text:
    Jordan, Ellis & Co. v. L. & J. James.
    New trial not granted upon account of observations to the jury in the judge’s-charge, unless such observations were both material" and erroneous, if the ■ court áre satisfied upon the whole case, that the verdict is right.
    Lienj of vendors upon goods unpaid for, and in transitu.

    factor’s liens against their principals.
    Consignees’ liens.
    Carrier’s lien.
    J. & E. agree in Boston with P. to purchase and ship for P. and upon P. s-notes, goods to J. & E. at Cincinnati, to be sold upon commission.' J. & B. negotiate the purchase, ship the goods to New Orleans, charged with the freight, and pay the insurance. At New Orleans the goods are reshipped to J. & B., Cincinnati, who are charged with the i'rieght from Boston. On the way, the freighters receive the freight to Louisville from J. & B., and give them a new bill of lading: Held, that J. & E. are in legal possession of the goods, and can retain against P. for their liabilities, as well as their advances.
    Held, that the freighter could not rightfully refuse to deliver the goods to J. & E., no change in their circumstances having taken place.
    Judgment will not be arrested for a departure in pleading, after issue joined and verdict, if sufficient appears to show for whom judgment should be rendered.
    This cause was adjourned here for decision from the county of Hamilton. It was an action of replevin for taking and detaining ■ one hundred and seventy-five bales of sheetings and eighty-three bales of shirtings. The following pleas were filed to the declaration: 1. Not guilty; 2. Non ceperunt; 3. Avowry property in John. -Clark and Charles Bradley. On all these pleas issue is joined. The fifth avowal sets forth that the property in the goods was in Le Baron Putnam, by whom it was consigned to Caleb D. Jordan, at New Orleans, to be by him forwarded to the plaintiffs, as the commission merchants of Putnam, to sell for and on account of ■said L. B. Putnam, and that C. D. Jordan shipped said goods on ■ defendant’s boat, to be carried to plaintiffs; that Putnam, while the goods were on their way, assigned the goods to Bradley and Clai’k, for the benefit of his ci'editors; and that Bradley and Clark, before the goods reached their place of destination, demanded the goods of the defendants, the candors, and forbid his delivering them to the plaintiffs. *Plea to this avowry: The property was not owned by Le Baron Putnam, nor did they become the property of Bradley and Clark, as in the plea mentioned.
    Sixth avowry alleges the joint property to have been in Le Baron Putnam and Edwin Putnam, by whom they were consigned to C. D. Jordan, of New Orleans, to be by him forwarded to the plaintiffs, as factors of L. B. and E. Putnam, as in the prece'ding avowry, and that Edwin Putnam sold to Le Baron, who transferred to Bradley and Clark. The remainder of this avowry the same as the last.
    Plea to this avowry admits that the goods were consigned to O. D. Jordan, yet denies that Edwin Putnam assigned to Le Baron Putnam, and denies that Le Baron Putnam assigned to Bradley and Clark.

      2. Plea to all the avowries alleges that on the 9th and 12th of January, 1829, the goods were bought of certain persons by H. Jordan, acting for J. E. & Co., who were the factors and agents of Le Baron Putnam; that the goods, by agreement made by Le ■ Baron Putnam with J. E. & Co., were to be shipped from Boston to Cincinnati, and consigned to J. E. & Co. to sell and account for as the factors and agents of Le B. Putnam; that the goods were purchased with the joint credit of Le B. Putnam and J. E. & Co. as per agreement; that when the purchase was made, J. E. & Co., at request of Putnam, became liable to pay for said goods, by indorsing to the vendors the notes given for the goods. That since said indorsement, they have paid to the vendors a large sum of money, to wit, ten thousand dollars on account thereof; that they assumed upon themselves the payment of the purchase •money, by virtue of an agreement between Le Baron Putnam and themselves, that said goods should be consigned to them to sell as factors; that when the goods were purchased, they received the posseesion from the vendors, and have ever since had the entire control of them; nor have they ever been in possession of the Putnams or Bradley and Clark ; that they took possession of said goods with the knowledge and consent of the Putnams, for the sole purpose of causing them to be shipped and transported from Boston to Cincinnati, and to be consigned to J. E. & Co. as factors. That on January 14,1830, *they caused .insurance to be made, and the goods to be shipped from Boston to New Orleans; that they paid premium for insurance by a note at six months. They aver that although the goods were shipped from Boston to New Orleans, as alleged in the avowries, yet that C. D. Jordan was their agent as well as the agent for Putnam, and that the defendants, on March 14, 1829, when the goods were shipped on board the steamboat of defendants, they, by the master, signed a bill of lading stipulating to deliver the goods to J. E. & Co. That on April 1, they paid the freight to James, from New Orleans to Louisville, and so they say they have a lien on said goods.
    To this plea a general replication is filed concluding to the country.
    7. Plea denying the goods to have been the property of the plaintiffs, as in their declaration is alleged.
    On this state of the pleading, the cause was tried by a jury before Judges Hitchcock and Wright, and a verdict taken for the plaintiffs. A motion was made by defendants’ counsel for a new trial, upon^the ground that the court erred in its.charge to the-jury upon different legal propositions. The motion was adjourned here for decision. The facts of the ease, the questions of law involved in them, and the authorities relied upon, are fully noticed in the opinion of the court; it is, therefore, unnecessary to state-them here.
    For a new trial, Messrs. Stoker and Fox, FAles and N. Wright.
    Against it, Messrs. Caswell and Starr, and C. Hammond.
   Opinion of the court, by

