author: Judge Swan:

text:
    *William Oliver and Martin Baum v. John Pray.
    Where an appeal bond is defective, occasioned by the act of the clerk taking it, and the Supreme Court, for that reason, quash the appeal, upon showing probable ground that the appellant had a case at law, equity will interfere and grant a new trial. In such case, the case may be retained, and tried in the Supreme Court.
    This cause was adjourned here for decision from the county of Wood. It was a suit in chancery, in which the original and amended bill set forth, .that in August, 1827, Pray sued out process in Wood county against complainants, which was served on Oliver only. The declaration set forth a special contract made between complainants, by their attorney in fact, Peter G-. Oliver, and Pray, whereby it was alleged that complainants sold to Pray, on June 30, 1819, tract No. 35, and eighty acres of No. 29 (particularly described in the declaration) ; that Pray paid at the time six hundred and thirty-one dollars and sixty-one cents, and the balance, one thousand eight hundred and ninety-four dollars and eighty-three cents, was to be paid in three equal annual payments, with interest. Deed was to be made on payment, etc. That Pray had paid in full, but complainants refused to convey, and had permitted the lands to be forfeited to the United States. The declaration also contains general counts for lands sold to which title had failed; also for money had and received. General issue pleaded by Oliver, and at May term, 1828, verdict and judgment against him for three thousand two hundred and twenty-six dollars and ninety-six cents. Due notice of appeal was given. Oliver not being present at the trial was informed of the judgment, and immediately went to Wood county to effect an appeal. The clerk at. his request, prepared an appeal bond, which was drawn up by the clerk, or under his direction, and after having been executed by Oliver and his security, was accepted and approved by the clerk. That Oliver verily believed that said appeal bond was good and sufficient, and that said case was thereby duly appealed to the Supreme Court. That at the time Oliver applied to the clerk for an appeal bond the costs of the common pleas had not been taxed, and a blank, as usual, was left in the judgment for their insertion when taxed. That the clerk, by accident or mistake, omitted to insert the amount of costs in the appeal bond. That at the next term of the Supreme Court in Wood county the appeal was quashed, upon motion *of Pray, upon the sole ground that the costs were omitted in the appeal bond, and' thereupon execution was immediately issued upon the judgment.
    The bill further alleges that the verdict and judgment are altogether unjust; that complainants, nor either of them, are indebted, ■legally or equitably, one cent to Pray; that no such contract as ■set forth in the declaration was ever made or confirmed by complainants, nor was Peter G. Oliver ever authorized to make any such contract, nor did complainants ever receive one cent from Pray for, or on account of the lands. Also, that the verdict was ■procured by the fraud, management, and contrivance of Pray, his agents and abettors.
    That complainants have a just and equitable defense in the suit at law, which is set out as follows :
    In the summer of 1817, complainants and others formed an as•Rociation to purchase lands at the public sales in Wooster, and in .July of that year, among others, purchased the lands in controw.ersy and made the first payment therefor. Oliver was constituted the agent of the company, purchased the lands, laid off tho lots, held the certificate as trustee, transacted all the business, and was the only one of the company who was intimately acquainted with the locality, relative value, and situation of the lands. In the summer of 1818, Oliver was made cashier of the Miami Exporting Company, in Cincinnati, and settled and closed all his accounts with the company, and transferred all certificates, etc., to Martin Baum, who was constituted trustee in his stead. In the summer of 1818, more than a year before the date of Perry’s contract, Oliver sold out half his interest in the company to William Steele, and in the month of March, 1819 (also before the date of Pray’s contract), Oliver sold out all his remaining interest to Jesse Embree & Co., since which time Oliver has had no interest directly or indirectly in the concern.
    Early in 1818, Peter Gr. Oliver, brother of complainant Oliver, young and inexperienced, and having been somewhat unfortunate, applied to complainant Oliver to give him assistance. After some negotiations an arrangement was made, by which Peter Gr. took a tavern house of the company’s, in the town of Maumee, and, for the rent thereof, was to collect rents for the company, protect the lands from waste, superintend improvements, etc.; but had no authority whatever, written or verbal, to sell the lands of the company, and never sold or pretended to sell any of the lands of the company except those now in controversy.
    Complainant Oliver had lands of his own in the same vicinity, of which Peter Gr. also took charge; and, after complainant Oliver had sold out all his interest in the company, he, being well acquainted with the affairs of the company, and desirous to promote the welfare of his brother, Peter Gr., was often made the channel of communication between Peter Gr. and Baum, the trustee. That, in this way, and in his correspondence with his brother, Peter G\, the wishes of Baum, the trustee, were often communicated by complainant Oliver to Peter Gr.
    Early in 1819, Pray applied to Peter Gr./, to purchase the lands in controversy. Peter Gr. told him he was not authorized to sell, but would write to the company. He did so, and received for answer that the company would not sell. Pray, having some object of speculation in view, revived his application to Peter Gr., and by crafty representation induced Peter Gr. to enter into a contract for the sale of the lands, knowing Peter Gr. hád no authority, but relying on the friendship of complainant Oliver, for his brother, to relieve him from the difficulties in which Peter G. would become involved by entering into the contract. Aecord’ngly, Peter G., without any authority whatever, either written or verba], and without the knowledge of complainants or any of the company, executed a contract of sale to Pray under seal, dated lune 30,1819, as agent for Martin Baum — the larger tract at fourteen dollars per acre, and the smaller at two dollars per acre; one-fourth in hand, the residue in three annual payments: one-half in cash; the other half in beef, pork, etc., at market price. Deed to be made when patent was obtained. This contract was not made known to complainants or any of the company, but Peter G., on August 23, 1819, twenty-three days after the contract was made with Pray, wrote to the company the prices above mentioned, which had been offered, not stating other particulars, to which complainant Oliver, by direction of Baum, the trustee, replied September 16,1816, that the lands could be had on the following terms: No. 35, at fourteen dollars per acre, *the whole of 29 at three dollars per acre. The purchaser to pay government, and the company to be paid in advance, annually, the first in erecting a kitchen, the balance in one and two years, with a lien on the property when the certificates are transferred. After this letter, nothing more was heard in relation to the lands by complainants, or either of them, or any of the company, and it was supposed to have been abandoned, and was forgotten.
    In September, 1821, owing to the pressure of the times, the company was unable to clear all their lands out of the office, and, at that time, took the benefit of the act of Congress, for consolidating, in which they relinquished to the United States the two tracts in question, still ignorant of Pray’s pretended claim.
    Complainant Oliver had some lands of his own to consolidate, and while making his arrangements, Peter G. communicated his earnest desire that complainant Oliver should consolidate on No. 35, without stating any particular reason, but suggesting that it would benefit him, Peter G., in relation to some mill improvements. Shortly afterward, Peter G. informed complainant Oliver, that it was No. 36, instead of No. 35, which he wanted, and complainant Oliver, accordingly consolidated on 36, still ignorant of Pray’s pretended claim on 35. It afterward appeared that 35 was the lot intended by Peter G., and that his object was to comply with the contract made with Pray, but the complainant Olivei knew nothing of his object or of the contract.
    The first information complainants, or any of the company, had of Pray’s contract or claim, was in the spring of 1822, long after the lands had been forfeited. Complainant Oliver then advised Peter Gr. to prepare himself and bid in the land at the resales, and offered to assist him if in his power; but this was done out of friendship only, and to relieve his brother from the unpleasant situation in which he was placed. Nor did Pray pretend that he had any claim on complainant Oliver, or any of the company; but, on the contrary, stated to complainant Oliver, that he had made arrangements with Peter Gr. to bid in the land at the resales.
    About the date of Pray’s contract with Peter Gr. for the land, Pray, by crafty representations, induced Peter G. to join him in erecting a mill, in whole, or in part, on 35, and so ^managed that a great part of the three first installments were converted into the mill, and no part of the purchase money ever was paid or come to the use of the complainants, or either of them, or any of the company.
    Complainants charge that no part of the last installment has been paid. That Pray, on February 25,1822, before the last installment was due, and after the lands were relinquished, persuaded Peter Gr. to accept of his promissory note or notes, for that installment, and indorse a receipt of payment in full on the contract, as of a date prior to the time it fell due, which was done by Peter. Suit was brought by Peter G., or his assignee, on some or all of these notes, and Pray set up, as a defense, that the consideration had failed, that Peter G. had no authority to sell, etc., and on these grounds, succeeded in his defense. Still the judgment includes the last installment, or a great part thereof. The indorsement on the contract was unknown to the complainants till after the trial of the cause at law.
    In July, 1827, the lands were resold at Delaware. Pray and complainants were present — Peter G. was insolvent, and had removed to Huntsville, Alabama. At the resales, Pray did not pretend that complainants, or either of them, were under any obligation to purchase in the lands for his benefit, nor did he protend that they, or either of thorn, were liable, in any way, to him, but, on the contrary, complained only of the hardship of his ease, if any person should bid against him, and complainant, knowing that Peter G. had acted improperly, and being unwilling that any man should suffer on his account, endeavored to prevent competition against Pray. This was done at the request of Pray, and in consequence of his urgent entreaty, and not because he was under any legal, equitable, or moral obligation so to do. Pray purchased in the lands, at one dollar and twenty-seven cents per acre.
    The bill prayed a new trial of the action at law. It also prayed a perpetual injunction, and final settlement of the case, in chancery.
    Two of the facts charged in the bill were admitted in the answer: the existence of the association of Martin Baum and others, as a land company; and that, in April, 1819, Peter G. Oliver informed Pray he was not authorized to contract *for the sale of the company’s lands. All the other allegations were denied, either directly or evasively.
    The testimony taken in the cause presented strong probable grounds in support of the defense against the action at law, which the complainants set up in their bill. Several points were embraced in the argument, which tho court deemed it unnecessary to decide. The report is confined to the subjects decided by the court.
    Wilcox, for complainants:
    The first question is, has a court of equity jurisdiction over the case made in the bill.
    1. It is too late for the defendant to raise this question. “After answering and putting the merits in issue, the court will go on and decide as the equity of the case may require.” 1 Ohio, 126; Gilb. Oh. 219.
    2. Suppose the question to be open, and that the case stood on demurrer. The general rule, as contended for by the defendant, is admitted: that where a trial has been had at law, and a good defense might have been made at law, equity will not interfere, either for the purpose of granting a new trial, or for general relief.
    A short examination into the origin and reason of this principle will show that it can not apply to this case.
    In England, courts of law had not the power of granting new trials until comparatively a recent period, or if they had the power, refused to exercise it. Tho first reported case of a new trial, granted at law, is in 1655 : “ Indeed, for a good while after this time, the granting of new trials was holden to a degree of strictness so intolerable that it drove the parties into a court of equity.” 1 Seld. Prac. 483, 484, and cases cited.
    After the memorable contest between courts of law and equity in England, it is well known that almost all the important business of the kingdom was brought before the chancellor. The courts of law were compelled, in self-defense, to relax the rigor of their practice, and to adopt a system suited to the necessities of the times, and founded upon liberal principles. It was then, for the first time, that in ejectment the term might be recovered at law, without the interference *of equity, and at the same time the rule for granting new trials was established, which has ever since been adhered to in Great Britain and the United States, to-wit: “doing justice to the party,” or, in other words, “attaining the justice of the case.” The Queen v. The Corporation of Helston, 12 Ann, B. R.; 1 Seld. 483, 484, and references.
    After the adoption of this rule,.the chancellor, satisfied that the power of granting new trials could be exercised at a much less expense of time and money, by the court of law who tried- the cause, declined his jurisdiction, which, in the process of time, has ripenod into the principle contended for by the defendant, and admitted by the complainants.
    Now the court will remark that the accident, or mistake, oí which we complain, took place after the term, when the trial at law was had, and, of course, after the powerof the court who tried the cause had terminated. If the accident had occurred during the term, and the party' had neglected to apply to the court for a new trial, equity would probably refuse to interpose ; but, in this case, a party presents himself, whose complaint the court who tried .the case, had not the power to listen to, or relieve, and who is without remedy, unless it can be obtained in a court of equity.
    We are, then, thrown back uyoon the ancient practice of the court of chancery in granting new trials. We stand before this court, sitting as a court of chancery, in precisely the same situation as we should have stood before the chancellor of Great Britain, when the courts of law, in that country, had not the power of granting new trials. It is evident that the court, who tried this cause at law, had not the power to grant us a new trial; and it is also manifest, that formerly, in England, courts of law had not the power to grant new trials. If, then, the principles of equity, which ar<l universal in their operation, would have afforded relief in the one country, they must in the other.
    No ease, precisely in point with the present, can be found in England, or in any of the United States, except the State of Ohio, for the obvious reason that in no other system of jurisprudence are two jury trials permitted, one in an inferior court, and another in a superior court of record.
    Rut the general principles of equity are sufficient for our purpose. Accident and mistake are two peculiar provinces *of a court of equity, and it will be difficult to find any case where relief has been refused, if the accident or mistake be clearly proved. The doctrine upon this subject is collected and recognized in 8 Wheaton, 174, a ease, if possible, stronger than the present. 1 Washington, 254, is also a strong case, and much in point. There, the court relieved against a mistake committed by the clerk, although the party had an opportunity, during the term, to apply to the court, for relief, on motion.
    This subject was presented to this court, in the case of Waddle & McCoy v. Bank of the United States, 2 Ohio, 336, where the principal authorities are cited. In that case the judges were equally divided. It seems that the two judges, who were opposed to grant-' ing relief, went upon the ground, that if Waddle and McCoy had used reasonable diligence, they would have discovered the prior lien, and could have taken advantage of it on the trial at law. The present case steers entirely clear of this objection. The cause of our complaint did not exist' at the time of the trial, nor, indeed, until after the term had expired. No possible diligence could have corrected our mistake, and no tribunal has ever had the power to hear our complaint, except that before which we now appear.
    The precise question raised in this case was decided by Judge Swan, in the ease of Sells v. Noble & Sells, Franklin common pleas, and which will be fresh in his recollection.
    The same decision was also made by Judges Burnet and Hitchcock, in Chadwick v. Miller, Lawrence county, the record of which is herewith furnished.
    These decisions, fortified by every principle of equity and common honesty, can not, and ought not, to be overturned.
    Hammond
    submitted an argument on the same side, which ia omitted.

