text:
    Maria Abrams v. Hiram Kounts and John Quinn.
    'Where a bond recites that the obligors “are held and firmly bound, in the penalty of a thousand dollars, for the performance of a marriage contract, which said H. K. engages to perform with M. A.,” the thousand dollars must be deemed a penalty, and not liquidated damages. Covenant does not lie upon such a bond.
    “This cause was adjourned here for decision from the county of Columbiana. It was an action of covenant founded upon a sealed writing, in the following words:

      “Know all men by these presents, that we, Hiram Kounts and John Quinn, of the county of Columbiana, and State of Ohio, are-held, and firmly bound, in the penalty of one thousand dollars, for the true performance of a marriage contract, which the said Hiram Kounts engages to perform with Maria Abrams, of Brooke county, Virginia, against the 8th day of February next. The ' conditions of the above obligation are such, that if the above bound Hiram Kounts does well and truly perform the above obligation, this obligation to be void, otherwise, etc.” Dated, January-22, 1827.
    The declaration contained six counts. In all, the capacity of the plaintiff, as a feme sole, to make a contract of marriage is averred. In some, a promise on the part of the plaintiff to marry the defendant Kounts, is averred; in one, this is omitted; in one, a mutual promise is set out; and in the second count it is averred, in addition, that the defendant Kounts, by promise of marriage, had seduced the plaintiff, in consequence whereof, at the time of making the contract, she was pregnant. As no exception was> taken to the form of the declaration, it seems unnecessary to describe it more minutely.
    To all the counts but the second, the defendants demurred generally, and the defendant joined in demurrer. To the second' count the plaintiffs pleaded three separate pleas, alleging that. Kounts was imprisoned by the plaintiff, and by duress was induced to make and execute the bond. Upon *these replications the plaintiff joined issue. The cause was adjourned here, for-decision upon the demurrers.
    Loomis & Metcalf,
    in support of the demurrer :
    We contend that the plaintiff can not recover, upon any of the counts, to which the defendants’ demurrers, in the present state of the pleadings, apply. Those counts are, we conceive, radically defective in various particulars. There is not, in the instrument upon which the plaintiff has counted, and which is spread upon the record, in the defendants’ demurrer, any covenant on the part of Kounts and Quinn both, with Maria Abrams, the plaintiff, or any other person. This objection is believed to be fatal. A covenant, on the part of Kounts alone, can not be made the foundation of &
      joint action against him and Quinn. The case made upon the pleadings, would be variant from the evidence adduced to support it. A joint recovery can never legally rest upon evidence of a. several liability. There is a defect in the instrument upon which-the plaintiff has declared, that can not be supplied by averment and parol proof. There is a want of title in the plaintiff, which can not be supplied without changing essentially the legal operation and effect; without adding to, and altering the written instrument, which is the sole support of the plaintiff’s action. This the-law will not tolerate. Grun v. Horne, 1 Salk. 197*; Croke Jam. 505; 1 Phillip’s Ev. 433, note; Grant v. Naylor, 4 Oran. 224.
    It appears manifest to us, that an action of covenant can not be sfipported on the instrument before mentioned, against the defendants jointly, for other reasons. This court has decided, in the cáse of Huddle v. Worthington, 1 Ohio, 423, that an action of covenant, can not be supported upon the condition of a bond, separated,'in the pleadings, from the penal or obligatory part. An action of covenant could not, in this ease, be supported upon the condition,, unconnected with the penal or obligatory part of the bond, as there is nothing to distinguish this, so far as it relates to the condition of the bond, from the case of Huddle v. Worthington. In that case, an action of covenant, probably, could have been supported upon the penal and obligatory part of the *bond, as it is alleged, in the report of the cause, to have been in the usual form. But in this case, it is submitted that .an action of covenant, upon the penalty of the bond, could not be maintained. There is no covenant or agreement in the penal part of this bond to pay, but the mere acknowledgment of a debt, or duty. Although the line of demarkation between the actions of debt and covenant, may, in some instances be narrow, still it is clear and well defined in the books. We take the law to be this: when there is a mere acknowledgment of a debt or duty, there debt only will lie; when there is an agreement, or a man obliges himself to pay, or do any other act, then-covenant can be sustained. This distinction is supported by principle and authority. Harden, 178; 2 Bacon Abr. 63, note, Covenant, A.
    If' an action of covenant can not be maintained upon the penalty of this bond, nor upon the condition unconnected, in the pleadings, with the penalty, we confess ourselves at a loss to discover upon what reason, principle, or authority it could be maintained upon both together.
    Several objections apply to the counts separately. To the first, it is objected that it alleges no covenant on the part of Kounts and Quinn both. It states, after setting out the instrument, that Kounts, ■by the instrument, bound and obliged himself to marry the plaintiff, against February 8, 1827, and 'assigns for breach that he has not married her, nor he, or Quinn, paid the sum of one thousand dollars. In the count there is not a sufficient title set forth, nor is there a joint covenant or liability averred. The legal effect of the instrument set forth is averred to be an obligation by Kounts to marry the plaintiff. Such, we admit, if it have any, to be the true and only legal effect of the bond. No covenant by Kounts and Quinn both, either that Kounts should marry the plaintiff, or that be and Quinn jointly should, in the event of his failure to do so, pay the plaintiff one thousand dollars, as averred in that count. The.breach assigned is therefore too broad. It negatives the performance of a covenant not previously alleged in the count to have been made.
    The third count, after setting out the obligation, alleges that Kounts thereby became bound to marry the plaintiff, on or before February, 1827, or, on failure thereof, *that Kounts and Quinn would pay the plaintiff the "sum of one thousand dollars as damages ; the breach is, that Kounts has not married the plaintiff, nor he or Quinn paid the one thousand dollars. The averment that Kounts and Quinn agreed to pay one thousand dollars as damages, is beyond the terms of the obligation. The obligation contains eo .nomine, a penalty; the averment makes it a ease of agreed and liquidated damages. A jury, under this averment, could give no less than one thousand dollars; they would have no discretionary power, no proof could be adduced in mitigation of damages. It is not alleged in this count that the defendants covenanted or agreed with the plaintiff; it is not, in truth, alleged that Kounts and Quinn ■covenanted at all, but merely that Kounts covenanted to marry the plaintiff, or on failure thereof, that he and Quinn would pay her a thousand dollars as damages. The breach, in this count, is defective upon the same ground as that in the first. That this is not .a case of agreed damages, we think too clear to admit of doubt. The parties have themselves denominated it a penalty, and there is nothing discoverable in the contract to induce a belief that they intended anything different from the natural and ordinary, acceptation of the terms which they have used, or that would justify the court in deviating from the ordinary interpretation of those terms. We shall not go into an elaborate argument on this point, until we shall have discovered from the reasoning and authority that'may be urged and adduced by the plaintiff’s counsel, the propriety at least, if not the necessity, of such a procedure. Smith v. Dickinson, 3 Bos. & Pul. 630.
    “Where a sum is expressed to be a penalty, it will not be considered to be liquidated damages.” 1 Swift’s Dig. 680, and authorities there cited.
    The fourth count alleges, that Kounts and Quinn bound themselves to the plaintiff under the penalty of one thousand dollars, that Kounts should perform a marriage contract with her, against February 8, 1827, and if not, the obligation for the penalty of a thousand dollars should remain in full force. Breach, that Kounts has not performed the marriage contract, nor he and Quinn, or either of them, paid the thousand dollars. There is a fatal variance between this count and the obligation set out on oyer. The count states *that the defendants bound themselves to the plaintiff under a penalty, and the obligation does not show that they bound themselves to the plaintiff or any other person. The obligation is not, in this count, set forth according to its legal effect. It is not averred that Kounts and Quinn covenanted to pay the plaintiff a thousand dollars in any event, consequently the breach assigned is not warranted by the facts previously alleged.
    The fifth count charges that the plaintiff and Kounts had mutually agreed to marry, and that Kounts and Quinn agreed, and firmly bound themselves in the penal sum of one thousand dollars that Kounts should perform the aforesaid marriage contract against February 8, 1827, and on his failure that the said obligation for one thousand dollars should remain in full force and virtue. Breach, that Kounts has not married the plaintiff, nor he and Quinn paid the one thousand dollars. The plaintiff’s' counsel has, in this count, gone entirely beyond the terms and legal effect ■of the obligation. He has averred facts that do not exist in the obligation. To admit such averments would be, in effect, to make .a new contract for the parties, and to prostrate legal principles well established. The contract of the parties, and their intention, ought to be gathered from the obligation, and from that only» There is not a word in the obligation relative to a previous marriage contract between the plaintiff and Kounts, nor does it contain a covenant to perform any previous contract. The averments in this behalf are, therefore, gratuitous and unwarranted. It is not charged in this count that the defendants covenanted or agreed with, or in 'any manner bound themselves to the plaintiff. There is, consequently, a total defect of title in tho plaintiff apparent upon the face of the count.
    In the sixth count, it is alleged that Kounts and Quinn promised and bound themselves, among other things, that Kounts should, against February 8, 1827, marry Maria Abrams, by the name of Maria Abrams, of Brooke county, Tirginia. Breach, that Kounts has not married her. The decision in Huddle v. Worthington is conclusive against the validity of this count. No title whatever in the plaintiff is alleged. It is not shown that the defendants covenanted with her or bound themselves to her.