Judge Wright:

On the trial of this cause, the following case was clearly made-out, in the mass of documentary and oral evidence given to the jury. In January, 1829, Jordan, one of the plaintiffs, commission merchant in Cincinnati, being in Boston, solicited of one L. Putnam, the purchase and consignment to his house, for sale, on commission, a quantity of domestic cottons, when it was agreed, that Jordan should select and ^purchase the goods in the name of L. Putnam, to be shipped to Jordan, Ellis & Co., to be sold on the joint account of the said L. Putnam, and his brother Edwin Putnam ; and that the proceeds should be remitted -to meet or pay the notes given for the goods, and therefore should not be drawn for. Jordan, with some little assistance from E. Putnam, selected the. goods, and agreed upon the price and credit, but finding L. Putnam’s credit doubted, could not effect the purchase on his notes-alone; and, finally, purchased three invoices of goods of different houses, amounting to upward of nine thousand dollars, at eight months, upon L. Putnam’s notes, payable to, and indorsed by himself, and indorsed by Jordan, Ellis & Co. The bills were taken and receipted in the name of L. Putnam, who seemed merely passive, by Jordan, who alone was active in the purchase. The bales were marked to J. E. & Co., Cincinnati — were taken by Jordan from the vendors, and shipped to C. D. Jordan, of New Orleans, or to assigns of J. E. & Co., and the bill of lading, dated January 15, 1829, was in the name of L. Putnam. Jordan paid the drayage, and effected insurance upon the shipment, in the name of J. E. & Co. to the amount of nine thousand and five hundred dollars, and paid (by his own note) the premium. The taking possession by Jordan, the shipment, insurance, and the-payment by him of the drayage and premium, was with the knowledge and assent of both Putnams, neither of whom ever had actual possession of the goods. With the bill of lading to New Orleans, the following letters of advice were sent by Putnam to C. D. Jordan, and to Jordan, Ellis & Co., by mail:

Boston, January 15,1829.
“Mr. C. D. Jordan — Dear Sir: Annexed you have a bill of lading for two hundred and fifty-eight bales of domestic goods,, which please forward to Jordan, Ellis & Co., of Cincinnati, per first good boat, together with your bill of charges.
“ Respectfully yours,
“ Lb Baron Putnam,
Per E. Putnam.”
*“ Boston, January 15, 1829.
“Messrs. Jordan, Ellis & Co. — Gentlemen: By this day’s mail have forwarded you invoice of brown shirtings and sheetings, and below you have my instructions. You will please dispose of the goods on the best terms. I should not advise a speedy sale of them, unless your market will admit of the same. I have bought .these goods on eight months’ credit, consequently .you will have more time to effect sales. Your Mr. Jordan informed me that you could place me in funds to meet my notes for the same; therefore shall not draw on you for the same. He will forward you a statement of the notes given. I'am of opinion that brown goods will be higher in this place in course of a month, at least five per cent. As I have bought them on good terms, and freighted them at very low rates,-1 am in hopes of realizing a profit of ten per cent. I am confident that goods of this kind will go up. If you obtain twelve and a half or thirteen for sheetings, and ten and a half for shirtings, I shall be satisfied. I wish my sales guarantied. Please write me on arrival of goods. You will please cause insurance of this shipment from New Orleans upon nine thousand five hundred dollars, being the amount insured here,
“Yours, etc.
1“ Le Baron Putnam,
Per E. Putnam.”

