text:
    In Bank.
    Dec. Term, 1846.
    John Walke and others vs. The Bank of Circleville.
    Where a writ bears the proper test, and is signed by a deputy clerk, it is sufficient 5 although it would be more technically corroct for the deputy to sign for his princi- , pal.
    It is sufficient service if the sheriff return that he left a copy of the writ at the residence of the defendant.
    This is a Writ of Error, directed to the Court of Common Pleas, of Pickaway County.
    The original action was Assumpsit.
    The declaration contains a special count upon a bill of exchange, and the common counts. The writ bears date on the seventh of June, 1840; declaration was filed the twelfth day of July following. At the November term of the Court of Common Pleas of Pickaway county, judgment was entered by default against the defendants for $5,402.55, damages and costs.
    To reverse this judgment, this writ of error is prosecuted, and the errors assigned are:
    First: That the writ of summons against the said John Walke and others, is not signed by the Clerk of the Court of Common Pleas of the said county of Pickaway, and State of Ohio, and that said writ is void.
    Second: That the return of the sheriff upon said writ of summons issued against Anthony Walke, one of the plaintiffs in error, does not show that a copy of said writ of summons was served personally upon said Anthony Walke, or left at his usual place of residence.
    Third: The precipe filed in said cause, and the indorsement upon said writ of summons against the plaintiffs in error, specifies only, as the cause of action, a bill of exchange, without the addition of the common counts, or any of.them, while the declaration adds the common counts in full; and the judgment is taken by default, without any actual appearance of the plaintiffs in error.

      J. II. Geiger, and Swan &f Andrews, for Plaintiffs in Error.
    First: The test of the writ, and the signing by the clerk, are distinct requirements of the statute.
    The statute of March 8, 1831, (Practice Act,) section first, provided that, “ all writs and process, issuing from the Supreme ‘ Court, shall bear test by the Chief Judge thereof; and all £ writs and process issuing from.Courts of Common Pleas, shall ‘ bear test by the President of said courts; which said writs £ and process shall be under the seal of the court from whence £ they issue, and be signed' by the clerk thereof; and all writs ‘ and process shall run in the style of the £ State of Ohio,- £ county, ss.,’ and shall be dated of the day on which the same £ may issue.” '29 Statutes, 58.
    This act was repealed April 1, 1837, by an act passed March 14, 1837, in which it was provided, that ££ all writs and process ‘ issuing from the Supreme Court, or Courts of Common Pleas, ‘ shall be under the seal of the Court from whence the same £ shall issue, and shall bear test and be signed by the Clerk of £ the Court issuing the same; and all writs and process shall £ run in the style of the £ State of Ohio,-county, ss./ and £ shall be dated of the day on which the same may issue.” Swan’s Stat. 690.
    Thus it appears, that the test and signature are substantially different things, and neither can be dispensed with.
    Second: The deputy, as such, cannot sign process, except in the name of the principal.
    The statutes in relation to the powers of clerks’ and sheriffs’ deputies are identical. See Swan’s Stat. 284, 285, of which section third reads as follows:
    ££ The sheriff of any county may appoint one or more depu- £ ties, to be approved by the Court of Common Pleas, or Asso- £ date Judges of sudi county; and the clerks of the Supreme £ Court, and Courts of Common Pleas, may each appoint a £ deputy, to be approved by their respective courts.” And it is provided by sections fourth and fifth, ££ that the 'appointment ‘ of every such deputy shall be evidenced by a certificate £ thereof, signed by his principal, and shall continue during the £ pleasure of the principal; and every principal may take such £ bond and .security from his deputy as he shall deem necessary £ to secure the faithful discharge of the duties of his appoint- £ ment; and the principal shall, in all cases, be answerable for £ the neglect of duty, or misconduct in office, of his deputy and ££ that every such deputy shall, previous to entering on the £ duties of his appointment, take oath or affirmation faithfully £ to perform all the duties of his appointment; and when so £ qualified, the deputy may do and perform any and all of the £ duties appertaining to the office of his principal.”
    That the sheriff’s deputy, as such, cannot sign except in the name of the principal, is fully settled in the case of the Lessee of Anderson v. Brown et al., 9 Ohio Rep. 151; in which it was held, that although a deputy sheriff could make a deed in the name of his principal, yet a deed executed by a deputy, in his own name as deputy, and not in the name of his principal, was void, and on the general ground that, where delegated authority is exercised, it must be exercised in the name of the principal. We suppose this case to be identical in principle with the one before the Court.
    So the return to a writ by a person who signs himself ££ deputy sheriff,” is erroneous for the same reason. See Ryan v. Eads, Bre. 168, where it is held, that a return to a writ ££by a person who signs himself deputy sheriff,” is ££ clearly erroneous ;” for ££ a deputy sheriff can only act in the name of his principal.” Also, see Gilman’s Dig. 637.
    So also in Simonds v. Gatlin, 2 Caine’s Rep. 61, where a return had been made by a deputy sheriff, in his own name as deputy sheriff, the Court held, that ££ when a man acts in con- £ templation of law, by'the authority and in the name of an-
      ‘ other, if he does an act in his own name, though alledged to f be done by him as attorney, it is void. In the case of Fron‘tin v. Small, the attorney executed a lease in her own name, c although stated to be made for and in the name of the prin- ‘ cipal, and the lease was held to be void, because made in her ‘ own name. This case was recognized as good law so late as 4 the case of Wilks v. Back. This return, therefore, is not an ‘ act of the sheriff, of which we can take notice.”
    Third: The next question is as to the sufficiency of a sheriff’s return, when it does not show a "personal service, or that a copy was left at the usual place of residence of the defendant.
    It is very evident that, in this case, the return of the sheriff may be true, and yet the statute may not be complied with. This identical question was decided in Franklin county, by the Supreme Court, in the case of Ingram v. Wilcox, in the year 1826 ;■ present, Judges Pease and Hitchcock. The return in this case was, that the' process was “ served by leaving'a copy at the defendant’s house.” The statute then in force required that it should be left at his “ usual place of abode.” A certified copy of the record in this case will be produced on the hearing.
    Fourth: The precipe filed in this case, and the indorsements upon the writs, show one cause of action, to wit: a bill of exchange. The declaration not only embraces this, but also other causes of action, by adding the common counts.
    If this can be done, a party apprized of one cause of action, by the indorsement upon the writ, and willing that judgment should go against him by default, for that cause of action, may, without having received any notice whatever of any other cause of action being involved in the case, find a judgment by default taken against him, not only for the cause of action specified upon the writ, but upon as many other causes of action as the plaintiff may see fit to offer in evidence, and can so offer under the common counts.

      Supposing that the object of the statute in requiring the cause of action to be stated in the precipe and indorsed upon the writ, is to give the defendant notice of the cause of action on which the plaintiff relies, we think the declaration cannot introduce any other.

      II II. Hunter, for Defendant.
    The two first errors assigned are precisely.the same in effect, one with the other, viz: that the writs of summons are not signed by the clerk.