    *The demurrers to all the foregoing counts, it is believed, ought to be sustained, as well on account of the general exceptions taken to the action, as the specific objections tothe individual counts.
    Goodenow, for plaintiff:
    The first point, which the counsel for the defendants seem to-raise, on the construction of the obligation, is, that it contains no-covenant, by both the defendants, with the plaintiff; that there is. no joint, but a several liability'. This objection, if valid, would defeat the plaintiff, in any form of action against both the obligors; and, of consequence, against either, except covenant against Kounts, on the covenant to marry; and how such a separate liability would be enforced, on this instrument, I can not conceive,, unless by a bill in equity for a specific performance.
    I can hardly think it is necessary for me to quote authorities, on the question, what words will create a covenant; or in what manner an instrument, like the present, is to be construed; nevertheless, I will refer the court to the long-established doctrines on the subject, as they are given to us in tho best authors.
    “ The law does not seem to have' appropriated any set form of words, which are absolutely necessary to be made use of, in creating a covenant and, therefore, it seems that any words will be effectual for that purpose, which show the parties’ concurrence to-the performance of a future act.” 1 Bac. Abr. 527; Hallet v
      Wylie, 3 Johns. 44; Harris v. Nicholas, 5 Munf. 483; Doug. 27, 766; 1 Roll. 518, l. 50.
    Everyparty to a deed, who is interested in the covenants therein, is entitled to his action. 6 M. & S. 77; 3 B. & B. 335; 5 D. & R. 234.
    The right of action follows the interest in all cases, 1 Saund. 155, c; and it lies for any liquidated sum. 1 Saund. 241, n. 5.
    A covenant shall be expounded with regard to the context and-intent of the deed. R. Hob. 275; 6 Johns. 49; 1 Johns. Cases,. 319; 10 Johns. 266.
    “ All contracts are to be taken according to the intent of the-parties, expressed, by their own words, and if there be *any doubt, in the sense of the words, such construction shall be made as is most strong against the covenanter, lest, by the obscure wording of his contract, he shall find means to evade and elude it; hence if A. (Lev. 102; Sid. 151; Kel. 511) covenants with B. that if B. marries his daughter, he will pay him twenty pounds per annum, without saying for how long, yet it shall be for the life of B., and not for one year only ; for by the words, ‘per annum,’ the meaning of the parties appears to be, that it could continue longer-than one year; and this is the construction that is most strong against the grantor.” 1 Bac. Abr. 539.
    Again, it is objected, that the action of covenant will not lie on the penal part of this bond, because it contains a mere acknowledgment of a debt or duty. Suppose I grant this position, what follows ? Why simply this, that, had I brought covenant on the-penalty alone, I could not recover.. It will be time enough to combat this position when my case shall present it. The law which the gentlemen, on the other side, lay down to defeat our recovery, in covenant, is this, that, “ when there is a mere acknowledgment- of a debt, or duty, there debt only will lie; where there is an agreement, or a man obliges himself to pay, or do any other-act, then covenant can be maintained.” In reply to this, Chitty says, 1 Chit. Pl. 111, “ Covenant appears, in general, a concurrent remedy with debt, for the recovery of any money demand, where there is an express or implied contract contained in the deed, and it has been holden that an action of covenant is sustainable on a bond, though debt is now the usual remedy.” See also 1 Swift’s Dig. 570, 571. But grant the doctrine advanced by my friends to • be good sound orthodoxy, and how does it apply to t'he instrument. •of contention between the two parties? Kounts and Quinn acknowledge themselves “held and firmly bound (in the penalty of one thousand dollars), for the performance of a marriage contract, which the said Hiram Kounts engaged to perform with Maria,” •etc., that is, both covenant that one shall perform his engagement with the covenantee. Does not this come, even without the condition of the obligation, within the express terms of the gentleman’s definition of what he says would sustain an action of covenant? I am yet to learn that two can not oblige themselves in an instrument under seal * “ for the performance ” of a “ duty ” by one of them, and thereby render themselves liable in an action of covenant.
    The most important question, however, and one that will undoubtedly require much attention, is, whether the thousand dollars, which, in the fore part of the obligation is called by the parties a “penalty,” is to be considered in the nature of a penalty merely in the technical sense of the word, or whether that sum is not to be taken as liquidated damages between the parties? I think, perhaps, a like instrument was never presented to a court for decision. No man, peradventure, ever bound himself with security to perform a marriage contract; but, if others had done so, they probably would have used, especially if they did not employ lawyers to draw their instrument, just such language with a little different collocation, perhaps. But I know not why a female may ' not demand and receive security from a slippery suitor to compel bim to marry her, or forfeit a portion of his estate, to which she would succeed if he led her to the altar. And, it seems to me, that this case is one of the first impression, and calls upon the court to look astutely into it, and discover, if possible, “ the intent of the parties.” If they seek for the intention of all parties, they can not, I think, hesitate to say, from the nature of the transaction and the situation of the parties, that the plaintiff would never have received the obligation from Kounts, if the condition had been what his counsel now contends it must be construed to be, as follows : “ Provided, if the said Hiram shall not perform his marriage contract with the said Maria, he shall pay her whatever damage she may thereby sustain, and on his failure to pay, the said Quinn .shall pay for him.” Nor will the court, for a moment, believe that Kounts or Quinn so intended the condition to be understood ; unless the court can suppose them both, at the time of executing the obligation, to be governed by a fraudulent design upon an inno • cent deluded girl, and even then, the court would not permit them thus to avail themselves of the advantage of their own fraud.
    11 The same sense,” says Lord Ellenborough, in Seddon v. Senate, 13 East, 74, “ is to be put upon the words of a contract in an instrument under seal, as would be put upon the same words in any instrument not under seal; for the same intention must be collected from the same words of a contract *in writing, whether with or without seal;” and Judge Bayley added, “a covenant is nothing more than an agreement, in construing which, we have only to look to the lair meaning of the parties.” That this is sound doctrine, and the only correct principle upon which to construe all contracts, I think no one will deny. Hence, the court will control words, and even phrases, of an ambiguous or technical meaning, whenever they become irreconcilable, or repugnant to the “fair meaning” of the parties. Hence, even the word “penalty” has been held not to be used, in its technical sense, in an instrument before the court, but construed to mean agreed damages, and the phrase, “liquidated damages,” has been controlled and construed to mean a penalty.
    The general current of authorities on this subject will be seen in the following cases: 3 B. & A. 692; 4 Burr. 2229; 13 East, 343; 1 W. Blk. 395; 1 Camp. 78; and in Astly v. Weldon, 2 B. & P. 353, Judge Heath said: “It is very difficult to lay down any general principles in cases of this kind ; but I think there is one that may be safely stated. Where articles contain covenants for the performance of several things, and then one large sum is stated at the end to be paid upon breach of performance, that must be considered as a penalty; but where it is agreed that if a party do such a particular thing, such sum shall be paid by him, there the sum stated may be treated as liquidated damages.” And Chambers, Judge, observed, “ There is one case, in which the sum agreed for, must always be considered as a penalty, and that is, where the payment of a smaller sum is secured by a larger.” Where the word penalty remains uncontrolled by other words, or the nature and circumstances of the case, it will be taken in its technical sense, as in 3 Bos. & P. 630; 13 East, 345. So, also, as to the phrase, liquidated damages ; but in deciding the point, the whole of the agreement and evident intentions of the parties must be consulted (6 B. & C. 222); in this last case (Davies v. Penton), the court controlled the agreement of the parties, and held what they had called liquidated damages as a penalty. The distinction, which I think runs through all the authoritities, and seems to be sustained by reason and common sense, is this, where the duty, or act, to be performed or omitted, the benefit of the duty, or act, or the injury resulting from its neglect, can be ^measured in the ordinary way of estimating advantages and disadvantages, losses and gains; or, we might say, where we can bring the nonperformance to be measured by the universal standard of worth in this world,money; there the sum agreed on maybe taken asa penalty in the technical sense. But where the non-performance of an agreement, or covenant, in its consequences addressed to the forum of feeling, character, standing, or future peace and happiness of the covenantee, the sum agreed upon must be considered as the rule of damages, or as liquidated damages.
    It seems to me preposterous, in this case, to impanel a jury to ascertain the damages the plaintiff has sustained, by the defendant, Kounts, not marrying her. She had received him to her bosom — he had deceived her; to atone, as far as it was possible for him to do it, for the injury he had inflicted upon her character, her feelings, and her peace of mind, he bound himself in solemn promise to marry her, or forfeit one thousand dollars. She could not enforce a specific performance, for he had his option to marry, or pay the thousand dollars. Not so with her — she had no option. When he chose, he might turn upon his heel and take his leave; but she was bound to accept his hand whenever he offered, or refuse, and waste her life in irretrievable wretchedness.
    I will refer the court to one other authority, and I have done. The opinion of Lord Hardwicke, in Roy v. Duke of Beaufort, 2 Atk. 190, is directly in point. A judgment had been recovered on the “ penalty ” of a bond, for one hundred pounds, conditioned that the obligor would catch no more fish, etc., which condition was broken b.y catching two flounders, worth two pence only; and this suit in equity waB brought to reduce the penalty to the actual damage. Lord Hardwicke says, “as to the bead of security, it is most absurd to think that bonds of this kind (which was in a penalty) were intended merely as a security, and that nothing is to be recovered upon them. I am of opinion that when this sort of bonds are given, by way of settled damages, it is unreasonable to imagine they could only be intended as a bare security that ■the obligor should not offend for the future; was this the case, in what respect is a party in a better condition who has such a bond, than he was before ?”
