Goodenow, in support of the motion.

By the COURT.

We think there is no sufficient reason to set aside the verdict in this case.Nothing is more common than to consent that a jury may separate after they agree upon a verdict, and before it is rendered in court.

The sanction given by the parties and by the courts to this practice, is conclusive that it is not considered, in its nature, dangerous to the right administration of justice. Nothing of a miischievous tendency could be so frequently indulged towards a jury. It has never been thought safe, that jurors should be permitted to converse with strangers, before the verdict was given, or that one or more of the jurors should leave his fellows; or even that the jury should separate before they were agreed; unless some special order was made to that effect. But the mere consent of the parties has usually been received, to warrant such a separation as this. The misbehavior of jurors, in a civil case, which would render it necessary to disturb the verdict, should be of such character as to evidence bad intention, which is not pretended in the case before us. The motion for a new trial is overruled.

HOOVER v. MORRIS.

A written memorandum that the plaintiff will allow the defendant credit for a certain debt due to the defendant from a third person is not within the statute of frauds.

This cause was reserved for decision here, in Tuscarawas county. It was a motion on the part of the plaintiff, for a new trial, upon the following case:

At the trial, the defendant offered as a set off, a writing in the following words, "I agree that Dr. Morris' account against Samuel Miller, amounting to about twenty-six dollars, shall be offset, and applied on my claims against Dr. Morris, now in suit, and that I will pay the same. Jacob Hoover." Upon this paper the defendant claimed the offset of twenty-six dollars. The plaintiff's counsel objected to the admission of the paper in evidence. But the Court overruled the objection, and the jury allowed the credit to the defendant. The plaintiff moved for a new trial, on the ground that "it was a promise to pay the debt of a third person; and that, therefore, the consideration ought to be in writing, as well as the promise."

Goodenow, for the defendant.

By the COURT.

The written memorandum, which was admitted in evidence, and the admission of which the plaintiff complains of as error, stipulates that a certain sum of money due from Miller to Morris, should be charged to the defendant and credited to Morris, in a particular transaction. The memorandum is silent as to the consideration upon which the agreement is founded. Nor is it necessary to the validity of the agreement that the consideration should be specified. It is nothing more than an admission, that a stipulated sum of money is due from the

plaintiff to the defendant, for which the latter shall have credit. It is not an undertaking to pay the debt of Miller, but an acknowledgment of a pre-existing liability to pay it. Prima facie, it was obligatory upon the plaintiff, and was therefore competent evidence. In this view of the case, which we deem a cor. rect one, it is not touched by the statute of frauds. Motion for new trial overruled.

LESSEE OF DEVACHT v. NEWSAM.

In ejectment, the plaintiff may recover on a possessory title alone.

A tenant or those claiming under him cannot controvert the title of the landlord, but may show that it is determined.

This was a case adjourned, from Gallia county, upon a motion for a new trial, in an action of ejectment, where the jury found a verdict for the defendant.

At the trial the plaintiff gave in evidence, that he rented the lot in question, No. 59, in the town of Gallipolis, to one Cooper, by parol, in the year 1822, who took possession under the lease, and afterwards rented the same lot to the defendant, and put him in possession, under a like parol agreement to perform the conditions of the lease from Devacht the plaintiff's lessor.

The defendant then proved to the jury that in the year 1796, one Quieffe owned the lot, No. 59, and died in possession of it. That one Maguet, administrator of Quieffe, took possession upon his demise, and afterwards made an agreement with Devacht to exchange the possession of the lot, No. 59, with Devacht, for a lot owned by him, each to pay the taxes on his own lot, and the change of possession, to remain as long as it should be found mutually convenient. The possession of the respective lots was changed by this agreement until the death of Maguet, when Devacht enquired of the son and heir of Maguet, whether he was willing to continue the change of possession, who assented to it. Newsam, on the expiration of Cooper's lease of 1822, refused to restore pos session to Devacht, who prosecuted against him a forcible detainer, in which the jury found for the defendant. After this Devacht applied to Maguet to pay rent for the lot No. 59, which he refused to do, when Devacht told him, he should rent his own lot, occupied by Maguet, to some other person, and in May, 1824, did accordingly make a written lease to one Workman who took possession under it. Maguet, after the conversation with Devacht respecting rent made a lease to Newsam for lot No. 59, upon which he claimed to maintain his possession. To the admission of the testimony establishing these facts, the plaintiff's counsel objected at the trial, and the objection was overruled.