      Ewing, for defendant:
    The complainants seek: 1. A new trial 2. A perpetual injunction. On the part of the defendant, we insist that they are entitled to neither of these remedies.
    1. Though the special prayer is for a now trial, there is another species of relief, similar in its nature, which may be ^claimed under the general prayer, which, as it is essential to the full investigation of the case, I will briefly examine. Authorities are cited, which show that a bond, or other instrument, ineffectual for the purposes intended by the parties, will be corrected and set up in equity. So far as these cases bear, they point to another mode of relief, namely, that the bond shall be set up in equity, and the appeal perfected, thereby placing the parties where they would have stood, had there been no defect in the penalty of the bond. Though the complainants approach nearer to entitling themselves to this, than to any other form of relief, consequent on the bill; yet the authorities, in their bearing and analogy, do not support them in this.
    In Simpson v. Vaughan, 2 Atk. 33, a joint bond was drawn by one of the obligors, under circumstances which induced the court to believe that it was intended to be joint and several, and equity made it so, in pursuance of the intent of the parties. There are numerous other cases of the same import, all resting on the same ground, the intent of the parties. The last and strongest of these is that of Hunt v. Rousmanier, 8 Wheat. 174-217, in which the court set up a power of attorney, as a specific lien, because it was the intent of the parties that it should be so, and it was, by mistake, made ineffectual.
    The cases cited, arise out of transactions purely conventional, agreements inter partes ; in which the intent of the individuals contracting is, in equity, of the essence of the contract. In these cases, therefore, it would be unconscientious in either party to take advantage of any mistake in the formation of the instrument which would make it speak a language, or favor an operation contrary to that intent. Equity will, therefore, interpose and restrain them from taking such advantage. But the case at bar is totally different. This bond is not the result of a contract between the obligors and obligee. It is from the first an adversary proceeding. The defendant was not privy to the making of it, nor was it even tendered for his acceptance. Two distinct tribunals were placed by the law between him and this instrument, which was filed bj his adversary with the intent to bind him — the cloi’k, who must pronounce on the sufficiency of the sureties, and the court, who judgo of the legality of the bond. If both decided in its favor, he was compelled to accept it; if ^either declared against it, he was freed from its effects. 'This bond, then, was never delivered or accepted. The defendant was not a party to it. It is not bad faith in him to refuse it, when the law has declared it insufficient. A court of equity, therefore, can not act upon his conscience, and compel him to accept it for what it is not, and for what he never agreed to receive it.
    The relief asked (a new trial in the common pleas), on the ground of the defective appeal, is liable to more decisive objections than the mode of relief which is above discussed. That would place the parties in statu quo. This gives to the complainant important advantages, which he never could have had if his defense had been regularly conducted. That would require the defendant to accept of a defective bond. This would compel him to dispense entirely with the legal surety. Not only this, but the defendant having obtained his second trial, without surety, has afterward his right of appeal, and his third trial, as a matter of course, for the same cause. The injustice of this seems to me manifest. And, on the other hand, there does not appear that strong equity, in this part of the complainant’s case, which would justify the court in overstepping the accustomed bounds of chancery jurisdiction, in order to afford them relief. Natural justice requires that a suitor should have one opportunity to prefer his claim, or make his defense; and if he lose it, wholly without his fault, equity will, if possible, interpose and restore him to his rights. But a right to two trials for the same matter is not so perfectly clear that we could claim it as a principle of justice, independently of positive law. If, then, positive law gives a second trial, on a condition which is not complied with (even though no one be chargeable with negligence), will a court of equity order a second trial, merely because the right to it once existed and is now lost? The case, so far as we can approach it in equity, is identical with those cases where no appeal is allowed, on any terms, by law. It is clearly so, if the court of common pleas be regarded as a serious tribunal for the trial of litigated rights, and not a mere sporting ground, where suitors play at foils, in order to prepare themselves for an actual contest in the superior court
    *If this be a good ground for the interference of a court ol equity, I would suggest another, which is equally so. A trial is had in the common pleas, and a judgment rendered against a defendant, which he takes to be unjust. He gives notico of appeal, and uses every effort in his power to procure bail, but fails. Is he not entitled to relief in equity? What single objection could be urged against him, which can not, with equal force, be directed against the complainants? Would it be sporting with the rights of the judgment creditor to give a new trial, solely on the ground of an inability to appeal? Is it not equally so, when the party has the ability, but fails to exert it? In either ease, it would be doing nothing more than substituting a new trial, without bail, for an appeal with it, because the terms on which the latter could be obtained, were not complied with.
    If the court sustain this bill, they open for improvement a new and fruitful field of chancery litigation. In appeals from justices of the peace to common pleas, frequent difficulties occur, for which the profession has, as yet, found no remedy. A defective recognizance is taken ; a slip of paper is sent by the bail to the justice, instead of a personal appearance, or, where the party goes forward, on the tenth day, to appeal his cause, the justice is absent, and he can not get him and his docket together. In all these cases (and their name is legion), courts of equity will be applied to for relief; and they must take jurisdiction on the principles of this case. Nay, on stronger ground, for here has been a trial by jury, the right to which is holden inviolate — in those cases there is none.
    I have treated the case thus far, as if no laches were imputable to the complainant, in failing to perfect his appeal; but such is not the case. It is his duty to execute the bond, and see to its sufficiency. It is a question which he ought not to trust to the decision of the clerk. He should have submitted it to his counsel, and if he omitted this caution, he ought to bear the consequences of his own neglect. The clerk is agent for both parties, for the single purpose of settling the sufficiency of the bail. In taking the bond, so far as he acts, he is the agent of the appellant, who is bound by his acts, and to whom he is responsible, precisely as in any other act done by him in the progress of a cause. Place it *on the ground of a clerical error, or omission; who ever heard of a clerical error in the progress of a suit at law, laying the ground of relief in equity ? I have found no case in which the acts or omissions of the party (applying), or of the officers of the court of law, done by the request of the party applying, have been corrected or relieved against by a court of equity.
    An appeal is allowed from the common pleas to the Supreme Court, in chancery. One of the parties in the cause, dissatisfied with the decree, attempts to take an appeal, as in this case, and fails. Would the court sustain a bill to open the cause, on this ground, and have it reheard? It might be necessary for the purposes of justice that they should. The parties may have been negligent in taking testimony, and did not prepare themselves for trial in the court below, and have no ground of relief on their new bill, except the failure to appeal. It would be a hard and rather singular case; but if this bill be sustained, that must also. In every state in the Union, appeals from, one tribunal to another are matters of daily occurrence. Appeals are quashed from defects in the bond; but in no case has a court of equity interfered, in any way, to relieve against it. This fact carries with it a strong argument against the jurisdiction. But when we consider the extent to which the principle, if once adopted, must go, and the harsh and unequal nature of the only relief which the court can grant, it seems to me conclusive.
    This being a new experiment, we can find no case in point against it; but there are some authorities closely analogous.
    In Dodge v. Strong, 2 Johns. Ch. 228, the complainant sets forth a strong case of injustice, in a judgment obtained against him by default, in his absence, under circumstances of considerable hardship. An application was made to the court at law for a new trial, who granted a rule on condition that the complainant should pay into court, in four days, the amount of the verdict and costs. He paid in the amount of the verdict, but not the costs, the cost bill not being taxed; and, in consequence of this omission, lost his new trial at law, and thereupon filed his bill in chancery, for relief, which was denied him. Chancellor Kent says, “the object of the bill was *to obtain a new trial at law. The defense of the plaintiffs, if any they have, was legal and available at law, and if this court could grant relief, it would be by requiring the present defendant to submit to a new trial. But it appears to me, after a very careful examination of the case, as disclosed by the bill and answer, that I can not retain the injunction, consistently with established doctrines of this court. The plain tiffs, by their own negligence, or that of their attorney, suffered an inquest to be taken against them by default. They then applied to the Supreme Court for relief, which was granted on certain conditions, and those conditions were not fulfilled. Here was a second default, and this court can not now interfere.” And again, in reference to the same facts, he adds, “it is impossible to expect the aid of this court, unless the failure to comply with the condition arose from the act of the opposite party, or some unavoidable necessity.” In the case of Simpson v. Bate-man, 1 Schoale & Lefroy, 201, we have the opinion of Lord Redesdale, on a ease similar to the one at bar. A verdict was had, at law, against the complainant, which he considered unjust, and having failed in his application for a new trial, on account of a defective notice of the motion, he sought relief in equity. But the bill was dismissed, and Lord Redesdale said that he could not find any ground whatever, for a court of equity to interfere, because a party had not brought evidence, which was in his power, at law, or because he had neglected to apply, in time for a new trial. “ There are cases,” he adds, “ cognizable in law and also in equity, and of which cognizance can not be effectually taken at lave, and therefore equity does, sometimes, interfere. So, when a verdict has been obtained by fraud, or where a party has possessed himself, improperly, of something, by means of which he has an unconscientious advantage, at law,' which equity will either put out of the way, or restrain him from using. But, without circumstances of that kind, I do not know that equity ever does interfere to grant a new trial of matters which have been already discussed in a court of law. A matter capable of being discussed there, and over which a court of law has full jurisdiction.”
    It seems to me, on the whole, that the complainant is no better entitled to the relief prayed than he would h ave *been, had the law allowed no appeal from the common pleas to the Supreme Court. He had his trial in the court below precisely as he would have had; the verdict and judgment have been the same, just or unjust, that they would have been; and the party has been guilty of some laches, in not availing himself of the remedy the law afforded him. If, then, the complainants make out a case for a new trial, independently of all right of appeal, let them have it. If not, equity can not give it them.
    Powell
    also submitted an elaborate argument on the same side, which is omitted.