    And I may emphatically ask, in what respect is Maria in a better condition than she was before she received this *bond, [224 if she must still rely upon a jury to ascertain the worth of a marriage contract with Hiram Kounts ?
    Loomis and Metcalf,
    in reply:
    The plaintiff’s counsel, in reply to our opening argument, has referred the court to many authorities, the correctness and soundness of which we are not disposed to question. It is conceded that tho “ law does not seem to have appropriated any set form of words, which are absolutely necessary to be made use of in creating a covenant;” that “every party to a deed, who is interested in the covenant therein, is entitled to his action;” that “the right of action follows the interest, in all cases;” and that “a covenant shall be expounded with regard to the contents and intent of the deed.” We admit, also, that “all contracts are to betaken according to the intent of the parties, expressed in their own words,” and that they are to be construed. most strongly against the grantor, in relation to the quantum of interest, which shall be adjudged to pass by the contract. But the'admission of these positions does not, in our view, affect, or invalidate the objections taken, in our former1' argument, generally to the action, or specifically to the several counts. The authority quoted from 1 Chitty does not controvert our position, that covenant can not be sustained in this ease. Chitty appears to speak with surprise that the courts had gone so far - as to determine that covenant could be sustained on the penalty of a bond, in the usual form, and immediately adds that “ debt is now the usual remedy.” The penal part of this bond is not in the usual form. It is a mere acknowledgment of a debt; no obligee named, nor any obligation of payment to any one expressed. The defendants jointly, neither agree, oblige themselves, or covenant, that they, or either of them, shall do any particular act. Kounts, and he alone, covenants. This-case stands upon entirely different grounds from those where parties enter into covenants, and there bind themselves, in a penalty, for the performance of those covenants. In such case, covenant may be sustained upon the express covenant contained in the contract, or debt upon the penalty, by which the performance of the covenants is secured. Such is the case in 1 Swift Dig. 570, 571.
    *It is, to our surprise, contended that this is a case of agreed damages, and it is alleged in support of that fact, that a “ like instrument was never presented to a court for decision;” that “ this case is one of the first impression ; and calls upon the court to look astutely into it, and discover, if possible, the intent of the parties.” Singular reasons, indeed, for adjudging it a case of agreed damages. The intention of the parties seems to be supposed doubtful, and difficult to be ascertained, and yet the court are asked to give the contract the severest construction. We had supposed the court would never, in a doubtful case, determine a penalty to mean liquidated damages; but that in such a case they would rather send the parties to a jury, the appropriate forum, to determine what damages the plaintiff had sustained. Ry the latter mode no hardship would be imposed upon the plaintiff; by the former, great injustice might be done to the defendant. The case must be perfectly clear and unambiguous that could justify any court in giving to the term “ penalty” any other than its ordinary signification — a security for the perform mce of a contract, or, in the event of a non-performance the pay ment of such damages as the party shall have actually sustained, by reason of the non-performance. In this sense, almost every person in community understands the term; and probably not one person in a hundred ever heard or imagined that it ever was construed to mean liquidated damages. In ninety-nine cases of a hundred the construction contended for would ensnare the parties, and work injustice. It seems to be supposed that no motive can be assigned for the plaintiff’s taking the bond, and that no benefit can be suggested as secured by it, unless the plaintiff’s construction prevail. There is, in Our apprehension, no difficulty in assigning motives for her extorting it, nor in suggesting advantages to be secured by it. First, it would be supposed to contain, in itself, clear and permanent evidence of a marriage contract. Second, the performance of that contract would be supposed more effectually secured by the liability and responsibility of Quinn.
    The question whether the sum of one thousand dollars, men-, tioned in the bond, is to be regarded as a penalty, or as liquidated damages, depends, we admit, upon the form of the instrument, and the intention of the parties, as collected *from the whole of the instrument. If the sum be mentioned simply under the de^ nomination of a penalty, the form of the instrument imports it to be a mere penalty, and the presumption is, that the parties did not contemplate liquidated damages. 3 Stark. Ev. 1131. The inference of a contrary intent must be perfectly clear to counteract this presumption, if, indeed, it can be counteracted in any ease. Although the term of the instrument, prima facie, import liquidated damages, they will not be considered as such if a contrary intention be manifested from the whole of the instrument. Thus, although the agreement concluded in this form: “Lastly, if is hereby agreed that either party, refusing to perform their un> dertaking, shall pay to the other two hundred dollars,” although this appeared to be contract and no penalty, the court held that they were to look to the whole of the instrument. 3 Stark. Ev. 1131.
    Chitty, in his treatise on Contracts, p. 335, says: “ It may be safely remarked that the courts have shown an inclination to view, if possible, the sum reserved, as in the nature of a penalty, rather than as stipulated damages.”
    Lord Eldon, in the case of Astley v. Weldon, 2 B. & P. 350, in commenting upon the case of Sloman v. Walter, 1 Brown’s Ch. Gas. 418, remarked that in that case, “ by the very form of the instrument, the sum appeared to be a penalty, in which case a court of equity could never consider it as liquidated damages, but must direct an issue of quantum damnificatus.” This is a strong authority against the dictum contended fpr by the gentleman opposed to us, and so far as the opinion of that distinguished jurist, Lord Eldon, is entitled to consideration, is conclusive. The'power and duty of courts of law and equity, in relation to the ehancerying down the penalties of bonds, are now precisely alike, and whenever a chancellor would be bound to direct an issue of quantum damnificatus, a court of law ought to direct an assessment of damages, by jury, upon the same principle.
    Our opponent appears to us to have been unfortunate in quoting the case of Lowe v. Peters, 4 Burr. 2225. That was, in terms, a case of agreed damages. It could receive no other construction. But what says Lord Mansfield, in his opinion, in that case? He remarks, p. 2228, that “ there-is a difference between covenants íd general, and covenants ^secured by a penalty or forfeiture. In the latter case the obligee has his election. He may either bring an action of debt for the penalty, and recover the penalty, after which recovery of the penalty he can not resort to the cove nant, because the penalty is to be a satisfaction for the whole; or, if he does not choose to go for the penalty, he may proceed upon the covenant, and recover more or less than the penalty toties quoties. And upon this distinction they proceed in courts of equity; they will relieve against a penalty upon a compensation; but whore the covenant is to pay a particular liquidated sum, a court of equity can not make a new contract for a man, nor is there any room for compensation or relief. As in leases containing a covenant against plowing up meadow, if the covenant be not to plow, and there be a penalty, a court of equity will relieve against a penalty, or will even go further than that, to preserve the substance of the agreement; but if it is worded to pay five pounds an acre for every acre plowed up, there is no alternative, no room for any relief against it, no compensation; it is the substance of the agreement.” This language is plain, direct, and unequivocal. The line of separation of cases of penalty from cases of liquidated damages is clearly laid down. The law is here settled upon a rational foundation, and strong must be the authorities, that shall overturn the decisions of such jurists as Eldon and Mansfield.
    The following decisions, in this country, of which we have not leisure to give an analysis, strongly corroborate the view which we have taken of this question: Dennis v. Cummins, 3 Johns. 297; Stearns v. Barret, 1 Pick. 451; Perkins et al. v. Lyman, 11 Mass. 76; Merrill v. Merrill, 15 Mass. 488.
    The rule laid down' by our honorable friend, “ that when the non-performance of an agreement or covenant, in its consequences, addresses to the forum of feeling, character, and standing, or future peace and'happiness of the covenantee, the sum agreed upon must be considered as the rule of damages, or as liquidated damages,” is doubtless entitled to credit for its originality, but not for its precision or soundness. It is wholly unsupported by authority. It is loose, indefinite, and incapable of being reduced to practice. What cases, we ask, would be adjudged to address themselves to the *f'orum of feeling ? Scarcely a single case can arise that does not affect, directly or indirectly, in its bearing or consequenecs, some one or more of the numerous feelings which agitate «the bosoms of parties litigant. What cases shall be deemed to address themselves to the forum of character and standing. Perhaps a majority of cases address themselves, in one form or other, to that forum ; but in attempting to discriminate those that do from those that do not, a judge would be obliged to exclaim, “ Me labor, hoc opus est.” What cases shall be referred to the forum of future peace and happiness? It would puzzle a Jesuit to decide. The practical operation of the rule would make “ confusion worse confounded,” and render “darkness visible.” Besides, the ease does not come within the terms of the rule. The rule provides only for cases where the sum is agreed upon by the parties; a rule that would embrace a case like that of Lowe v. Peters, but not the present. In this case the damages are not agreed upon by the parties; but the performance of the contract is merely secured by a penalty. It is impossible for us to discover anything in the phraseology of the singular bond upon which the plaintiff has counted, manifesting an intention in the parties that the penalty should be considered as liquidated damages. It was, at most, a contract to marry. And if it be decided that the present is a case of liquidated damages, we can not perceive why the same rule can not apply to all bonds, securing the performance of covenants by penalties.
   By the Court :

