ROSS v. GILMORE.

Variance.

This was a writ of sci. fa. to revive a judgment rendered in the Supreme Court of Fayette county, in favor of the plaintiff, against the defendant. The defendant pleaded in bar, that after the rendition of the judgment, he prosecuted a suit in chancery, in the Common Pleas of Fayette county, and obtained a final decree, enjoining all further proceedings upon the judgment, concluding with a profert of the record. The plaintiff replied, that there was no such record, and upon this issue the cause was submitted, and adjournd here for decision.

The transcript of the record produced, in support of the plea, set out a bill in chancery, prosecuted by John Gilmore, against Thomas Ross, R. Curtain and A. Dillon. It charged that in August, 1799, the complainant executed to Dillon, three notes for money, payable, one 6th August, 1800: one 6th August, 1801: one 6th August, 1802: that after these bonds became due, the defendant Curtain, and the defendant Ross, had them in possession, and that suits were commenced upon them, and judgments recovered in Ross county, Ohio; that one of the notes had been paid, before the judgments were had, but that complainant could not prove the payment: that the complainant paid off said judgments, but that afterwards, 12th October, 1810, the defendant Ross, took advantage of complainant's indigence, and induced him to give a due bill for 71 dollars and 20 cents, with his son as security, for an alleged balance due on the judgments in Ross county: that suit was brought upon this due bill, and judgment recovered in Fayette county. The bill then alleged, that the judg ment was obtained upon the due bill, because complainant could not prove that it was given for a balance due on the judgments in Ross county: made the usual suggestions, that relief could only be had in equity, prayed that each of the defendants might answer specially, to certain matters propounded, embracing the various allegations of the bill, as they related to cach defendant. Relief was then prayed, in these terms:

"Your orator prays your honors enjoin said proceedings at law, until your orator can be heard on the equity side of this court, and on a final hearing, to enjoin said proceedings perpetually, free your orator from the judgment now in favor of said Ross, grant to your orator the writs of subpoena and injunction, for the purpose of obtaining the relief herein prayed for, and such further and complete relief, in the premises, as will meet your orator's case and the money paid said Ross, unless he show a right to it, order to be paid back to your orator, with" &c.

There was no appearance ever entered, or pleadings or answer put in. The decree was pro confesso, and in these words:

"It is therefore ordered and adjudged by the court, that the plaintiff's said bill, be taken as confessed, and the prayer thereof decreed accordingly, and that said defendants, be perpetually enjoined from further proceedings against said judgment at law."

Douglass, for plaintiff. Bond, for defendant.

By the COURT.

We are of opinion that the plea is not supported by the transcript of the proceedings, adduced to sustain it. The bill is very inartificially drawn. It sets out several judgments obtained in different counties, and in behalf of dif ferent parties. It prays that "proceedings" may be enjoined, without confining the prayer of any of these proceedings, specifically, or to any of the parties.— The decree is, that "said defendants be perpetually enjoined from further proceedings on said judgment." We cannot say what defendant, or what judg ment is referred to: consequently, we cannot say that the judgment, upon which the sci. fa. in this case, is founded, is the one. It might, with equal propriety, upon the terms of the decree, be referred to any one of them. The judgment upon this plea, must therefore be given for the plaintiff.

URBANNA BANK v. BALDWIN.

A judgment confessed during the return term upon process issued on the first day of the term, is a lien from the commencement of the term.

This case came before the court, upon a motion made by purchasers under Baldwin, to set aside a levy upon real estate, conveyed by Baldwin to them, and levied on, as liable to the judgment of the plaintiff. It came up on an agreed case, before the court of Common Pleas, of Clarke county, and was brought by appeal, to the Supreme Court, and adjourned here for decison. The facts were as follow:

Baldwin was indebted to C. and E. B. Cavalier, and they had commenced suit against him, to August term, 1820. After the commencement of the No. vember term, Baldwin compromised with the Cavaliers, and conveyed them the estate in question, in payment of the debt, and their suit was dismissed. The deed bore date the 21st day of November, 1820. The term commenced upon the 20th of that month, on which day, the Urbanna bank commenced suit against Baldwin and others, by summons returnable forthwith. This summons was returned served, as to Baldwin and one other defendant, on the 25th, and not served as to the others. On the same day, declaration was filed and judgment confessed by Baldwin and the other party summoned. The suit was prosecuted to judgment against the other defendants, and various process issued, the particulars of which it is not material to state. On the 4th September, 1826, a fi. fa. et lev. fa. was levied upon the real property conveyed to the Cavaliers, and the motion was made to set aside the levy, by the Cavaliers, as parties interested.

Alexander, in support of the motion. Anthony, against it.

By the COURT.

The case may be a hard one, but the law is clear in favor of the plaintiff's lien. The suit was pending on the first day of the term, and when that is the

case, the judgment relates back to that day, no matter on what day of the term it was confessed. There can be no reason for the court to restrain the words of the statute in this case, that would not apply to every other. It does not follow, that the lien must extend to the first day of the term, if no process was then pending. It is sufficient, however, to decide that case, when it comes

up for decision.

The motion must be overruled.

RICHARDS v. FOULKS.

In an action for malicious prosecution the declaration contained two counts, one alledged the commission of the offence on the day of

1824; the other on or about the 24th, of May, 1824. The affidavit containing the charge and stating the offence to have boca committed on or about the 16th of May 1824, is admissible.

This was a writ of error. The original action between the same parties, was for a malicious prosecution. The declaration contained two counts. The one set forth that the defendant had falsely and maliciously, without probable cause, made complaint against the plaintiff, before a magistrate, and procured him to be arrested upon a charge of felony. The other set forth the same grievance, varied so as to allege, that the defendant made the complaint, and instituted the prosecution against the plaintiff and two others.