      Wilcox, in reply:
    It is alleged that the appellant must draw up the bond at his own hazard, that the appellee is no party, and that the clerk’s duty consists, simply, in “ approving the securities.”
    The clerk, as well by the statute as by universal practice, is bound to draw up the bond. The statute gives him a compensation for it; he acta as agent for both parties; the bond is made payable to the appellee ; it is delivered to the clerk, and not to the appellee; the approval of the clerk is the approval of the appellee. Suppose that under the statute it was necessary actually to deliver the bond to the appellee instead of the clerk, and the appellee had approved and accepted the bond as a valid one, and it afterward turned out to be defective — the very cases cited by the defendant show that this court would relieve without hesitation. Where, then, is the difference between the cases. A delivery to the agent is a delivery to the principal. It is to all intents and purposes a contract, in the language of the counsel, “ inter partes.” But it is not necessary for the complainant to go so far. It is sufficient for us, that a ministerial officer of the law, in the performance of his duty, has committed a mistake greatly to our prejudice, and that the opposite party is seeking to obtain an unconscionable advantage founded upon this mistake.
    The counsel seems to entertain great doubts as to the mode in which this court will exercise its jurisdiction in awarding a new trial. That, if a new trial is awarded in *the common pleas, thei’e may be three more jury trials, and, in the meantime, the defendant will lose his security. This court will excercise a sound discretion upon the whole case. A trial may be directed in the Supreme Court, and this court may order the present judgment to stand as security, or the court may direct a trial in the common pleas, or the court may retain this case and award an issue out of chancery to try any facts that may be considered doubtful. The court may make such order as will secure the rights of all parties.
    That one trial has been had, it seems to me, is of no consequence, so that this court are satisfied that justice was not done between the parties on that trial. The right of a trial by jury in the Supreme Court is a positive right, and, in nine important cases out of ten, a judgment passes by consent in the common pleas. Neither law, nor common practice, nor common honesty require that a party should use that diligence in preparing his case in the ¿ommon pleas, as upon final trial in the Supreme Court. The case now before the court is a common instance. Parties reside at a distance, pay little attention to a trial in the common pleas, resting their hopes upon an impartial trial in the Supreme Court.
    The counsel supposes a case where a party can not procure bail, and asks, what would the court do in such a case? When such a case arises, the question may perhaps be answered. But if the adverse party should, by a fraudulent combination, prevent an appeal, the question would be somewhat varied.
    It is also said that if this bill be sustained, a class of cases from justices of the peace, where defective recognizances have been made,and whose “name is legion,” will be forced upon this court. It is only necessary to remark that the statute points out the mode by which such defective recognizances may be remedied in the common pleas.
    I will not take up the time of the court in examining the numerous cases cited by the defendants. There is this sound palpable distinction between the cases cited and the one before the court — here a mistake has occurred after the power of the court, who tried the cause, had terminated, *and the party has had no oppor- [190 tunity of correcting the mistake.
    It is true that to rectify this mistake, and to do justice between the parties, require the exertion of the extraordinary powers of this court. But, if the court will be at the trouble to trace the history of this court from the time it first asserted jurisdiction over judgments at law, they will find these powers recognized, and occasionally, though not frequently, exercised. Extraordinary cases will sometimes arise in all civilized governments, and there is, of necessity, an extraordinary power vested somewhere to meet such cases. The court will find all the cases of this nature collected in a note, 3 S. C. Equity, 325, the result of which is, “ that courts of equity will give relief in all cases (not of a criminal nature) of fraud, surprise, or extraordinary cases, where complete justice has not been done, and in many cases on principles of general policy.”
   Opinion of the court, by