The plaintiff then offered evidence to prove that Quieffe was never the legal owner of the lot No. 59, and the plaintiff had been in peaceable possession for twenty-five years before the possession was divested out of him. But upon the suggestion of the defendant's counsel, the court rejected the evidence, and charged the jury that if they should find from the evidence that the agreement between Maguct and Devacht had been put an end to by the parties, and the possession restored to Maguet before the suit was commenced, the plaintiff could not reThe verdict was for the defendant, and the motion for a new trial was

cover.

founded on the allegations that the court erred in receiving the evidence offered by the defendant, and in rejecting that offered by the plaintiff respecting the original title of Quieffe and the possession by himself, and that the verdict was against evidence.

Nye, in support of the motion. Vinton, contra.

By the COURT.

Both the plaintiff and defendant, in this case, claim upon a possessory title: neither of them pretend to be invested with the original right. The lessor of the plaintiff being in possession, made a lease of the lot for one year, and the defendant came into possession under the lease. The plaintiff therefore insists upon the benefit of the rule, that a tenant or person coming in under him shall not be permitted to dispute the title of the landlord or set up any objection to the right under which he entered. The defendant answers this position by claiming the benefit of another rule, equally well established, and forming an exception to the general operation of the first, which is, that where the landlord's title expires subsequent to the demise, the tenant may show that fact to defeat an ejectment by the landlord.

The plaintiff's counsel do not controvert the existence of the latter rule, but they insist that the evidence does not bring the case within it; because no right or possession is shown to have been in Maguet. We think otherwise. Maguet was in undisputed possession; Devacht contracted with him for that possession, and entered under him. The possession of Devacht was therefore the possession of Maguet, and after his death Devacht recognized the right of possession to have been cast upon his son, and again agreed with him to continue it. Parol evidence was properly admissible to explain the possession of Devacht, when that possession was not connected with any written title; As the possession of Devacht originated in parol, and was terminated by parol, no other evidence. could exist to establish the one fact or the other. We conceive that there was no error in admitting the evidence.

The next error complained of is the rejection of the testimony offered by the plaintiff by way of rebuttal. Supposing the fact proved that Devacht entered under Maguet and held possession under him, proof that Quieffe had no title, could not be admitted, upon the very rule urged by the plaintiff himself. It would be to permit Devacht who held under Maguet to dispute Maguet's title. If the fact of Devacht holding under Maguet was not proven, then Quieffe's title was immaterial, because the plaintiff would be entitled to recover in virtue of his own possession. That part of the evidence opposed was properly rejected. With respect to the evidence offered of twenty-five years possession, that too was immaterial unless intended to establish a possession adverse to that of Maguet, which was not pretended, consequently it was rightly overruled.

It is alleged that as to the fact of the expiration of the estate or interest of Devacht, before the suit brought, the jury found against evidence.

The suit was commenced early in the year 1825. Nearly twelve months before this time, Devacht called upon Maguet to pay rent for the lot which he possessed as an equivalent for Devacht's possession of the lot No. 59, and noti fied him that if he did not agree so to pay rent that Devacht would rent his own

lot to some other person. Accordingly in May, 1824, he resumed the possession of his own lot, thus, by his own act, putting an end to the agreement for the exchange of possession. The law would not permit him in such a case as this, to violate his part of the agreement, and at the same time enforce it against the other party. He cannot be allowed to allege that such was his intention. The jury rightfully inferred that the agreement and the right under it was at an end. The motion for a new trial is overruled, and judgment given for the defendant.

BANK U. STATES v. SCHULTZ.

A second injunction in the same cause, upon new matter, cannot be allowed, if the matter subsisted when the first bill was filed.