We are of opinion that the penalty of the bond, in this ease, can not be regarded as liquidated damages, and that the instrument ■is not one upon which covenant can be maintained. The demurrers are therefore sustained.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    *William and Samuel Waters v. Hugh Lemmon.
    On error to a decree in chancery, nothing examinable hut hill, answer, exhibits made part of them, the decree, and matter made part of the ease, by bill of exceptions.
    Decree in equity, on complaint of a purchaser of land, rescinding the contract, and directing the purchase money to be refunded, and leaving the purchaser in unconditional possession of the land purchased, is erroneous.
    This was a writ of error, brought to reverse a decree in chancery, pronounced against the plaintiffs in error, by the court of common pleas of the county of Brown, in a suit wherein the plaintiffs in error were respondents and the defendant in error complainant. It was adjourned here for decision from Brown county.
    The material facts of the case were as follow: On January 15, 1816, the Waterses executed a penal bond to Lemmon, in the sum of three thousand dollars, conditioned that they should get a good and sufficient collector’s deed for twenty acres of land, described in the bond, and specifying that the title was derived from a sale for taxes; 'or that they should make, or cause to be made, a quitclaim deed for the same. No time was fixed for procuring and making these deeds:
    On January 18,1816, Wm. Waters entered into another contract in writing, with Lemmon, specifying, that in consideration of two thousand dollars, paid one part in goods, and the residue in three annual payments from the date, W. Waters sold to Lemmon, forty acres of land, adjoining the twenty, and bound himself, when the. last payment became due, to make Lemmon a general warranty deed, and to warrant and defend the same to said Lemmon. This article also contained a reference to certain personal property sold by Waters to Lemmon. Lemmon entered into possession, which he still retained.
    The bill charged that the purchase was made with reference to a mill seat, which was on the twenty acres ; that the whole purchase was made from William Waters, and the two thousand dollars, specified in the article as the purchase money of the forty acres, .was the purchase money of the whole. It further states that Lemmon entered into possession, and erected on the twenty acres a grist mill, house, and stable, which cost him upward of seven thousand dollars; that no deed was procured for the twenty acres, and that after the improvements were made, he was informed that the title was worth nothing, and that W. Waters made a fraudulent ^representation as to the character of the sale for taxes, well knowing that the title was defective. The bill further stated that the lands sold for taxes had been redeemed by the heirs. It further stated that of the purchase money of two thousand dollars, about fourteen hundred dollars had been paid to said Waters, and that Waters had obtained a judgment, and levied an execution on Lemmon’s property for the balance-. An amended bill charges, that at the time of the purchase W. Waters produced a collector’s deed, which was defective upon account of certain blanks, which Lemmon pointed out, and which W. Waters promised to have corrected. But that in consequence of a defect in the sale for taxes it could not be done. It is also charged in the original bill, that the whole quantity sold for taxes was seventy acres, of which the twenty is part, and that for the remaining fifty acres an ejectment had been brought against W. Waters, and a recovery had, he being unable to sustain the tax sale. The bill prayed that the contract for the sale of the twenty acres of land might be rescinded, and that Lemmon might receive compensation for his improvements, and other and general relief. This bill was filed December, 1823.
    In his answer, W. Waters admits the sale, and that part payment was made, and judgment for the balance. He denied all fraud or misrepresentation. He denied that the twenty acres was the chief consideration for the two thousand doll airs, and alleges that the whole sixty acres of land, considerable stock, mill stones, and valuable implements to a grist mill, and a saw mill, were sold in gross, for the gross sum of two thousand dollars. Alleges that everything was fairly represented, and all the papers exhibited at the time of the sale.
    Much testimony was taken in the cause, and upon an interlocutory decree, it was referred to a master commissioner, upon whose report, a final decree was made in the common pleas, canceling the contract for the twenty acres of land, enjoining the recovery of the judgment at law, and. decreeing that W. Waters pay to Lemmon one thousand three hundred and seventy-two dollars, fifty-two cents, and costs. This decree was pronounced at April term, 1828, and upon petition the Waterses obtained a rehearing.
    At August term, 1828, the Waterses excepted to the master’s report, and the cause was again heard, and a decree *pronounced, corresponding with the previous decree, except that Wm. Waters was decreed to pay to Lemmon one thousand three hundred and eighty-fo.ur dollars and twenty-two cents. No disposition was made, by the decree, of the possession of the sixty acres of land, which was left with Lemmon. To reverse this decree the writ of error was brought.
    M. Marshall, for plaintiff in error.

