The Weekly Perrysburg journal. [volume] (Perrysburg, O. [Ohio]) 1861-1???, 1862-01-09
cOLvxuvs, o, January 1. 1852.
UotuMnus, % january I, 1872.
EDtroE JOURNAL; send you "reminiscences Of
the olden tme-a specimen OF backwoods practice ;
hnin,r a r,r,nrt fr.,rn nnn,nnr,.- nf
" First Lawsuit.

being report from memory, Of
NV First Lawsuit.
It was The case OF Spencer VS.. Everett's admin
istrator. Replevin for nursery in the Common
Pleas of Wood county, Spring term, 1924.
In the month Of March, 1924, opened law Of
fee in "Maumee," now Maumec City. Ny "shingle"
was unpaintcd, my Office was ambulatory, and
whether my practice was "to be or not to be--,hat
was the question"
Mr.. Everett, who was a tenant occupying farm
belonging to Mr.. Spencer, of Detroit, had recently
dedaud the administration Of his personal effects had
been duly granted. These had been inventoried and
appraised according to law, and among them was a
nursery that the intestlte had planted on Mr. Spen
GERS farm. The. debts owing bv the estate were
found to exceed those due to il, together with the
money and probable avails Of the goods and chat
tells and the creditors and the administrator saw
that it would require large additions thereto pay
the debts aforesaid. The circumstances attending
the planting, culture aud growth Of the nursery,
were such induced them TO believe that it rightly
belonged to the estate of Everett. Under this i'm.
preston, the day, place and sale of the personal
effects of the ntestate, among which was the nur-
sery, were advertised. Mr. Spencer was by some
means notified Of these proceedings, and he forth
with appeared in Maumce to assert his rights, pre-
vent the sale, and have the matter adjusted He
came to me for counsel. He claimed that the nur-
sery was planted, engrartcd, cultivated and raised
on his land at his cost for the especial benefit of
the farm, and he was resolved not to lose it, told
him the nursery was his, and he could hold it, But
the day of sale came, before the next session of
court and if the nursery was soli it would be taken
up and removed, and the court could grant no pro-
lection. Thus the nursery would be lost to the farm
and this loss Mr. Spencer would not submit to-
The sale was set for April. The court met in Nav.
The associate judges could not grant " conjunc-
ton to stay waste, and the presiding Judge, Ebe-
nezer Lane, resided in Norwalk. There was no
vessel bound down the lake, and the Black Swamp
as impossible as the gulf that separated Dives
from Lazarus, lay between Maumee and Norwalk
In this exgence, like the rat in the spelling book
we "resolved to have recourse to stratagem" but
whether, like him, we were altogether as cunning
as the adversary" the sequel must disclose. 50 we
accepted, PRO hGc uice, the administrators view of
emblcmens, and on that assumption su ID out our re-
plevin. This writ was duly returned, under my
advice ms executed By this return it appeared
that the nursery had been taken from the possession
Of the defendant, and delivered into that of the
plaintiff. The required bond was given. and the
case docketcd for trial. When the time arrived for
holding court, Judge Lame was on the other side of
the swamp. But the court met, and on calling the
case dismissed it. My respected fliend, Thomas
W. Powell, now OF Delaware, Ohio, where in good
old age he expounds the mysteries of the law then
an indefatigable plodding young lawyer year or
two my senior defended the case, anl frankly told
me that if did 50, he would move for Il Jury. to
assess the value of the property replevied under
the statute. But scorning all danger and all stat
utes did dismiss it, and Mr.. Powell moved for his
jury. Iopposed his motion, because replevin would
not lie for real estate. claimed that no right had
been changed or affected by tine proceedings that
man might as well steal quarter section of lanl
as to repevy it, and that all the proceedings were
null and void as if the sama never wcre, and l in
sisted that all the court could do was to strike the
case from the docket Mr.. Powell argued that we
should not take advantage OF our own wrong that
we should not be permitted to blow hot and blow
coll at the same breath, that as we had treated the
nursery as an emblem}nt, AMI by so doing, had di
vested the defendant of his possession and property
which we had appropriated to our own use, we must
abide by the consequences, and that tho court would
not permit us to obtain possession of the property
by claiming Tint it personal property, and then
continue to maintain that possession by insisting
that it was real estate. The associate judges, Wal
ter Cotton, John TIolister and Robert A. Forsythc,
though not learned in legal lore had eyes, ears and
brains. They coincid,d with Mr.. Powell. aud en-
pannelled jury, who assessed and returned t.
court, the value OF the nursery. On this verdict
the court gave judgment, with fifty per cent. DANA
geS as required by the statute in favor Of the de-
'endlnt. To reverse this judgment | brought a
writ Of error. In the Autumn of 1924 the Supreme
Court was he'll in Peirysburg, by Judges Jacob
Burnct ani Charles II. Sherman, names, that may
well be remembered with respect and reverence -
The docket of cases, remarkable in nothing but its
brevity. was called About the third or fourth case
near the foot of the docket, stood the replevn The
argued, and the error relied on for its re-
versal was, that the suit a raplevin for nur-
scry. Thata nursery was real estate, for which that
action would lie. That the Common Pleas, in in
stituting such proceedings as can be sustained only
in legitimate Of repevin, and in considering
this as such, as they did in empanneling jury to
assess the value OF the nursery, erred and for this
error, th.r judgment should be reversed.
On the part of the defendant, Mr.. Powell insisted
that 'here was nothing in the whole record to show
thatitwas not personal property but the word "nur-
sery, "and until il clearly appeared otherwsct could
not, error, be reversed. The court was bound to
consider it personal property until the contrary APP
peared, and he cited the case of Nlbblet vs. Smith,
7. r. 50i, as case in point, covering the whole
ground. In that case, which was replevn for
lime kiln, the court held on demurrer that they might
well presume any case that was not inconsistent
with the declaration therefore they would presume
the lime kiln was portable oven, and personal
property nursery might be raised in pots and
a nursery might as well be considered personal
property, as lime kiln. That il was no more a
stretch of presumption to suppose that nursery
was in pots, or otherwise movable property. than
that lime kiln was such. The court was evident
y puzzled, though the stood before them brjst-
ling with error like the quilts Of an angry porcupine,
they did not know how to getati it. Judge Sherman
had never seen but one case like it-that was
rcpevin for a saw mill in the southern part OF the
State. Judge Burnet said that in the nature of
things, nursery must be attached 10 and part of
the freehold. II was the place where young trees
were propagated and nurscd for the purpose of be
ing transplanted. nursery, was therefore a spe-
ccs Gf property for which replevin would not lie.
The case before the court was commenced in error,
| it had travelled in error, its whole progress had
been in error and it had continued in error up to
this time. For error, it is reversed and stricken
from the docket.
Notwithstanding my connection with the case
was never certain that | fully understood all the
law logic it seemed to involve, nor was sure that
brother Powell or even the learned Judges did
But neither of the young attorneys then doubted
that law was the perfection Of human reason. New
erthecss we both began 10 have a realizing sense
that among the glorious uncertainties of the law