    The statute (Swan’s Stat. 690, sec. 152) provides, “that all ‘ process shall be under the seal of the Court, &c., and shall ‘ bear test, and be signed by the clerk,” &c.
    These writs are signed and sealed, as follows:
    “Witness William P. Darst, clerk of,” &c., “this 7th June, 1842. [l. s.]”
    “ Geo. W. Jones; Deputy Clk.”
    The objection is, that this is not signed by the clerk, Wm. P. Darst. But is it not a signing by him, in legal effect ?
    It will hardly be pretended that process may not be issued, signed and sealed in the name of the clerk, by his deputy. If. it should be so contended, I would' still think it unnecessary to disprove so absurd a proposition by argument.
    The objection intended is, I suppose, that the signature, “Geo. W. Jones, Deputy Cl’k,” is not a signing by “ Wm. P. Darst, Clerk: by Geo. W. Jones, Deputy.” Even that might bo admitted, if the name of the clerk did not appear; but it does.
    The rule relied upon is, that the act must appear to be that of the principal, and not of the deputy.
    I say the act does appear to be the act of the principal.— What else can be said of those terms: “ Witness Wm. P. Darst, Clerk ?” Will it be said that this is what is meant in the statute by the test of the writ ?

      - If so, I answer that 'the statute does, hot .provide that the name of the clerk shall, constitute: a part'of the test. It is all a 'matter of-form,- without .any substance whatever, provided it. be,'in fact, the act of .the-proper officer., or his-legal deputy ; and that • this was so,.in fact, is not denied.'. The question.is upon form. • Now;: I say, this would be.a very good form under the' Statute;' .- ■’ ■ . : '
    ‘¿.Tested, this:' — -¿-.'day .'of- — —, A. D. 18—
    “By Wm;.P. Daírst, Clerk. ;

      “.Geo. W. Jones,.Deputy.”.'
    What difference is there, except in the order in which the words are written-down, between this and the writ complained' óf?. — hviz;-
    ■ “Witness Wm-'P. Darst, Clerk, this.— day of ——, is — -.- '-- ‘ " '• a;d. •
    [n, s.] . “Geo. W. Jones,.CÍerk,”.
    ■ But, at- the most-- this can only:be called-‘tan-''irregularity'.” ' The writ is under.'thé seal of.the Court:— has all the necessary, substance about it to notify, the defendants by whom the suit is brought; in what Court;.for what cause of action; and the-time and place they .are required to appear, &o. : ■ • • ■
    ' If, therefore, they had any matter of defence upon the-merits, they peed not to haVe lost the. privilegé óf making ifi -by reason, of théir not being fully advised Of all essential- things by the", writ. For all useful purposes, they were just as .well' advised by the writ, even if tliis were, upon very technical principles, an irregularity, as they could have been by the most formal writ. What', then,-Was- their-duty, according to all the authorities,-if they wished to take advantage of this formal defect, if it be one ? Why, appear at the very first term of the Court thereafter, and move to quash or. set aside the .writ for the irregularity; and, if they failed to dp that,..they “ waived the irregularity.” .' ■ ■
    . I shall be loth to .learn- that this Court will, after the time. which elapsed'between this.'supposed irregularity, and any motion on the part of the defendants to take advantage of it, become instrumental in aiding in the commission of such gross injustice, as may follow a reversal of this judgment for this cause. . Several years intervened between the judgment and prosecution of the writ of error.
    Second: The second error is, that the sheriff returned the writ against Anthony Walke — “ served by copy at his residence,” and not “ at his usual place of residence.”
    I hope to be excused from arguing this proposition.
    Third: That the indorsement on the writ, of the cause of action, is a bill of exchange only; whereas, the declaration is not only upon a bill of exchange, but has in it the common counts also.
    How is the party injured by this ? It does not appear that the judgment was rendered for one cent more than it ought to have been, upon the bill of exchange.
    But I suppose it would have been perfectly regular for the plaintiff, on this indorsement on the writ, to have declared in the money counts above. Surely, the bill of exchange could be given in evidence under the money counts; and doubtless they were put into the declaration from prudential motives, merely to avoid the difficulty, in case of a variance between the bill and special count.

      Henry Stanbery, (Attorney General,) upon the same side.
    In addition to what is said by my associate, Mr. Hunter, I have only a word to say upon the point; that the signing of the summons by the deputy clerk, does not appear to have been done in the name of the clerk.
    First: If such a ministerial act must be executed in the name of the principal, we say this act was so executed. “ Witness W. P. Darst, clerk, &c., Geo. W. Jones, Deputy clerk,” fulfills the strictest requirements of the law, of mere principal and agent.

      Second: If the writ were simply signed by the deputy clerk, in such form as not to purport to be the act of the clerk, we claim it would be sufficient.
    The deputy clerk is something more than the mere agent of the clerk. He,is an officer of the law; must be appointed by the clerk, that appointment be ratified by the Court, and must then take an oath to perform the duties of his appointment. All this being done, it is declared by the statute, “ that when £ so qualified, the deputy may do and perform any and all of £ the duties appertaining to the office of his principal.”
    This statutory grant of power to a deputy, distinguishes this case from Anderson’s Lessee v. Brown et at, in which the Court only considered the relation in which a deputy sheriff stood to the sheriff, at common law.

      Sioan Andrews, in reply.
    The testing and signing are different acts; and, before the act of March 14, 1837, were required to be performed by different persons. After the passage of this act, they were both directed to be done by the same person, to wit, the clerk.
    There can be no doubt, that the writ in this case is tested by the clerk, and signed by the deputy, clerk. The statute does not dispense with the signature of the clerk, because the writ is tested by the clerk: the counsel on the other side expect the Court to do it.
    Our position is, that .the writ cannot be signed by the deputy clerk, in his own name.
    The statute relating to deputies, does not authorize deputies to act in the name of their principals, but, by its tenor and language, recognizes the relation of principal and deputy throughout. There is nothing, therefore, in the statute which changes the common law. The case of Anderson’s Lessee v. Brown et at, 9 Ohio Rep. 151, is as applicable to deputy clerks as to deputy sheriffs; and the language of the Court in that case —• “ Where delegated authority is exercised, it must be exercised pin the' name of the .principal“the deputies of a sheriff £ compose but-one office, and ¡they have no authority, except £ that ex.ercised in the name of the-principal”— is'equally ,ap- ' plicable- to deputies, as well since, as before .the statute relating to deputies was passed; unless, indeed, it be. held'that deputies •.do not, under our statute,' hold delegated powers: appointed as they are, and liable as their principals are for -their conduct.
    '■ It is not claimed that usage — the geiier.al. custom over, the State — Or any thing, peculiar in reference, to. deputy clerks, should influence the Court in'this case. It is simply a .question, whether'delegated power, exércised in the name of the delegate, is, in law, the act of the principal? .'
    .'. Second': As. to.. the sufficiency of the sheriff’s return, - we beg leave,to refer to'the record in the case-of Ingram v. Wilcox, decided some years since in.the Supreme Court of Franklin' county. If the ££residence” for.the time being, and <£usual place of residence” of the citizens of this State,.in their various occupations and callings,' be the samé; then there is'-ri.othing in this assignment of error. ' But if a citizen can have a-residence at one . place, while his usual place of residence is at another place, the Legislature meant something-.by superadding, to the word resided,ce,' the. words, “ the usual place o'f residence. — - One of .'the counsel, in this case, remarks, that'such, an-assignment was. sustained in' the opinion announced, ih the case of Ingram ,v.' Wilcox.,