Judge Swan:

The principal question is, whether a court of chancery has jurisdiction of the case, as made by the bill. The question, in this respect, is important, and has received the full consideration of the court.

The statute of February 18, 1824, vol. xxiv. 72, allows an appeal to the Supreme Court, of course, from any judgment or decree rendered in the common pleas, in which such court had original jurisdiction; and the party desirous of appealing shall, at the term of the court of common pleas at which the judgment or decree was rendered, enter on the records of the court notice of such his intention, and within thirty days after the rising of the court shall enter into bond to the adverse party, with one or more good and sufficient securities, to be approved of by the clerk, in double the amount of the judgment or decree rendered, etc. The appeal bond, in this case, was taken in double the amount of the judgment, exclusive of costs.

On motion of the respondent, the Supreme Court quashed the appeal upon the grounds that the bond was not executed in conformity with the provisions of the statute. The amount of the penalty was supposed to be matter of positive *law, and one of the requisites upon which the appellate jurisdiction of the court depends. To effect an appeal, the provisions of the statute, no doubt, must be substantially complied with. It can not be done without the notice is entered of record, at the term in which the judgment or decree was rendered. So the appeal must fail, if the bond should not be executed within the timo proscribed by the act, and it has been several times decided that the penalty of the bond must be in double the amount of the judgment or decree, including the hosts.

The party has his right of appeal, upon complying with the conditions annexed by the statute. His right is lost, by omitting or neglecting to perform any of the conditions, and the appellate jurisdiction of this court altogether ceases over the cause. With regard to notice and filing the bond, within thirty days after the rising of the court, the decisions have been uniform, that the omission, in either case, ousts this court of its jurisdiction. It is undoubtedly within the powers of the legislature to attach all reasonable conditions to the right of appeal, and thus place a limitation upon the appellate jurisdiction of this court. The causo is not appealed without the party performs the conditions required by statute, and when he neglects to do so, to entertain jurisdiction would be mere usurpation of power. But the objection comes too late, to the correctness of the decision, in dismissing the appeal. The party complaining of the injury is fixed with the judgment of the court of common pleas, and the common law can afford him no remedy. This is the ease, whether the dismissal of the appeal was justified by a correct interpretation of the law or not. The injury, if any, to the complainants has originated with the clerk, who prepared the bond, or with the appellant who executed it. Uniform practice has fixed the drafting of these bonds upon the clerks. Their offices are usually furnished with blanks for the purpose.

The bill and evidence show conclusively, that the bond was, in good faith, prepared by the clerk, and in good faith executed by the principal obligor. By mere mistake, or misapprehension in-both, the costs were not doubled with the judgment, and inserted as the penalty. Doubts as to the necessity of adding the costs, in the penalty of the bond, *have existed with the bar. Even some of the judges have not been without them. This is a mistake, then, which a plain man, acting in perfect good faith, might naturally commit, upon the most careful examination of the law, and using every effort to comply with its provisions. No fiiult or negligence can be imputed to the party seeking to resist the plaintiff’s claim in the appellate court. The record shows most satisfactorily, that Oliver honestly believed he had a meritorious defense to the action. In no part of the proceedings does it appear-that he was using the court of common pleas merely to ascertain the strength of his adversary. The cause was submitted to the jury in his absence, and there are circumstances disclosed, by the evidence and exhibits, which show an effort, on the part of the present defendant, to prevent the appellant from obtaining security to the acceptance of the clerk, not very consistent with the idea that the judgment was fairly recovered and justly due. But although this may cast a shade of suspicion over the fairness of the judgment, it does not lay the foundation of chancery jurisdiction. From the nature of society, it is difficult, if not impossible, to embrace the powers of a court of chancery in a general definition. Peculiar and extraordinary cases will arise, in the complex and diversified affairs of men, which perhaps can not be classed under any of the distinct heads of chancery jurisdiction, but which must be acknowledged, nevertheless, to come within the legitimate powers of the chancellor, because complete justice can not. otherwise be done between the parties. Of this character is the case of Ray v. Duke of Beaufort, 3 Atk. 191. In that case Dord Hardwicke makes some remarks quite applicable to the case under consideration : “It frequently happens there may be a just -cause of action, yet the real motives may be very unjust, which a court of equity will always take into consideration, though they can not, at law, pay any regard to it.”

The following cases show that courts of equity go far to prevent injustice, when no remedy exists at law. Countess of Gainsborough v. Gifford, 2. P. Wms. 425 ; Hunt v. Rousmauier’s Adm’r, 8 Wheat. 174. Further authorities are collected in a note to 3 Desaus. 325. This reference wants accuracy; but some of the cases go far to justify the remark, *“ that courts of equity will give relief in all cases, not of a criminal nature, of fraud, .surprise, or extraordinary cases, when complete justice has not ¡been done; and in many cases upon principles of general policy.”

Anciently, courts of equity exercised jurisdiction in granting mew trials in cases of manifest injustice, or when testimony had been newly discovered. The practice went out of use when courts -of law became more liberal in granting new trials. 6 Johns. 479. Chancellor Kent says, “the present case seems to prove an exception to the modern rule, and to require of this court the exercise of that ancient jurisdiction, because here is a case in which the court of law has no power to award a new trial upon the merits.” The case at bar is within the principle and reason of the one last •cited. This defective statutory bond was executed after the term, when it was neither in the pewer of the party to apply for, nor of the court to grant a new trial. It is a case within the exception -of the modern rule, and the court is therefore permitted, upon the justest principles, to resort to “its ancient jurisdiction.” This -court considers this as an extraordinary case, in which the injured party has no redress, if a court of equity has no jurisdiction. •Great injustice may follow, especially to the complainant Oliver, should the judgment of the court of common pleas conclude the parties. From the peculiar circumstances of this case, and to prevent that injustice which may otherwise take place, this court believes no sound principle is violated by entertaining jurisdiction of this cause. But it is not enough that the court has jurisdiction •of the subject matter. We must be satisfied that the complainants have some merits, some grounds of defense to the action at law, before the judgment will be set aside. It is not enough that the party has lost the naked right of a second jury trial in the Supreme Court. A judgment never ought to be opened to gratify a spirit of litigation.

From the novelty of the circumstances of the case, and from the fishing grounds assumed in the bill, in order to catch an equity as well as the amount in controversy, a vast many exhibits, and a geeat body of testimony, are found with the record. The evidence in the cause shows most satisfactorily *that the complainants have grounds of defense to the action at law.

