Joseph Brown deceased.

The provision of the act of 1824, directing the heirs to be made parties, is in these words: That when the executor or administrator shall apply to the court under this act, for authority to sell the real estate of their testator or intestate, the application shall be by petition, to which the lawful heir or the person having the next estate of inheritance of the testator or intestate, shall be made defendant. It will be seen that in the record now under examination, some of the heirs are named in the petition, but not all of them. In this respect it is like the case in the 7th Ohio Reports, and is supported by that authority, which decides that it is not necessary to the validity of the order of sale that all the names of the children be named in the petition.

In the case found in the 15th Ohio Reports, the guardian ad litem appeared and answered for the infant defendants. In the case now before the court, the record does not show that the guardian ad litem answered; but it shows that he acknowledged an appearance as said guardian. And if it be decided that jurisdiction over the person is obtained by appearing and answering, it will without much difficulty, be conceded that the appearance, the being in court, and not the answer, gives the jurisdiction. By our law, upon the return of the process or summons served, the defendant shall be considered as being in court, and may be proceeded against accordingly. So upon appearance, the defendant must be considered as in court; and if in court, any subsequent irregularities, though they may be Sufficient to set aside the proceedings on certiorari as erroneous, cannot have the effect to render them void. The present record differs from those in the two cases above noticed, in not giving in any part of it, the names, of all the minors. The case is entitled “ the administrators,” (as the record shows, naming them,) “ against the heirs of Joseph Brown, deceased,” with out naming them; and the petition sets forth that the intestate left a widow and children, giving the names of the widow and part only of the children. After this, the record shows the appointment of a guardian ad litem to the minor heirs of Joseph Brown. According to this record, it cannot be denied that the appointment is in terms broad enough to embrace all the minor children; and if so, it may embrace Sarah Ann, one of the plaintiffs. It may be admitted, that the presumption usually arising from such an expression, would confine it to the children before named, or the children named in the petition. But that presumption limits the meaning of the expression, and is therefore not allowable when its effect is to defeat or destroy the jurisdiction that has been assumed and exercised by the court. ' If the-entry, after naming the minor heirs, had hereby added, including Sarah Brown, then the names of all the heirs would have appeared upon some part of the record; but that is not indispensable, and in the opinion of the court, the spirit of the cases above cited does not require that it should so appear. The record without such addition is sufficient to show that jurisdiction had been acquired. The case before us is briefly this: the personal property of the intestate not being sufficient to pay his debts, it became necessary that the administrators should sell real estate for that purpose. The mother of one of those plaintiffs, and her natural guardian and protect- or, who of all others, was the most likely to take care of her interests, joined with the other administrator in representing to the court that there was a necessity for selling this land, which had belonged to her husband, to pay debts which he had contracted in his lifetime. And on the representation of the administrators, an order was obtained from the court to make sale of the land. After the lapse of years, this minor, now be come of age, brings an action of ejectment, seeking to set aside the proceedings and recover back the land, on the sole ground that her name, as it appears, is omitted in the petition and ia not found in form upon .the record. In consequence of this-omission, her interests, as she says, have not been protected. The children of the same parent who were infants also, as well as the child who was then of age, are all bound by the proceedings, because their names do appear in the petition. But there is no reason for supposing that they have suffered any injustice. If the presumptions in the case shall operate to bind the present plaintiff also, the injustice done to her can be no greater than that done to the others. They do not appear to have raised any objections to the proceedings, and there is no ground for supposing that she has any real cause of complaint.

Judgment affirmed.


source: Caselaw Access Project

author: Spalding, J.

license: Public Domain

text:
    The Steamboat Clipper v. Linus Logan.
    One conversant with steamboats, as master, engineer and builder, having examined a boat injured by collision on the Ohio river, may state, in connection with the facts, his opinion as to the direction from which the boat was struck, at the moment of contact.
    Any such person, having examined the injured boat, may describe her condition, and say whether, in his opinion, she is worth repairing.
    In an action of trespass against a boat, for injuries caused by a collision, the plaintiff is not restricted, in the recovery of damages, to the amount named in his bill of particulars and affidavit.
    This is a writ of error to the Superior Court of Cincinnati.
    The original action was trespass, brought by Logan against the steamboat Clipper, for wrongfully running into and damaging the steamboat Mail, while navigating the Ohio river, on the 20th of March, 1844.
    The case was tried at the June term, 1848, when the jury returned a verdict for the plaintiff, upon which a judgment was rendered.
    Sundry bills of exceptions were taken during the progress of the trial, disclosing, among others, the following facts:
    1. On the trial, the plaintiff, in support of the issue on his part, offered T. J. Haldeman as a witness, who, being sworn, stated “ that he had been an engineer and captain of a steamboat for 16 or 18 years, and had built several boats as a proprietor ; that he was not present at the time the boat, owned by the plaintiff, received the injury for which this suit was brought, but that he saw her after she had been injured by a •collision with the defendant, and his attention was called to the break or fracture produced by the collision.” He was then .asked by the counsel for plaintiff: “ From the breach or fracture in the injured boat, how, or in what direction the blow she received, appeared to have been given.” The witness answered, “ that the blow appeared to have been given nearly head on — rather quartering.” The defendant objected to the ■question, as requiring from the witness a mere opinion or belief, and objected to the answer as evidence, etc.
    The plaintiff also offered John Christy as a witness, who stated “ that he had been and was an engineer of a steamboat; that he had seen the boat injured by the collision for which the suit was brought, before and after the collision; that she had been torn up after the injury ; that, in her crippled condition, he considered her worth $3,000.” He was then asked by the plaintiff: “ State the condition of the boat, and whether or not the boat, after she was injured, was worth repairing.” To so much of this question as required from the witness his opinion whether the boat was worth repairing, the defendant objected. The objection was overruled, and the witness answered, stating the condition of the boat, and “ that she was not worth repairing.” The defendant objected to receiving this answer as evidence, etc.
    2. The plaintiff then offered the deposition of Jno. E. White, who stated that he was a pilot of steamboats; that he was acquainted with Elijah Staats, under whose charge as pilot, the steamboat Clipper was at the time of the collision for which the suit was brought. After being interrogated, and testifying as to the character of said Staats as a pilot, he was asked, by counsel for the plaintiff, this question : “ You say in your answer to the cross-examination, you never heard of any difficulty which he (said Staats) had. Did he ever steer alone his watch; if so, how was the water, and did he or not get into danger ? ” This question was objected to. The witness answered : “I fetched him one trip with me on the Montezuma. I was up with him, till we came below Marietta, the principal part of the time. After we got below there, I trusted him a little more to himself — the water was better. Well, we had no trouble until we came down to Manchester. He came pretty near running over the Swiftsure, but he didn’t do any hurt. It was rather owing to his bad management. He went to take the point side, which was the place for the other boat. He got deceived a little. The stage of water was five feet at Pittsburg. I don’t know how much there was at that place — there was enough to run, however.” '
    This question and the answer were objected to, but they were received as evidence to the jury.
    3. The plaintiff claimed, on the trial, that the collision occurred by reason of the incompetency of the pilot, and the negligence of the officers and crew of the Clipper, and without any fault on the part of those managing the steamboat Mail. “ The defendant offered evidence tending to prove that there was negligence and fault on the part of those managing the Mail, the plaintiff’s boat, which had contributed to the occurrence of the injury; and that the pilot navigating the Mail, had mistaken the position of his own boat and the position of the defendant, and had, in consequnce, altered the course of his boat, and thereby caused the collision.”
    The court having instructed the jury as asked by the defendant, the plaintiff asked the court to charge—
    2d. “ If the danger of collision arose suddenly, and by the fault of the defendant, the plaintiff is entitled to recover, even if he did make a mistake, unless such mistake contributed to-the injury, and was such a .one as a pilot, using ordinary care, skill, prudence and knowledge, should not, under the circumstances, have made ; and if any such mistake is set up in the defense, it is for the defendant to satisfy them that it was made.” Which charge the court gave, with this modification : a It is incumbent on the plaintiff, in the first place, to show that he navigated skillfully, prudently and diligently — in other words, that he was without fault.”
    The plaintiff also asked the court to charge—
    Sd. “ If the defendants claim that they were in the wrong, yet the plaintiff was also in the wrong, and that, therefore, it is a case of mixed fault, it is for the defendant to show, satisfactory to the jury, wherein the fault of the plaintiff lay.”
    Which charge the court gave, with the modification above stated.
    4. The jury returned a verdict in these words: “ We, the jury, assess the plaintiff’s actual damages at the sum of $8760, and if the damages are to be confined to the bill of particulars attached to the aflidavit and praecipe, then we assess the plaintiff’s damages at the sum of $2507, and leave the court to decide which the plaintiff is entitled to receive.”
    'The court rendered judgment for the plaintiff for $3760.
    The errors assigned are as follows:
    1. That the court erred in allowing the question to and answer of the witness Thomas J. Haldeman, as set forth in the bill of exceptions.
    2. In allowing the question to and answer of the witness; John Christy, as also set forth in the bill of exceptions.