      H. Brush, for defendant.
   By the Court :

Upon a writ of error, to a decree in chancery, nothing is examinable, but the bill, answer, and exhibits made part of them, the decree itself, and such matter as may be made part of the case, by a bill of exceptions. The court do not rehear the cause upon its merits. This case must, therefore, be decided upon the allegations of the parties, and upon the decree. From these it appears that Lemmon, the complainant below, purchased from the Waterses sixty acres of land, with some personal property, and was put in possession of the whole. These purchases were made at different times. The first for twenty acres, the latter for forty acres of land, the two tracts lying contiguous and adjoining. Lemmon remained in undisturbed possession of the whole of both tracts, and of the improvements made upon them. His bill contains no offer to surrender all, or any part to the Waterses, from whom he received 'it; but prays that the contract may be rescinded, and the purchase money paid by him refunded. The decree conforms to this prayer. It directs the contract, so far as it relates to the twenty acres, to be rescinded ; and it restores to Lemmon the purchase money, leaving him also the possession of the land. This we deem inequitable, and therefore erroneous. For this cause, the decree must be reversed, and the cause remanded for further proceedings. As the cause may possibly come before us again, upon its whole merits, as presented by the proofs, it has not been considered necessary to-make up, or express an opinion, except upon this single point.

Decree reversed.


text:
    *Lessee of Symmes and Stanbery v. Beaver.
   This cause was adjourned from the county of Licking. It was submitted to the court upon the facts, involving a question of fraud, in the original conveyance to the lessor, Symmes. The court were of opinion that the -fraud was fully established by the proof, and gave judgment ior the defendant. It was deemed unnecessary to report the mass of testimony necessary to an understanding of the case. Without this the report couid be worth nothing.


author: By the Court:

text:
    Josiah C. Parker v. Walter Dunn and others.
    Notoriety of entry.
    Claim to lands, between Little Miami and Soioto rivers, under Virginia rosolution warrants, good.
    This cause was adjourned here for decision from the county of Brown. It was a bill in chancery by the junior patentee of the elder entry, seeking a conveyance from the elder patentee. The case is stated in the opinion of the court.
    M. Marshall, for complainant.
    Thompson and Scott, for defendants.
   By the Court:

The bill states that, in July, 1799, Josiah Parker, being the owner of a land warrant, issued by the Commonwealth of Virginia for revolutionary services, caused an entry of the same to be made between tho Little Miami and ¡Ejcioto rivers. The entry is as follows: “ January 29, 1799. No. 3,519. Josiah Parker enters four hundred and filty acres of land on part of a military warrant, No. 1,920, on White Oak creek, about four or five miles from the mouth, beginning at the southwest corner of Curry’s, and northwest corner to Heath ; *thence N. 45, W. 370 poles, crossing White Oak to a sycamore and haokberry marked with painted letters; thence S. 45, W. 370, to an ash and haokberry; thence S. 12, W. 30 poles to a stake; thence eastwardly to tho beginning.” Tho bill further states, that Josiah Parker was tho grandfather of the complainant, and that ho died leaving a will, devising to complainant all his estate, including the tract in controversy, upon condition that his doviseo should assume tho name of' Parker, which he has done.

John Graham has made an entry covering the same land, and has the elder patent. The prayer is, that tho defendant may set out his title and convey to the complainant his right, oto.

Walter Dunn, the trustee of tho said John Graham, and tho defendants, who claim under him, say, in their answers, that the warrant of the complainant was issued by a resolution of thu Commonwealth of Virginia, arid was therefore, by law, vpid as respects the complainant’s right to locate the lands in the Virginia military tract. One of the complainants also insists upon the statute of limitations, etc. ' By the agreement of parties it is admitted that the complainant was a minor, residing in the State of Virginia, where he continued to reside until some time in the year 1824, and also that Josiah Parker was a resident of the same state, and never was in Ohio. Upon well-settled principles, the statute of limitations does not apply.

The case furnishes the most abundant proof of the notoriety of the entries of Heath and Curry for more than thirty years. As the facts furnish no deviation from the settled principles applicable to notoriety, it is unnecessary to detail them as exhibited in evidence.

It is urged this entry is vague in its calls for Curry’s and Heath’s, as those entries are not identified by quantities or numbers; but those entries are well defined, not only by fixed but by artificial monuments, and there is an entire absence of proof that there are any other claims, in the name of Curry or Heath, on White Oak run. A subsequent locator could not, therefore, be misled or confused for the want of a more exact and precise description of these entries.

The other point made in this cause was considered and decided in the case of Parker v. Wallace, 3 Ohio, 490. *Upon a review of the principles of the last-mentioned case the court is entirely satisfied with the decision. It may be added, that the holders of resolution warrants have repeatedly been recognized by Congress as equally entitled to bounty lands within the Virginia military reservation with others having certificates, and particularly by the acts of March 3, 1807, April 11, 1818, and March 1, 1823. This, however, was a vested right in the holder when the cession was made to the general government. In the reservation no distinction is made between those entitled to bounty by, resolution or otherwise, nor is it competent to institute an inquiry upon what evidence the warrant was issued.

The court is, there fore, clearly of opinion the complainant is entitled to the relief sought.