It is not proper for this court to say what effect that evidence ought to have, or may have, upon an issue between the parties. Nor does it anywhere appear, nor was it necessary it should appear, that all the evidence is produced in this cause within the power of the parties. It is competent for the parties to produce other testimony in explanation of their rights and the merits of the cause. The complainants can not ask more of this court than to be restored to what they have lost, without their default. If the defendant had a just claim upon the complainants to the amount of his verdict and judgment, he has it still, and can prosecute it in the Supreme Court as well now as he could if the appeal bond had, in form, met the approbation of the court; if he had not, to enforce the judgment would be against all equity. As to accepting the bond, the mistake originated with the agent of the law as well as the appellant. The clerk was wholly ignorant of the law, or of the construction which had been put upon it, as to the penalty of the bond. We are not, however, prepared to say that a mere mistake in law of a party would give this court jurisdiction, although there are some cases which seem to go that far. 3 Wheat. 174; 2 P. Wms. 315. It seems to this court this would be laying down the principle too broadly. There must, in general, be other circumstances to authorize the interference of a court of equity. Perhaps ii would be well to make the case, in addition to a mistake in point of law, one m which it would be .against conscience for the other party to insist upon, or which, at once, would shock the moral sense, if enforced. This is that case, as the bill and evidence disclose it. The respondent has obtained an advantage by the misprision of the clerk, or the mistake of one of the complainants, which he is attempting to retain, when he must know that the appellant has acted, so far as it respects the pursuit of his legal rights, with perfect good faith, and with all reasonable diligence. He must also know that the complainants, especially one of them, have some legal grounds of resisting his claims in a court of law. The law would be dishonored if courts -were furnished with no powers to place the parties thus situated in statu quo, and thus prevent probable injustice. There *is no principle to be found in the books which forbids a court of chancery from granting relief under such circumstances. Reason, justice, equity, require it.

This causo, upon the settled rule that when the court of chancery has gained jurisdiction of a cause for one purpose it may retain it generally, will remain in this court. This being the unanimous opinion of the court, it is therefore ordered, adjudged, and decreed that the action at law, the judgment in which is enjoined in this cause, be docketed in the Supreme Court in the county aforesaid; that the declaration be so amended as to make said Martin Baum a party thereto; that the said Martin cause his appearance to be entered in the said action, plead thereto the general issue, and that the cause stand at issue for trial, on the merits, at the next Supreme Court for said county. On the trial, no objection shall be taken for misjoinder or want of parties, farther than this : If it should appear that the plaintiff has a good cause of action against Oliver, arising out of the transaction in litigation, but not against Baum or any other of the company in the pleadings named in these causes, then a verdict shall be taken against said Oliver, and not against said Baum; if it should appear on the trial that the plaintiff has cause of action, growing out of the transaction in litigation, against the said Baum alone or the said Baum and others, then the verdict shall be taken against the said Baum, and in favor of the said Oliver. In this trial no exceptions shall be taken to the depositions in this suit in chancery or the action enjoined, but they may be then read, unless there may be other legal objections taken and sustained.

This cause to stand continued for farther proceedings, etc.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    *McClung and Trevor v. James Means.
    .A letter to B., from M., giving general credit to P., does not charge M. for goods sold to P. hy persons who n'ever saw the letter, hut had heard of its contents.
    This cause came before the court upon a motion for a new trial, made in behalf of the plaintiffs, and was adjourned here for decision from Jefferson county. The case was this: The plaintiffs brought their action of assumpsit, and declared for goods sold and delivered as upon an original contract with the defendant. In support of their claim they gave in evidence the following letter, addressed by the defendant to Mr. James Boggs, of the house of Knox & Boggs, Philadelphia:
    “ Steubenville, December 26, 1825.
    “Mr. James Boggs — Sir: All the goods O. O. Page may pur■chase in Philadelphia during the month of January, 1826, I hold myself accountable for the payment of the same.
    “ Respectfully yours, James Means.”
    This letter was not delivered or intrusted to C. O. .Page, but was forwarded to Mr. Boggs, and in the month of January, 1826, was shown by him to several merchants in Philadelphia, but was never shown by him to the plaintiffs. C. O. Page was the brother-in-law of Means, the defendant, and was known to be insolvent. The plaintiffs were informed by David King, who learned the fact from a brother of C. O. Page, that the defendant had written a letter of general credit to Boggs. They sold to Page merchandise to the amount of thirteen hundred and forty-five dollars and fifty-four cents in the month of January, 1826, and on the ,20th of that month took his individual note for that sum, at ten months, with interest after four months. Page purchased goods of Knox & Boggs and others upon the credit of the letter, for which the defendant paid. The clerk of the plaintiffs testified that the goods were sold to Page, on the credit of the defendant’s letter to Boggs, of which the plaintiffs had received information .as stated. There was no proof in the ease that the plaintiffs had <®ver given any direct notice to the defendant of a claim against him for goods sold to Page. But there was proof that, in August, 1827, defendant conversed about the claim, and refused to pay it,. not on the Aground of want of notice, but on the gi-ound that his letter not having been shown to them, they could not. charge him with the goods. The court at the trial instructed the-jury that the plaintiffs could not recover unless, within a reasonable time after the sale, they had notified the defendant of the sale made to Page upon his account. Under this instruction, a verdict was returned for the defendant, and the plaintiffs moved, for a new trial on the grounds of misdirection by the court.
    D. Collier,
    in support of the motion, insisted that the understanding being original in its character, notice was not necessary. He cited 2 Term, 80; 1 Salk. 27; 6 Mod. 248; Cowp. 229; Ld. Baym. 224; 17 Johns. 114; Fell on Guar. 20-40.
    J. C. Wright,
    on the same side.
    Tappan, for defendant.
   By the Court :

One of the questions made on the trial was, whether the plaintiffs could recover without reasonable notice to the defendant. The view the court has taken of the ease renders it unnecessary to-decide that question.

The principal question arises under the mercantile law, which-, has its foundations in good faith. The first thing to be considered' is the object of the letter, so far as ic is explained by the contents, and other facts and circumstances proved in the case. The letter appears to furnish a credit, limited only by time. The liability to-be incurred was an indefinite amount, without any specification of the time or mode of payment. These were left to the discretion of Page, or of Boggs, or of both of them. They could not have: been submitted to the dealer with Page. This would have been a. folly too great to impute to the writer of a letter of credit in his: sober senses. If the discretion was confided to Page, no good' reason can be given why the letter was not delivered to him.. But as it was not, the fact itself furnishes a very strong argument that the writer did not intend to place such ^unlimited confidence in him. The letter was addressed, not to the firm, but tí» one partner; and this, independent of the Other circumstances, shows there was a trust and confidence of some kind reposed in Boggs, the individual to whom it was written. According to the-reasoning of the plaintiffs, there was no other object in this than to give the contents publicity in the city. The answer is that Page could as well do this as Boggs. The motive of the writer was in some way to benefit Page through the instrumentality of Boggs. It might be, and it seems fair to presume it was, to introduce Page to men of integrity and fair dealing, and prevent his-being overreached by every sharper that might-by chance meet with him. The circumstances warrant the conclusion that Boggshad something to do with the extent of the credit, as well as the persons to whom Page should be introduced.

All these matters of discretion in Boggs seem justly inferablefrom the nature and circumstances of the case. It appears one of the partners (plaintiff) had indirectly got information of the contents of the letter; besides, rumor had probably spread them over the city, and had brought them to both partners. There would, however, be something assuming the appearance of a departure from strict fairness and propriety to permit a 'man, perhaps a young and inexperienced one too, to be sought out and made enter into extensive engagements, to charge a friend, without an introduction or exhibition of the letter upon which the writer was to be charged, to an unlimited amount. Such is not the ordinary course of fair-dealing merchants. In the absence of authority, the court would pause before they would give countenance to a transaction attended with such circumstances of unfairness. The case of Ayliff v. Mr. Justice Tracy, 2 P. Wms. 65, bears a strong analogy, in principle, to the one before the court. The plaintiff courted one of the daughters of Sir T. Hazlewood, and treated with the father about the marriage, who consented to it. He wrote his daughter, intimating that he had met the plaintiff, and had agreed to give him a portion, and subscribed his name to the letter. The lather died before the marriage. The daughter did not show the letter to the intended husband before the marriage. The father had made his will before the ^treaty of marriage, and left his daughter a legacy of two thousand pounds, which the husband received. It was held this was no more than a communication, and not being shown to the husband before his marriage, he could not be supposed to have married in consequence ol it, etc. 4 Wheat. 89, note. The very fact that the plaintiffs did not call upon Boggs to see the letter or obtain a copy, although one of the partners had understood such a letter had been written, shows that they either intended to give credit to Page or that some apprehensions were entertained that Boggs would decline recommending their house to him. It would be fairer to presume the credit was given to Page himself than to Moans, upon vague rumor. Indeed, the probability it was given to Page is a good deal fortified by the facts that his noté was taken for the amount, and that no notice was given or demand made for payment of Means until some time afterward. If the credit was given to Means, why take the note of Page ? The answer is a difficult one to make, consistent with the plaintiffs’ present claims. It is not unfair to impute to the plaintiffs extreme negligence, if they originally intended to charge Means, or an intention to withdraw Page from the vigilance or experience, or both, of Boggs, who most certainly was intrusted with some agency and discretion by Means. The whole circumstance of the case warrants the latter conclusion. This stamps the transaction with a want of fairness, and forbids the court to aid the plaintiffs in reaping the fruits of their own imposition.