      3. In allowing the question to and answer of the witness, John E. White, as set out in the bill of exceptions.
    4. That the court erred in giving the 2d and 3d charges, asked by the counsel for plaintiff, set out in the bill of exceptions.
    5. That the court erred in rendering judgment on the special verdict of the jury, for the sum of $3760, whereas said judgment should have been for $2507.
    6. That the court erred in rendering any judgment on the-special verdict of' the jury, the same not authorizing the rendition of a judgment, or finding any fact on which the court could act, as shown by the bill of exceptions.
    7. That the court erred in overruling the motion of the defendant below, to set aside the verdict of the jury, and grant a new trial, and in rendering judgment for the plaintiff.

      Coffin if* Mitchell, and Gfholson ¿f* Miner, for plaintiff in. error.
    ■ 1. The two witnesses, Haldeman and Christy, were interrogated as to a matter of opinion or belief. They were not examined as experts. To determine whether this point is well taken, we need only to refer to the record. Haldeman, if called upon to testify upon the subject, should have been asked to describe the breach or fracture, and the jury could then have formed their own opinion. Whether the blow appeared to-have been given nearly head on or not, was a fact to be testified to by those who had witnessed the collision, or to be ascertained by the jury from the facts in the case.
    Christy, who was not a ship carpenter or a boat builder, but an engineer of a boat, is asked to give an opinion whether the Mail, after the collision, was worth repairing or not. This is asking for an opinion from one not competent to give it. Having proved the condition of the boat by him, it should have been left to the jury to determine whether she was worth repairing or not. If an opinion upon that point was competent, it was the opinion of ship carpenters. A man may be an ex cellent engineer, and know nothing of ship-building.
    2. We claim that the question put to, and the answer received from White, as contained in his deposition, and above set forth, are in conflict with the well established rule of evidence, that, in impeaching character, the inquiry must be general, not particular. The object in this case was to show, that the pilot of the plaintiff in error, was unskillful and incompetent. The witness was interrogated and permitted to answer as to a want of skill on the part of the pilot in a particular case, and on a former occasion, in no manner connected with the occurrence out of which this suit originated. This, it is insisted, was error.
    8. There was error in the second charge of the court to the jury, being the first charge above set forth. As we understand the question involved in this charge, it results in this: Two
    vessels are approaching each other in the night; there is danger of collision; the pilot of the one is skillful and competent, but on this occasion, by a mistake in judgment, he changes the course of his vessel, and a collision ensues. There is fault on the part of the other vessel — for the want of a competent pilot or otherwise — but this fault, without the mistake in the change of the course of the other vessel, would not have produced the collision. Does this case come within the general rule, that no one can recover for an injury, to the occurrence of which his own wrongful act or want of skill has contributed ?
    The court, in this case, modified the charge, as asked, by saying to the jury, that it was incumbent on the plaintiff below to show “ that he was without fault.” But the inference which the jury were left to draw, was, that a mistake made by a competent pilot, or one which a competent pilot might make, though using ordinary care, was no fault within the meaning of the rule above laid down; in other words, that a man is not responsible for a mistake or want of skill, if such mistake or want of skill is one which a careful and competent person might make or exhibit.

      Where a direct and immediate injury is done to the person or property of another, no act on his part contributing to the occurrence of the injury, it will be no answer to an action that the act was unintentional, by mistake, or even by accident, unless such accident were inevitable. This is clear in ordinary cases of trespass. Louby v. Hafner, 1 Dev. Rep. 185; Amick v. O’Harra, 6 Blackf. 258. And the same rule applies in cases of navigation, when the injured vessel is lying at anchor in her proper place, or lying at a wharf. Stout v. Foster, 1 How. 89; U. States v. The Mayor, 5 Miss. 230; Case v. Mack, 2 Ohio Rep. 169.
    There is no reason why the rule should not equally apply in favor of a sailing vessel, wholly without fault, and using every precaution to avoid the injury. . To a claim for damages on the part of such a vessel, nothing short of an inevitable accident would be an excuse.
    If the above conclusions be correct, there would appear to have been error in the charge of the court. Any want of skill which resulted in injury, would induce a liability for damages, and of course would preclude a recovery. * -
    But, it will be said that the plaintiff in error was in fault, and brought on the danger of collision. This could make no difference as to the degree of skill incumbent on the defendant in error. As said by Lord Denman, in Mayor of Colchester v Brooke, (2 Ad. & El. N. S. 377:) u If, then, the defendant could not have done this purposely and knowingly, the same principle shows that he was bound to use due care and skill in the navigation of his vessel, so as not to do it unwittingly by want of these. As a general rule of law, every one, in the conduct of that which may be hurtful to others, if misunderstood, is bound to the use of due care and skill, and the wrongdoer is not without the pale of the law for this purpose.”
    It is believed that the error of the court below has arisen from a misapprehension, and an attempt to extend the rule laid down in Butterfield v. Forrester, (11 East. 60,) and Bridge v. Grand Junction Railway, (3 M. &. W. 244.) That rule isr “ that, although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary •care, have avoided the consequence of the defendant’s negli.gence, he is entitled to recover; if, by ordinary care, he might have avoided them, he is the author of his own wrong. That is the only way in which the rule, as to the exercise of ordinary ■care, is applicable to questions of this kind.”
    We have the right to presume that, but for the mistake on the part of the pilot of the plaintiff below, no injury would have ■occurred; of course, by ordinary care, he might have avoided the consequences of any negligence on the part of the defend.ant below. In truth, it seems the rule has no application, where the act on the part of the plaintiff, whether resulting from negligence or want of skill, or (as we insist) by mistake, directly •contributes to the occurrence of the injury. It is sufficient defense, “ that the injury sustained by the plaintiff is not solely ■imputable to the want of due care on the part of the defendant, but that the plaintiff has, by his own voluntary act, been contributing to it himself.” 54 Eng. Com. Law. Rep. 14.
    The* objection to the third charge of the court, being the .second above stated, is, that notwithstanding the modification which was added, it was well calculated to mislead the jury. We suppose that it results in this: It is sufficient for the plaintiff, in a collision case, to show proper and skillful navigation on his part; the defendant, being in the wrong, can only prove specific acts of default on the part of the plaintiff. If it was intended to convey the idea that, in such a case, the defendant was confined to proof of that kind — that he could not •contradict, generally, the case of the plaintiff, or offer any evidence tending to show that there was. a want of care or skill on the part of the plaintiff, the charge was erroneous. And though such may not have been the intention of the court, the whole charge would, it is submitted, be so understood by a jury; and if, on a fair construction of the charge, the jury may have been misled, it is sufficient ground of error to reverse ■the judgment.