text:
    Robert Wallace v. Ohio Insurance Company.
    The rule of one-third new for old, in the law of the marine insurance, is applicable to insurance of steamboats on the western waters.
    This was an action on a policy of insurance, taken by the defendants upon the steamboat Hercules, for the sum of eight thousand dollars. Cincinnati was the home of the Hercules and of the plaintiff. She was run against by the B. Franklin and injured, but was nevertheless brought to Cincinnati and there repaired. The whole amount of charges claimed by the plaintiff for repairs was eleven hundred and thirty-six dollars. Of this sum six hundred and forty-seven dollars was admitted to be for repairs properly chargeable as such. The residue of the charges were for kitchen and table furniture, and for wages to-captain, mate,- steward, cook, and clerk. By the terms of the policy the insurers were not to be charged unless the loss amounted to ten per cent, upon the amount insured. The insurers refused to pay» because they contended that the loss, when reduced, according to the marine law, one-third, upon the doctrine of new for old, did not amount to eight hundred dollars, and because the items charged above' the sum of six hundred and forty-seven dollars wore not legally chargeable against the insurers. The action *was [235 a,n amicable one, and the facts were all agreed, reducing the ease to the points here stated, and agreeing also that the boat was not improved by the repairs. It was adjourn ed here for decision from the county of Hamilton.
    Caswell and Starr, for plaintiff:
    The agreed case contains an admission of all the facts set forth in the declaration, so far as they are necessary for the adjudication of the merits of this.cause. Only one allegation of the declaration is denied, and that is rather a conclusion drawn from the promises stated than the direct averment of a fact. The statement is, that the'loss for which the insured claims indemnity exceeds ten per cent, upon tho value of the property insured. Upon the correctness of this statement the cause of the plaintiff is supposed to rest. The value of the subject insured, as noted in the margin of' the policy, is eight thousand dollars; unless, therefore, the loss amounts to eight hundred dollars the insurers are not liable, by the terms of the policy as set forth in the declaration. According to the agreed case the plaintiff is to have judgment for tho amount of the bill of particulars, provided the loss, when adjusted by the court, amounts to ten per cent., not upon the amount insured, but on the value of the subject insured. Small as is the amount in controversy in this suit, the principles to be settled are of vast importance to the commercial interests of the western country.
    We are authorized by gentlemen of the highest standing, and having access to tho highest sources of information, to say that the annual marine risks taken in the city of Cincinnati alone exceed three millions of dollars! And yet this is the first instance in which the judicial tribunals of the state have been called upon to give a construction to a policy of insurance or adjust a loss. This, therefore, being a case of the first impression is important, inasmuch -as the questions decided will serve as precedents in othei cases, which may arise upon similar policies.
    In order to arrive at a just conclusion in this case it will bs necessary to discuss several questions :
    1. How far shall tho adjudication of foreign courts, and those of our sister states, be adopted as the rule of decision here.
    *2. Whether the expenses of the master, pilots, clerk, mate, steward, cook, and one deck-hand, while the boat was repairing, shall be allowed.
    3. Whether a deduction is to be made upon the bill of repairs, onc-third new for old.
    4. If such deduction is to be made, shall it extend to the whole bill of repairs, or to the furniture only?
    If the wages of the master and crew are not allowed, as an item, upon which an adjustment of a partial loss is to be predicated, and a deduction of one-third new.for old is made upon the bill of repairs, tho loss thus adjusted falls within the ten per cent. But if we are allowed the wages and expenses of the crew, and no deduction is made except upon the furniture, or if the item of wages is rejected, and no deduction is made upon the residue of the bill of particulars, in either'of the lattef cases the loss will exceed ten per cent., and the jfiaintiff is entitled to judgment.
    In addilion to the usual allegations and proof in eases upon policies of insurance, the declaration in this ease contains several special averments, supposed by us to be peculiarly applicable to policies upon steamboats navigating the western waters, all of which averments are admitted to be true, though their importance in the case will be denied.
    It is admitted that the loss was occasioned by one of the perils insured against, that the injury done to the boat was of a permanent character, and that no repairs can render her of the same value as before the perils were incurred; that the expenditure on the part of the plaintiff, in order to enable him to put his boat in a running condition was necessary, reasonable, and proper; and further, that the insured could not safely discharge the crew; that to have done so would have jeopardized the profits of the residue of the running season of the boat (for which she was insured), and-might have thrown her out of employ. Upon these admissions the plaintiff is entitled to recover, unless some unbending rule of law is interposed to bar that right.
    On the part of the defendant it will be contended that, by the marine law one-third is to be deducted, “ new for old,” and that the expenses of the crew while the boat was repairing can not be allowed, inasmuch as the boat arrived at Cincinnati, where she belonged, where the repairs were *made, and from whence she commenced running her regular trips; and that the entire body of the law of marine insurance is to be adopted as the rule of decision in this court, without regard to our situation, or the peculiar navigation it is intended to protect.
    We are willing- that the roots of this exotic shall strike deep iu our soil; but we ask the court to prune its shoots, as they spring up, to suit our necessities. We ai-e willing to engraft its healthiest scions upon a vigorous native tree, but we can not safely lash our boat to its antiquated trunk. We contend that insur-ance upon steamboats forms a new era in the history of the commercial world, and that the ancient rules of decision, with reference to a different subject, can not safely be adopted in detail. Many of them are arbitrary, and not applicable to the state of trade, or the customs of navigating interests in the western states. The subjects of insurance, and the course of trade, are so widely different in their nature from those in which the rules were established, that it will be impossible to make anything like a universal application of them. We have insurance upon flat-boats, keel-boats, and upon steamboats. These differ as widely from each other as the navigation of tide-waters by ships differs from that of a steamboat, steering her’ course among the sand-bars, the drift, snags, and sawyers of the Mississippi, and stemming the rapid and ever-changing currents of the innumerable bayous, which serve as outlets to this father of rivers. '
    What have the technical and arbitrary rules of marine irisur anee to do with such a navigation as this? That certain great and leading principles of insurance are applicable alike throughout the commercial world, and that many others may, in some degree, be made applicable to the navigation of the western waters, we readily admit; but we say they can not be adopted without many qualifications. Some of these rules, were established without much reason, and for the mere purpose of having a rule. They have been applied to other cases for the sake of uniformity. So far, therefore, as they are consistent with the principles of equity, and (¡an be made applicable to the peculiar nature of our trade, they should be adhered to, and no further.
    *There is one principle which we think is universal in its application to all policies of insurance, and that is “that the contract for insurance is substantially a contract for indemnity.” 3 Kent’s Com. 203; Philips on Insurance, 1; 1 Marshall on Insurance, 1; Parke on Insurance, 2; Lex Mercatoria Americana, 254 ; 2 Blackstone Com. 458.
    An adhesion to this fundamental doctrine will secure to the plaintiff a judgment to the full extent of his loss, unless he has forfeited that claim by some act of his own or of those in his employ. The agreed case .shows that no blame was attached to the insured, who, in this case, was the master, or to the crew, but, on the contrary, it appears that they labored within tho terms of the policy, for the safety of the subject insured. The rule which has obtained, in the courts, of deducting one-third new for old, must be predicated upon the idea that when a ship has undergone repairs, the new part which has taken the place of the old, is better than tho old by ono-third, and consequently should be deducted ; otherwise the insured might speculate upon his losses, at the expense of the insurer. This is in accordance with the rule for which we contend “ that a policy of insurance is to be construed as a contract of indemnity.” We presume that experience has shown, that, taking the average injuries to which ships are subject, they are of a character that, when those .injuries are repaired, the ship is more valuable than when tho perils were incurred. For, in tho