The circumstances of this case authorized the jury to find for the defendant, and judgment must be entered on the verdict.


text:
    *John Nichol v. Andrew Patterson.
    Justices of the peace have no jurisdiction of actions upon the case fornuisance.
    Defendant appeals from a judgment of a justice of the peace in action of nuisance. The cause is docketed in the common pleas. Declaration filed and pleas put in. Defendant may then move to quash proceedings for the original defect of jurisdiction. Upon quashing such appeal, no judgment can he given for costs.
    This cause was adjourned from the county of Belmont, where it came before the court upon a writ of certiorari to the court of common pleas, in the following case:
    The plaintiff brought an action on the case against the defendant for a nuisance, in causing the water to flow back on plaintiff’s land by a mill-dam. The suit was brought before a justice of the peace, and judgment rendered against the defendant, who took the ease, by appeal, before the court of common pleas. A declaration was filed, pleas put in, an issue joined, and an order of survey made. After all these proceedings, the defendant, the appellant, moved to quash the appeal, on the ground that the law gave a justice of the peace no jurisdiction in an action on the case for a nuisance. The court of common pleas made an order quashing the appeal, and gave judgment against the plaintiff for costs. To reverse this order and judgment the writ of certiorari was brought.
    Tappan, for plaintiff in certiorari.

    J. O. Wright, for defendant.
   By the Court :

Three questions are presented for the consideration of the court:

1. Had the justice jurisdiction of this action?

2. Have the parties waived jurisdiction by pleading, suffering, ■continuances, etc. ?

3. If the court of common pleas had no jurisdiction, could a judgment be rendered for costs on dismissal ?

1. The cases excepted from the jurisdiction of justices of the peace are “actions against justices of the peace for misfeasance in office, actions of ejectment brought to obtain possession of lands and tenements, actions of replevin, actions of slander, actions on contracts for real estate, or when the title of land is called in question, except trespass on real ^estate,” etc. In this action, a mere naked possession, a title of the lowest and most imperfect degree, but nevertheless a title, is necessary to enable the plaintiff to support it. It is settled that, in personal actions against a wrong-doer, it is sufficient to state in the declaration that the plaintiff was possessed without setting forth specially the title. Cro, Car. 499; Com. Dig., Pleader, C, 39; 3 Term, 766. It can hardly, however, be denied, that possession is one species of title, and that this must either be established on the trial, or the plaintiff will be nonsuited. The title, so far as possession constitutes it, is the first question to be determined at the trial, and if the plaintiff fails in this, he must fail in the cause. It may be .ascertained prima facie, and this may be rebutted by testimony on the other side. 3 Starkie’s Ev. 987. The word title in the statute must be taken in its technical, legal sense, and if so, a naked pos* session must be admitted to be comprehended in the term.

It has been suggested, in favor of the justice’s jurisdiction over this and other similar actions, that although it is necessary to sen out the title of the plaintiff in the declaration, yet until the pleadings disclose a question concerning it, the jurisdiction of those inferior courts is not ousted by the statute. If this was the true criterion, it would be within the power of the defendant, at any time, to preserve or destroy the jurisdiction of the court. This-would leave no rule by which the jurisdiction could be ascertained. Certainly a matter so important as the jurisdiction of a court ought to have, if possible, some rule of genex'al application. Hence in the case of Hulsicamp v. Teel, 2 Dall. 358, the court held the damages laid in the declaration, and not the amount assessed by the jury, as evidencing jurisdiction. Indeed, the mere discretion of the party, or the finding of a jury, upon a question of damages, ought not and can not affect the jurisdiction of the court. The same principle has been decided by the English couxds. 3 Burr. 1592; 2 Will. 48.

But if doubts could be entertained whether this ease is excluded from the jurisdiction of justices of the peace, section 67 of the judiciary act would seem completely to remove them. The statute declares “that in all actions for libel, slander, malicious prosecution, assault and battery, action on the case for a nuisance, etc., if the jury, upon the trial *of the issue, or on inquiry of damages, shall find or assess the damages under five dollars, the plaintiff shall not recover any costs.’’ It is true this act is prior in date to that regulating the duties of justices of the peace, but-both were passed the same session. The same class of cases has long been excluded from the jurisdiction of justices of the peace, and while they were excluded, a separate law was passed, the same in substance as the provisions in section 67 of the judiciary act. Upon a fair comparison of these acts, and a cox-rect. construction of their px*ovisions, no doubt can be entertained that the legislature considered the action on the case for nuisance not within the jurisdiction of justices of the peace. Upon a different construction of these statutes on an appeal by either of the parties, the plaintiff could not recover costs, unless the jury assessed the damages to five dollars or upward. It would be difficult to dis* cover a plausible reason for making the action on the case for. nuisance an exception to all others in this respect. This would be-the only exception to the general law, that where the matter in. controversy is within the jurisdiction of a justice, the costs, whatever the amount assessed, should follow the damages. If the-actions of ejectment, slander, etc., ought not to be tried by a justice of the peace, by reason of their greater importance to the community and to the parties, or the greater difficulty of comprehending and applying the rules which govern them, it seems quite; proper that actions on the case for nuisance, which frequently present very complex questions of vast importance to estates, depending, for their decision, upon nice discrimination and accurate-knowledge of law, should also, in the first instance, be brought-before the courts of record, where the judges are selected from the profession, and are supposed to have a more perfect knowledge-of the legal rights of the parties. But it seems unnecessary to resort to the reason for the particular exclusion, where the legislature has put a construction upon the justices’ act which shows a manifest intention to exclude the action under consideration from their jurisdiction.

2. The question presenting more difficulty is, whether the defendant, by suffering continuances, pleadings in bar, etc., has not precluded himself from making objections to the jurisdiction of the court. It appears to be a general *rule that objections to the jurisdiction come too late after a plea in bar, and that the want of it must be taken advantage of by plea. 2 Ven. 484; Co. Lit. 127; 6 Cow. 161; 3 Johns. 105. To this general rule there are-exceptions. Where the court has no jurisdiction at common law, or it has been taken away by an act of the legislature, such want. of jurisdiction may be pleaded in bar, or be given in evidence, under the general issue, and is not properly the subject of a plea in abatement. 1 Chitty, 428; 1 East, 352; 6 East, 583. In the - case' of Parker v. Elding, 1 East, 352, the plaintiff brought his-action for depasturing cattle, etc., and proved himself entitled to-recover a sum under forty shillings

The defense set up was, that the debt was contracted in the Isle of Ely, and the statute of 18 Geo. III., c. 36, which declares, 11 that no • action or suit for any debt not amounting to forty shillings, and-recoverable, by virtue of this act, in the said court of request, shall be brought against any person residing or inhabiting, within-; the jurisdiction thereof, in any of the king’s courts of Westminster, eot., or elsewhere, out of the said court of requests.” The court held they were bound to take notice of this law. How, lhon> say the court, can we say that the plaintiff shall recover against the positive direction of the act? The decision was against the exercise of jurisdiction. The case under consideration, upon the face of the papers, was in the common pleas, and must have been tried by that court, by virtue of its appellate, and not of its original jurisdiction. It is the essential criterion of appellate juris- diction, that it revives and corrects the proceedings in the cause already instituted, and does not create that cause. 1 Cran. 175. The courts of justices of the peace, if not all others in this state, are of limited jurisdiction. If not inferior, in the technical sense, so that transcripts of their proceedings must show jurisdie- tion, they are limited, and when it appears that the powers given by law have been transcended, the appellate court is authorized to treat the proceedings as a perfect nullity. The appellate jurisdiction of the common pleas is based upon the jurisdiction of the justice whose transcript is brought up. If it appears from that, the justice had no jurisdiction, the superior court is left to create the cause, or dismiss it. A safe and convenient general rule for this court to adopt, would perhaps be, that, *when upon the face of the papers it appears that the appellate, and not the original powers of the common pleas are sought by the parties, and that the subject matter was not within the jurisdiction of the justice, to dismiss the proceedings, upon motion, in any state of the cause; but when the papers do not sufficiently disclose these facts, and the defendant pleads in bar, to consider the process as waived, or the jurisdiction admitted. This will preserve the distinction between the original and appellate jurisdiction of the court, and •prevent the confusion and difficulties which might arise, either from the illegal exercise of powers by justices of the peace, or by having the independent judgment, of two courts for the same .cause of action. The latter would have been the case in this instance, if the common pleas had considered the proceedings of the justice a nullity, for want of jurisdiction, and had treated the cause as originating in the higher court. We are of opinion that an appellate court, as such, has no jurisdiction of the subject matter where the court in which the cause originated had none. Therefore, when the parties themselves show the fact, it is the duty of the appellate court, in any stage of the proceedings, to-dismiss the cause, and leave the costs to be recovered by those interested in them.