    ..'■Third: As to. the. last point; we-'deny..'that the common count c.an: be added to/a’ declaration, where the precipe and indorsement'upon the writ set forth simply á bilí. óf. exchangé as the cause of action. What additional matter may have beén proven..under ,such a declaration, ..the Court c'anriot know, on etror'. -,, " . ■ • , ■ ..
    If- this thing can'.be done, .a thousand causes .of action may be offered in evidence, and judgment'taken upon themj which are not indorsed upon the writ. We have not- supposed that this could be done. '
   Hitchcock, J.

The exceptions to the record; in this case, will be considered in the order in which the errors are assigned; and, first, as to the summons :

The record shows, that a summons was issued under the seal of the Court of Common Pleas, in due form, and attested and signed, as follows: “ William P. Darst, Clerk of said Court, £ this 7th day of June, in the year of our Lord one thousand £ eight hundred and forty-two. George W. Jones, Dep’y Clk.” It is supposed by the counsel for plaintiffs in error, that this writ was void, because it does not purport to be signed by the clerk, but only by the deputy clerk. Formerly, all writs bore test in the name of the President Judge of the circuit, or, in case of a vacancy in that office, then in the name of the senior Associate Judge; but it was necessary that they should be signed by the clerk. By the act of April 1st, 1837, this law was changed, and it is provided, that writs shall “ bear test and be signed by the clerk of the court issuing the same.” Under this act, different modes of testing and signing writs, in different parts of the State, have been adopted. But, in the case before the Court, there is no pretence but that the writ is properly tested — the only objection is, that it is not signed by the clerk, and the question presented is, whether a writ bearing test in the name of the clerk, and signed by the deputy, is a void writ?

The act of February 17, 1831, “for the appointment of certain officers therein named,” (Swan’s Stat. 284,) provides: “ That the Clerks of the Supreme Court and Courts of Com-f mon Pleas may each appoint a deputy, to be approved by £ their respective courts.” It is further provided, that “ such £ deputy shall, previous to entering on the duties of his appoint-c ment, take an oath or affirmation to perform all the duties of £ his appointment, and, when so qualified, the deputy may do and perform all the duties appertaining to the office of his 1 principal.” Under this law, a practice has grown up in many parts of the State, for deputy clerks to sign writs, as was done in the case now under consideration. It is one of the duties of clerks of courts to sign writs, and the act expressly provides, that the deputy may do and perform all the duties appertaining to the office of his principal.” Such being the provision of the statute, it is not surprising that such a practice should have been adopted. It would have been more technically correct to have signed, in this case, as follows: “ Wm. P. Darst, Clerk, by George W. Jones, Deputy Clerk.” But, as it is, the statute is literally complied with, and no injury is done. For. such cause, we should not feel ourselves justified in reversing a judgment. It may be supposed, that this opinion contravenes the decision of this Court in the case of Anderson v. Brown and others, 9 Ohio Rep. 151, but we think not. In that case it was held, that a deed upon a sale upon execution, in 1799, might .be .executed by a sheriff’s deputy, in the name of his principal, but that the acknowledgment of such deed, made by the deputy after the death of his principal, is void. In 1799, there was no written law of. the State authorizing a sheriff to appoint a deputy, but the Court held, that, by the common law, .such appointment might be made, but said that,' where delegated authority .is exercised, it must be exercised in the name of the principal. The deputy sheriff, in that case, was, in truth, the mere agent, the attorney in fact of the sheriff. But a deputy clerk, under the law of 1831, is, in effect, the officer of the Court. lie cannot be appointed without its approbation, and fakes the same oath of office which is administered to the clerk. Still we think, as .before said, that it would be more correct for him to sign process in the name of his principal, although we do not hold it to be indispensable.

The next error assigned is, that there was no service upon, one of the plaintiffs in error. If this be so, the judgment'must be reversed. The record shows, that ‘service was made “ by ‘ leaving a true copy of the summons at the residence of the ‘ party named.” The law authorizes service to be made by leaving a copy at “ the usual place of residence.” Now, if there is any substantial difference between the “residence” of a person and his “ usual place of residence,” the service in this case may have been defective. But, not being able to perceive such difference, we cannot say there was no service. A case is cited where it is said that this Court held, that service by copy left at the house of a defendant, was not good. There is a material difference in the two cases. A man may have two or more houses, and may not reside in either of them. But he can hardly have two places of residence, or two residences at one and the same time.

It is next assigned for error, that the indorsement on the writ is, that the suit is brought upon a bill of exchange, whereas the declaration contains not only a count upon the bill of exchange, but, also, the common counts.

If there be any error in this, it is rather late to take advantage of it. The plaintiffs in error, having been served writh process, were, in contemplation of law, in court. The proceeding against them were regular, or, if not so, the time to take advantage of any irregularity was during the pendency of the suit. They neglected, however, to do it, but suffered judgment to go against them by default, thereby admitting the cause of action. Certainly, a default cures some informalities and irregularities. But this indorsement was well enough. It disclosed the cause of action, and it does not appear that there was any recovery, but for this cause of action. Certainly, an indorsement upon the writ need not be as specific as a bill of particulars.

There is no error in the record, and the judgment of the Court of Common Pleas must be affirmed, with costs.


source: Caselaw Access Project

author: Birchard, J.

license: Public Domain

text:
    In Bank.
    Dec. Term, 1846.
    Stephen Cisna’s Administrator vs. Comfort K. Beach.
    Where the error assigned is, that the Defendant in error was dead at the rendition of judgment, the Executor or Administrator must be made party defendant.
    Service of notice upon the Attorney, after the death of the party, is invalid.
    This is a Writ of Error coram nobis, reserved in the County of Monroe.
    The defendant in error was plaintiff in the original suit, and the error assigned is, that prior to the day of the rendition of the judgment now sought to be reversed, he' had departed this life. Issue to the country was joined upon this assigment. — ■ The intervention of the jury was waived, and the facts and the law were submitted to the Court. 'At the trial, objection to certain depositions was made. The citation and service in this case, as also the notices to take the depositions, were served upon the attorney of record in the original suit.

      Edward Archbold, for Plaintiff in error.

      Benjamin S. Cowen, for Defendant.
   Birchard, J.