      4. Upon the special verdict two questions arise:
    First. Whether the special verdict is one on which any judgment can be rendered. The jury, in substance, found a certain amount of damages; but if, in the opinion of the court, the plaintiff was bound by his bill of particulars, a certain other, and lesser amount.
    It is well settled, that a special verdict must find facts, and not the evidence of facts; and it must present to the court a question of law. Brown v. Ralston, 4 Rand. 504; Seward v. Jackson, 8 Cow. 406; Barns v. Williams, 11 Wheat. 415.
    Unless the bill of particulars is a part of the record, it cannot be referred to in aid of the special verdict; but suppose it can be referred to, how is it to be known whether the matter presented was, as to the effect of the bill of particulars, as evidence, or in respect of some question of law ?
    It appears to have been held, that the court cannot intend anything on a special verdict, which is not found by the jury. The verdict must be complete in itself, and cannot be aided by any extrinsic evidence. Lee v. Campbell, 4 Porter 203; Jenks v. Hallett, 1 Caines 60; McArthur v. Porter, 01 Peters 626.
    Second. If the court should be able to say that the special verdict in this case is sufficient to authorize the rendition of a judgment for one or the other of the amounts found by the jury, it remains to consider the question, which we happen to know, dehors the record, was intended to be presented; Whether a plaintiff under the act providing for the collections of claims against steamboats and other watercraft, can recover more than the amount of the demand stated in his bill of particulars, and verified by his affidavit, in pursuance of the 3d section of the act mentioned ?
    We propose to consider this question, 1st, under the general rules and principles applicable to all bills of particulars, and, 2dly, under the peculiar provisions of the act to which reference has been made.
    The object of a bill of particulars,' is to apprize the opposite party of the nature, state, and extent of the claim or demand he is required to contest. And, it already follows, that no substantial departure in the proof can be properly admitted. It would be a surprise, and operate as a manifest injustice. The practice, therefore, has been to obtain leave to amend before trial. There are cases in which verdicts beyond the amount claimed in the bill of particulars have been sustained, but they have been placed on the ground, that no objection was made to the testimony — that the opposite party was not misled — and that' no injustice has been done. But, as a question of law, it does not seem to have been doubted that a party is restrained in his proof and recovery to the items of his bill of particulars. As held in 17 Wend. 20, “ the only effect of a bill of particu lars is, to restrict the proofs and limit the recovery on set-off to the matters set forth in it.” Williams v. Sinclair, 3 McLean 289; Brown v. Calout, 4 Dana 219; Hurst v. Watkins, 1 Camp. 68.
    We insist, therefore, that as a question of law, and in the general form in which it was presented by the jury in their verdict, the plaintiff below was bound by his bill of particulars.
    Considering the question, in the next place, with a view to the provisions in the statute, and it would seem that the bill of particulars is not only entitled to the same legal effect as in ordinary cases, but lying at the very foundation of the jurisdiction of the court, it cannot be altered or amended, and is therefore conclusive.
    To authorize a warrant under the act, it is required that a praecipe shall be filed, accompanied by a bill of particulars verified by affidavit. The 4th and 5th sections show, that the amount of the demand is an essential fact in the bill of particulars.
    The craft, or such part of her apparel and furniture as may by necessary to satisfy the demand, is to be seized, and bond may be taken in double the amount of the demand sworn to he due.

    The bond is doubtless given with reference to the amount claimed by the plaintiff in his affidavit. If it were competent to allow a change in the bill of particulars, it would seem to be-unjust to the sureties in the bond. It is true they are required to have the property, or double the amount sworn to be due, forthcoming to answer the judgment. This, however, it is manifest, was with reference to the interest and costs. The whole law shows that it was not intended to seize more than would be necessary to satisfy the demands as claimed by the-plaintiff. If that demand could in every case be doubled by a change of, or addition to the bill of particulars, it would greatly increase the difficulty of obtaining sureties, and render the-operation of the law unjust and oppressive. Admitting that, in some particular cases, it may be a hardship to restrict the-plaintiff to the amount he has sworn to be due, still, such a construction of the law would be much less injurious in its consequences.
    But it is sufficient in this case, that no. such change was made-in the bill of particulars — and nothing more appearing, than the simple question whether a plaintiff is bound by his bill of particulars, we insist, it should be answered in the affirmative..