The judgment,of the court below is affirmed, as to the dismissal of the cause, and reversed as to the judgment for costs. See Kennedy v. Terrell, Hard. 190.


text:
    *Thomas Butler v. Leonard H. Cowles, Administrator of Moses Bixbe.
    Action of assumpsit for use ana occupation, will not lie, to recover mesne profits, after recovery in ejectment.
    This cause was reserved in the county of Delaware, on a written statement, as follows: “In ease, etc., for use and occupation. It is agreed in this case, that Moses Bixbe, in his lifetime, took possession of the premises in the declaration mentioned, claiming title to the same. That he used and occupied them a short time himself, and afterward by his tenants, who paid him the rent in money, etc. The plaintiff, also, during the occupancy by Bixbe, claimed title to the same premises, and from time to time, gave notice to Bixbe that the premises were his. It is admitted .that the legal title to the said premises was in the plaintiff, and still is in him, and that he took possession under a habere facias, having recovered in an action of ejectment. If the plaintiff is entitled to recover under this statement of fact, then a jury shall assess the damages; if not, there shall be a judgment of nonsuit, etc.”
    Parish & Boatt, for plaintiff:
    From the nature of the ancient English tenures, as they existed until the abolition of their most prominent features, in the reign of Charles II., it can not be expected that anything should be found in the old authorities and books, shedding much light upon this subject; and it will be found that, since that time, courts have been extending the remedy so as to operate beneficially for plaintiffs, according to the justice of their case; especially since the 11 George II. and the liberal construction given by Lord Mansfield to the action of assumpsit.

      It has been said that the action for use and occupation was given by the 11 George II., and that, before that time, the action did not lie, unless there was an express agreement; but from a view of the authorities, it will be seen there was a distinction between lands and houses or shops. Com. Dig., title Action on Assumpsit, C. In the latter instance, it was not necessary that there should have been an express promise, *but in the former, it was. Vide Comyn, ut supra. In some cases, it was held that assumpsit would lie on implied contract, for the use of lands, 2 Mod. 260 ; in others, it was held that the law would raise no promise during, or after the term, for it is an incorporated hereditament, savors of realty, and arises by privity of estate. Roll. Abr. 7 v. 25, 30 ; Cro. Car. 343 ; Style, 453; 3 Lev. 50. Since the statute of 11 George II. assumpsit has lain, as well for implied as express agreements, to pay for the use and occupation of lands, and it is now a common remedy, both in England and in the United States. 3 Stark. Ev. 1512; 1 Swift Dig. 417; 3 Ohio, 264; 1 Munf. 407; 4 Day, 299; 1 Bay, 315, 443; 14 Mass. 95, 97.
    But the question here occurs, whether the facts in the case are such that we can recover in this form of action; for it has been denied in the case of Sinnard v. McBride, Adm’r, 3 Ohio, 264, before cited, that action for use and occupation, lies in favor of the lessor of' the plaintiff, in ejectment, for rent that accrued subsequent to the demise laid in the declaration in ejectment, and the reason is, because, by bringing the ejectment, the plaintiff has elected to consider the defendant as a trespasser, and is estopped by the record from denying it: “ he can not blow hot and cold at the same time but it is very distinctly stated in the same case, “that the law seems well settled that after a recovery in ejectment, assumpsit will lie for mesne profits, anterior to the demise; and there are certainly very strong reasons why it should, especially in favor of an administrator, who would otherwise be without remedy. Equitably, every one who enjoys the property of another, with or without his consent, tortiously, or with his permission, ought to be accountable to the owner for the use of it, either before or after ejectment; and the defendant ought not to be permitted to set up his own tortious acts, in assumpsit, to defeat the action for the use and occupation of land, any more than in actions relating to personal property, where, beside the injury, property is acquired, which benefits the defendant’s testator. In the one case as in the other, the party injured, ought to be allowed to waive the tort, and bring an action ex contractu; and it is believed that, upon an examination of the authorities, it- will be found that the reason of the rule, *which obliges the owner to bring ejectment against a person in possession of lands, claiming adversely, so far as it is declared, or is apparent from the reported eases, is not that the cause of action will not admit of a remedy in form ex contructu, any more than the receiving of the money of another, without his consent, is such cause; for the bare enjoyment of the quiet possession of the lands of another, without his consent, is no more a wrong, a tort, or an injury, which arises ex delicto, or ex mali facie, than it is to receive the money of an-other without assent. There are too many causes of action which will lie in form, either ex delicto, or ex contractu. Such, on the one hand, are actions in case founded upon contract, where the contract itself is considered merely as inducement to the action, and the gravamen is the breach, considered as a tortious negligence; so, on the other hand, the unlawfully converting of the goods of another, to one’s own use, is a tort, though the real injury to the plaintiff is the loss of property which the defendant has gained, for which an action of assumpsit will lie after the death of the wrong-doer. Lord Mansfield, Cowp. 376.
    The true reason is, that the plaintiff shall not be allowed to bring such action until after he has established his right to possession by an action of ejectment, for the action for use and occupation is not well calculated to contest the title to lands, and it would often impose a hardship upon the defendant, by not apprising him of what he is called upon to defend. So assumpsit will not lie to recover money paid for the return of cattle, wrongfully distrained, and for the same reason. Cowp. 411; 2 Stark. Ev. 111. The action of ejectment is peculiar in its kind, and is well adapted to the recovery of lands. The right to possession is put directly in issue, and if the plaintiff had it at his option to adopt a different remedy, that puts in issue, not the right of the plaintiff to the possession of the premises, but a fact which might, possibly, be indedeu.lent of it; it would not only impose great difficulties on him in trying his title, but it would, in a great measure, supersede the benefits of the action of ejectment, and be introductory of a new law.
    Therefore, it is incumbent on the plaintiff, in actions for use and occupation, to show that the defendant was his tenant, and went into possession withTiis permission.or license, *has attorned, or done that which is tantamount by our law; or has-recovered in ejectment, for, by either of these acts, the title is put at rest; and this was expressly declared to be the reason why ejectment must be brought against the possessor, holding adversely, at the Worcester Spring Assizes, 1788, in the case of Cunningham et ux. v. Lawrents, Bac. Ab. 160. That was an action of assumpsit for use and occupation against a defendant, who claimed adversely. Wilson, Justice, nonsuited the plaintiff, and was of opinion that the mode of proceeding was by ejectment; or, in case that could not be brought by an action against the tenant for the rent wrongfully paid by him to the person not entitled to it; and, indeed, it is obvious that questions may arise which the defendant could not be prepared to meet or control. See also 2 Cranch, 344, 345. After ejectment brought, the plaintiff is estopped from saying that the defendant undertook and promised to pay rent subsequent to the demise, because he has already said, and put it upon the record, that the defendant, with force and arms, etc., entered. But upon what principle is it that the plaintiff is allowed to recover for a time anterior to the demise, except it be that, as tho plaintiff has established his title and right to possession by ejectment, the law raises the assumption? It surely can not make the possession anterior to the demise any the less tortious, that the plaintiff has subsequently recovered possession. The true reason is, that the title having been ascertained, the law raises the promise by implication. Thus the court, in 3 Ohio, say, “ the reason of the distinction is evident. In the former case the presumption of a contract is not excluded; in the latter case it is. A man can not hold by agreement and as trespasser at the same time, though for a part of the time he may hold by agreement, and for the residue as a trespasser.” See also Peake’s Ev. 258 ; Bul. N. P. 133, and infra. 113. Also, 4 Burr. 1984, that in an action for use and occupation by a stranger, the title can not be tried. In the case now before the court, the defendant has estopped himself from saying that the title is not in us, for it is admitted to be in the plaintiff, and that he has recovered in ejectment against one of the tenants who held under the same claim oí title. No issue can be made upon it, so that the ease, in relation to that part of the premises for which no ejectment has been ^brought, stands precisely the same as If we had recovered in ejectment, and the demise were laid at the-time of defendant’s testator having left the premises. The manner of proving the title in us can not alter the right.
    Whether the defendant acknowledged the title is in us, on the records, as he has, or whether he acknowledged that we had recovered in ejectment, or whether he produce the record of ejectment in court, is all one. So, too, if the defendant acknowledge tenancy, or that he has paid rent, or that he has attorned, which is the same as acknowledging title in the plaintiff, as we have no attornments; in either case the title would be out of the question, either by the acts which imply a disclaimer of the title, or expressly by his deed or declaration.
    But it is not necessary for us to show that the action will lie against the parties to the injury in its present form, for it is conceived that where the cause arose out of property, and was not a personal tort, but was such an injury whereby the defendant had received a benefit in estate, although during the lives of the par ties no other than an action ex delicto would lie, yet that subsequent to the death of either of them the representative may bring an action in form, ex contractu; and the court in the case in 3 Ohio, above cited, recognized the doctrine laid down by Lord Mansfield, in the case of Hambly v. Trotter. They say: “ The action of assumpsit is often sustained when there is not, in fact, any agreement between the parties. The proper action against a common carrier is on the custom of the realm, which is a sort of tort; but after the death of the carrier, assumpsit may be maintained against his representatives. So trover, which is for a tort, is the proper remedy against one, who unlawfully converts the goods of another to his own use ; but after the death of the wrong-doer, assumpsit, for the value of the goods, will lie against the executor, but this must be when the facts are such that an agreement may be presumed. So if a man take the horse of another, and bring him back again,'an action of trespass will not lie against his executor, though it would against him; but an action for the use and hire of his horse would lie against the executor.” Lord Mansfield, Cowp. '375. The fact that this is an action against am administrator is a feature which distinguishes this case from *those of ordinary occurrence and from necessity, and to do justice ought to have much weight with the court.
    Again, the statement of facts, in the agreed case, shows that wa ‘have recovered a part of the premises in ejectment, and we claim "to be entitled to recover for all the time the defendant’s testator ' enjoyed the possession previous to the recovery in ejectment. The agreement only states the bare fact that we had recovered a part of the premises of a tenant of Bixbe’s. It does not show .that we have ever admitted the defendants to have been trespassers, on the record, except at the time of the recovery. It is altogether too vague and uncertain to determine anything else in relation to the ejectment, except that from the manner in which the agreement is drawn, it would appear that the defendant’s testator occupied the premises a number of years.
    In the case in Ohio Reports, already quoted, we see the court have refrained from any remarks on section 71 of the statute, page '65, from which we draw the conclusion that it was supposed that the action of assumpsit for mesne profits survived to the administrator at common law, in which case it could have no bearing on the question ; and such, indeed, is evidently the decision as it respects the use of lands previous to the demise. ¥e will, however, venture to offer our views on that section of the statute. It will be seen that it only has relation to the cause without prescribing the form of the action, though it descriptively provides that such cause, for which an action on the case will lie, shall survive to the •administrator if it were an injury to property. But we think the cause of action, which the statute makes to survive, is not confined' to such cause only, for which an action on the case would have been sustained against the decedent.
    No sense can be made of the statute, according to its present punctuation, without supplying the words “ or trespass,” immediately after the first comma in the section. Independent of the reason that there was as much need of legislation to provide that causes, for which trespass would have been supported, shall survive, as there was to make that provision in the case of causes, . for which trespass on the case would have lain against the testator, and with as much justice, too, there exists sufficient evidence that the sense is ^incomplete as it now stands. The section immediately preceding provides that when an action of trespasss or trespass on the case, shall have been commenced and the party -died, etc. Why omit trespass in cases where no suit has been «commenced ?
    But the occurrence of the words, “ either of said actions,” in same section 71, and which have relation to the actions, the causes of which shall survive, prove beyond a reasonable doubt that one of the actions is left out, which causes the disagreement in number If this construction be right, and if the statute only has relation to the cause, without providing that an action, in form ex delicto, may be brought thereon ; and as actions in form, ex delicto, requiring pleas of not guilty, which is said to be decisive when brought by or against an administrator, do not survive at common law, the statute would remain a dead letter unless we were allowed to is.dopt this form of action. It would be inoperative because, by the statute the form doth not survive; and by common law, because the subject matter or injury doth not survive.
    Cowles, for defendant:
    The action of assumpsit, for use and'occupation, would not lie at common law. It is given by the statute of 11 George II., ch. 19, sec. 14; this is the English law, and the law in some of the states, especially in the State of New York, where the English statutes have been adopted. This action will not lie unless where the relationship of landlord and tenant exists, or can be traced, founded upon some agreement expressed or implied. 2 H. Black. 319; 6 Johns. 46.
    The action for use and occupation has been sustained and acquiesced in, in this state, from the equitable principle that where ihere is evidence of a contract or- license for the enjoyment of real «state, although by parol, and the party has quietly held and enjoyed the premises beneficially for himself, it is reasonable that he should pay rent for the same. It was a long time doubted by the bar and the courts whether this action could be sustained, in this state, upon any parol agreement express, being considered within the provisions of the statute requiring estates and lands to be assigned and *granted by deed or note in writing; but the courts considering the quiet enjoyment as part performance, and furnishing evidence of a license or contract on that ground, have sustained the action. This action never has been sustained unless there was evidence of a contract express or implied. Even where the party took possession by purchase, it was held that the action could not be sustained. 6 Johns. 46.
    Wherever the circumstances of the case show that the party has held and occupied in any other manner than under a contract express or implied, it has uniformly been decided that this action would not lie; and especially in this case it can not be sustained where the possession of the intestate was, as to the plaintiff, tortious and adverse; having entered under a title adverse to the plaintiff, he was considered as a trespasser during his occupation of the premises; and the facts stated in the agreed case show that the plaintiff recovered the possession in an action of trespass in ejectment.
    There is not only the want of matter showing an agreement,, but the case itself furnishes the proof of facts which estops the plaintiff from presuming it. As the plaintiff has treated the in testate as a trespasser, he can not, at the same time, consider and treat him as a lawful tenant, and recover the rents and profits of his representative in this form of action.
    The court will not consent to prostrate the ancient landmarks designating the different forms of actions, ex contractu and ex delicto, and extend the action of assumpsit as the universal remedy. The plaintiff’s case is unsupported by any case in the books or dictum, except the obiter dictum of the judge in the case of Sinnard v. McBride, Adm’r, 3 Ohio, 264, which opinion is unsupported by any authority there cited, or to be found in the books. It was a mere dictum in a case coram non judice.