C. D. Jordan received these goods at New Orleans, paid the freight, and on March 14, 1829, shipped them on board the steamboat Patriot, owned by the defendants, and then commanded by one of them, and received from the captain bills of lading to deliver to J. E. & Co., at Cincinnati, or their assigns, he or they paying freight at sixty-two and a half cents per hundred pounds, or if reshipped, seventy-five cents per hundred pounds, which he testified he did, as agent of J. E. & Co., under their instructions. Shortly after the shipment, and before February 11, 1829, Jordan drew up the following statement in writing and exhibited them to the Putnams for signature, which they refused:

“ I, the subscriber, of Boston, State of Massachusetts, have consigned to Jordan, Ellis & Co., of Cincinnati, Ohio, merchandise *to the amount of nine thousand three hundred and six dollars and sixty-nine cents; and for which the said Jordan, Ellis & Co. agree and promise to place me in funds, with the proceeds of the sale, for the payment of the herein described notes, being -given by me for the above merchandise consigned them:

January 7,1829, one note holden by T. Lord & Co., eight months, for......................................... $3,928 17
January 12,1829, one note holden by P. Blanchard & Co., eight months, for............................................... 2,483 02
January 7, 1829, one note holden by G. Richard & Co., eight months, for............................................... 2,895 50
$9,306 69

“ I also agree not to draw on the said Jordan, Ellis & Co., as I hold their obligation for the, fulfillment of the above agreement-Boston, January 12, 1829.”

Jordan at this time offered to give Putnam the following statement to be signed by J. E. & Co., in exchange for the above;

“We, the subscribers, of Cincinnati, Ohio, do hereby agree and •promise to place Mr. Le Baron Putnam, of Boston, in funds in sea■son for the payment of the here in-described notes, being given by him for merchandise, consigned us for sale, on his account:

January 9,1829, one note, eight months, for..................$3,928 17
« 12, “ “ “ “ .................. 2,183 02
“ 7 “ “ “ “ .................. 2,895 50
$9,306 69
“ Boston, January 12,1829.”

Le Baron Putnam failed February 11, 1820, and assigned his effects to Bradley & Clark, for the benefit of his creditors, including in the schedule the invoices for the goods consigned to C. D. Jordan, merchant there (New Orleans), with orders to reship the same to Jordan, Ellis & Co., Cincinnati, Ohio, for sale, for and on account ofLe Baron Putnam.

*Invoice, $9,500, one and half per cent................. $142 50
Policy................................................................... 1 00
Freight................................................................. 80 00
Package................................................................ 5 00
228 50
9,306 69
$9,535 19

.And indorsed in blank, and delivered to Bradley & Clark, one of the bills of lading of the goods from Boston to New Orleans. Bradley & Clark, before they took the assignment, were informed that the notes given for the purchase of the goods were indorsed by J. E. & Co., and remained unpaid. About this time Edwin Putnam relinquished his claim upon the profits of the goods. A few days after the assignment Bradley, one of the assignees, came to Cincinnati to meet the goods, but as they had not arrived, went on to Louisville, and there waited for their arrival. While he was there one of the plaintiffs (Bellows) descended the river in a skiff, met the Patriot with the goods on board, near New Albany — went on board, and having stated to the captain that Bradley & Clark were on to get possession of the goods — that Bradley was at Louisville waiting their arrival; and that his (Bellows’) object was to take possession of the goods and retain the control, paid the freight. The bill of lading, signed at Few Orleans, was canceled, and a new one executed by the captain, recognizing J. E. & Co. as shippers, and undertaking to deliver to them or assigns at Shippingport or Louisville. On the arrival of the boat at Louisville, and before the goods were unladen, Bradley demanded the goods of the captain, under the. assignment. The captain gave an order to the clerk to deliver the goods to Bellows, but countermanded the order, when Bellows appeared with his drays to receive them. After some little delay the goods, through the agency of Bellows and Jones, were brought round the falls to Louisville, and it was finally agreed that they should be brought on to Cincinnati, and the rights of the parties settled there. Captain James shipped the goods in-his own name on the Ben Franklin, and with Bellows *and Bradley came up on her to Cincinnati. On the passage Bellows-tendered' the captain the freight from Louisville to Cincinnati, and offered indemnity, which was refused by James. The boat arrived at Cincinnati on Sunday, and the goods were thrown out upon the-common landing of the city. They were taken possession of by defendants, and placed in their warehouse. Very early on Monday morning the goods were replevied upon the writ in this cause, after which, the same day, Bradley presented to the plaintiffs a. copy of the following letter, and proffered to pay the expenses on the goods. The plaintiffs, after perusing the letter, replied that it was not necessary to tender them any expenses they had incurred on account of the goods mentioned therein” (meaning, as the witness understood, that if tendered, they would not be accepted):.