      T. D. Lincoln, for defendant.
    In this case several errors are pointed out in the record, or several points are made upon which it is claimed there is error.
    1. It is said to be error, that Capt. Haldeman was asked the direction of the blow which the Clipper made in the plaintiff’s boat, the Mail. This witness had examined the boat, and was in substance requested to give the direction of the break, in it. This I insist was competent as showing the relative position of the boats, by evidence in reference to which there could be no controversy. This was all that was sought by the question.
    It is also said to be error that another witness, John Christy, was permitted to testify as to the condition of the Mail, and whether or not she was worth repairing. This witness, as well as Haldeman, was an expert as to this matter. They were both as much experts as the law requires, even to enable them to give an opinion. It was the engine of the boat that was so greatly crippled. When this suit was brought it was supposed that the boat could be repaired, and the amount sworn to was made up in reference to that fact. Upon a more thorough examination of her condition, and after attempts were made to repair her, it was 'found that she was too much crippled, .and that she was fit only to be broken up and put into another boat; and that the real damage was not what it would cost to repair her, (as was at first supposed,) but the difference between her value before collision, and that after it; the boat to be used, or so much of it as could be, for building a new boat. This course was taken with the Mail.
    The question does not call for an opinion, but if it had, this witness was expert enough to answer it, even should the court say that1 none but an expert could give an opinion in answer to such a question; for he was a steamboat engineer, and was the very person to be called upon .to speak of the condition of the engine, and of the boat. He gave all the opinion he gave, in connection with the facts stated by him.
    Neither of the above witnesses were asked their opinions. Nor did they testify to them. But should the court regard the questions asked them, as questions calling for opinions, still it is insisted that they were sufficiently skilled to make it proper for them to answer the questions. Upon this point the court is referred to the following authorities: Cotryll v. Myrick, 3 Fairfield 222; -v. Foot, 4 Blackf. 292; Morse v. Crawford, 17 Verm.; Gentry v. McMannis, 3 Dana. 282; McKee v. Nelson, 4 Cow. 355; Griffin v. Brown, 2 Pick. 209; Clark v. Ohio, 12 Ohio 483; 6 Ala. 212; 11 Ala. 732
    Should the court regard the testimony such as an expert only could give, I claim that the court will regard the witnesses as such; 1st. Because the testimony shows them such: 2d. If the testimony did not show it, the court would still regard them as such, and not reverse the judgment, if the questions were proper for experts. Whether a witness is an expert, is a question for the court, and if it is denied that a witness is such, the objection should be to the witness. See cases refer red to below.
    These witnesses had long been engaged in boating, and had built boats, and were in fact experts in this matter. The whole of their testimony is not put down, and as counsel did not make the question below and have the witnesses fully examined to it, that the court might judge, they will be concluded from making such an objection now. See 1 Greenl. Ev. sec. 380, n. 3; State v. Allen, 1. Hawks 6; Mendum v. Commonwealth, 6 Randolph 704; 2 U. S. Digest, page 253, sec. 1269.
    2. It is further insisted that there was error in receiving testimony contained in John E. White’s deposition. It will be necessary for the court to read the whole of said deposition to see fully the unsoundness of the objection. Among other things, this witness was examined as to the capacity of Elijah Staats, the pilot at the wheel of the Clipper a.t the time of collision. The plaintiff below claimed that he was no pilot, and that the collision was the result of his want of skill. White had piloted with him a long time, and after having testified to his great want of capacity, etc., he was asked, on cross-examination, “ If he ever knew of any accident to happen while Staats was at the wheel.” What was the object of this question? Simply to show that Staats was a safe pilot, though John E. White thought otherwise. To remove the presumption which the defendant below would have insisted arose from the fact that no accident had befallen the boat while he had control of her, the question objected to was asked in these words: “ You say, in your cross-examination, that you never heard of any difficulty while he (said Staats) was at the wheel. Did he ever steer his watch alone ? If so, how was the water, and did he or not get into danger ?” In answer to this, the witness in substance swore, that he was never permitted to be at the wheel alone but once, and then by his want of skill he got into difficulty. This was clearly competent. It was simply disposing of a presumption that might otherwise have arisen from a previous answer by facts drawn out by another question.
    It is said that it was giving a single instance of bad management to beat down the skill of the pilot, and that nothing but his general character as a pilot, can be given in evidence. The purpose of the question was not what is represented. Had it been, it would not have been error; for it has been decided that in cases where the skill of a person is in issue, you may show his want of it by giving instances in this way. McKiney v. Niel, 1 McLean 544. That was not, however, the object of this testimony. White had piloted with Staats for the two years preceding, and the defendant below wished from that fact, and from the facts stated by White on cross-examination, to show that he really was a good pilot. The propriety of showing that, during all this time he was never permitted to stand at the wheel alone but once, and that then he got into difficulty by his unskillful management, is very apparent. He was at the wheel alone when this collision took place.
    3. It is also said, that there is error in the 2d and 3d charges asked and given for the plaintiffs below. These charges were asked just after those asked and given for the defendant below, and in reference thereto; and in judging of their correctness, it is necessary for the court to read over those charges. All they ask was given. The charges complained of, were asked in order to qualifiy those just previously given for defendant in error.
    I claim that the charges given for the defendant below, were erroneous, inasmuch as the 7th, 8th and 9th, proceed upon the supposition that a mere mistake of the pilot of the Mail (if he made one) as to the true position of the Clipper, would defeat the right to recover. Whereas, that is not law, unless such mistake was the result of a want of ordinary care, skill or knowledge. Suppose that, by the fault of the pilot of the Clipper, the pilot of the Mail, as danger was suddenly brought upon him, though using all care, etc., did make a mistake, but such a mistake as any pilot • using due care would make under like circumstances; this would not be a fault in law, nor would it deprive the plaintiff of -his right to recover.
    The case of Champlin v. Hawe, is precisely in point. 3 Car. & Payne 554; 14 E. C. L. 446.
    The court is also referred to the following cases. Thej show that there may be a mistake and the party still have a right to recover. Raisin v. Mitchell, 38 E. C. L. 254; Ingalls v. Bills et al., 9 Met. 3, 15; Jones v. Boyce, 1 Stark. 493; Lincoln v. The Saratoga Railroad Company, 23 Wend. 425.
    The last three cases show, that even where persons seated in stage coaches and railroad cars, on the appearance of danger presented without their fault, jump therefrom and are thereby injured, they can recover for such injury, although it be proved that, if they had remained quiet, no injury would have’befallen them.
    No man is in fault, if he makes use of ordinary care, skill and knowledge. The court is referred to the following cases. There are numerous others to the same effect:

      Clapp v. Young, 6 Law Rep. 115; Bridge v. The Grand Junction Railroad Co., 3 Mees. & Wels. 244; Walters v. Pleif, 22 E. C. L. 335; Butterfield v. Forrester, 11 East. 60; New Haven Steamboat Tr. Co. v. Vanderbilt, 16 Conn. 430; Marriott v. Stanley, 39 E. C. L. 563; Lane v. Abercombie, 12 Pick. 177; Smith v. Smith, 2 Pick. 622; Carsley v. White, 21 Pick. 255.
    If this were not so, no men but the most skillful or careful, could be engaged in any trade or business. No higher degree of care or skill is required of any man, or of a plaintiff, than that ordinarily exercised by the great body of careful, skillful and prudent men, in the same business or trade.
    All these instructions must be viewed together, otherwise the court will be misled. They show that the court below charged, in substance at least, that the plaintiff must satisfy the jury that he was free from fault, and that the defendant was not; that, because he was not, the collision resulted; and that a mere mistake, if it be such an one as a pilot, using ordinary care_ skill, etc., under the circumstances, would be likely to make, is not equivalent to a fault, in the sense of the law.
    The most careful and skillful men, though using all the care required of them by law, are liable to make mistakes.
    4. It is next said, that the verdict is not such an one as the court could render a judgment upon; that it is a special verdict, and that a special verdict shall find the facts. Several authorities are cited to these points. It is true, as these authorities establish, that a special verdict should find the facts and not the evidence. That is all the authorities referred to do establish: they do not affect this case.
    If the jury find facts enough to found a judgment upon, the court will enter it, though the verdict be informal or imperfect in other-respects. Hanks v. Crofton, 2 Burr. 698; Stearns v. Barrett, 1 Mason 169; Hobart 54; Petters v. Bingham, 10 N. Hamp. 517; Hodges v. Raymond, 10 Mass. 64; Thompson v. Batton, 9 Mass. 316; Fear v. Blanchard, 2 Yeates 543; Sawyer v. Hopkins, 9 Shep. 268; Montgomery v. Tillotson, 2 How. Miss. R. 215.
    So, if the language of a verdict is equivocal, the court will give it such meaning as to give effect to the verdict. Carr v. Stevenson, 5 Humph. 559; Aye v. Maxwell, 14 Verm. 14.
    The court will intend everything that may fairly be intended, to support a special verdict. State v. Fuller, 1 Bay 245.
    Every reasonable construction is to be adopted in support of a verdict. Huntington v. Ripley, 1 Root 321.
    “ We find the defendant,” has been held sufficient. Meek v. Childess, Minor 109; Taylor v. Rogers, Minor 197.
    A verdict thus: “ No cause of action,” is substantially a verdict for the defendant, and the court is bound to render judgment upon it. Fetter v. Williams, 2 Johns. 281.
    So too where a verdict, instead of finding the defendant guilty, finds for the plaintiff, it is good. Findley v. Buchanan, 4 Blackf. 12.

      So a verdict finding “ the debt charged in the declaration, to be discharged on payment of a less sum,” is good. Maulding v. Ripley, 1 How. Miss. 579.
    So a verdict for a special sum, with interest from a particular date. Bank v. Bowie, 1 McMullan 42.
    So a verdict for more than is claimed in the declaration is a. mere defect in form, and will not be set aside. Wilson v. Larmouth, 3 Johns. 433.
    The samp question in principle raised in reference to this verdict, was raised in the case of McMichen v. Amos, (4 Randolph 137.) This case also shows that the verdict in the case before the court, is not a special verdict in the strict sense of the term. It is a general verdict for the plaintiff, and general damages are found for him; but the jury also find, (and it is in this only, that there is anything resembling a special verdict,) that if the plaintiffs are confined to the bill of particulars, they then find another sum. All the facts are found, and a question of law is presented to the court by the verdict, and as the court decide that, the judgment. is to be the one or the other of the sums thus found by the jury.-
    It is what is called a general verdict for the plaintiff, subject to the opinion of the court as to the point of law presented by it. McMichen v. Amos, 4 Randolph 137; 1 Archbold Practice 192.
    There is nothing uncertain or equivocal in this verdict — no point of fact left out by the jury. Indeed there is nothing that can be said against it.
    As the court shall be of opinion upon the point of law, so - must the one sum or the other be rendered in judgment for the plaintiff.
    5. This brings me to the last objection taken by counsel for plaintiff in error.
    It is said that the plaintiff cannot recover a larger sum than that claimed by his bill of particulars, nor could he have amended it.