At the trial, the plaintiff offered in evidence, a certified copy of the affidavit, made by the defendant, at the commencement of the prosecution. In this affidavit, it was stated, that the alleged offence was committed "on or about the sixteenth of May, 1824." The first count of the declaration stated the charge to have been, that the offence was committed on the-day-of in the year 1824.” The second count, that it was committed "on or about the 20th day of May, in the year 1824, last aforesaid." The court rejected the evidence, and the plaintiff excepted.

The plaintiff then examined one of the grand jurors, who found the bill of indictment, and after his examination in chief, the defendant offered to prove by him, on cross examination, what facts were testified before the grand jury, as well by other witnesses as by the defendant, in relation to the facts charged, and also, in relation to the character of one of the witnesses examined by the grand jury. To this evidence, the plaintiff objected, but it was admitted by the court, and an exception allowed. A verdict and judgment was given for the defendant, for the reversal of which this writ of error was brought and adjourned from the Supreme Court of Harrison county, for decision at Columbus.

Goodenow and Bostwick, for plaintiff in error.

By the COURT.

The declaration did not profess to set out in so many words the original affidavit made by the defendant. It only stated the substance in general terms. This was sufficient for all the purposes of justice. The particular day upon which it was alleged that the offence was committed, was not material for the

defendant's defence, and the paper offered in evidence comported substantially with the allegation in the declaration. It was not a case of technical nicety, but of substantial accordance. The paper ought to have been received in evidence, and it was error to reject it.

The other testimony was improperly received, as has been already decided in a case between the same parties. The judgment is reversed and the cause re

manded to the court of Common Pleas for further proceedings.

POTTS v. RIDER.

An action of covenant will lie upon a lease in which the plaintiff describes himself as acting as agent, but covenants as in his own right, where the defendant enters and enjoys the premises.

This was an action of covenant adjourned here for decision from the county of Columbiana. The question arose upon the construction of the covenant, and was presented by a general demurrer to the plaintiff's declaration.

In describing the parties to the covenaat, at its commencement, these words were employed. "By and between Samuel Potts, acting as agent for Nathan Harper & Co., of the one part, and John Rider on the other part, witnesseth." Throughout the whole covenant, all the stipulations were personal to Samuel Potts, and on his part personal to the defendant; and Samuel Potts executed the covenant in his own individual character.

The declaration alleged that the defendant had entered into the premises leased, and enjoyed them, and claimed to recover for the occupation. The defendant demurred.

Coffin, in support of the demurrer. Collin, contra.

By the COURT.

There has been some diversity of opinion amongst us upon the question presented in this case: but a majority of the judges have come to the conclusion that the action may be sustained by the present plaintiff.

The defendant contracted personally with the plaintiff to do certain things, and accepted the personal agreement of the plaintiff as an equivalent. Of this contract the defendant has had the benefit. He entered and enjoyed the leased premises, and there is no justice in permitting him now to say that the contract was void. The recitation in the covenant that the plaintiff' acted in the character of an agent, does not of necessity control the other parts of the agreement. The fact is inconsistent with the personal covenants between the parties, which assume for Potts a different character; and it were safer to consider the words in reference to the agency as surplussage, than to give them the effect of rendering void the contract. By adopting this construction, effect is given to every thing respecting which the parties contracted, and injury is done to no one. The demurrer is overruled, judgment entered for the plaintiff, and the cause remanded for further proceedings.

WATERS. LEMON, ET AL.

Where a plaintiff appeals to the Supreme Court and recovers no more than in the Common Pleas, two judgments are entered; one for the plaintiff for the amount recovered, and the other for the defendant for costs on the appeal.

This was an action of debt, upon an appeal bond, given in a case where the complainant in chancery appealed from a decree dissolving an injunction. The Court of Common Pleas, of Brown county, gave judgment for the amount of the penalty, the plaintiff to have execution for ten dollars sixty-eight cents, the damages found by the court, and the costs. From this judgment the plaintiff appealed to the Supreme Court, and the case was reserved for decision here. In the case originally appealed, and in which the bond was given, the Supreme Court pronounced no other decree than that the appellant should pay the costs, which amounted to the sum, for which the Court of Common Pleas ordered exe. cution to issue. This court decided in the present case, as the court of Common Pleas had decided; so that the appellant did not recover a greater sum here, than in the Common Pleas. The question was as to the judgment to be entered. And the court decided, that under the statute there must be two judgments; one, that the plaintiff recover of the defendant, the amount of debt and costs adjudged to him in the Common Pleas; the other, that the defendant recover of the plaintiff the costs upon the appeal, to be taxed in the Supreme Court, and two judgments were entered accordingly.

Collins and Brush for the appellees.

BURNET v. THE CORPORATION OF CINCINNATI.

An injunction may be allowed to stay a sale for taxes on city lots, assessed by the council of Cincinnati.

This case was adjourned for decision here by the Supreme Court, sitting in Hamilton county. It was a bill in chancery for an injunction to enjoin the sale, by the marshal of the city, of certain real estate, owned and possessed by the complainant, for a city assessment of a tax, to improve the streets.

The bill set out the title and possession of the complainant, and the nature and character of the assessment made by the city council, alleging that it had not been made in accordance with the charter and ordinances, but was illegal and void, and prayed an injunction to stay the sale, until the matters should be heard and adjudged of in equity. The injunction was allowed in the Common Pleas. The defendants demurred to the bill, which was dismissed pro forma, and brought to the Supreme Court by the complainant on appeal.