    The court are referred to 13 Johns. 297; 15 Johns. 508, where the decision of the case of Smith v. Stewart, 6 Johns. 46, is recognized, and the principle well settled that this action can not be sustained. If the plaintiff is without remedy, he has only to apply to the legislature of reform, and they will afford it. The plaintiff’s counsel will not pretend that he is supported by any authority in the books, but only *the court to innovate upon the law as well settled, to extend unto him this extraordinary remedy.
   By the Court :

It seems well settled that a plaintiff, after a recovery in ejectment, can not, in assumpsit, for use and occupation, recover rents and profits, accruing after the date of the demise in the declaration. 1 Term, 378; 3 Ohio, 264; Woodfall’s Ter. L. 432. Bixbe entered claiming title, and not as tenant. This action, by statute 11 George II., ch. 19, sec. 14, lies upon an .implied agreement to pay rent. To create the relation of landlord and tenant, an agreement, either expressed or implied, must exist. Presumptive evidence will do, such as that the defendant holds over after the expiration of his lease by parol. Osgood v. Dewey, 13 Johns. 240 3 Stark. Ev. 1516; 13 Johns. 297.

But the facts must show, expressly or impliedly, that the defendant occupies as tenant of the plaintiff. In the case of Smith v. Stewart, 6 Johns. 46, the defendant took possession of lands as a purchaser from the plaintiff, and- by his consent, -but afterward refused to pay, and abandoned the contract. The court say, as the defendant did not enter under the relation of tenant, but under a contract for a deed, the plaintiff could not recover in this form of action. The same principle was decided in the case of Bancroft v. Wardell, 13 Johns. 489 ; 1 Esp. N. P. 20; Woodfall’s Terra Law, 432; 3 Serg. & Rawl. 500; 17 Mass. 299; 2 Green. 337; 1 Munf. 407; 3 Dall. 503. These authorities establish the principle, that when a person occupies the land of another, not as tenant, but adversely, or, where the circumstances under which he enters, show that he does not recognize the owner as his landlord, this action will not lie. The remedy is trespass for mesne profits, after a recovery in ejectment.

It has been determined that a defendant can not in this action dispute the title of the plaintiff, and that nil habuit in tenementis, is a bad plea. Lewis v. Willis, 1 Wil. 314; Cook et al. v. Loxley, 5 Term, 4; 2 Wils. 208. In the principal case, the facts admit that Bixbe entered claiming title. This surely rebuts the implication of the relation of landlord and tenant.

*There is no express contract to pay rent; consequently the plaintiffs can not recover on the facts before the court.

Judgment of nonsuit.