      On the contrary, the position taken by the defendant in error is, that what is generally known as a bill of particulars, cannot be made in such case, and, therefore, is not required by the statute.
    It is maintained that there are numerous cases where a remedy under the statute is given, in which no bill of particulars, in the ordinary meaning of that term, can be given, and therefore it is not required in such cases, further than that the plaintiff should clearly state the subject for which suit is brought, and swear to some amount by which the sheriff can regulate his bond.
    It is evident that, in all actions relating to personal injuries, the extent of the damage cannot be learned with any certainty, until long after suit should be brought. A man’s affidavit, then, in relation to such a matter, can be nothing but the merest conjecture. As the statute requires a positive oath, and not one to belief, I am led to the conclusion that no such thing as a bill «of particulars, sworn to, was ever contemplated in such cases. It is easy to foresee the disastrous effect of a decision that should confine a party to the amount which he might swear to.
    In all personal actions, and in other cases, his damage depends so much upon his own feelings, that, no matter what he might swear to, no indictment for perjury could ever reach him. The amount sworn to would, therefore, often be so large that it would be impossible for the parties to give bond; and in cases, particularly where the plaintiff is irresponsible, (and he is not required to give any security,) the greatest injury would be done to the steamboat interest, as well as to the general cause •of justice. Such a decision would be an inducement to perjury, defeat many an honest claim, and a great part of the claims -of conscientious men. Often, indeed, in cases of injury to property, the result would be a total denial of justice; for long before the damages could be ascertained with any certainty, the •boat would be in parts unknown, sold under sheriff’s sale, sold in some other parts, or in some other way taken beyond any process under this statute. >

      The court may be aware of the fact, for it is a fact, that in almost all great collision cases, the boat doing the injury is taken away as soon as she can be got away, and often even before a writ can be taken out for her.
    Take a case like the one before the court. The plaintiff’s boat was a complete wreck. It was supposed, however, that she could be repaired; but an attempt to do so, and a more thorough examination, showed that it could not be done. If it could have been done, nothing but a general sum for his damages could be given, and one which would as probably be wrong as right. Suppose the boat had been entirely lost, what could be done in the way of a bill of particulars ? A party could only give a lumping sum, which could be no guide.
    But I claim further, that a party is not bound by the exact amount of his bill of particulars in any case. He cannot re■cover for other items, but for the price or value of each item, he can recover according to his proof.
    And so in relation to the amount of damage named in the bill of particulars in this case.
    Where the matter in controversy is one of account, then a party would be compelled to give a bill of particulars, in the strict sense of that term. Yet even here he could recover a different price than the one named therein. But in matters of tort, a bill of particulars, in the strict sense, cannot be given, •and, therefore, is not required by the statute.
    The statute contemplates a judgment that the bond would •not satisfy, for that is satisfied by the return of the boat. And it is provided by the statute, that if the boat does not sell for enough to satisfy the judgment, the balance is to be collected as in other cases. In a case like .this, as between the plaintiff .and the boat, I claim that any amount not above the ad damnum, can be recovered, though larger than the amount named in the bond.
   Spalding, J.

This is a case of collision between the steam boats Clipper and Mail, on the Ohio rivei;. The plaintiff below •was the owner of the Mail, and instituted proceedings to recover damages for the injury sustained by his boat, under the act of Feb. 26, 1840, entitled' “ an act providing for the collection of claims against steamboats and other watercraft, and authorizing proceedings against the same by name.”

By the third section of said act, it became necessary for the plaintiff to file, with his praecipe, “ a bill of the particulars of his demand, verified by his own affidavit, or that of his agent or attorney, or other credible person.”

Under this requisition of the statute, the plaintiff filed his affidavit, setting forth that, “ on the 20th of March, 1844, he was the owner of the steamboat Mail; that, while the said boat was safely and prudently being navigated on the Ohio river, near Tiltonsville, the said steamboat Clipper carelessly, wrongfully and illegally ran into the said steamboat Mail, and thereby greatly damaged her, the said Mail, to the amount of two thousand dollars,” etc.

The writ and declaration both set the damages at six thousand dollars.

On the trial, it became important to ascertain whether the collision arose from the fault of the Clipper alone, or from the mismanagement of the Mail, or from the fault of both boats combined.

To this end the witness Haldeman was called, who testified that he had been an engineer and captain of a steamboat for ■sixteen or eighteen years, and had built several boats as proprietor ; that he was not present at the time the boat owned by the plaintiff, received the injury for which suit was brought, but that he saw the boat after she had been injured by a collision with the defendant, and his attention was called to the break or fracture produced by that collision. He was then asked, by the counsel for the plaintiff, the question to which exception is taken by counsel for plaintiff in error, in their first assignment:

From the breach or fracture in the injured boat, how, or in what direction the blow she received, appeared to have been given ?”

The witness answered that “ the blow appeared to have been given nearly head on — rather quartering.”

It is objected that this witness could only be asked “ to de-> scribe the breach or fracture,” and that the jury should have been left to form their own opinion whether the blow appeared to have been given nearly “ head on ” or not.

1 think the distinction attempted to be taken, is over nice.

It may easily be perceived how an experienced boatman could judge of the direction of the body in motion, that displaced a portion of the plank and timbers of the injured vessel, as a surgeon can tell from what quarter a blow has been aimed, that inflicts a wound upon the person ;■ but a mere description of the broken fragments, in the one case, or the lacerated integuments,-in the other, will seldom, if ever, enable a jury to say how the disturbing cause made its approach.

The truth is, you gain very little from the observation of the witness, in cases of this sort, if his opinion is to be entirely excluded from the jury. If he be confined, in his narration, to what he saw — the position of the broken timbers — the jury must necessarily be left in the dark as to the subject-matter sought to be elucidated.

The objection to the testimony of the witness Christy, is equally untenable. He stated that he had been and was the engineer of a steamboat; that he had seen the boat, injured by the collision for which the suit was brought, called the Mail, both before and after the collision; that she had been torn up after the injury; that, in her crippled condition, he considered her worth $8,000.

He was then asked to state the condition of the boat, and “ whether or not she was worth repairing, after the injury.” The witness stated the condition of the boat, and said “ she was not worth repairing.”

I see no impropriety in this course of examination. t

With the fullest description of the nature and extent of the injury, the triers of the case, farmers and mechanics, perhaps ignorant of such matters, would be liable to err in their estimate of damages, from a supposition that the wreck was susceptible of being repaired, and put to use for purposes of commerce.

The opinion of one conversant with steam navigation, and who had examined the shattered vessel, was necessary to instruct the minds of the jury and enable them to arrive at a correct conclusion upon that subject.

It is said these witnesses were not'" called to the stand a8 experts.” They seem to have been called for their familiar acquaintance with steamboats in general, and with the nature ■of the injury done to the “ Mail;” and that was the kind of information which they strove to impart to the jury — information derived from facts which they had seen and known, and from conclusions which their own experience enabled them to draw from such facts.

