They alledged, that the two following questions were presented by the pleadings:

1. Had the City Council, under the act of 1815, (the act in force when the ordinance, under which the defendant justifies,) the power to create a forfeiture; and if so, could they enforce a forfeiture and penalty at the same time, and for the same act. 2d. Could such forfeiture be enforced, unless some legal adjudication condemning the property as forfeited, should be first had.

They admitted, that without express power conferred in their charter, no corporation could create a forfeiture. Such power could not be brought into existence by implication. And they cited, 8 Co. 249; C. Dub. Ed. of 1793; 2 Ventris, 182; 1st T. R. 118; 2 John. 380. But they contended, that this power was expressly conferred by the act of 1815.

Upon the second question raised, they agreed that the necessity of the case required the mode of proceeding authorized by the ordinance. Before a legal adjudication could be had, the mischief intended to be provided against, might have happened. They cited many hypothetical cases, supposed to be analogous, where delay to obtain a legal adjudication would be followed by inevitable ruin. Such, for instance, as where, in case of fire, when it became necessary to remove or destroy contiguous buildings, to prevent the spread of the flames.

N. WRIGHT, for the plaintif.

If it be admitted, that a forfeiture of the kind under consideration, could be imposed under the city charter, still, it could not be imposed in addition to the fine. Mayor, &c. of N. Y. vs. Ordrina, 12 J. R. 122, is a case in point.

But the charter of 1815 gives no power, express or implied, to create a forfeiture. And unless it be given in the charter, an ordinance by which it is attempted to be enacted, is void. (2 Com. Dig. 292; 8 Co. 127; 1 Bac. 551; 1 Dun. and East. 118-124; 2 Maule and S. 53, 60.)

I insist, in the next place, that, if this charter authorized a forfeiture of goods, it could not be enforced in the manner provided in the ordinance in question. It is against the spirit of the Constitution. (Art. 8, Sec. 5.) It is against the whole. spirit of the common law, as understood in England and in this country. (1 Bar. 551.)

In the grounds I assume, I concede to the city all that is really necessary for the safety of the city, and all the ordinary remedies to enforce obedience to this bye-law; all, indeed, except an arbitrary forfeiture. I allow them to seize and remove the powder out of the city, and to fine for the offence.

HITCHCOCK, Judge, delivered the opinion of the Court.

A doubt has been suggested as to the regularity of the pleading in this case, on the ground, that the plaintif has replied double to the third plea of the defendant. This subject is regulated by statute. The 47th section of the practice act, 29 O. L. 67, provides, "that it shall be lawful for the plaintif in replevin, or for

the defendant or tenant in any other action in any court of record, with leave of such court, to plead as many several matters as he shall think necessary for his defence." In replevin, both parties are considered as actors. And if the defendant avows or justifies to this avowry or justification, the plaintif may reply or plead double. Such is the intendment of the statute: the pleadings, therefore, are regular.

The decision of this case depends upon the validity of so much of the ordinance, under which the defendant justifies, as creates forfeitures and attempts to enforce them, without legal adjudication or investigation. This ordinance was enacted in December, 1826, by the City Council of Cincinnati, and, together with others, contains the following sections:

"Sec. 16. Be it further ordained, that no person or persons shall be allowed to keep in any house or other building, within the boundaries of the corporation of this city, more than twenty-eight pounds of gun-powder at any one time; which twenty-eight pounds shall be divided into at least four parcels, and each parcel secured in stone jugs with tight stoppers, or in tin canisters provided with safe and sufficient covers, and not more than seven pounds in any jug or canister, as aforesaid; and any person or persons keeping twenty-eight pounds of gun-powder, or less, within the boundaries aforesaid, and shall neglect or refuse to parcel and secure it in manner aforesaid, shall forfeit the same to the corporation; and any person or persons keeping any greater quantity than twenty-eight pounds within the boundaries aforesaid, shall forfeit the same, and shall pay a fine of twenty dollars for every hundred weight that he, she, or they, may have in their possession, and in that proportion, for any greater or less quantity, on conviction thereof before the Mayor: Provided, that nothing in this ordinance shall be so construed as to prevent any person from conveying gun-powder, through the streets, to some place of deposit without the limits of the corporation: Provided, that all gun-powder shall be put up in tight or sufficient casks or kegs."