      English courts, no deductions are made, if a partial loss is sustained by a ship on the first voyage, because no presumption can arise, that a new ship is benefited by repairs. And, even in. the United States, no deduction is made for a new anchor, the reason of which is obvious, that a new anchor is no better than an old . one. If this rule of deduction is traced to its source, we think it will be found that it was originally applied to the sails and rigging of a ship, and to them only. Subsequently it has been applied to the entire repairs. We contend, as a general rule, that when a steamboat, navigating the western waters, sustains an injury from external violence, she can not be made as valuable as before those perils were incurred. In the present case, it is admitted that the injury was of a character permanently to affect the value of the boat.
    *If this policy, therefore, is to be construed as a contract of indemnity, we are entitled to the expenses of repairs without deduction, for it is conceded by our opponents that no more money was expended than was absolutely necessary for the repairs of the boat, to put her in a running condition. We think, therefore, that the rule which has been adopted in the courts of the United States and in foreign courts, of dedusting one-third without regard to the nature of the injury, is not calculated to do justice, and that this court ought not to adopt it.
    We think it also clear that we are entitled to be paid the wages and expenses of the crew of the boat while she was repairing. It is a well-settled principle of the marine law that when a ship is compelled, from distress, to put into a port to repair, in order to enable her to prosecute her voyage, the insured is entitled to recover the expenses of wages and provisions while repairing; but it will be contended that because the boat in this case arrived at Cincinnati, where she belonged, and which is a usual place of discharging freight and passengers, they are not liable. We presume the case of Dunham and Bool v. Com. Ins. Co. of N. Y., reported in 11 Johnson, 315, will be relied upon as well to sustain this proposition as the one already discussed. In that case, the ship Orbit was insured at and from New York to Liverpool, and at and from thence to the port of discharge in the United States. During the voyage she met with very severe gales of wind and heavy seas, which occasioned considerable damage. She eventually arrived at Liverpool, discharged her 'freight, and went into dry dock to repair. The judge in that case refused to allow the expenses of the captain and creW while the ship was repairing, and principally upon the ground that the ship arrived at her port of discharge, delivered her cargo, and thereby earned her freight.
    The judge in this ca.se is made to say that unless these expenses of repairs can be brought into general average, the underwriters on the ship can not in any case be made liable. To the correctness of this doctrine wo can not subscribe, but the circumstances of the two cases are so different that we need not combat it. It is conceded by the judge that in the case of Walden v. Leroy, 2 Caine, 263, that the expenses ^incurred for wages and provisions during the detention of a vessel for repairs was a proper subject of general average, and that the insurers upon the ship were liable. Suppose it were conceded that unless the expenses of wages and provisions were items of general average, in cases of insurance, for a particular voyage, the insurers would not be liable, yet the rule could not be safely applied here. The insurance upon the steamboat Hercules was not an insurance for a particular voyage, but for the term of six months. Any injury, therefore, which is within the terms of the policy, and which shall compel her to put into a port for repairs during the time for which she is insured, must be likened to a case when a ship, on a particular voyage, is compelled, from distress, to put into a port for a similar purpose, in order to enable her to prosecute her voyage. If a shi^ during the voyage, or a steamboat, during the season for which she is insured, is compelled to put into a port for repairs, the insurers are liable to pay the expenses during the time necessary to make those repairs. It is important to the owners of steamboats that they should be able to run during the entire season for which they are insured, or that a ship should be able to prosecute her voyage and earn her freight. The principle of general average can not be made to apply to a case like that of the Hercules, even if the doctrine of Justice Thompson be correct. See also the case of Paddleford v. Boardman, 4 Mass. 432; Power v. Whitmore, 4 Maule & Selwyn, 141; Plummer v. Wildman, 3 Maule & Selwyn; 3 Kent’s Com. 188, 250.
    We might also urge the necessity of retaining the crew on board for the safety of the boat. Suppose the entire crew had been discharged, arise in the river, the boat driven from her moorings, and a loss had been sustained, would the insurers have been liable ■on their policy for such loss? We think it a condition annexed to all policies of insurance upon ships and steamboats that they shall be well manned and found, or the insurers are not liable for any loss which may happen.
    According to the view we have taken of the case, the plaintiff is entitled to judgment for the entire bill of repairs of the Hercnles, and the expenses of the crew while she was repairing. Whether a deduction should be made upon the bill of furniture, is respectfully submitted to the court without argument.
    ^Hammond & Garrard, for defendants:
    Two points are raised for consideration in this case:
    1. Is the doctrine of one-third new for old repairs, applicable to repairs on steamboats ?
    2. Where the repairs are made at the home of the boat, can a charge be made against the insurer for wages and provisions?
    The marine law establishes both these propositions in favor of the insurer. But it is contended that neither ought to be applied to insurance on steamboats. The argument of the plaintiff’s counsel does not seem to us satisfactory. The reason for the rule, new for old, is explained in all the elementary books. It does not proceed upon the ground of actual advantage in the particular ease. But upon the ground that if, in every case, the actual damage should be inquired into, controversy would be endless. 3 Mason, 73.
    If the boat be not injured half her value, she can not be abandoned, but must be repaired at the charge of the insurer. If a steamboat is ever worth, repairing, there must be cases in which, when repaired, her value is increased. If this be conceded, there is an end of the argument. . The reason is as strong for establishing the rule in regard to steamboats as to ships at sea.
    The reason of the rule, respecting wages and provisions, is also applicable to the repairs of steamboats. It is not varied by the fact that that insurance is taken for a period of timo certain. When the repairs are made at home, there is no voyage on hand ; no freight to earn, no cargo to preserve. And it is because, when repairs are made on a voyage, when all these require attention, that the expenses are allowed.
    The value, furnishing the rule for abandonment, for injury, is the worth of the vessel when the accident occurred. 3 Mason, 71. 72. A steamboat very old and worn is worth repaii*. The damage is less than half her value. She is injured near her home, and is brought there for repair. Repairing does not make her as good as new, but more valuable than before the injury. The plaintiffs claim that she shall be thus improved at the charge of the insurer’, and that a mate, steward, cook, captain, clerk, pilot, and deck hands, *shall be maintained at the insurer’s expense during the repairs. The argument would as well cover firemen and engineers, for when repaired and ready for navigation the boat can not move without thorn. We think it untenable.
   By the Court :

In its practical application, the whole doctrine of insurance is new to us. We can not, therefore, undertake to settle principles so as to conclude us, should further litigations arise, and further investigations diffuse new lights upon the subject.

The question now necessary to decide is, whether an established doctrine-of the law of maritime insurance shall be applied to tho case of insurance upon steamboats navigating our interior rivers. The plaintiff contends that it is wholly inapplicable, and should, for that reason, be rejected.

It is admitted that if a sea vessel be injured to an extent less than one-half her value, she shall be repaired at the expense of the insurer. But in that case, one-third of the charges of repair shall be borne by the owners. The reason upon which the rule seems to be founded is, that the repairs place the vessel in a better condition than when she was insured. In this ease, it is agreed that the vessel was not improved by the repairs, and the drift of the plaintiff's argument appears to be that when the reason for the rule ceases, its obligation is at an end. We understand that the rule is of universal application, and that it is not one adapted to each particular case. It is so laid down by Judge Story, in Peel and others V. Merchants’ Insurance Co., 3 Mason, 73.

“The rule itself is somewhat arbitrary, and not founded upon an exact calculation with reference to the particular case. The ship may be almost entirely new, and then the reason for the deduction would altogether cease. The ship may be very old, and the reason for a much greater allowance would apply. The general principle upon which the rule is founded is, as stated by Ma-gens, that the underwriters ought to pay for the actual damage or injury, but not for the wear of the things lost or injured; and, therefore, proper allowance ought to be made for the difference in value between the new and the old. But if this difference woretc *be ascertained in every particular ease by actual inspection and estimates, there would be no end to controversies, and, therefore, general usage, which the law follows, as founded on general convenience, has applied a certain rule to all cases, not upon the notion of perfect justice, but as generally reaching, in substantial equity, the mass of them.

The doctrine, as here asserted, makes it wholly immaterial, whether, in the case before us, the steamboat was actually improved or not by the repairs. So we must declare that the principle, new for old, is applicable to steamboats, or else that fact in the case can have no weight in deciding our judgment.

We are not prepared to say, that, in general cases, steamboats, when not injured more than half their value, at the time of injury, may not be greatly improved by repairs. That is, improved from the actual condition when the injury was sustained. We think this may be the case, and if so, we are not now willing to declare that this branch of the law of marine insurance should not extend to steamboat insurances.