A court of equity will not turn a plaintiff in an execution at law upon a fund manifestly not liable to satisfy his judgment.

The complainant cannot travel out of his bill to make a ground of relief.

This was an original bill filed in the Supreme Court of Hamilton county, and is between the same parties, and relates to the same transaction, and had the same object with that reported in vol. 2, 471.

In Oct. 1820, the defendant, Schultz, obtained a judgment against the Bank of Cincinnati, which operated as a lien upon the real estate of the Bank, from the 28th day of August, of that year. Execution was immediately sued out and levied upon real estate, which was valued at a sum sufficient to satisfy the debt, at two-thirds of the valuation. Executions to effect a sale were prosecu

ted with unremitting dilligence, to August, 1824, when the first valuation having been set aside and a new one made, the property levied on was sold for a small sum, leaving a large balance due upon the judgment. An alias fi. fa.was then sued out and levied upon property, sold and conveyed to the Bank of the U. States, in October, 1820. The Bank filed a bill and obtained an injunction to stay the sale, upon the ground that the property was not subject to the lien of the judgment. This injunction being dissolved and the bill dismissed upon a final hearing, Schultz was again proceeding to sell the property upon execution, when the Bank filed this bill and obtained a second injunction on the ground of a new equity, which was founded on an allegation, that subsequent to the sale and conveyance of the property in question to the complainants, the Cincinnati Bank owned lot 155, which ought to be first subjected to the payment of Schultz's judgment. The defendant answered and alleged, that the lot 155, had been so disposed of that it could not now be subjected to his judgment, and denying the equity of the bill. A statement of facts was agreed between the parties, from which it appeared that the lot 155, has been taken in execution as the property of the Bank of Cincinnati, upon a judgment rendered against it in August, 1821, and sold in virtue of the levy in October, 1822. The statement embraced several other pieces of property, but it is not material to the point decided to enumerate them. The cause was adjourned here for decision, from Hamilton county.

Caswell and Fox, for complainants. Hammond and Storer, for defendants.

By the COURT.

When a second bill is filed to obtain a second injunction, in relation to the same transactions, and between the same parties, it is not enough to allege new ground of equity, not suggested in the former bill. It must be shown that the new matter alleged, did not exist at the time the first bill was filed, or, that if it existed, it was unknown to the complainants. If this rule were not enforced, there might be no end to litigation. A bill might be filed and an injunction obtained, in succession, upon separate and distinct grounds, every one of which ought to have been included in the first bill. It is unnecessary to point out the inconvenience, vexation and injustice of such a practice.

In this case, the new ground of equity stated in the bill, existed when the first bill was filed, and existed in such a manner as to make it the duty of the complainants to be conversant with it. No allegation is made that they were ignorant of it. For this reason the new bill ought not to be sustained.

Again-The lot, No. 155, which it is charged, the respondent must first resort to, it appears has been seized in execution, and legally sold under a subsequent judgment. As Schultz did not set aside his levy under the act of 1822, he has, according to the decisions of this court, lost his lien against a subsequent judgment creditor. Were we to turn him round to pursue lot No. 155, it would be with a perfect knowledge that his pursuit would be unavailing.This, a court of equity would never do. The property from which it is sought to remove the levy, is liable to the satisfaction of the judgment; that to which we are asked to transfer it is not. On this ground the prayer of the bill must be refused.

In the agreed case, facts are stated as to other property not specified in the bill. The respondent's counsel object to an investigation with respect to any other property than that stated in the bill. We are of opinion that this objection is well taken. It is, therefore, unnecessary to enquire into any thing further than the rights of the parties as to lot 155. The injunction is dissolved and the bill dismissed.

STATE OF OHIO v. HIBBARD.

This case was before the court, upon appeal from the Common Pleas of Athens county. It was an action of debt, to recover the tax assessed upon the defendant, as a practising attorney and counsellor at law. No argument was adduced on either side, and judgment was given for the plaintiff sub silentio.

STATE OF OHIO v. PROUDFIT.

This case was the same as the above, except that the defendant was a physician. There was no argument, and the judgment was for the plaintiff.