The 11th section makes it the duty of the city marshal and his deputies, and the chief and assistant engineers of the fire department, and any of the fire wardens, on any day, (Sundays excepted,) to enter into any building where gun-powder is kept, or supposed to be kept, and examine the premises; and if any gunpowder is found, contrary to the provisions of the preceding section, it is made their duty to receive the same, and convey it to some safe place of deposit without the city. And it is further made the duty of the marshal, after having given three days' publication, to sell all the gun-powder so seized, to the highest bidder, for the benefit of the corporation.

This section contains further provisions, to which it is unnecessary to refer. The first important question is, did the corporation, under their charter, possess power to create this forfeiture? For, no matter how expedient it may be, it cannot be sustained, unless the power is granted in the act creating the corporation. A corporation may, nay, they must, from the necessity of the case, have power to regulate their own internal concerns; and this, although the power is not specifically granted. But the power to create forfeitures is a high power; one which will not be exercised by the Legislature of the State, except in extreme cases.

Certainly, then, no corporation shall be permitted to exercise this power, unless under an express and explicit grant of the right. But about this, there is no dispute. The principle is not controverted.

It is claimed, however, that the power was created by the act of incorporation. The law in force at the time this ordinance was enacted was the act of January 10, 1815. (13 O. L. 60.) The seventh section defines the powers and duties of the town council, and amongst other things authorizes them "to impose reasonable fines on all persons offending against the laws and ordinances aforesaid, and to cause all such fines and all such forfeitures and penalties as may be incurred, under the laws and ordinances of the corporation, to be assessed, levied and collected, in such manner as they may prescribe."

This is the only part of the law in which reference is had to forfeitures. It is clear that here is no express grant of power to create a forfeiture, and without But was it even proper to such express grant the power cannot be exercised. imply it, it could not, in the opinion of the Court, be implied from this clause. The first part of this clause grants the power "to impose reasonable fines," and the latter part grants the power to prescribe the manner in which these fines may be assessed, levied and collected. True, the words forfeitures and penalties are used; but from the manner in which they are used, from the connection in which they are placed, it is manifest that nothing more was intended than fines merely. Else why speak of that which is to be assessed, levied and collected?

In the "act to incorporate the city of Cincinnati," &c. (25 O. L. 40,) this power is expressly granted. The eighth section authorizes the city council "to impose fines, forfeitures and penalties, on all persons offending against the laws and ordinances of said city, and provide for the prosecution, recovery and collection thereof." By the 24th section of this act, "all laws, ordinances and resolutions heretofore lawfully passed and adopted by the city council of said city," are continued in force, until repealed. Now, although at the time the property in controversy was seized, the city council possessed this power, inasmuch as the defendant acted under an ordinance made at a time when they did not possess it, it will not avail him in his defence.

That the city council, under the law of 1815, had the power to pass a law to prevent large quantities of gun-powder from being kept in the city, we have no doubt. For offending against an ordinance of this description they might impose fines. With equal propriety they might provide for its removal to a safe place without the limits of the corporation. But they have not the power to declare it forfeited, nor the right when it is removed to withhold it from the owner.

Inasmuch then as the defendant, after the gun-powder was removed to a place of safety, refused, upon demand made, to deliver it up to the plaintif, he is not justified. The replication is sufficient in law, and upon the demurrer, judgment must be entered for the plaintif.

Such being the opinion of the Court upon the first question raised by the defendant's counsel, it is unnecessary to consider the second. But were it necessary we should have no difficulty. No man ought to be deprived of his property by

forfeiture without having a legal investigation. And an ordinance of a corporation. which violates this principle is not consistent with the spirit of the laws of the United States or of this State.

LESSEE OF WILLIAM SELLERS, vs. ICHABOD CORWIN, AND OTHERS.

Judgments in the United States Circuit Court, for the District of Ohio, rendered previous to May, 1828, attached as liens upon the defendant's lands, throughout the State, in virtue of the adoption by that Court, of the execution laws of the State, for the regulation of its practice.

Between judgment creditors, where a year transpires before execution upon either judgment issued out, execution first issued and levied, obtains preference.

Purchaser upon execution entitled to benefit of occupying claimant laws.

EJECTMENT to recover two lots in the town of Lebanon, adjourned from the county of Warren. The plaintif claims title under a marshal's deed upon a sale on a judgment and execution in the Circuit Court of the United States for the District of Ohio. This judgment was rendered the eighth of January, eighteen hundred twenty two; execution issued the fifth of February, eighteen hundred twenty three, and levy was made the twentieth of August, in that year. Several writs of venditioni exponas were issued, but no sale was effected until the ninth of August, eighteen hundred thirty-one.