“Boston, February 16,1829.
Messrs. Jordan, Filis & Co., Merchants in Cincinnati, Ohio.
“ Gentlemen : You are hereby informed that I have sold, transferred, and assigned to Messrs. Charles Bradley and John Clark, ' merchants in Boston, assignees of my effects, for the benefit of my creditors, the invoices of goods I shipped and consigned you for sales and returns about the 15th of January last past. You will-allow them, or either of them, or their agent, to receive and take possession of said goods, before or on their arrival at Cincinnati. In case said goods shall come into your possession before said Bradley and Clark, or either of them, or their agent, shall have received and taken possession of them, you will nevertheles deliver them to the said Bradley and Clark, or either of them, or their agent, Said Bradley and Clark will pay, or cause to be paid you, all charges you have on said goods for transportation and insurance thereon from Boston to Cincinnati. You are hereby directed not to make sale of said goods, and not to - dispose of them in any way whatever, excepting as above directed, without-the authority of the said Bradley and Clark. Yours, etc.,
“Le Baron Putnam.”

During the trial, evidence was offered, on the part of the plaintiffs, tending to prove that' the notes'given for the goods *were-indorsed by them with the knowledge and approbation of L. and-,E. Putnam, according to their original agreement; and that they -had specially agreed that the goods should be held by the plaintiffs to raise funds to pay the purchase money, and that Putnams were to have no other interest in them than the profits and loss; ¡and on the part of the defendants tending to prove that the notes had been indorsed by plaintiffs without the knowledge or consent of Putnams; and that Bradley, at Louisville, tendered to James ■the freight from New Orleans, and forbid him to deliver to the plaintiffs; which, as it was contradictory, it is not deemed advis.able to recapitulate here. The jury found for the plaintiffs, and the defendants now move for a new trial, because the court erred :in giving the cause to the jury..

In giving this cause to the jury, while commenting upon its various aspects, and having reference to the hypothetical cases supposed and urged, by counsel, the judge laid down the following .among other positions:

1. That the rights of the parties must be determined as they •stood' when the suit was commenced, and no tender made afterward of freight and advances by Bradley and Clark, or any tender made before, unless sufficient to cover all advances and liabilities accrued on account of the goods, could be taken into •consideration to affect their rights.

2. Where goods are consigned by the owner to a person who has no interest in the consignment, or has made no advance on .account of it, the owner may stop the goods while on their way to the consignee, and take possession to protect himself, and hold them for that purpose against the consignee.

3. That the delivery of goods to the master of a vessel, who is the carrier, is, constructively, a delivery to the consignee, subject to the right of stoppage in transitu.

4. If these goods were purchased by theqfiaintiffs for Putnams, -on the credit of the plaintiffs, or on their credit with that of Putnam, or even purchased by Putnam, and consigned to the plaintiffs, and they, by contract, express or implied, were induced to •make advances for freight, insuranee, or otherwise, they would thereby acquire a qualified property in the goods, and the right to .■retain the possession *until thejr advances were refunded, .and their liabilities discharged.

5. That if the plaintiffs had incurred responsibilities, or made ¿advances on account of the goods in good faith, resulting from their undertaking with Putnam, they have a right to the possession of' the goods against the defendants, their carriers, if they have paid-< or tendered the freight.

6. That a carrier, upon a bill of lading, containing an express-stipulation to deliver to the consignee or his order, can not detain-the goods from the consignee, under a mere notice from the consignor ; and if he does, is liable on his contract for the damage, though a different rule might obtain upon a bill to deliver to the' consignee, or the assigns of the consignor.

