Mason, in support of the motion.

Opinion of the court by Judge HITCHCOCK.

There were no costs, eo nomine, at common law, although in actions sounding in damages, a practice prevailed, of allowing to the plaintiff, in the assessment of the damages, a sufficient sum to remunerate him for his necessary expenses. Bat, in consequence of the hardship which a plaintiff must sustain, in expend. ing large sums of money for the purpose of obtaining his right, for which he would have no amends, the statute of Gloucester (6 E. 1 Cap. 1) was passed, allowing costs in certain cases. The subject was frequently, at subsequent periods, before the Parliament of England, and such provisions made as justice and necessity seemed to demand.

In this state, costs, as a general rule, have ever been allowed to the party recovering judgment. The amount to be taxed, however, has been varied from time to time, the whole being regulated by statute. In order to decide the

question, in the present case submitted to the court, it is unnecessary to refer to any of those statutes, except such as are now in force, and have a bearing upon the subject. Those parts of the statutes which do bear upon this question, are the 76th section of the act organizing the judicial courts and regula. ting the practice, commonly called the practice act, the 52d and 56th sections of the act, defining the duties of justices of the peace and constables in criminal and civil cases.

The practice act determines the jurisdiction of the court of Common Pleas, and the 67th section provides, "that in all actions for libel, slander, malicious prosecution, assault, or assault and battery, action on the case for a nuisance, or against justices of the peace for misconduct in office, if the jury on the trial of the issue, or on enquiry of damages, shall find or assess the damages under five dollars, the plaintiff shall not recover costs." By the act defining the duties of justices of the peace, jurisdiction is conferred on those officers, in all civil cases, where the matter in controversy does not exceed one hundred dollars, except such cases as are expressly excepted. The 52d section enacts, "that nothing in this act shall be construed or understood, to extend to actions of trespass with force and arms, for assult and battery, for malicious prosecu. tion, or actions against justices of the peace for misconduct in office, except in cases provided for in this act, actions of ejectment, brought to obtain the possession of lands and tenements, actions of replevin, actions of slander, actions on contracts for real estate, or where the title of land is called in ques ton, except for trespass on real estate, and provided for in this act." Here we have a list of actions in which justices of the peace have no jurisdiction; in all other cases their jurisdiction is complete. with the limitation before stated as to the amount in controversy. The 56th section of the same act provides, "That if any person or persons, shall commence or proseeute any suit, for any debt or demand made cognizable before any justice of the peace, in any other court than is authorized and directed by this act, and shall obtain a verdict therein for debt or damages, which, without costs, shall not amount to one hundred dollars, or more, he, she or they, so prosecuting, shall not recover any costs in such suits, any law to the contrary notwithstanding,"

cents.

The action in the present case is an action for assault and battery, and false imprisonment. It was commenced in the court of Common Pleas, and the jury assessed the plaintiff's damage at one dollar seventeen and a half The plaintiff insisted that the action for false imprisonment is an action. known to the law, as separate and distinct from the action of assault and battery; and inasmuch as it ts not named in the 67th section of the practice act, therefore he is entitled to full costs, although the damages assessed are under five dollars. To this it may be answered, that if the action of false imprison. ment is not named in the 67th section of the practice act, neither is it named in the 52nd section of the justice act; and, if the position of the plaintiff, as to the nature of his case, be correct, the cause of action is clearly within the jurisdiction of a justice of the peace. It follows that the plaintiff is placed in this dilemma. If the cause of action is within those specified in the 67th section of the practice act, he is not entitled to costs, not having recovered damages to the amount of five dollars. If the cause of action is not included among those named in that section, then it is within the jurisdiction of a justice of the peace, not being excepted in the 62nd section of the justice acti and he is precluded of his right to recover costs, by the 56th section of that act, the jury having assessed his damages at a less amount than one hundred dollars.

Judgment must be entered upon the verdict, for the amount of damages assessed, exclusive of costs.

BURROWS v. VANDEVIER, ET AL.

A writ of certiorari lies fro n the supremne court direct to inferior jurisdictions but will not be aljowed except in extraordinary cases.

An order for a county road forty feet wide is erroneous.

