under the direction of the Court, should sell the land and apply the proceeds to the benefit of Ludlow's estate. He also gave in evidence a deed from the administrators of Ludlow to himself, dated August 10, 1811, reciting that it was made in execution of the trust created by the deed from Symmes.

The plaintiff then gave in evidence a deed from Symmes to Jonathan Dayton, for the same lands, dated May 31, 1796, and the book of original entry, made with Symmes, showing that Dayton entered the land in 1788, and parol proof that Ludlow took possession of the land so early as 1792, or 1793, claiming to be a purchaser from Dayton. He also gave in evidence a deed from Dayton for the west half of the same section, dated June, 1796, in which he calls to bind on the east by the land of Israel Ludlow, being the same land now in dispute.

During the trial the admissibility of the evidence was strongly opposed, in every instance, by the adverse party. And the whole being received by the Court, they directed the jury to give a verdict for the defendant, allowing the plaintiff to move for a new trial, on the grounds of receiving improper evi dence, charging against law, and finding a verdict against evidence. The motion was accordingly made, and adjourned.

Garrard and Hammond, in support of the motion. N. Wright, contra.

By the COURT.

The first point presented in this case is, can ejectment be maintained on a possessory right only? It has been decided by this Court that it can, against a disseizor, who shows no right at all, or none better.

The second point to be decided is, were the deeds from Symmes to Ludlow's administrators, and from them to the defendant, admissible to defeat the possessory right, on which the lessors of the plaintiff founded their claim to recover? The original title of Symmes is universally admitted; consequently, a paper title from him is prima facia evidence of better title than mere possession, and was rightly admitted.

The third question presented is, does the deed from Symmes to Dayton rebut the defendant's evidence or fortify the plaintiff's?

Although it rebuts the defendant's title, yet it, at the same time, defeats the plaintiff's right to recover. The order of introducing the evidence may be likened to a case of special pleading, and, in that view, this part of the proof, when offered by the plaintiffs, is a departure. The plaintiffs set out by claiming a right by possession only. This the defendant met and answered, by producing a paper title in himself. The plaintiff then proposes to show a better title in a third person. This is clearly a departure from his first claim, and no way fortifies it. But the plaintiff replies that he connects himself with the title thus adduced, and holds under it. Where is the evidence of this? In what char. acter did Ludlow hold under Dayton? If as a disseizor his case is no better. If as a tenant at will, ejectment can hardly help him. If as a purchaser, where is the evidence of his purchase?

It is argued that Ludlow's claiming to hold as a purchaser from Dayton, raises a presumption in his favor. A man cannot raise a legal presumption, in his own favor, by his own act merely, to the prejudice of others. Nor can we

presume a deed to have existed from his possession and claiming title, unless the possession is continued until the statute of limitations comes in to aid him. If the presumption of a grant can be raised in this case, without any evidence of payment to Dayton, or without any acts, or acknowledgment of Dayton, to fortify such presumption, what is there to prevent the same presumption arising in favor of every squatter who gets possession and claims to be a purchaser, and holds possession twelve or fifteen years. There would be no need of resort. ing to the statute of limitations, for protection of possession, when the doctrine of presumption would aid much sooner. The statute must then be the only rule in presuming title.

In this case the lessors of the plaintiff, by showing a paper title in Dayton, paramount to their possessory right, without connecting themselves with Dayton's right, shew the right of possession in Dayton, and not in themselves, and therefore cannot recover.

ROSS v. CORWIN, ET AL.

This cause was adjourned here for decision from the Supreme Court of Warren county. It was a bill in chancery alleging fraud in the execution of a trust created by the complainant in the defendants, to secure them as his endorsers. The bill answers, and depositions are very voluminous, and as a question of fact, upon testimony, was alone involved, the Court deemed a report of the whole case unnecessary. The cause was argued at great length, by G. J. SMITH for complainant, and T. CORWIN for the defendants. The bill was dismissed with costs.

CHURCHILL v. KIMBLE.

In slander, separate sets of words may be laid in the same count. Quere, whether the substance of the words only may be charged.