I see no objection to calling these men “ experts ” if the name will render *.their testimony more unexceptionable; but it is not true as a legal proposition, that no one but “ an expert ” can give an opinion to a jury.

Prom the very necessity of the case, testimony must occasionally be a compound of fact and opinion.

I do not know how I can better illustrate my meaning than by the use of the language of the court in McKee v. Nelson, (4 Cowan 356,) which was an action for the breach of a marriage promise. The witness, on the trial, had given his opinion that the plaintiff was sincerely attached to the defendant, and this was assigned for error. The court say, “ It is true as a general rule, that witnesses are not allowed to give their opinions to a jury, but there are exceptions, and we think this is •one of them. There are a thousand nameless things indicating the existence and degree of the tender passion which language ■cannot specify. The opinion of witnesses on this subject must be derived from a series of instances passing under their observation, which yet they never could detail to the jury.”

We do not-regard the question put by plaintiff to the witness White, referred to in the assignment, as objectionable. It appears that he was introduced as a witness to show that Staats, the man who had the helm of the Clipper at the time of the collision, was not a skillful pilot. On cross-exapaination he was asked by defendant’s counsel, “ if he ever knew of any accident to happen while Staats was at the wheel.” To this witness answered in the negative. The plaintiff’s counsel,, then, to rebut the effect of this last question and answer, put the question which is objected to in said third assignment.

“ You say in your answer to the cross-examination, you never heard of any difficulty which he (Staats) had. Did he ever steer alone his watch ? If so, how was the water, and did he or not, get into danger ?”

The witness replied, I fetched him one trip with me on the-Montezuma. I was up with him till we came below Marietta, the principal part of the time. After we got below there, I trusted him a little more .to himself — the water was better. Well, we had no trouble until we came down to Manchester. He came pretty near running over the Swiftsure, but he didn’t do any hurt,” etc.

The door was fairly opened for this question and answer, by the counsel for defendant, in the course taken on the cross-examination.

It is claimed that the judge of the superior court erred in his charge to the jury, in this, that he instructed the jury that “ if the danger of collision arose suddenly and by the fault of the defendants, the plaintiff is entitled to recover, even if he-did make a mistake, unless such mistake contributed to the injury and was such an one as pilots using ordinary care, skill, prudence and knowledge should not, under the circumstances, have made; and if any such mistake is set up in the defense, it is for the defendant to satisfy the jury that it was made.”

And again, that “ if the defendants claim that they were in. •the wrong, yet that the plaintiff was also in the wrong, and that therefore it is a case of mixed fault, it is for the defendant to show satisfactorily to the jury wherein the fault of the plaintiff lay.”

It must be borne in mind, that the court gave these instructions to the jury by request of counsel for plaintiff, but qualified in both instances by language like this:

“ It is incumbent on the plaintiff, in the first place, to show that he navigated skillfully, prudently and diligently. In other words, that he was without fault.”

I am at loss to know how the counsel for defendant below, •could take exceptions to this charge.

The jury were instructed by the judge, in terms, that the plaintiff must fjrst show that he was without fault — if, after this, there was any pretense set up by defendant that the plaintiff was in fault, it was incumbent on him to show satisfactorily to the jury wherein the fault of plaintiff lay.

This could not have misled the jury, and was as favorable to defendant as he had any right to claim under the circumstances.

As to the objection raised against a judgment upon the verdict : The bill of particulars is required to be filed and to specify the sum demanded by plaintiff, for two reasons: First. That the defendant may pay off the claim when process is served. Second. That if the claim be not paid, bond may be given in double the amount.

In the present case, the owners of the Clipper saw fit to contest the entire claim of plaintiff. They might have settled it at the commencement of the suit for two thousand dollars, the amount of damage which the plaintiff inserted in his affidavit.

It turns out, upon more mature investigation, that the plaintiff estimated his damages too low.

His counsel, however, have taken the precaution to set the •sum high enough in the writ and declaration.

The jury return in their verdict an assessment of the plain" tiff’s actual damage at the sum of $3,760.

But, they say further, if the damages are to be confined tc the bill of particulars, then we assess the same at $2,507; and leave the court to decide which sum the plaintiff is entitled to receive.

The court below decided that the plaintiff was not limited in his recovery, to the amount stated in his affidavit, and entered judgment for the actual damages returned by the jury. In this the court acted correctly.

The plaintiff cannot, in general, recover for other items than those stated in his bill of particulars; but he may prove a greater value on the trial than he has specified in his bill, and he is at liberty to recover according to his proof of value, if this does not exceed the amount laid in the declaration. But this is an action of trespass, and it would be extraordinary, indeed, if the plaintiff should set forth in his affidavit the actual amount of damages which a jury would assess in his behalf.

The truth is, an unliquidated claim in damage is of too indefinite a character to form what is technically called “ a bill of particulars.”

The plaintiff can only state within bounds what he may, at the time, be willing to receive as satisfaction for his injury. This will enable the defendant to settle the claim, and save costs. It will also aid in fixing the bond which is to be taken in double the amount, but it-will not have the effect to restrict the finding of the jury.

It is said that in this way the bail may be injured. Not so. The bail undertake for double the amount set forth in the bill of particulars, and to that extent will be held liable, but no further. If the plaintiff should recover ten thousand dollars, when he had stated but two thousand in his bill of particulars, the bail of defendant could be holden for no more than four thousand, or double the sum claimed to be due. We have looked through the whole case, and are satisfied that the court below very properly refused a new trial.

Judgment affirmed.


author: Hitchcock, J.

text:
    Eli W. Gwynne v. Christopher Neiswanger.
    When land has been sold for taxes under the act of January, 1827, for the remission of penalties and for the sale of land for taxes, and the act supplementary thereto, passed February 12th, 1829, and has been conveyed pursuant to the sale, the deed cannot be invalidated or affected by any error previously made in listing, taxing, selling or conveying said land.
    When land has been sold under the aforesaid statute, within the Virginia Military District, while the title of the former proprietor rests in entry and survey only, the conveyance in pursuance of the sale vests in the purchaser the title which was vested in the former proprietor.
    Such is an equitable title merely, and if the former proprietor of the entry and survey, or his assignee, subsequently receives a patent, he will hold the legal title in trust, and may in equity be compelled to release or convey to the purchaser at tax sale.
    This is a bill in chancery, reserved in Madison county.
    The object of the bill is to enjoin a judgment in ejectment, recovered by the defendant against the complainant, and to compel the defendant to convey or release to the complainant all his interest in the land recovered in the ejectment case.
    The bill sets forth an entry by David Ross, as assignee, about June 22d, 1810, Number 6780, for six hundred and forty acres of land, lying in the Virginia Military District, and in Madison county, which was surveyed about April 26, 1816.
    That all the preliminaries having been complied with that are required by an act entitled an act for the remission of penalties and for the sale of land for taxes, passed January 29,1827, and the auditor of Madison county having omitted to sell said land for taxes on the second Monday of December, 1828, the said auditor did, in pursuance of an act entitled an act supplementary to the act for the remission of penalties and for the sale of land for taxes, passed January 29,1827, and which last mentioned act was passed February 11, 1829, having first duly advertised the same for sale for four weeks, etc., sell said land for the taxes due thereon prior to 1820, etc.