This was a was a writ of certiorari, addressed to the commissioners of the county of Warren, requiring them to certify their proceedings, upon the appli. cation of the defendants, in establishing a county road. The plaintiff in certiorari, was a landholder through whose lands the road was established.

The application was made to the commissioners on the first Monday of March, 1824, when the usual order of view was made. At the June term, 1824, the viewers and surveyor made their report, in favor of establishing the road. No objections were made, and upon two readings of the report the commissioners made an order to establish the road, and directing the supervisor to open it forty feet wide. In 1828 this writ of certiorari was issued, and adjourned here for decision from Warren county.

T. R. Ross, for plaintiff. T. Corwin, for defendants.

By the COURT.

It is objected that this writ ought to be dismissed, because this is not a case in which the exercise of a sound discretion requires that it should be allowed. It

is admitted that the court possesses jurisdiction to award it, in a case like this; but urged that it ought not to be sustained, because the plaintiff in certiorari had a more easy and expeditious remedy, in the court of Common Pleas. We assent to the justness of this argument, but under existing circumstances we have concluded to sustain the writ in question. As the jurisdiction is conceded, and no rule had been laid down with respect to cases in which it would be ex. ercised, we are not willing to turn the party out of court, in whose case a rule is first to be made known to operate in other cases. Hereafter we shall not sustain a writ of certiorari direct to any inferior jurisdiction, where the court of Common Pleas have power to act, unless the case be attended with some extraordinary circumstances; and these must be of a highly imperative character, or the party will be sent first to the Common Pleas-which, in ordinary cases, in the most appropriate tribunal.

Numerous errors are assigned in the proceedings of the commissioners, in establishing the road and directing it to be opened. But as we agree to reverse the order, upon a sing e point, it is deemed unnecessary to notice any other.

After the first application for this road, and before the order passed for es. tablishing and opening it, the law for opening and regulating roads and highways was changed. Although the new law contained no provision for the continuance and completion of applications, pending when it took effect, we are satisfied that it so operated upon them as to preserve them in the condition in which it found them. So far as the repealed law was their foundation, they must be sustained under that law. But all that remained to be done, when the new law took effect, must be in conformity to the provisions of that law. The act of February 26, 1824, provides expressly that "all county roads shall be sixty feet wide." This order directs the road, which is a county road, only in width. It is consequently in conflict with a And for this cause is reversed.

to be opened forty feet positive legal provision.

HAY v. OUSTEROUT.

A tender after suit brought, before a justice, of the amount due and the costs then accrued, is a bar to a recovery of further costs.

The court may conform a verdict to the intention of the jury without consulting them.

This was a writ of error, adjourned here for decision, from the county of Fairfield. The case was this: The defendant in error, commenced a suit against the plaintiff in error, before a justice of the peace. After the suit was commenced, the defendant in that suit, tendered to the plaintiff, one dollar and fifty cents, with the costs that had accrued. This sum the plaintiff refused to accept, and proceeded to a trial before the justice, who gave judgment against the defendant for two dollars. From this judgment the defendant appealed to the Court of Common Pleas. The plaintiff filed his declaration in assumpsit, containing the common counts. The defendant pleaded the general issue, and gave notice that he should rely upon the tender made when the suit was pending before the justice, with whom, the money tendered was deposited.

Upon the trial the jury returned a verdict, in these words: "We find for the plaintiff in the sum of $1 50: tender was good, offset might have been plead in the suit before squire Rush." After the jury were discharged and without any con. sultation with them, the Court directed the verdict to be entered as follows: "We find for the plaintiff in the sum of one dollar fifty cents, and that the amount of the debt due, and all the costs thereon, was tendered by the said Ousterout, to said Hay, in manner and form as the same is charged in the notice given by defendant."

A bill of exceptions was taken, to thus modelling the verdict, and the court of common pleas gave judgment for the plaintiff, for the damages found by the jury, and costs, to reverse which this writ of error was brought.

Irwin, for plaintiff in error. Ewing, for defendant in error.

By the COURT.