The defendants rest upon a sheriff's deed and sale upon execution on a judgment of the Court of Common Pleas of Warren county, of the eleventh of August, eighteen hundred twenty-one. The first execution upon this judgment was issued on the nineteenth of October, eighteen hundred twenty-one. Several other executions were afterwards issued, but no levy was made on the lots in question. In September, eighteen hundred twenty-three, further proceedings on this judgment were enjoined in chancery, and the injunction was not dissolved until the twenty fourth of December, eighteen hundred twenty-five. A new execution was issued on the eighth of February, eighteen hundred twenty-six, and levied on the lots in question. Upon this levy they were sold to Corwin, the defendant, and deeded to him by the sheriff.

Each of these parties when they purchased had notice in fact of the claims of the other, or the judgments. The cause is submitted upon an agreed statement embodying the above facts. The several judgments binding this property are fully stated in Shuee, et al. vs. Ferguson, et al. (3 Ohio Rep. 136.)

P. Ross, WOODS, and T. R. Ross, for plaintif, cited, 10 Wheat. R. 1, 51; 1 Peters. R. 604; Act of Cong. 19th May, 1828; 2 Ohio Rep. 65; 3 Ohio Rep. 135-6; 10 Johns. Rep. 336; 3 Wils. Rep. 345; 3 Johns. Rep. 526; 18 Ohio L. 180; 20 Ohio L. 68; 22 Ohio L. 108.

A. H. DUNLEVY, for defendants, cited, the Judg't. and Ex. Laws of Ohio, of 1824; the U. S. Judicial act of 1789, and 1797; 1 Gal. Rep. 5, 371; 3 Ohio Rep. 138; 12 Johns. Rep. 162; 2 Bin. Rep. 223; 5 Ohio Rep. 68; 10 Johns.

Rep. 386; 3 Johns. Rep. 525; 3 Wils. Rep. 345; 6 Johns. Rep. 284; 1 Smith's Rep. 66; Pur. Dig. 204; 2 Bin. Rep. 66, 80; 2 Harris. Ent. 776–7; Tidds. Pr. F. 219; 22 Ohio L. 114.

WRIGHT, Judge, delivered the opinion of the Court.

The case presents the two following as the main questions for the decision of the Court.

1. Whether judgments of the Circuit Court of the U. S. in Ohio, are liens upon land, and to what extent?

2. Whether the sale upon the junior judgment, under which the plaintif claims, vests in him a title discharged of the prior judgment in the State Courts? 1. This Court determined, in Roads vs. Symmes, et al. (1 Ohio Rep. 261,) that the judgments of a Court of record operated as a lien upon the real estate of the defendant. This is a principle of law, say the Court, which "has been acted upon from the commencement of the administration of justice in the country;" and say the Court also, "it is equally well settled that the lien is coextensive with the territorial jurisdiction of the Court that renders the judgment. The General Court of the territory, exercised its jurisdiction, and sent its process, original and final, into any county in the territory. The judgments rendered by it, were, of consequence, a lien or a charge upon the lands owned by the defendant any where in the territory." In McCormick vs. Alexander, 2 Ohio Rep. 65, this Court say, that "in the State of Ohio, from its first settlement, judgments have operated as liens upon lands and real estate of the judgment debtor. Lands have always been liable to be sold on execution."

The process act of Congress, temporarily passed in seventeen hundred eightynine, and made permanent in seventeen hundred ninety-two, (2 U. S. Laws, 72, 300,) provided, that until further provision should be made in that or other acts of the United States, the forms of writs and executions, and modes of proceeding in the Circuit and District Courts of the United States, in suits at common law, should be the same as was then [1789] used in the Supreme Courts of the same; and when different kinds of execution were issuable in succession, a ca. sa. being one, the plaintif might take out that writ in the first instance. The fourteenth section of the United States Judiciary act of seventeen hundred eighty-nine, (2 U. S. Laws, 62,) conferred upon the Courts of the United States "power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law." The eighteenth section authorizes these Courts to stay execution in certain cases, in order to give time to move for a new trial. The thirty-fourth section declares "that the laws of the several States, except when the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision on trials at common law, in the Courts of the United States, in cases where they apply." The act of seventeen hundred ninety-three, in addition to the last mentioned act, (2 U. S. Laws, 367,) provides, that when it is required by the