7. That in many cases a symbolical delivery was all that was necessary, or the thing to be delivered was susceptible of; and the-jury might determine for themselves, whether the transaction on the Patriot, near New Albany, did not amount to an actual delivery to the plaintiffs, by the defendants, which they could not afterward' rescind.

We have no bankrupt laws in this country, and are, thereto^ in our investigations of this case, not subject to the embarrassing difficulties growing out of these laws, which have attended many of the English cases. The language of the charge to the jury is very imperfectly collected from the loose notes used on the trial, and although we may regret that it is not more explicit and clear, we must keep in view the case before the jury, to which it referred, and in reference to which alone, the jury received and understood it. It is not deemed necessary to pursue, the course of argument adopted by defendants’ counsel. It often exhibits great zeal and ability, but falls into frequent error as to what was in fact said by the court to the jury. The judges are satisfied with the verdict on the merits of the case in proof. Courts are always bound in the exercise of a sound discretion, to inquire how far the observations' of the judge complained of, were material as well as erroneous; and to what extent they affected the merits of the cause; otherwise there would be no end to new trials, and the remedy would be-worse than the wrong. 10 Johns. 451; 5 Term, 425; *3 Johns. 528; 1 Johns. Cas. 250; 2 Cow. 479; 8 Cow. 223; 6 Cow. 118; 5 Wend. 48; 5 Mass. 101; 6 Mass. 350; 3 Ohio, 369; 3 Ohio, 112; 4 Ohio, 39.

There can be no question but that the owner of a chattel may-part with his property in and dominion over it, without reeeivingthe pay for it; and he may deliver any chattel he sells, symbolically and constructively, as well as by corporal touch. If he sells without stipulation, for credit, or some other act indicating his intention to rely for his pay on the promise of the purchaser, or something other than the article contracted for, the law secures to him a lien on the chattel for its price, which he may assert at any time before actual delivery to the vendee. So entirely does the rule of law follow the principle of equity in this particular, that although there has been a constructive delivery to the purchaser, as to a middleman or a carrier upon a bill of lading, yet in case of real or apprehended insolvency in the vendee, it allows the vendor the privilege-of stopping the goods, if he can, on their way to the vendee, and having regained the possession to himself, to assert his lion for the unpaid purchase. It is essential to liens, that persons claiming-them have the possession of, the chattel upon which they are claimed to operate. This is defined to be the right which one pei’sonpossesses of detaining property placed in his hands, belonging to-another, until some demaxxd of his be satisfied. 3 East, 235; 2 Cow. 579. They are allowed for the convenience of commerce and natural justice, and are favored where there is an express contract, or-where it is implied from the dealings of the factor. 4 Barr, 2220. And in such cases, though the general property in the goods.is vested in the purchaser, the lien or special property is vested in the vendor. 1 H. Bl. 368; 2 Bl. Com. 448; 7 Term, 440; 7 East, 571.

The vendor’s right of stoppage in transitu does not proceed on the ground of rescinding the contract, but rests expressly upon its con tinuance on the ground of an equitable lien ; and if the goods are stopped, the vendee may recover them on his complying with the contract, or paying the price. Dyer, 29; 1 New. 69; Com. Dig., Agreement, B, 3; 3 Term, 464; 8 Term, 199; 3 P. Wms. 188; 2 H. Blk. 504; 3 Bos. *& Pul. 54; 12 Ves. 379. If the vendor has been paid in part, he may stop for the balance, and the part payment only diminishes the lien pro tanto. 2 Kent’s C. 427; 7 Term, 440-445; 1 H. Blk. 357, 363, n. 5; 3 B. & P. 44; 3 East, 93, 103, 381. This right does not exist except in ease of insolvency, and can only be exercised when the property, by the shipment, is vested in the consignee. 8 Cranch, 333, per Story, Judge. The title may pass by mere delivery of goods under a contx'act of sale; or a lien may be acquired for advances, by a mere possession, under a contract for that purpose. But it is of the very essence of a lien that possession accompanies it. Having acquired possession of goods, the consignee may be rightfully considered as the special-owner of them, to the extent of his advances. Mason, 139. And there are many cases where the vendor’s right of stoppage has been defeated by a constructive delivery only. 2 Kent C. 431.