Our first inquiry is, whether the proper parties are in Court? We are not advised that, in this State, a court was ever before called upon, seriously, to pass upon the precise question novv presented for adjudication. The statute authorizes service of citation in error to be made upon the opposite party, Or “ his attorney.” The idea that these words will permit service to. bo made upon one who was attorney of the defendant in error, while living, is novel. The theory upon which it is supported will not bear much comment. The maxim “ qui facit per alium facit per se,” is applicable to the living only. So, service of process upon the living, is not notice to the dead. Death is a tyrant that disregards all the relations between attorney and client; his stroke dissolves them. Hence the statute was not intended to affect cases like this. The proceeding is therefore ex parte, and must be dismissed. A writ of error is an adversary suit; it is a new suit, and must have the requisite parties. This action is groundless* if the error assigned is untrue. If well assigned, and the issue should be found for the plaintiff, the judgment to be rendered will be, as faulty as the one sought to be reversed, without the proper parties are before the Court.

Service upon an attorney has not the substance of a legal fiction, under the circumstances. It cannot affect the attorney, any more than it can bring the deceased from the grave, and enable him to support the issue that he is still living; There is an authority (Tidd’s Practice, 1116) cited by plaintiff’s counsel directly in point. It settles the question against him, and shows that, whenever the issue in fact — that defendant in error was dead at the rendition of judgment — is tendered, the executor or administrator must be cited to come in and defend. The only exception is, where the sheriff returns that he is alive, and has been personally served, in which case he may appear by attorney, or in person.

Writ Dismissed.


author: Hitchcock, J.

text:
    Jonathan Hutchinson’s Executor vs. Daniel Hutchinson, Jacob Swallow and others. Same Plaintiff vs. Same Defendants.
    Where lands have descended to heirs, and have been by them sold and conveyed, whether a judgment creditor of the ancestor can, by scire facias, enforce the collection of his judgment of the lands so sold and conveyed. Query.
    If such action can be maintained, it is a good defence for the purchaser, that the judgment was dormant at the time of the purchase, or became dormant subsequently.
    These two cases come into this Court by appeal from the Court of Common Pleas of Hamilton County. They are brought by the surviving executor of Jonathan Hutchinson, deceased, against the heirs- at law of Isaiah Hutchinson, deceased, and Jacob Swallow, the tenant in possession of land descended from said Isaiah to his said heirs, and by them conveyed to said Swallow.
    In Bank.
    Dec. Term, 1846.
    The first is a suit commenced by scire facias, which was issued on the 31st of May, 1838. It is recited in the scire facias, -that the plaintiff, as executor of Jonathan Hutchinson, together with Ezekiel Hutchinson and Asa Hinkle, his co-executors, recovered judgment in the Court of Common Pleas of Hamilton county, on the 29th day of May, 1822, against Isaiah Hutchinson, for the sum of twelve hundred and eight dollars, damages, and eight dollars thirty-six cents costs, in an action of trespass on the case. That the said judgment remains- wholly unsatisfied and in full force. That the said Ezekiel and Asa had been removed from being executors, and were dead. That the said Isaiah Hutchinson was also dead, intestate, and that no administration was taken’ upon his estate. That the- defendants, with the exception of Jacob Swallow, are the heirs at law of the said Isaiah; that he died seized of a certain trac-t of land in Hamilton county, containing sixty acres, which is particularly described, which descended to the defendants, who are heirs at law of said Isaiah. That there is no personal property of said Isaiah, whereof the said judgment can be satisfied; that moro than five years have transpired since the death of the said Isaiah, and that his estate has not been settled up. It is further recited, that Jacob Swallow is a terre-tenant in possession of the land described as aforesaid; that the heirs at law of said Hutchinson have received, upon the sale of lands descended from their ancestor, three thousand dollars or more, which they refuse to apply in satisfaction of the judgment, and are utterly insolvent. In the mandatory part of the writ, the defendants are required to show cause why the plaintiff should not have ■ execution of the judgment aforesaid, against the lands of said Isaiah, so descended to his heirs, and against the other assets and effects -in the hands, of the heirs, &c..

      The other'case is similar, with the exception that the original judgment was by scire facias upon a mortgage. The mortgage premises were sold for a sum not sufficient to satisfy the mortgage'debt, and the object'of the suit is to have execution for the sum remaining unpaid.
    The heirs of Isaiah Hutchinson have not appeared in the, case; but the defendant, Jacob Swallow, appeared and filed several pleas, to two of which the plaintiff demurs generally. It is only necessary to recite these two picas.
    The first is, in substance, that the defendant, Swallow, is in possession of the tract of land described in the scire facias, and claims to hold the same in fee, the same having been conveyed to him by deed, &c., the defendant having paid therefor a valuable consideration; and that neither when said purchase was made, or said deed delivered, was there any subsisting judgment, in said Court aforesaid remaining, as set forth in said scire facias, that was in law a lien or incumbrance upon said premises, or by any process to be issued on which said premises could be subjected to the payment thereof, &c.
    The second plea is, that the said Jacob Swallow is in possession of the tract of land described, &c., and claims to hold the same in fee, the same having been conveyed by the said George Hutchinson, David Hutchinson, Eleazor Hutchinson, Ezekiel Hutchinson, Isaiah Hutchinson, Jeremiah Turner and Mary, his wife, John A. Reamer and Elizabeth, his wife, and Francis Hutchinson, co-defendants, by decrees duly executed and acknowledged, being anterior to the commencement of this suit, as will more fully appear by reference thereunto; that he, the said defendant, when the said deeds were delivered to him, paid a full and valuable consideration for said land; and that, neither when the said money was paid, nor when said deeds were delivered to him by said defendants aforesaid, was the said pretended claim of the said plaintiffs in said scire facias set'forth, a subsisting lien or incumbrance upon said premises, nor could the premises, by any process to be issued thereon, be subjected to the payment thereof; and this, &c.

