JOHN PRAY, vs. W. OLIVER AND M. BAUM.

W. OLIVER AND M. BAUM, vs. JOHN PRAY.

JOHN PRAY, vs. W. OLIVER AND M. BAUM.

THESE cases came before the Court, by adjournment from the county of Wood. By an agreement of counsel they were submitted for a final decision upon the merits of the whole matter in controversy.

The first was an action of assumpsit, the object of which was to recover back purchase money paid for land, alledged to have been sold to Pray by Oliver and Baum. In this action, in the Court of Common Pleas of Wood county, May term, eighteen hundred twenty-eight, Pray obtained a verdict and judgment, for three thousand two hundred twenty-six dollars ninety-six cents. Notice of appeal was given, and an appeal bond executed. But by the mistake of the clerk, the penalty of the appeal bond was fixed at only double the amount of damages for which judgment was rendered, and did not cover the costs. For this defect of the

bond, on motion of Pray, the Supreme Court quashed the appeal.

The second case, Oliver and Baum vs. Pray, is a bill in chancery, brought by the complainants against Pray, to obtain a new trial, upon the ground of the mistake of the clerk in preparing the appeal bond. The bill sets out the whole matter in dispute, making a case of strong equity for the complainants. Pray answered this bill; and a great deal of testimony was adduced on both sides. The Court of Common Pleas of Wood county awarded a perpetual injunction against Pray taking execution upon his judgment. From this decree Pray appealed to the Supreme Court. That Court, in special session at Columbus, December term, eighteen hundred twenty-nine, awarded a new trial of the suit at law, upon terms, which were acceded to by the parties. The new trial was had before the Supreme Court of Wood county, at July term, eighteen hundred thirty, when Pray became nonsuit. A motion was then made by Pray's counsel to set aside the nonsuit and direct a new trial. The decision of this motion was adjourned to the special session at Columbus, where at the December term, eighteen hundred thirty, it was overruled, but no final judgment rendered; and the cause was again remanded to the Supreme Court of Wood county, where the chancery cause was still pending.

At the July term, eighteen hundred thirty one, of the Supreme Court, in Wood county, the counsel upon both sides entered into an agreement, to submit the whole matter to the decision of the Court, with leave for Pray to file a cross bill, and with an understanding that an issue out of chancery should be made, if deemed necessary by the Court, to determine any material fact in the cause. The cross

bill was filed, answers put in and further testimony taken: upon all which matters the case now was heard and decided.

The final decision of the Court was in favor of Oliver and Baum: but that decision being predicated altogether upon the facts, as made out by the proofs in the

cause, which could not be made intelligible, but by a most voluminous report, which would be of little value to the profession, it is omitted.

T. W. POWELL and O. PARRISH, for Pray.

C. HAMMOND and P. B. WILCOX, for Oliver and Baum.

JONATHAN RAWSON, vs. GAINS BOUGHTON.

EZEKIEL A. TURNER, vs. GAINS BOUGHTON.

On application to redeem lands sold for taxes, if Judges of the Common Pleas are disqualified from sitting, case may be certified to the Supreme Court.

THESE two cases, involving the same principle, were adjourned here for decision from the county of Lorain. In each case, the plaintif petitioned the Court of Common Pleas to redeem lands sold for taxes and purchased by the defendant. One of the Judges of the Court of Common Pleas was interested in the subject matter of the petitions: the President Judge had been of counsel, for one of the parties, in the matter in litigation. These facts being known to the Judges of the Common Pleas, they certified the cause to the Supreme Court, for decision, under the provisions of the sixty-third section of the act to regulate the practice of the Judicial Courts. In the Supreme Court, a motion was made to dismiss the cases, for defect of jurisdiction, the decision of which motion was reserved, and adjourned.

No counsel appeared on either side.

BY THE COURT.