Factors have also liens upon the goods of their principals, for •charges incident to them, for a general balance due them as factors, and also for outstanding debts, for which they are only security. 3 P. Wms. 185; 2 Atk. 623; 2 Ver. 203; 1 Burr. 494; 4 Burr. 2214, sec. 18; 1 H. Blk. 501; 2 H. Blk. 503; 2 W. Blk. 1156; Cow. 251, 571; 6 Term, 258, 262; 2 East, 327; 6 East, 25, n.; 1 East, 4; 16 Ver. 280. As between the principal and factor, the general right of property in the owner will be made to yield to the special property of the factor, necessary to complete his trust or satisfy his liens. 2 H. Blk. 503. Yet the owner may, at any time before actual sale, by paying the balance, and discharging the responsibilities of the factor, withdraw his effects; and if the factor become insolvent, the goods remain the property of the principal, subject to the lien of the factor. 2 W. Blk. 1156. These liens are allowed for the convenience of trade, with a view to the nature of the factor’s employment, and to encourage advances upon goods-in his possession, or to be consigned to him, and are favored, 3 B. & P. 488, 498; and Lord Kenyon, 6 Term, 262, says, the factor’s right to his lien is an agreement which the law implies. If the factor has sold the goods, and parted with the possession, he has a lien on the price in the hands of the purchaser, *for what is due to him, and the owner can not set up his right to the money, except whero the factor has nothing due to him.” Cow. 256, 571; 1 Burr. 494; 1 East, 4; 5 Bin. 392. And where the owner aliens the property, the purchaser takes it subject to the lien of the factor. 1 Burr. 489. So for insurance upon the goods, made at request of consignor,.or in the course of trade. 1 Burr. 494; 2 East, 523. “ There is no doubt,” say the Supreme Court of the Uuited States, 8 Cranch, 419, “but that agreeably to the principles of the common law, a factor has a lien upon the goods of the principal in hid possession, for the balance of account due to him, and so has a consignee for advances made by him to the consignor. The consignor can not maintain an action against his factor, to recover the property placed in his possession, without first paying or tendering what is due to the factor.” Buller, Judge, says, 6 East, 28, n.: Where the consignee has paid the price of the goods, or is under acceptances for them, which is the same thing, the owner can not seize them.” But as between a principal and a mere factor, who has neither advanced nor engaged anything for his principal, the principal has a right to take back his goods at will, whether they be actually in the factor’s possession, or only on their passage. 6 East, 25, n. So in case of the consignee’s insolvency, before they came to his possession. 6 East, 17; 3 Term, 119; 4 Burr. 3047; 2 Kent Com. 72; 2 Rob. Ad. 391. The right of the owner of goods to countermand their destination, while under his dominion, is not •questioned by these principles, but that is a right that can only exist where there is no interest in others in the goods, to be affected by the countermand.

A consignee upon a bill of lading to himself, or assigns, obtains .a property in the consignment by the bill of lading, and may sell .and transfer a title, while the goods are in transit, before they ever came to his actual possession, by indorsing the bill of lading, notwithstanding they have not been paid for; and Lord Mansfield, in 6 East, 27, n., says it has “ always been held that the delivery of a bill of lading transferred the property at law.” It has been determined that the moment goods are delivered by A. to a carrier, to be forwarded to B., *the property vests in B. 3 B. & P. 46. Where a factor makes advances and incurs responsibilities, on account of consignments to him, the bill of lading vests such property in him, that he may.insure, or even sell the goods, -on the security and faith of the consignment, and the consignor can not stop them, without repaying what he has advanced, or is liable for, and no man can seize goods in opposition to one who has obtained a legal right, and advanced money upon them. 6 East, 32, n. Yet the interest vested in the consignee, by the delivery to the captain is not absolute to all purposes. So far as relates to the right of stoppage in transitu, it continues subject to the control of the consignor. 8 Cranch, 329. A shipment to the order of the consignee, he to pay the freight, was held to change the custody of the goods, by delivery to the captain. 1 East, 5. The bill of lading is a written contract for the transportation of goods. Its stipulations are as obligatory upon the parties as other written contracts. Their terms can not be varied by a parol agreement, though they maybe affected by proof of usage or custom. 4 Ohio, 346. They are not conclusive against proof of fraud. 7 Mass. 306. The party in whose name the bill of lading is made out, has a right to demand the goods of the carrier, and if he be the consignee' without interest, he may sell absolutely and transfer the* property, before he receives it. 8 Cro. 329.