This cause came before the Court upon a writ of error, to the Court of Common Pleas of Lawrence county, and was adjourned here for decision. It was an action for defamatory words, in which the defendant, in error, was plaintiff. The declaration commenced with the usual recitals, and proceeded to state the defamatory words as follow, alleging that the defendant "spoke and published of and concerning the plaintiff, in substance the following false, scandalous, and defamatory words: that is to say,"-setting out the words spoken,-"and the said Solomon of his further malice did then and there, in the presence of diverse good people, falsely and maliciously speak, publish and declare, of and concerning the plaintiff, in substance, that she was, &c."-again setting out the words used. In this manner five different sets of words were enumerated, as for one count. There was a second count, which was withdrawn, or a nolle prosequi entered upon it, before trial. There was then a third count, containing four different specifications of words, in different terms, but charged in the same manner as in the fisrt count. Plea, "not guilty." General verdict for the plain

tiff; damages, 1195 dollars. Motion for a new trial overruled. Motion in arrest of judgment also overruled. Judgment for plaintiff, and writ of error.

Two errors were assigned and relied on: 1st, That it was not sufficient to set forth the substance of the words. 2nd, That each set of words constituted a separate count; and some of the sets, taken separately, were not actionable. King and Allen, for the plaintiff in error. Brasee and McConnel, contra.

By the COURT.

It is not controverted but that, in each, of what the counsel for the defendant in error admit to be two counts, there is at least one set of actionable words. If it can be permitted to embody different, distinct, and separate allegations, in one count, then it becomes unnecessary to decide upon the first point made, with respect to the validity of charging in the declaration the substance of the words only. We conceive it is the better opinion, that different sets of distinct words may be charged in one count. And we are inclined to adopt this opinion from respect to the precedent in Lilly. No work upon the subject is of higher authority; and the precedent cited fully sustains the declaration in this case. The case of Tillotson and Cheatham is undoubtedly against it: but that case is not authority here. We can only receive it as the opinion of a respectable ju. dicial tribunal. When we receive it as such, we cannot shut our eyes to the fact, that the Supreme Court of the state decided differently in the same case, and that the chancellor delivered an argument against the principle of the decision. It was a case decided between adverse political partizans, by a party tribunal; and so far as we can see, by a party vote. Under these circumstances, we cannot allow it to control our own judgment.

Without committing ourselves to any positive opinion as to the manner of charging the slanderous words, we take the occasion to say, it is safer to set them out as spoken, and not rely that to recite the substance is sufficient. The judgment must be affirmed.

COX v. HILL, ET AL.

Where process is issued against several defendants, and is served upon part only, and returned not served as to the others, the attorney employed by those served with process, enters an appearance for all, without the knowledge of the defendants not served; held, that in a bill for contribu tion by those served, the others are not concluded by the judgment.

The attorney in such case is a competent witness.

This was a bill in chancery, adjourned here for final hearing from Pickaway county. The bill was originally filed in the Court of Common Pleas, and upon a hearing there dismissed. The complainants appealed from the decree of dismissal to the Supreme Court.

The bill charged that the intestate, in his lifetime, together with the defendants, signed a call for the Rev. Wm. Jones, a minister of the gospel, to minis. ter for them, and stipulated to pay him a certain annual compensation. That Mr. Jones accepted the call, and officiated for them several years. That finally

his compensation being largely in arrear, he commenced a suit against those who gave the call, including the intestate, and the defendants and others, now removed, insolvent and deceased, and recovered a judgment against them for four hundred and fifty-five dollars, seventy cents debt, and fifty-two dollars twenty-two cents costs; of which sum the intestate paid two hundred and sixteen dollars and thirty-four cents, and the object of the bill was to obtain a rateable contribution of the other defendants. Those who answered denied that they had signed the original call of Mr. Jones; denied that they were served with process in the suit at law, and denied that they authorized the attorney who entered an appearance, or any attorney to appear for them. One defendant admitted knowledge of the suit and his liability, but alleged he had paid two hundred and forty dollars of the judgment, much more than his rateable proportion.