      N. Wright, for Plaintiff.
    The case presented, is as follows: A judgment debtor dies intestate; no administration is taken out on his estate; five years have elapsed since his death, and his estate has not been settled up; and the question is, can we have a scire facias, against his heirs and terre-tenants, to sell his land for the satisfaction of the judgment, although his heirs, in the mean time, have conveyed it to a third person ?
    I suppose it to be fully settled by this Court, that a scire facias is our proper remedy in this case, and that we are entitled to an award of execution against the land, unless prevented by the sale to Swallow.
    The case of The Miami Exporting Company v. Halley’s Heir's, 7 Ohio Rep. 11, is precisely like the present, so far as the form of proceeding is concerned. There was even a terre tenant in that case, claiming to be a purchaser; but, as he had not acquired a valid deed, the precise question now presented did not arise. Other cases on this subject, are — Bank of Georgetown v. Meigs’ Heirs, fyc., 5 Ohio Rep. 313 ; Piatt v. St. Clair’s Heirs, &fc., 6 Ibid. 237; Douglass v. Waddle, 8 Ibid. 210.
    Referring to these cases, it will be unnecessary for me to repeat the investigation of the statutes, or the general reasoning which they contain.
    The only remaining question is, whether the alledgcd sale to Swallow, by the heirs, will bar our right to proceed against the land of Isaiah Hutchinson, the deceased judgment debtor?
    It will be kept in mind, that I do not claim to hold this land by virtue of an ordinary judgment lien; for that would be defeated by the dormancy of the judgment. I claim to hold it on the principle, that lands of decedents pass to the heirs, subject to the debts of the ancestor; that, on the vesting the title by descent, it always vests subject to this burden. The burden may be called a lien, or by whatever name may be more convenient; but it is a charge on the lands, or, in other words, the lands are bound for the debts. That this is true when the lands first pass to the heir, no one will doubt. Should the heir alien them for full value, in good faith, the day after the death, no one will question that they still remain subject to be sold for the debts of the ancestor. Our law intrusts the administrator, under direction of the Court, with power to sell and pass a clear and absolute title; but to the heir, over whom neither the Court nor the law has any certain control —who may be a resident or a foreigner, a man of property or insolvent, an honest man or a knave — the law commits no such fiduciary tiust. Taking it for granted, then, that the lands when they first descend stand charged with the debts as against all the world, the question is, how long do they remain so charged ? It will be seen at once, that this is a question for legislation, and that nothing but an arbitrary rule can well fix the exact moment at which the lands shall stand exempt from the burden, or, in other words, when the heir shall be at liberty to alien the lands of the ancestor, discharged of his debts.
    Our statute, I suppose, fixes this rule. The act of March 12, 1831, sec. 42, (29 Ohio Laws, 240; 3 Ch. Stat. 1784,) provides, that at the end of five years from the death of any person, if there have been a final settlement, and if not, then so soon thereafter as there shall be a final settlement of the estate, the lien on the real estate of decedents, for the payment of claims, &c., shall cease, and the land may be aliened by the heirs, freed from the incumbrance of such claims. This provision recognizes, unequivocally, the existence of the lien or burden, and at the same time fixes a limit to its duration. The existence of the lien is also established by the laws subjecting lands to execution, authorizing administrators to sell, and various other provisions bearing on this subject, which could not be made effectual, unless the charge adheres to the lands after the descent.
    In the present case, five years had elapsed since the death, and the estate is not settled up; and of course, by the language of the statute, the heirs could not alien the land, freed of our claims. I do not see how this conclusion can be avoided. Independent of this statutory limitation, the charge of the debts on the land must continue till it is terminated by the general statute of limitations, or some other equitable, but more arbitrary rule, to be applied for the sake of peace. Hence the necessity and utility of this express legislation.
    And surely there can be no injustice in such legislation. Lands ought to be subject to the' debts of the owner, as well after as before his death. His heirs ought to take only the residuum, after the debts are paid; and they ought not to have the power of removing or changing the property, so as to impede or endanger the collection of debts. Reasonable diligence should be imposed on the creditor, but his rights are altogether paramount to those of the heir. And. he who purchases from the heir, stands in the same attitude. He traces the title through the inheritance, subject, of course, to the debts of the ancestor; and there is imposed upon him only the ordinary diligence of referring to the records of Court, to ascertain whether the estate is so'settled that the heir can make him a safe title. If he buys before such settlement, he knows he buys a contingency — a mere adventure — and he pays accordingly. The heir has always the power of compelling a settlement, by citation, to the. administrator, or by administering himself; and where a settlement will leave the land clear for his disposal, he will be sure to procure it to be closed; but when it will result in a sale of the whole, of course he will take his chance of selling the contingency before a settlement.
    I find the opposite counsel consider these cases to be reserved on the demurrers only, and therefore I have not furnished the evidence as to the other issues.
    I suppose the plaintiff is clearly entitled to an execution on the judgments; but if I am in error, and the demurrers should be overruled, I ask leave to reply, for I am instructed that the defendant, Swallow, cannot show a valid title to the whole of the land, from all of the heirs of Isaiah Hutchinson.

      B. Storer, for Defendant Swallow.
    A preliminary question must be settled in this ease, before we proceed to a discussion of the more important ones. Can this suit be maintained, when it is admitted that no administration has been taken out upon the estate of Isaiah Hutchinson ? It is strictly an application to subject the realty to the payment oí a special debt, to the exclusion of all others; and, without a lien preferable in law to any ordinary creditor, it is asked that the whole estate of a decedent may be charged with the burden of a particular claim, before the personalty is legally exhausted or the heirs have been called upon to discharge the claim. Besides, the process in this cause is for another purpose. It is to revive the former judgments; and can it be just to admit such a course to be taken, until some representative, competent to defend the action, is before the Court 1 Can the heirs plead payment, when by law the personalty does not descend to them ? If they could, can they be supposed to have the evidence of the fact ? But an administrator could meet the issue at once, protect the general estate, and avail himseif of every proper defence.
    In Piatt et all. v. Heirs of St. Clair, 7 Ohio Rep. 555, the principle was decided in equity; and in 8 Ohio Rep. 216, Douglass’s Administrator v. Waddle et al., the precise point was adjudicated at law.
    It is fully admitted, if I understand the opposite counsel, that he claims nothing by virtue of the judgments. As such, they are both dormant; and as no levy was ever made, the alienee from the heir for value will be protected, though the heir would not be; and such is but a just conclusion from the repeated decisions of this Court. For if the judgment debtor, after a lien is dormant, should convey for value, and the purchaser will hold the estate, I cannot understand how it is that the same rule does not apply to the purchaser from the heir of the judgment debtor; Norton v. Beaver, 5 Ohio Rep. 181; see also 2 Call, 103. The main proposition to be discussed is, can the property specified in the scire facias be subjected to the payment of the debts merely, which the plaintiff alledges he holds as executor against Hutchinson, the decedent ?
    This involves the propriety of the present process, as well as the right to pursue the estate by it, if it can, in such a case as that now before the Court, be sustained.
    As to the first, the plaintiff’s counsel assume that there is no doubt but that the facias is the proper remedy. He quotes several cases. I will refer to them but briefly. The decision in 7 Ohio Rep. 11, Miami Exporting Company v. Halley’s Heirs, is not in point. There no transfer had been made by the purchaser; the property was still in the heir, and the judgment was a lien upon the property. In 5 Ohio Rep. 313, Bank of Georgetown v. Meigs’ Heirs, the judgment was originally had against the administratrix of Meigs, and the suit was instituted as provided for in the statute. In 6 Ohio Rep. 237, Piatt v. St. Clair’s Heirs, the remedy sought was in Chancery, and that too when the bill was filed for one purpose, and was eventually so amended and extended as to operate upon the whole estate, like a writ of sequestration in the exchequer. In 5 Ohio Rep., Douglass v. Waddle, the action was brought under the act of March 12, 1831, and was brought solely against the heirs.
    There is then, I apprehend, no case like this that the Court have been called on to adjudicate, where the terre-tenant, situated as he is, who' is now sought to be made liable to the extent of his estate, has ever been subjected.
    It is said, however, that the lands of the decedent pass to his heirs charged with the burden of his debts, and, as a general rule, the principle is readily admitted; but how far the charge shall extend, how long it may be deferred, and how it is to be enforced, are questions that must first be understood and decided, before the rule can apply in its broadest sense.
    As lands are never sold in England for the payment of debts, it is not to be supposed that we can be aided, but by remote analogy, by any of the proceedings in the British courts; and how far the illustration furnished by their practice under the writ of elegit, is to aid us, it is difficult to say. Let us admit, however, that the process is properly brought against the heirs, can it operate beyond them; in other words, can their alienee be reached? By the law of 1831, “after five years shall have ■“elapsed from the death of any person, if there have been a ‘ final settlement, and if not, then sd soon as there should be, ‘ the lien on the estate for the payment of claims, ‘ shall cease, ( and the land may be aliened by the heirs freed from the in-. ‘ cumbrance of such claims.’ ” Here, then, we have the limitation of the lien, or whatever term may be applied to convey the meaning of the charge upon the decedent’s estate. No more than fifteen years elapsed from the death of Isaiah Hutchinson, until the conveyance of his heirs to Swallow, the terretenant. The time of the conveyance will be seen in the deeds on file in the cause. It would follow then, prima facie, that the alienee, after such a lapse of time, would be protected in the purchase thus fairly and publicly made; and the fund in the hands of the heir, derived from the sale, should alone be reached for the payment of debts. And I cannot see why the alledgéd fact that there was no settlement made with the Court, can change the relation of the parties. The heirs were not compelled to administer upon their father’s estate; and they could not prevent letters from beirig granted to a creditor, unless they should substitute themselves in his stead. If, then, a creditor who has it in his power to take administration, neglects to avail himself of the right, or to apply to the Court to appoint a suitable person for that purpose, or to require the heirs to show cause why they do not administer, it is not perceived how he can urge the want of the settlement of the estate, as a reason why the heir cannot aliene. Had the creditor administered, or procured some one- to do so, then the estate might have been sold in the usual course of administration, years before the purchase by Swallow, and the innocent buyer would not have been ensnared by the neglect of the plaintiff, or permitted to believe that there was no claim upon the land from the silence of the creditor.