The carrier’s right to hold goods against the consignee extends no farther than until he is paid for his carriage. 3 B. & P. 55; Ld. Raym. 752, 867; 6 East, 519; 7 East, 224. Chambres, Judge, in Opponheim v. Russett, 3 B. & P. 54, says, “Perhaps the consignee himself may intercept the goods in their passage; and indeed I have little doubt that if he' do intercept them in their passage, before the consignor has exercised his right of stopping in transitu, and do take an actual delivery from the carrier, before the goods get to the end of their journey, that such a delivery to him will be complete.” Opposed to this is cited the declaration of Lord Kenyon (1 East, 242), that the right of the consignee to go out to sea, and meet the ships, could not be supported, because it might go the length of saying *that the consigne® might meet the vessel coming out of the port whence she had been consigned,” and “there would then be no possibility of any stoppage in transitu at all.” This cause has been overruled. 2 B. & P. 461; 3 B. & P. 54. And the better opinion now is, that if the vendee intercept the goods on their passage, and take pos-session as owner, the delivery is complete, and the right of stoppage is gone. 2 Kent C. 433. And if the property has once fairly arrived at its destination, so as to give the vendee the actual exercise or dominion over it, the right is gone. 4 East, 82. The delivery of the key of the vendor’s warehouse to the purchaser, the paying storage for the goods, or the lodging an order with the keeper for their delivery, or the demanding and moving the goods by the agent of the vendee, have been held a sufficient delivery to take away the right to stop. 3 Term, 468; 1 Camp. 452; 2 Camp. 243; Caine, 182; 3 Term, 464; 14 East, 308, The securities are at an end if the goods are placed under the orders of the consignee at any intermediate place. 5 East, 175. In Coxe v. Harden, East, 218, it was held that upon a shipment to-consignees, on a bill of lading, to the shippers or their assigns, the possession by the consignee of the bill of lading without indorsement, though it did not entitle him to call upon the captain for their delivery, and although he might be liable, on his bills of lading, to deliver only to the order of the shippers, for a broach of that contract, yet when once the goods were in possession of the consignee, or “those who had authority from him, whether-received rightfully or wrongfully from the captain, the right of stoppage ceased, and the property became indefeasibly vested,, without any further control of the shipper over it.” So it was-held that when goods were sent from Manchester to Hull, to be-from thence shipped to the consignees at Hamburg by their agent, the transit was at an end on their arrival at Hull. 5 East, 175. The supposition that the goods must come to the corporal touch of the consignee, in order to oust the right of stopping in transitu, is a figurative expression, rarely, if ever, strictly true. 5 East, 184. It has never been literally adhered to, 3 Term, 463, and is now exploded. 2 Kent C. 431.

*A written opinion of a highly distinguished jurist in Boston, has been submitted to us by the defendants’ counsel, that the right of a vendor to stop in transitu is undoubted, unless the consignee has obtained a vested interest in the goods,” and that to-’ establish the lien there must be an agreement for it, and actual or constructive possession ; and concluding “ that if there was no advancement on the goods, and no responsibility assumed to the-vendors, there could be no foundation for the lien to rest on.” With this opinion, so far as it asserts the law, we fully concur. The only difficulty for the defendants will be in bringing their case within its principles. The assignment of Putnam to Bradley and Clark has no other effect upon the case than to place them, from its date, in Putnam’s shoes, and to enable them thenceforth to do exactly what he might have done if it had never been made, and nothing more. What, then, were the legal rights of these-parties ?