The payment by the intestate was fully proved. The attorney who entered the appearance, testified that he was employed only by the intestate and two others named, neither of them a defendant in chancery, who denied employing him. That some of those who employed him requested him to appear for the whole, but cannot say that it was the intestate. He testified also that the defendants in chancery none of them employed him to appear, except those of the three named. His veracity was impeached.

The respondents alleged that the attorney was insolvent, and they could have no redress in compensation against him, as to which the proof was not explicit.

Dean, for complainants. Folsom & Douglas, contra.

By the COURT.

The complainant comes before us seeking equitable relief against the defendants, upon the ground, that they are equally liable with himself, to pay the money which he has actually been compelled to pay. This liability the defendants controvert. But the complainant contends, they are precluded from; disputing his claim by the joint judgment against them all at law. The first question to be determined is, whether it is competent for the defendants to show that they were not actual parties to, and did not make defence against, the suit at law.

It is not pretended on either side, but that the judgment as between the parties, plaintiff and defendants, is conclusive. The matter debated is, whether, as between the defendants themselves, it is equally conclusive. And we are of opinion that it is not.

As between the defendants to a suit, nothing is adjudicated by a joint judg ment against them. Their joint liability to the plaintiff is established, as between him and them, and nothing more. Who of the defendants ought to pay the debt, or in what proportions they should contribute to pay it, remains to be settled between themselves, and must remain open for controversy.

If each defendant is actually before the court, and makes defence, it may be that, as between each other, the original liability is established. But this cannot be admitted, in a case where the complainant in equity was before the court, an actual defendant, and the defendants in equity were put before the court by

the act of the complainant himself,, and the proceedings had without their knowledge. Were this permitted, very little effort would be necessary to fix individuals with unheard of liabilities. It cannot be controverted, but that, in case of a judgment against joint obligors upon a bond, if are paid the whole and brought his bill for contribution, it would be competent for the other to prove that he was originally only a security, and therefore not liable. So in case of a judgment against one of two obligors, and payment coerced, in a suit against the other for contribution, the execution of the bond must be proved.

The defence set up here is, that the defendants never signed the original call, and were not in fact parties to the judgment, except by the procurement of the complainant. This defence, it is said, impeaches the judgment collaterally, which is not allowable. On the contrary, we are of opinion that it does not affect the judgment at all, as between the parties to it. It is but showing a reason why it is not conclusive between others, who were co-defendants in it, and whose relative rights were not settled by it.

The defendants, who resist their present liability, were brought before the court by the attorney employed by the complainant, without their knowledge or consent, and judgment passed against them before they knew a suit was pending. This fact is established by the testimony of the attorney himself. In bringing these parties before the court, he acted as the agent of the complain. ant; and, if not by his direct procurement, it was in consequence of the character conferred upon him, by appearing as attorney for the complainant, who, if conusant of the fact, is equally culpable with the attorney. Be that as it may, the connexion between those who improperly caused the appearance to be entered, as too intimate to permit the acts of any one of them to conclude those who, by their agency, were made parties. In this light we regard the judgment as collusive, and consequently it proves nothing against the defendants in this case.

It is objected that the fact of the collusion is proved only by the testimony of the attorney, who was inadmissible upon account of interest, and whose veracity is impeached. The interest of the witness is only that of every agent, or every person who assumes to act as an agent. Between parties affected by his acts, he may be called upon to prove his agency, or to prove the fact that he aeted without authority. The decision founded upon his testimony cannot be given in evidence to affect him, if an action be brought against him with respect to his conduct. And the fact, that to speak the truth may disclose matter whereon to ground a civil action against him, furnishes no excuse from testifying in his own mouth, much less can either party make it an objection to his testifying. We do not consider his testimony discredited by the impeaching evidence. He is corroborated by many circumstances, as well as by the oaths of the defendants, in their answers, which is in no respect answered or impeached.

Independent of the judgment against them, there is no proof that the defendants, now before us, ever subscribed the call to Mr. Jones, on which the judgment is founded. They all deny it positively, or qualifiedly. The complainant does not show that he is entitled to the relief sought, which, as the case stands, it is incumbent on him to do. The bill is dismissed as to those defendants who have answered, and is continued, as to those in default.