The jury have found, that after the commencement of the suit, the whole amount of the debt which they find to be due, was tendered to the plaintiff, with the costs that had then accrued, as charged in the notice. This is finding a

tender and refusal, which, upon settled principles, precludes the party from reeovering the further costs that may be incurred, by continuing to prosecute the suit. If the verdict, as directed to be recorded by the Court, can stand, the judgment is clearly erroneous as to costs, and so far, must be reversed.

It is urged against the verdict, that it involves more than the verdict as returned, by the jury, fairly warrants. But we do not think so. The general

terms "tender was good," is, in substance, the same with those recorded. The tender could have no validity to defeat the plaintiff's action, unless accompanied by a refusal. The expressions used by the jury, denoted that they had found the tender, and the matters connected with it, to be, as alleged in the notice. And it was proper for the Court to conform the verdict to the clear intention of the jury. Nothing more was done here; and there was no error in doing thus much. The judgment must be reversed as to the costs, and as to the damages, affirmed.

NOTE. The Hon. Jacob Burnet being elected a Senator in Congress, resigned his office of Judge of this Court, at this stage of the business. The subsequent causes, were all decided by the three remaining judges-Pease, Hitchcock and Sherman.

TUPPER v. TUPPER.

An action of debt on simple contract was not barred by the statute of limitations previous to the Act of 1824.

It was an

This cause was adjourned here from the county of Washington. action of debt, and the declaration contained three counts. One for money had and received of the plaintiff's testator in his lifetime; one upon an account stated with the plaintiff's testator in his lifetime; and one for money had and received for the use of the plaintiffs, as executors. The two first counts alleged the money to have been due May 1st, 1813; the third laid it to have been due Dec. 1st, 1820. The writ is dated October 31, 1826. The defendants plead. ed several pleas, and amongst them, the statute of limitations, to which the

plaintiffs demurred. The demurrers were sustained in the Court of Common Pleas, and the case taken to the Supreme Court by appeal.

The cause was elaborately argued by

H. Stanberry and Vinton, for the plaintiffs. Ewing, for the defendants.

By the COURT.

The question presented by these demurrers has been long since considered as settled. The statute of limitations of 1804, and all subsequent statutes up to that of 1824, on the same subject, ars silent as to the limitation of an action of debt, founded on simple contract. And where the indel tedness was evidenced by any matter, not properly a subject of book account, it has been considered as not within the statute. This construction has prevailed so long that it ought not now to be disturbed; more especially as the act of 1824 must very soon operate so as to prevent all the mischiefs which it is supposed may result from the omission in the previous acts. The subjects of the present action do not appear The demurrers therefore are well taken, and

to be matter of book account. must be sustained. Another objection was made in argument, to the plaintiff's recovery. It is urged that an action of debt is not maintainable against executors and administrators on simple contract. The uniform practice of this state has been otherwise. It was not sustained, in such cases, in England, for a technical reason; but that reason, the wager of law, never obtained with us.

Judgment that the demurrers be sustained, and the pleas overruled. The cause remanded to be tried on the other pleas.

LESSEE OF LUDLOW'S HEIRS. BARR.

A plaintiff in ejectment may recover against a disseisor on a possessory title alone, where the defendant sets up no title.

Where a plaintiff in ejectment relies on his possessory title alone,and the defendant shows a paper title in himself, and the plaintiff then shows a better paper title than the defendant's in a stranger, but in no way connects himself with it, he cannot recover.

This cause came before the Court upon a motion for a new trial, made by the plaintiff, the decision of which motion was adjourned here from Hamilton county.

At the trial the plaintiff opened his case by proving that his lessors were the children and heirs at law of Israel Ludlow, deceased-that so early as the year 1795 or 1 96, Ludlow was in possession, claiming as owner, the land being in woods. That he continued in possession to his death, in the year 1804. That afterwards his widow took possession, and built a house on it, which she occupied up to the year 1814; when the defendant entered, claiming to have purchased from the administrators of Ludlow.

The defendant then gave in evidence a deed from John C. Symmes, the origin. al patentee of the Miami purchase, to the administrators of Ludlow, dated December 1810; in which it was in substance recited, that the conveyance was made in confirmation of a sale to Ludlow, and in trust that the administrators,