      On the ground upqn which the right is placed by the plaintiff, there would be no safety for 1 a purchaserfor if the first alienee in: such a case as this could not be -protected,, no one .could be, however remotely he was placed in the chain'of-title. 'He would be charged with notice of the conveyance from- the • heirs; and no matter how long he had occupied on the faith of his purchase, his whole estate would be taken from him; and if, in the meanwhile, he had erected, valuable improvements, and enhanced th'e .value of the property, he would be compelled .to resort to a Court of-Equity for thé value of. the ameliora-' tions. To say the- least, in a case thus situated, the 'equity of the purchaser is fully equal to that of the creditor, and the' legal,title must, on every just rule,’prevail; ,The. creditor,-by , his delay, has induced the '.purchaser to buy, permitted- him to expend his money, and then seeks to deprive him of the'estate. Against such a contingency we trust we shall-be'protected.- ■
    It might be asked; hoW long-is this- burden to remain on the • land 'of the decedent, should no administration be ever taken ' out,, oi; an account settled ? As there is no limitation stated'.in the argument of the opposite counsel, and none in the statute, except the five years; or what is . equivalent, the settlement of the estate, assuming that an- administrator has been appointed', it is to run through all time, or-the position of-the plaintiff is unsound. Now., a'judgment once, d'prmant, ceases to operate, against a purchaser, but a mere claimant-is allowed the most undefined liberty to sue for and recover whenever he should so please to do. ■ ' - .-'
    - But'by protecting the a|ienee, the creditor is still at liberty to pursue the heir, for'the estate expressly, gave to him the-right to charge the heir with the proceeds in any property that may have come to him by descent; and here, .where there is nú pretence but that the heirs.are solvent, jt cannot be. urged.that the,. creditor hasi a right to select the fund, out of which -he.is to be paid: No purchaser, in a case like-this,.can be bound to see to the application of, the purchase money; having paid a fair price, in good faith, and received the legal title, I ask that he' ■ m'ay be protected in. his estate.
   Hitchcock, J.

The object of the plaintiff in these cases, docs not appear to be merely to revive judgments against the heirs of a deceased judgment creditor, but to revive the judgment, and then have execution against the lands descended, but which are not remaining in the possession of the heirs. Whether this course of proceeding can be sustained, is at least doubtful. Such suits have been brought, and the cases are reported in the Ohio Reports. But I think I am not mistaken in saying, that no one of them has been prosecuted to effect, unless where the property was still in the heir, and bound by the lien of the judgment. Whether the judgments in the cases now under consideration were dormant, at the death of the judgment debtor, does not appear from the pleadings, as the date of his death is not stated. But it is argued by plaintiff’s counsel, that, whether dormant or not, they were still a lien or a charge upon the estate, because, when a person dies, his estate descends to his heirs, subject to all outstanding claims against him. This is unquestionably true; but the estate is no more bound or incumbered' by a judgment, than by any other debt, • with this exception, that the judgment, being a lien upon land, must, if the lands are sold, as they may be, by the personal representative, be paid in preference to other debts.

This remedy is certainly an extraordinary one; and such remedies ought not to be resorted to where provision is made, by statutory enactment, for the payment of a decedent’s debts. The usual, the ordinary course of proceeding, as prescribed by express legislative enactment, should be pursued. There was formerly some difficulty in reaching the lands of a judgment debtor, after his decease, or to subject his lands, where the judgment was recovered against his personal, representatives. But the law now makes ample, provision for the' appropriation of a decedent’s estate, both real and personal, to the payment of debts, through the instrumentality of the probate powers of the Courts of Common Pleas, ‘ The personal property must first be exhausted, and, if this is not-sufficient,.the real estate may be applied.

In the cases now under consideration, the plaintiff complains, that no letters of administration were taken upon decedent’s estate. True, it is the duty, and the privilege, of the near relations of a deceased person to administer upon his estate. But if they neglect the performance of this duty, creditors are not without remedy; for the law expressly provides that, in such case, a creditor may take administration. It would certainly have been better in the present case had this course been pursued.

But admitting, for present purposes, that these suits are well brought, the question arises as to the sufficiency of the pleas of the defendant, Swallow. The first of these pleas is not sufficiently specific in its terms, but to the second, no objection on this account can be made, nor is any made in argument. The question presented by the plea, is not, whether a sale made by heirs, of land descended1 before the settlement of the estate, would so withdraw it from the power of the administrator, that it could not be appropriated for the payment of debts; but whether a purchaser from heirs, the purchase being made at a time when there is no subsisting lien upon the land, can be protected against a suit, brought by a judgment creditor, whose judgment was dormant at the time of the purchase — the object of the suit being, not merely to revive the judgment, but to subject the land to sale for its satisfaction?