      That said land was sold to Lyne Starling, a deed made to him, and the land conveyed by him to Eli W. Gwynne — the entry, survey, deed from the auditor to Starling, and from Starling to Gwynne, and the transcript from the record of the auditor of Madison county, are all made exhibits.
    The bill avers that subsequently to said tax sale, said Neiswanger obtained a patent for said land, and thereupon brought his action of ejectment therefor, and recovered a judgment, etc., and prays an injunction and a conveyance of the legal'' title, etc.
    The answer admits the entry, survey, patent to Neiswanger,. and judgment recovered by him in ejectment.
    It denies, however, the correctness of the preliminary proceedings, prior to the tax sale, and denies generally the legality of the sale.
    To this answer there is a replication.
    There are filed in the case as» evidence,
    1st. A certified copy of a judgment against David Ross in 1823, for the taxes due on this land.
    2d. A return in 1824, by the auditor of Madison county, to-the auditor of State, of his having offered this land for sale, to-pay the judgment, and that it was not sold for want of bidders.
    3d. A certified copy of the order of sale issued by the clerk of Madison common pleas to the auditor of the county, directing a sale, under the judgment, and the return of the auditor thereon.
    4th. A certified copy of the list sent by the auditor of state-to the auditor of the county.
    5th. A record of the sale to Lyne Starling.
    6th. A deed from the auditor made in pursuance of the sale.

      Swan Andrews, for complainant.

      S. Stanbery, (attorney general,) for defendant.
   Hitchcock, J.

It will he seen by the statement of the case. that the complainant claims an interest in the land in contro versy, under a deed from a purchaser for taxes. The land so sold was sold under the law of January 29th, 1827, and at the time of sale the title was in the United States. It is sit mated in the Yirginia Military District, and was entered with the surveyor of the district, on the 22d of June, 1810, in the name of David Ross assignee, on three military warrants and part of a fourth — No. of entry 6780, — quantity of land 640 acres. On the 26th April, 1815, the land included in the entry was surveyed, and the survey recorded on the 29th September, 1817. Under the laws of the state, the land was entered for taxation in the name of David Ross, and the taxes being entirely unpaid, it was eventually sold in 1829. The complainant’s title depends upon the validity of this sale.

Subsequent to this tax sale, Neiswanger, the defendant, became interested in the aforesaid entry and survey by assignment, and procured to himself arpatent for the land as assignee, and thereby became invested with the legal title. Receiving the patent under these circumstances, it is claimed by complainant, that he holds the title in trust for him, and the court are called' upon to decree accordingly.

It is contended for the defendant, that this is not such a case as requires, or will even authorize, the interference of a court of equity. That the title which a purchaser at a tax sale requires, is a strictly legal title. That if defective, the defect cannot be cured by any action of this court, as a court of chancery. And further, that under the act of 1827, the law under which this land was sold, the deed of the county auditor is declared' to vest in the purchaser a good title. The words of the statute are, “ which deed shall convey to the purchaser or purchasers, assignee or assignees, a good and valid title to the land sold, and such deed shall be received in all courts of this state, as good evidence of title to the purchaser or purchasers, his or their heirs, assignee or assignees.”

The case is not without difficulty, in the view which is taken of it by defendant’s counsel, and.it may seem somewhat extraordinary that application should be made to a court of chancery, to remedy any defects in a title derived from a sale for taxes. Still, if a purchaser at tax sale acquires any interest by the purchase, it is not readily seen why he may not, in a court of chancery, be protected in that interest. In the case of Wallace v. Seymour & Remick, this court say, in speaking upon this subject: Although the effect of the auditor’s deed is only to convey an equity, where the former proprietor had no greater estate, yet, this is only between the legal estate and the purchaser. The tax deed purports to convey a legal estate. It is made by authority of the state, and as to all the world except him who has the legal interest, would convey a legal title. Further: should the former proprietor afterwards obtain his patent, although vested with the legal title, he must hold it in trust for the purchaser at tax sale. There is a difference in sales for taxes and upon execution. Upon the latter, equities cannot le sold, while express provision is made in the statute for selling any interest which a man may have in lands, for taxes.” 7 Ohio Rep., part 1, page 156. Here the court recognize the principle that a tax purchaser may, in a certain state of case, have relief in chancery.

It is proper to say, however, that the laws in force, under which the land referred to in that case was sold, contained a provision that the auditor’s deed should “ convey to the purchaser all the right, title and interest of the former proprietor, in and to the land so sold.” I do not know, however, that this can make any difference. It has ever been considered by this court, that such deed, if it conveyed any thing, did convey all the interest of the former proprietor, and the question has been agitated whether it did not, in fact, convey the legal title, although that legal title, at the time of sale, was in the government of the United States. In the case of Douglass v. Dangerfield, (10 Ohio Rep. 152,) cited by defendant’s counsel, the court seem to have been inclined to this latter opinion. But in the case of Neiswanger v. Gwynne, the court held that the purchaser at tax sale received no better title than was vested in the former proprietor, at the time of sale ; that such purchaser could acquire no legal title, so long as the title was in the government at the time of the sale; and that the only redress which such purchaser would have against a subsequent patentee was in chancery. 18 Ohio Rep. 74.

In the case last referred to, the very title now before the court was in controversy. The defendant was prosecuting an ejectment against the present complainant, claiming under his patent. The complainant attempted to defend under his tax title. This defense was resisted, on the ground, not that there was any thing irregular in the sale for taxes, but on the ground that the fee of the land was in the government, at the time of the tax sale, and that therefore, the present complainant — defendant in that suit — had no legal title. The court so held, and the complainant was informed, in substance, that he had no redress, except in chancery ; and in the ejectment suit, the plaintiff had judgment.

In this case, the court held expressly, that under the tax sale, and the deed pursuant thereto, the complainant acquired no legal title, thereby denying the soundness of the position now assumed by defendant’s counsel. Not only so, the court strong ly intimated, if it did not directly so decide, that the complainant was entitled to relief in chancery, provided there was no defect in the tax sale.

The complainant, in consequence of the intimation of the court, next filed the present bill. This bill was met by a de•murrer. After hearing in the court of common pleas, the case was appealed to the supreme court, and reserved for decision in bank.

The case came on for hearing at the December term, 1846, and was fully argued by counsel. On the hearing of the demurrer, it was insisted by defendant’s counsel, as it is insisted now, that complainant’s title was purely legal. The court, however, overruled the demurrer, and ordered the defendant to answer. The reasons for this action of the court are fully given in the reported case, (15 Ohio Rep. 367.)

Now the ease comes on for hearing upon the bill, answer, replication, exhibits and testimony, and still the same question is presented, which has been twice decided upon this very title: whether the remedy of the complainant is at law or in chancery ? It seems to the court that we are precluded from considering this question, under the circumstances. It has been deliberately settled, and we feel ourselves -bound by the decisions already made.

It now remains to inquire, whether the complainant shows in himself a good equitable title to the premises in controversy. He first produces a deed from the auditor of Madison county, to Lyne Starling, reciting, among other things, that the land in controversy had been sold on the 14th day of December, 1829, to the said Starling, for the taxes due thereon, pursuant to the acts of January 29, 1827, and February 11, 1829 — reciting, further, the titles of these acts; by which deed the land is conveyed to said Starling; also a deed subsequently made by Starling to himself. Sundry other documents are introduced, purporting to be copies from the record of the court of common pleas of Madison county, copies from the books of the auditor of said county, and also, copies from the books of the auditor of state. The design of introducing this evidence is, to show that the sale of the land was legally made. It is unnecessary, however, to ■ notice these items of evidence specifically, except so far as objections are made to them by defendant’s counsel.

Before considering these objections, however, it may be well to examine the laws under which the land was sold. Those laws are the act of January 29, 1827, “ for the remission of penalties and for the sale of land for taxes,” and an act supple mentary thereto, passed February 12,1829, (Chase’s Statutes, 1560 and 1628.)