If we understand the counsel for the plaintiff rightly, they propose that we shall take upon ourselves to revise the whole doctrine of marine insurance, and retain part as properly applicable to the case of steamboats, and reject part as wholly inapplicable. We think this work, if necessary to be performed, should be undertaken where there is more experience and knowledge on the whole subject. Steamboats commenced running in the waters of New York before they did in the western waters. The city of New York is the great commercial emporium of the Union. Her jurists, both bench and bar, are eminent for their deep and sound learning. Questions of insurance must have arisen, yet neither in the books of reports, nor in the excellent elementary treatise of Chancellor Kent, have we any intimation that the general doctrines of the law oí marine insurances are inapplicable to steamboat insurance. Steamboats have been in use in England for years. We have no information that the principle now pressed upon us has been urged there. Under these circumstances we hold it safest to adhere to the doctrine as we find it settled, and administer it as an entire, system, to those who claim at our hands the administration of a part of it. When the amount of one-tbird is deducted *from the whole charge for repairs, the loss is reduced to a less sum. than ■eight hundred dollars. This not being ten percent, upon the actual value, the terms of the policy do not entitle the plaintiff to recover. The whole case is thus disposed of, and it is unnecessary for us to say anything upon the other points presented in it. Judgment for defendants.


text:
    Ludlow's Heirs v. Kidd's Executors and others.
    Where the legal title is fraudulently obtained, against a better equity, and conveyed to au innocent purchaser, without notice, complainants prevailing in equity may have á decree for the value against him. who obtained sucb legal title by fraud.
    This cause was adjourned here for final decision, from the county of Hamilton. It is the same cause reported in 2 Ohio, 372, and 3 Ohio, 541, and now comes up for final decision upon the merits of the original equity of the complainants. The facts are briefly these: In the month of January, 1789, the town of Cincinnati was laid out by Matthias Denman, Robert Patterson, and Israel Ludlow. Afterward, Denman and Patterson sold out to Joel Williams .and Samuel Freeman. .John Oleves Symmes was the original grantee of the government for a large tract of land between the Great and Little Miami rivers, the patent having been issued to him, in trust for himself and his associates, in the month of September, 1794. The proprietors of the town of Cincinnati agreed that the title should remaiu with Symmes, who should make deeds for the lots to the purchasers, upon the certificate of any two of the proprietors. At the original laying oat of the town, the proprietors each selected a lot for themselves, which was not put into market.. The complainants claimed that the lot in controversy was selected by their ancestor, who took possession, cleared off the timber, and inclosed it with a fence, and cultivated it.
    John Kidd, under whom the defendants claim, in the month of .July, 1799, rented the lot of Ludlow, and took a written lease for the term of. eight years, and entered into possession under that lease, as Ludlow’s tenant. In August, 1799, J. C. Symmes conveyed the lot to his nephew, Celadon *Symmes, without any certificate from the proprietors directing such conveyance. In 1804, Ludlow deceased. Celadon Symmes conveyed the lot to Joel Williams, who was then the owner of Freeman’s interest in the town property. And before the expiration of Ludlow’s lease, Williams conveyed it to Kidd, who, at the expiration of his lease, retained possession upon his deed. The bill was originally brought against Williams and Kidd, to obtain from them the legal title, and in 1817, was dismissed upon a final hearing.
    After this dismissal, Kidd sold part of the property, in fee, and leased a part of it for ninety-nine years, renewable forever, reserving an annual rent. Afterward, Kidd made his will, and di'rected that his executors ákpend the rent reserved for the education of poor children. For a time the executors received and so applied the rents, and at length transferred their interest and trust to the Cincinnati College. The Bank of the United States became the owners of the lease, and, in this condition of things, the bill of review was filed. Upon the service of the process on the bill of review the bank ceased to pay the rents. The court, having on the bill of review, reversed the decree of dismissal, the purchasers under Kidd put in the plea that they were innocent purchasers, without notice, and this plea was ruled in their favor. The rents reserved upon Kidd’s lease, and the value of the lot, as against Kidd’s estate, were all that was left for the complainants to obtain by a final decree in their favor.
    This cause now came before the court, upon questions of fact and law, involving the superior equity, as between the heirs of Ludlow, claiming under him, and the representatives of Kidd claiming under Symmes. The court decided the facts to. be in favor of the complainants, but considered it of no utility to report the evidence, so as to make the grounds of decision intelligible. The following decree was rendered in the cause:
    “ This day came the parties by their counsel, and the bill, answer, and exhibits being read, and understood, and the arguments of counsel thereon heard, the court are of opinion that the complainants are in equity well entitled, as against the devisees of John Kidd, to the possession and legal title to the lot numbered four hundred and one, in the bill mentioned; and it having heretofore been adjudged and ^decreed in this cause, that the [246 whole of said lot, except the annual rents of one thousand dollars per annum, reserved by John Kidd, upon his lease to John Smith and David Doring, for ninety-nine years, renewable forever, dated August 18, 1818, of a part of said lot, had passed into the hands of innocent purchasers fora valuable consideration without notice, and, therefore, could not be affected by the equity of the complainants, the court can only extend relief to the complainants, as against the said John Kidd, and as against his devisees of the said rent reserved.
    The court do, therefore, order, adjudge, and decree, that the Cincinnati College, by a proper deed of conveyance under their corporate seal, assign and transfer to the complainants all the right, title, and interest, they may have acquired in and to the. lease from the said John Kidd, deoeafed, to David Doring and John Smith, and to the rents thereon reserved; and that the said Joshua D. Wilson and Oliver M. Spencer, executors and trustees of the said John Kidd, deceased, by a proper deed,- in writing, release to the complainants all the right, title, and interest that may remain in them, to the lease aforesaid, and the rents thereon and thereby reserved, both said conveyances to be made and executed on or before February 1, 1830, and in failure thereof, then that this decree fully invest the said complainants with all the right, title and interest of the said Cincinnati College, and of the «aid Joshua D. Wilson and Oliver M. Spencer, as executors and trustees of the said John Kidd, deceased, in and to the said lease and rents thereon reserved; and, in respect to the annual rents of one thousand dollars per annum, reserved upon said lease, which have accrued since the emanation of the process in this case, upon the bill of review and supplemental bill, to wit: since April 1, 1825, the court are of opinion that the complainants are entitled to a decree for the same, and it appearing to the satisfaction of the court that the said rents remain in the hands of the defendants, the president, director, and company of the Bank of the United States, the court do award, order, and decree, that the president, directors and company of the Bank of the United States account for and pay over to the complainants the whole amount of one thousand dollars per annum of annual rents, which have accrued since Api*il 1, 1825, until the pronouncing of this decree.
    And it ^further appearing to the court, that, at the time cf filing the original bill in this ease, to wit: on March 15, 1821, the said lot was improved and yielding rents, the court are-of opinion that t'ho complainants, as against the estate of the said John' Kidd, and his executors, representing that estate, are entitled to an account for, and payment of the rents and profits justly accruing on said lot, deducting therefrom all proper charges for taxes paid, and improvements made. It is therefore, decreed, that Samuel F. Hunt be, and he is hereby appointed commissioner to take and state an account of all such rents and profits, from March 15, 1821, to the time of taking such account, crediting upon said account the annual sum of one thousand dollars, from April 1, 1825, already charged by this decree; said account to be taken upon equitable principles, and report thereof made to the next term of the Supreme Court in Hamilton county. The court are further of opinion, that the complainants, as against the estate of John Kidd, are entitled to the present value of the said lot of ground, number four hundred and one, in the bill mentioned, except for the portion thereof which produces the annual rent of one thousand dollars per annum. It is therefore ordered that the said commissioner estimate the present value of the said lot number four hundred and one, deducting therefrom such part as produces the annual rent aforesaid, and report the same to the Supreme Court of Hamilton county at their next term. As to the defendants, John Williams, Thomas Williams, Benjamin Williams, Joel Williams, and Eleanor Williams, the bill is dismissed. And the court do further award, order, and decree, that the complainants recover of the executors of John Kidd, deceased, tobe levied upon his goods and chattels in their hands to be administered, their costs and charges in the prosecution of this suit expended; and it is ordered that the clerk of the Supreme Court for Franklin county send a certified copy of this decree to the clerk of the Supreme Court of Hamilton county, who is directed to enter the same on the journal of the court.
    Garrard, for complainant.
    Fox, for defendant.