In the case of Norton v. Beaver, 5 Ohio Rep. 178, this Court held, that a purchase made while a judgment was dormant, would be protected, and that, although the judgment may be subsequently revived, and when so revived, operates as a lien from the rendition of the original judgment; still, rights acquired in the intermediate time, are not affected by the revival. Although the revival of the judgment revives the lien, which operates retrospectively, still it operates only upon lands remaining in the possession of the judgment debtor — not upon those which have by him been sold and conveyed. To apply the principle to the case under consideration; suppose the land in controversy had been conveyed by Isaiah Hutchinson, in his lifetime, the purchaser would have taken a title unincumbered by any lien. Can it maké any difference, that the conveyance was made by his heirs ? To the Court, it seems not. Whether the conveyance was made within five years after the rendition of' the judgment does not appear, nor is it material. In the case cited, the conveyance was madé within five years ; but the judgment afterwards became dormant, and the Court held the title of the purchaser to be complete. In the cases now before the Court, whether the judgments were dormant or not at the time of the sales, they are how dormant. At the time these suits were instituted, fifteen years had transpired from the rendition of these judgments, and duripg that time no execution had been issued. Without determining whether an administrator duly appointed could, or could not, resort to this land for the payment of the debts of the intestate, the Court are of opinion that the second plea demurred to is a sufficient plea in bar of this form of action.

Leave is given to the plaintiff to withdraw the demurrer and file a replication.


text:
    Isaac Stevens vs. James Hey and others.
    Upon petition for review, the exhibits and depositions are open for examination, unless the facts are stated or found in the decree.
    ‘When the facts are stated in the decree, the Court will -only inquire, ,on review, whether they, are* a sufficient basis for the decree.
    Before a decree can be reviewed for new matter, it must appear that such new matter is not merely cumulative evidence, aiid that it could not have been used,upon the former hearing, by the use of ordinary diligence.
    This is a Bill or Review, reserved in the County of Hamilton. ;
    The complainant seeks, by his bill, to reverse a decree of the Supreme Court of Hamilton County, rendered at the April term, 1840. The bill was filed January 14, 1841, the former decree having been first complied with.
    In Bank.
    Dec. Term, 1846.
    The grounds upon which the reversal of the former decree are asked, are two: First, error in the former decree; second, newly discovered evidence.
    The facts of the original case, and the reasons assigned for the reversal, are fully stated in the opinion of the Court.

      Chase and Ball, for Complainant.

      Storer and Gwynne, for Defendant Hey.
    The case was argued at length, mainly upon the merits of the original case; but inasmuch as the decision was placed upon other grounds — the practice of a Court of Chancery upon bill,of review — the arguments are omitted.
   Hitchcock, J.

The original bill in this case was filed November 10, 1838, against the defendants, James Hey, Moses Dawson et al., praying, for reasons stated in the bill, that Hey might be restrained from prosecuting a certain action of ejectment against the complainant, and that the other defendants should be decreed to release to the complainant all right to part of lot 339, in Cincinnati, which was then in possession of the complainant, and to recover which the action of ejectment was prosecuted. The facts with respect to this lot, as charged in the bill, were, that in 1825, Stevens borrowed of Thomas Reddish, deceased, two hundred dollars, and, to secure payment, gave to Reddish a deed of- this lot, absolute upon its face, with a separate defeasance, and this debt was paid off with money borrowed of Dawson; but the land was not reconveyed by Reddish in his lifetime, nor by his heirs after his death. On the 11th of March, 1826, Stevens, by absolute deed, conveyed the same land to the defendant Dawson, and took back a bond, by which Dawson bound himself to reconvey, if Stevens should pay him two hundred and fifty dollars, with five dollars interest for each thirty days; but if Stevens neglected to pay the interest for sixty days, then the bond to be void.'

On the 4th day of February, 1828, Stevens, the complainant, made to Dawson an absolute deed of the property, with covenants of warranty. On the 6th day of the same month, Dawson borrowed of defendant, Hey, one thousand dollars, and gave him a mortgage of that date on the property in question, with other property which was previously incumbered.

After several years had elapsed, and Dawson having failed to pay, Hey filed a bill in the Court of Common Pleas, to foreclose his mortgage; and at the November term, 1837, obtained a decree, finding due $1,525, and ordering a sale of the real estate in default of payment. On the 4th of June, 1838, a sale was made to- Hey of the mortgaged property. Hey then commenced his action of ejectment to recover possession of the property, Stevens having been from the beginning, and then being in possession.

The bill charges, that the deed from Stevens to Dawson, dated 11th of March, 1826, is a mortgage, and was so intended, and that the same has been paid Off, in work done for Dawson; that Dawson fraudulently recorded the deed; that the complainant has no recollection of the execution of the deed of 4th of February, 1828, and never did, knowingly, execute such deed, and says that complainant is ignorant of the effect of deeds.

Defendant Hey, in his answer, denies notice of the defeasance or conditions of 4he deeds as charged; avers that he loaned the thousand dollars upon the supposition that Dawson was the legal and equitable owner of the lot in dispute. Never heard that any person claimed the lot except Dawson, until after he had obtained his decree of foreclosure. He did not know that Stevens was in possession of the property,/nor did he inquire; finding, as his counsel informed him, that the title was free and unincumbered of record, he made no further inquiry.

Hearing that Stevens claimed an interest in the lot, his counsel agreed to stay the sale to enable him and his friends to redeem the mortgage, which they had professed a willingness to do, but which they neglected until he bought in the property for his own protection.. He claims he is a purchaser for a valuable consideration, without notice of the equitable rights of Stevens, if any .exist.

Depositions were taken with a view to contradict the answer as to the fact of notice; and at the April term, the cause was submitted to the Court, and a decree entered in favor of the Defendant Hey. ' In the decree, the Court find -.the equity of the case to be with.the defendant Hey, and that he was entitled 'to charge the premises described in the bill with the payment of the money and interest due upon the mortgage, secured by the said mortgage executed'by the said Dawson to the said Hey, and that the said Hey had no notice, actual or constructive, of the equity claimed by the complainant,'when he received the said mortgage and loaned the money secured thereby, as is set forth in defendant’s answer.

The Court further found that the said Stevens was entitled, in equity, to redeem the .said premises, oh payment to the complainant of the amount of the decree, and all costs-and interest thereon, found due, or since accruing upon the decree rendered by the Court of Common Pleas of Hamilton county, upon which the premises'were sold, and purchased by said Hey, as set forth in his answer, amounting in the whole to $1,795.18.

It was thereupon' ordered, adjudged, and decreed, that the said Isaac Stevens be allowed to redeem the said premises from all the claims of said defendant thereon, upon the payment of the said sum found due with the accruing interest thereon, and the costs of the action of ejectment, wherein the said James Hey was plaintiff and the said Isaac Stevens defendant; the payment to be made to the said Hey, or his attorney, on the first day of November, 1840.

And it was further ordered and decreed, that upon the payment of said sum, the said Hey' should release to the said Stevens, by deed, all right, title, interest and estate in. said prómises, by virtue of his mortgage, or his purchase under said decree; and that the said Stevens should also be substituted to all the right and claim which the said Hey had, or had held upon said premises, or any other premises, to recover the debt due him by said Dawson. It was further ordered and decreed, that if the said Stevens should fail to pay as aforesaid, on. the day named, the right to redeem said premises should thenceforth be foreclosed, cease and forever determine, and the complainant be barred from all- right under the decree. And it was further ordered, that the complainant should pay the costs.