The application to redeem lands sold for taxes is to be made to the Court of Common Pleas of the county where the lands lie. Notice of this application is to be given in the newspapers, specifying its object, and describing the land proposed to be redeemed. The Court are required to examine the facts set forth touching the applicant's right to redeem, and "the counter testimony of the adverse party, if any be offered." Upon this examination, the Court are required, by law, if satisfied that the applicant is entitled to redeem, to "make an order of redemption, to "award restitution of the premises and direct that the applicant shall pay the costs of the application." The proceeding is clearly contemplated to be an adversary litigation between adverse parties. It must consequently be in the nature of a "suit or action," and comes fairly within the terms of the law under which the causes are certified to us. The case is one within the inconvenience intended to be provided for, as well as within the letter of the statute. We would rather prefer to aid the full administration of justice by a liberal con

struction of the terms used, than to adopt a strained one to divest ourselves of jurisdiction. It is therefore decided to retain the cases for final adjudication, that the party may not be deprived of the remedy which the law contemplated to afford him.

GIBSON AND OTHERS, vs. DUNCAN MCARTHUR AND OTHERS.

Under the statute of February, 1824, depositions taken upon notice before the Mayor of Alexandria, in the District of Columbia, could not be read in evidence. Otherwise under the law of March, 1831.

THIS case was reserved in the county of Pickaway.

It is a proceeding in chancery; but as the question decided has no connection with the merits of the case, it is unnecessary to give an abstract of the bill, answer, exhibits or evidence.

Certain depositions were offered in evidence by the complainants, which were taken before the mayor of the town of Alexandria, in the District of Columbia. These depositions were excepted to, on the ground that, under the statute of this State, in force at the time these depositions were taken, an officer of this description had no authority to take depositions to be read in evidence in this State.

SWAN, LEONARD and CALDWELL, in support of the objection.

SCOTT, MURPHY, STANBERY and HUNTER, for complainants.

HITCHCOCK, J. delivered the opinion of the Court.

The depositions offered in evidence purport to have been taken under the 72d section of the Practice act of 18th February, 1824. (22 O. L. 65.) Atleast they were taken while that act was in force, and at the time there was no other law in the State, authorizing the taking of depositions under a notice merely. This section provides that, under the circumstances therein specified, the depositions of certain persons "may be taken, before any Justice or Judge of any of the Courts of the United States, or before any Chancellor, Master Commissioner in Chancery, Justice or Judge of a Supreme or Superior Court, Mayor or Chief Magistrate of a city, or Judge of any county Court, or Court of Common Pleas, or Justice of the Peace, of any of the United States or of this State." Here are two descriptions of officers who are authorized to take depositions: those who derive their offices from the United States, and those who derive their offices from the several States. Of the first class is the "Justice or Judge of any of the Courts of the United States." The judicial officers of the Supreme Court of the United States are styled Justices; of the several district Courts, Judges. Before either of these, depositions might be taken under the statute. And perhaps it would not be a forced construction to say that they might be taken before the judicial officers of the Territorial Courts of Record. They derive their au

thority from the United States, and the Courts in which they preside are Courts of the United States.

Of the latter class are, a “ Chancellor,” “ Master Commissioner in Chancery,” "Justice or Judge of any Supreme or Superior Court," or of any "county Court or Court of Common Pleas," "Mayor or Chief Magistrate of a city," or "Justice of the Peace of any of the United States or of this State." In some of the States the judicial officers of the higher judicial tribunals are styled Justices; in others, Judges. In our own State they are known by the latter appellative. All these officers derive their offices from the State authority, and before any of them might depositions be taken under our statute of 1824.

Alexandria, however, is not a town of any one of the States of this Union. It is not located in any one of the States, but in the District of Columbia, a Territory of the United States. Its "Chief Magistrate," then, as such, had no power to take these depositions, because the power is delegated only to a "Mayor or Chief Magistrate" of a city, in one of the United States or of "this State.” It is said that the Mayor of Alexandria is, ex officio, a Justice of the Peace, and as such may exercise this power. But the statute refers to Justices of the Peace of "any of the United States, or of this State." The objection is not that this officer has not power to administer oaths; but that he is not an officer specified in the statute, and empowered to discharge the duty of taking depositions.