These acts have reference to no other lands than those upon which taxes were due and unpaid prior to 1820. And any one who has any curiosity upon the subject, will, by looking into the legislation of the state, both before 1820, and from that period up to the time of the sale of the land now in controversy, find the great difficulty which the legislature experienced, in enforcing the payment of these taxes which were due upon land prior to 1820. Although the policy of the state from the organization of its government, had been to sell land for the taxes, if those taxes were not paid as they became due, this policy was for a time suspended and these sales were postponed from time to time, and for many years no sales were made. These postponements were occasioned undoubtedly on account of the fact that the courts of the day were very astute in detecting errors, and if any, the least error could be discovered in the course of the proceedings, tax sales were declared void. To such an extent did this practice prevail, that at length it was pretty generally believed 'that no valid title could be acquired under a tax sale. This difficulty led to the legislation ■upon this subject which is found in our statute books after 1820, and which by many has been thought to be somewhat stringent. But I have never known it to operate injuriously upon any one who was prompt in the payment of his taxes.

The act of 1827, as before remarked, relates solely to land upon which the taxes previous to 1820 were in arrear, as appears from the first section.

The 2d section authorizes payment of all arrearages of taxes upon these lands, to be paid into the state treasury until the first day of August, 1828, and into the respective county treasuries until the first day of December of the same year, and where the taxes are paid by those respective days, all penalties which had accrued for non-payment previous to 1820, were to be remitted.

In the next section, each county auditor is directed, before the first day of August, 1828, by the examination and comparison of duplicates, and documents in his office, and from such comparison and from such information as he may be able to procure, to make corrections in such delinquent land, and prepare a list of such lands, on which the taxes appear to be due* and immediately transmit the same to the auditor of state.

By the next section, the auditor of state is directed immediately after the receipt of this list, to compare the same with the duplicates and documents in the office, “ and transmit to the several county auditors, a correct list of all the lands in .their respective counties, on which arrearages of taxes .are due and unpaid previous to the year one thousand eight hundred and twenty,” whether the said-lands have been forfeited or not, “ charging each tract or part of a tract with all such arrearages of taxes and interest, which may actually remain due and unpaid at that time.”

The act then goes on to provide that if the taxes are not paid by a specified time, the lands shall be sold. The steps preliminary to a sale are prescribed, and after sale the county auditor is directed to make a deed to the purchaser, “ which deed shall convey to the purchaser or purchasers, his or their heirs, or assignee or assignees, a good and valid title to the land so sold; and such deed shall be received in all courts in this state, as good evidence of title to the purchaser or purchasers, his or their heirs, or assignee or assignees; nor shall the title conveyed by said deed to the purchaser or purchasers, his or their heirs, assignee or assignees, be invalidated or affected by any error previously made in listing, taxing, selling or conveying said land. Such is the law under which this land was sold, and this court is bound to administer it.”

The act of February, 1829, merely extends the time within which such of these lands, as had not already been sold, might be sold, and this extension of time is one year. And on the land not so sold, another year is given to pay the taxes.

It is first objected that there is nothing to show that the county auditor, on or before the first day of August, 1828, sent to the auditor of state a list, as required by the second section of the act. A transcript from the books of the county auditor is given, which purports to be this list. The time in which it was sent does not appear, but I suppose under this law we may venture to presume that it was sent in time-, and that the officer performed his duty. But it is said that this list is not in ae•cordance with the law, because it does not show the taxes in arrear prior to 1820, and the years for which such taxes were ■due. It does show that the taxes were in arrear prior to 1820, and the aggregate amount of taxes due-at the time the list is made out, including as well those before as those after 1820. It may not be technically correct, according to the statute, but if irregular, it is one of those irregularities for which we are not permitted by law to invalidate the deed.

The object of this list was unquestionably intended as a doc ument to assist the auditor of state in making out the list which was finally to be placed in the hands of the county auditor for collection. The auditor of state was not to be governed by it, ■however, but might rely upon other sources of information within his power, or reach. The thing to be ascertained was, ■the precise amount of taxes due upon the land, which should ■be offered for sale. And I do not apprehend that the sale would be avoided even had no list been transmitted to the ■auditor of state by the county auditor.

It is next objected that the list from the auditor of state, was •not transmitted to the county auditor in time. It seems to have been received by the county auditor on the 7th of October, 1829. It is claimed that it should have been transmitted •one year earlier. It was necessary that it should be in the hands of the county auditor in time for him to advertise. He •did not sell in 1828, possibly because he had not received this list; probably he did not advertise in that year. There is •nothing to show that he did. In consequence of this failure to sell, the law of 1829 was passed, and after the passage of this •law, the list might well be transmitted. The construction put upon this law of 1829, by counsel for defendant, would not ■carry out the intention of the legislature.

Again, it is objected that the hour of the day at which the sale is to commence, is not named in the advertisement. And again, that the return of the auditor does not show that the sale was at public auction.

The first was not necessary, and the last will be presumed.

The last objection is, that the proceedings under the act of 1827, beginning with the list from the auditor of state, do not show that the land was in arrear for the taxes previous to 1820, or that the amount charged was actually due as charged upon the state auditor’s duplicate, while the defendant has introduced copies from the book of the auditor of state, showing that the amount actually due was much less than the amount charged upon the list or duplicate, under which the land was .sold.

It would seem that counsel has not noticed a part of the evidence in the case. On the 30th of January, 1822, an act was passed relative to these lands which were in arrear for the taxes prior to 1820. (Chase Stat. 1216.) This act provided for a proceeding in court for the collection of these back taxes, through the instrumentality of a judgment, and order of sale. The papers in the case show that such a judgment was actually recovered against this identical land, in the court of common pleas of Madison county, at the November term, 1843, for $276.55, that being the amount of taxes, interest, etc., then due. Upon this judgment an order of sale was issued, the land was offered for sale, and not sold for want of bidders, etc. Return was made to the auditor of state. Under the law of 1822, the land having been thus offered for sale, and not sold for want of bidders, was forfeited to, and became the property of the state. At the time the law of 1827 was passed, it was the property of the state, although it was to be entered upon the auditor’s list, therein provided for. It stood as forfeited land at the time the list was made out. And it .would seem to me that this furnished sufficient evidence that the land was in arrear for taxes previous to 1820. And further, the amount of tax was fully equal to that charged in the list made out under the law of 1827. These papers were before the auditor of state when he made out the list upon which this land was sold, and they are now before the court. The list of judgments, alone, without any other list from the auditor of the county, would 'furnish the auditor of state with sufficient information, from which to make out the list for the auditor of the county. *

There was no law of the state previous to the act of 1827, under which such lands as had been forfeited under the act of 1822, would be sold. They remained from the time of the forfeiture, the property of the state, and the state had perfect right to direct their sale, as was done by the act of 1827.

The objections which are raised by the defendant, are objections' which do not go to any substantial defect in the proceedings. They are rather to matters of form than of substance. Even if well taken, they would not justify this court in declaring a deed invalid, which the law under which 'it was made declares shall not be invalidated for “ any error in the listing, selling, or conveying” said land.

In the opinion of the court, the conveyance by the auditor of Madison county to Lyne Starling, vested in him all the interest of the former owner of the entry and-survey. That interest was conveyed by Starling to the complainant. It was not a legal, but an equitable interest. It was, however, a perfect equitable interest, and the defendant having subsequently acquired the legal title, he holds in trust for the owner of th® equitable interest.

A decree may he taken accordingly.

N. B. A motion for rehearing was made in this case, unde* the statute, which was granted and the case continued.