The first error complained of in the decree is, that the Court erred in deciding that the notice of the existence of the equity of the complainant, in the. lot mortgaged, by Dawson to Hey, given to Henderson, the attorney of Hoy, was. not notice to Hey, the principal, and that the said Hey was not prejudiced thereby. ' /

■ The record does not show any such decision. The Court find, expressly, that Hey had no notice, actual or constructive, of the equity of the complainant. Now, -if the fact had been that Henderson was the attorney of Hey, and this attorney had notice, it would have been notice to Hey — a fact which is expressly negatived by the finding of the Court.

But it may be the object of counsel, by this assignment, to call in question the .correctness of the conclusion of the Court, as to the matter of fact. If the "court was mistaken as to the matter of fact, it would seem to be the more correct course to correct this mistake on a rehearing, than by review. It is not, I apprehend, the practice of the English Court of Chancery, on the hearing of a petition for review, to examine the proofs in the case. But, in that country, the facts are found by the Court, in the first instance, and if those facts sustain, or are a proper foundation for the decree, the bill of review must bo dismissed. The facts thus found are conclusive in" the case. The bill, answers and decree, what in this State we should call the record, is what comes before the reviewing court. In this State, however, it has been held, that the original biff, answers, exhibits and depositions, are open for examination ; but this is only where the decree contains no statement of the facts found; 7 Ohio Rep. 373. Where the facts are expressly found, and stated in the decree, I can see no reason why the English practice should be departed from. In the case before us, there was no controversy as to the equity of the complainant. The only matter in issue was, whether Hey had notice of this equity. The Court found, from the evidence, that he had not. I think this should be conclusive. But if we go behind the decree, and look into the depositions, we find nothing to contradict the finding of the Court., There might be some doubt upon the subject; nothing beyond this. And this can be no reason why the decree should be reversed.

There are other matters assigned for error in the decree, but as they are not referred to by counsel, I deem it unnecessary to notice them, any further than to say, that there is nothing in them which would induce the Court to change the former decree.

The complainant claims that, since the decree was made, he has discovered new and material evidence, which was unknown to him before, and seeks to have the decree reversed on this account. This newly discovered evidence, consists in the admissions made by Hey as to the agency of Henderson, and of certain receipts,.which go to show that the amount found to be due to Hey, by his decree against Dawson, is greater than the amount actually due to him. It will be seen that these matters were before the Court on the former hearing. The great point in controversy was, as to the notice. Upon this there was much testimony. And the proof of tlie declarations of Hey, would be merely cumulative evidence. Should the decree, be reversed, merely to let in cumulative evidence ? It seems to us not. If such rule was to be adopted, it is difficult to see where a case could be ended. As often as a new witness was discovered, there must be a review, and nothing short of a statute of limitations would put an end to the litigation. Such seems to be the opinion of Chancellor Kent, in Livingston v. Hubbs, 3 Johns. Ch. Rep. 124. As to the receipts, it does not appear but that the evidence with respect to them, or the receipts themselves, might have been had upon the hearing, by the exercise of the most common or ordinary diligence. And where a party by his own negligence has sustained a loss, he cannot, with propriety, call upon a Court of Chancery to relieve.' He ought, at least, to show that he has made use of such diligence, as would justify a court in continuing a case before trial. Justice Story,- in his treatise upon Equity Pleadings, section 414, says, that “ the matter must not only be new, but it must be ‘ such as the party, by reasonable diligence, could not have ‘ known; for if there be any negligence or laches in this re- ‘ spe'ct, that destroys the title to the relief.” ■

On full consideration, we are of opinion that there is nothing erroneous in the original .decree, and that the bill of review, be dismissed, with costs'. ■ ■


author: Read, J.

text:
    Elizabeth Jane Malone vs. James Stewart and Wife.
    To call, a woman a hermaphrodite, is actionable, without alledging special damages. Words spoken of a female, and having a tendency to wound her feelings, bring her into contempt, and prevent her from occupying .such position in society as is her right, as a woman, are actionable in themselves-.
    This is á Writ of Error, directed to the Court of Common Pleas of Jefferson County.
    The action below was Case for slander. The words charged in the declaration were, that Olive Stewart, the wife of said James Stewart-, had said of the plaintiff below-that she was a hermaphrodite. To the declaration the defendants interposed a general demurrer, and the Court of Common Pleas sustained the demurrer, and gave judgment for the defendants. To reverse that judgment this writ is prosecuted.
    In Bank.
    Dec. Term, 1846.

      Stanton &f McCook, for Plaintiff in error.

      Mason Sf Moody, for. Defendants.
   Read, J.

It is contended that the words charged in the. declaration are not actionable. The Court of Common Pleas took this view, and sustained the demurrer: It is said that the charge imports neither crime, guilt, nor moral turpitude. It is a well established principle of law, that words which impute a charge necessarily tending to injure a man, or his trade, of occupation or profession, or to exclude him from society, are actionable in themselves. ■ , .

A more gross or indelicate slander could not well have been uttered against a female — especially a young girl — or one more .calculated to wound her feelings, and do her mischief. It unsexes her; makes her a thing to bé stared at;- converts her into a monster, whose very existénce is shocking to nature, and would be certain, among the young or thoughtless, to bring her into ridicule and contempt'; and excludes her from social intercourse, and all hopes of marriage. It is infinitely worse than a charge of incontinence, as to its injurious results, to the feelings and prospects of the female.

To hold that there was no remedy- for a case of this sort, would be an utter disgrace to the law and ourselves. It is said that, if the plaintiff would inquire around, and if she-could ascertain that she had been specially injured to a certain amount, in dollars and cents, the law' would assist her to recover itin other words, that it is a case where the action must-be'sustained upon the ground of special damage. It is said the common law has not gone further — that the English courts have not gone further. It is sufficient ■ to reply, that this Court will not permit so gross a wrong to pass without a remedy. We shall apply the spirit of the law to embrace every case properly falling within it.

. It is precisely that sort of charge calculated to do infinite mischief, and of that vague and indefinite kind which can neither be met nor answered.

The case falls clearly within the oldest and soundest principles of the law, when properly understood and rightly applied. It is admitted that, if words are spoken to injure a man, to the value of a few dollars and cents, in his trade, it is actionable; but contended that, to speak words of a young girl, which necessarily inflicts the deepest wound upon her feelings — breaks up her hopes, and excludes her from society, is not actionable. Such a conclusion cannot be tolerated. This Court, in protecting reputation ■ — a remedy for an injury which is guarantied by the Constitution — will be careful that the judicial decisions of the land shall reflect that same delicate and profound respect for female character and feeling, which constitutes the proudest and dearest characteristic of our people.

We hold it a sound principle of law, that words spoken of a female, which have a tendency to wound her feelings, bring her into; contempt, and prevent her from occupying such position in society as' is her right, as á woman, are actionable in themselves.

Judgment reversed', and' remanded for further proceedings.