It has been urged, in argument, that the Mayor of Alexandria being, ex officio, a Justice of the Peace, and that town being within a Territory of the United States, that, therefore, the Court he is authorized to hold, is a Court of the United States, that he is a Justice of that Court, and as such Justice might take these depositions. There is more ingenuity than force in this argument. It is not to be believed that the Legislature, when speaking of a "Justice, or Judge of any of the Courts of the United States," had reference to the Justices of the Peace appointed by the authority of the United States. Else why did they, in the subsequent part of the same section, after having named "Justices or Judges" of the State Court, speak of "Justices of the Peace" as distinct officers? A majority of the Court, entertain the opinion that, under this statute, a Justice of the Peace of one of the Territories of the United States, had not authority to take depositions.

Nor is this the first time the question has been before the Court. True, it is the first time the question has been before the Court in Bank, but not upon the circuit. And upon the circuit it has been repeatedly decided, and such depositions rejected. It may be thought that this is giving a strict construction to the statute. But it must be remembered that depositions are not unfrequently ex parte. And where there is a statute authorizing the taking of them, that statute should be strictly pursued.

In the present case, it has been argued, that, inasmuch as the proceedings are in chancery, a different rule should be adopted. The statute itself makes no difference, whether the proceedings are at law or in chancery. In either case, depositions may be taken. And in either case, the party has his election to take them under a commission, or dedimus potestatem, or under the statute, by giving notice. The complainants might have pursued the former course, and their depositions

would have been well taken; but having elected to pursue the latter, they must be bound by it. They attempted to pursue the statute and failed. Their depositions must therefore be excluded.

It is objected, however, that this question has been already decided in the present case, and that therefore it is too late to take the exception. The fact appears to be this: at the September term of the Court, 1830, in Pickaway county, this case came before the Court; these same depositions were offered in evidence, and objected to for the same reason as at the present time. The two judges who held the Court, divided in opinion as to the propriety of their reception. According to the ordinary practice under such circumstances, the depositions were read. The clerk entered upon the journal of the daily proceedings, that the objection had been made and overruled. It is not customary that interlocutory decisions of this character appear upon the journal. They constitute no part of the record. But in this case it so happened that this does appear. At a subsequent day of the term, the whole case was reserved for decision in Bank. This very difference of opinion might have been one reason for this reservation. have been a sufficient reason, For if these depositions are rejected, there is not evidence to support the complainants' claim.

It certainly would

The whole case having been reserved, the counsel for the defendants again raise the objection, and insist that the decision in Pickaway can have no binding force upon this Court. And such is the unanimous opinion of the Court. In fact, that was no decision-owing to a difference of opinion it was impossible to decide.— To hold otherwise, would result in this absurdity: that a Court, consisting of four members, would be compelled to decide a case upon evidence which three of them believed to be incompetent or improperly taken.

It may be well to observe, that under the present existing law, the same diffieulty does not exist. The "act to provide for the taking of depositions," passed March 3d, 1831, (29 O. L. 123,) in the first section, has a provision, authorizing justices of the peace, of the territories as well as of the States, to take depositions. These depositions being excluded, on account of having been improperly taken, the case may be continued, to give the complainants an opportunity to retake them.

Judge Collet dissented.

THOMAS REILY, vs. MIAMI EXPORTING COMPANY.

Several judgment creditors having levies upon land, agree that it shall be sold on one, a good title pass to the purchaser, and the priority of lien be settled in a contest for the proceeds. No party to such agreement, wilt be permitted to proceed on his judgment against the land, after a fair sale.

THIS is a chancery suit, and was reserved in Hamilton county, for decision here. The facts are disclosed, in the opinion of the Court.

STORER and Fox, for complainant, cited, 5 Ohio R. 180; 6 Bac. Ab. 106; St. of West. 2; 13 Edw. 1; 2 Call. R. 183; 3 Caines' R. 262.