The general question is, whether this consignor shall be held.obliged to do justice to the plaintiffs before he is suffered to retake these goods ? And it is said, if a court of equity would sustain the demand in this class of cases, upon the broad principles-of justice, it is good at law. 4 Burr. 2218, 2220. Before these goods were purchased it was agreed that they should be bought on credit, shipped to the plaintiffs, who should sell them, and raise and remit funds to meet the notes given for the purchase. The-obligations given on the purchase were indorsed by the plaintiffs. The fair inference from this state of facts would be that tho indorsement was made in execution of the agreement; if so, it is-conceded the lien of Putnam is gone. Whether that was the fact was left to the jury, and if found, the lien gave the plaintiffs-power to retain possession of the goods until indemnified, and so the jury must have understood the court. The same rule applies if any advances were made, or liabilities incurred upon the shipment, with the knowledge and consent of Putnam, for drayage, insurance, or freight. The difference is only in the extent of the lien. The letter of advieo of the shipment showed an agreement to rely on the promise of one of the plaintiffs to remit funds to meet the notes given for the purchase; the proceeds were not to be *drawn for. It also contained a request to obtain insurance from New Orleans up on the faith of the consignment. The bill • of lading to New Orleans, and the letter, of advice sent with it, -showed the freight, to that place, unpaid and chargeable on the shipment to the plaintiffs, and which was paid there by the agent of the plaintiffs. The schedule accompanying the assignment to Clark and Bradley contained the name of the vendors of the goods, the amounts, and also a memorandum of two hundred and twenty-eight dollars and fifty cents of insurance, freight, and drayage, chargeable upon the invoices. If the indorsements there for the purchase are thrown entirely o.ut of view, here were advances under liabilities on account of these goods by the plaintiffs, and the shipment to them and delivery to the carrier was con- • structively a possession in them, to the extent of that lien, subject to the right of stoppage in transitu, when discharged by the -•consignor. If the indorsement on the notes were without the knowledge and consent of Putnam, he had no right to stop these goods without paying or tendering the advances actually made .and the expenses incurred. There was no evidence of any attempt on the part of Putnam to satisfy this lien until after suit ■brought; and it can not s*eriously be urged that a tender afterward affected the case. The claim of a right to hold for a greater lien, which it is supposed1 would be held equivalent to a refusal, was made at the same time, if at all. Having then got the possession, at the end of the voyage, the lien of the plaintiffs upon • common principles, would attach for all their liabilities, though if payment had been before tendered, upon a proper state of pleading, the lien for the unauthorized liabilities might have been ..avoided. It was properly left to the jury to determine also the character of the possession below Louisville; for although it .might be obtained expressly to prevent a stoppage by the consignor, yet- it might be good to the extent above supposed, if no further, and if not limited by payment or tender until after the-goods arrived at the end of the voyage, might possibly be effectual to the whole extent claimed. In these particulars I do not see how the jury can have been misled to the prejudice of the defendants by the charge of the court. The order for delivery, given to Clark and Bradley, was only upon their ^paying all charges on said goods, for transportation and insurance, from Boston to Cincinnati! This was no countermand by a consignor-having the sole interest in the goods. It was no attempt to stop-in transitu, on account of the insolvency of the vendee, for there was no insolvency, nor proof of any. No moral turpitude is perceived in the measures resorted to in order to obtain the actual possession of these goods below Louisville. It is but an ordinary contest between two claimants, each having a constructive, and striving to secure an actual possession to promote his own interest. If it be true, as urged, that a constructive possession can not become the base of a lien, that is fatal to Putnam’s claim. He never had actual possession, and probably never saw the goods. The actual possession had been taken by one of the plaintiffs; and the claim of .possession in Putnam is entirely constructive, springing from his ownership of the goods.

Passing from these considerations, what was the situation of these goods at New Orleans? If, upon their arrival there, all had been done by the shippers they were to do to give possession to the plaintiffs, and they were delivered to the agent of the plaintiffs for their direction as to their ultimate destination, then the transit of the goods ended there, and the possession of the plaintiff was then complete. Jordan swears that he received the goods and reshipped them as the agent of the plaintiffs, under their instructions. He debited them with the expenses and forwarded the bill, according to order. The bill of lading sent to him made the goods deliverable to him on the order of the plaintiffs. Can it be doubted that the plaintiffs might have countermanded the delivery to Jordan at New Orleans, and directed the goods elsewhere or there taken them to themselves ? The bill of lading, executed by the defendants there, was a contract between the plaintiffs and the defendants, by which the defendants acknowledge to have received these goods for the plaintiffs, and promise to deliver them at Cincinnati to them or their order. The law confers no power upon one party to a contract to rescind it at his own pleasure. ’The consent of both parties is as necessary to its dissolution as to its formation. Is there any principle of justice or equity, growing out of the circumstances of this ease, protecting the defendants *in their refusal to execute this contract ? None is disclosed. But the parties to the contract did cancel it near New Albany, and entered into a new one to deliver the goods at Louisville. Was it unlawful for them to do so ? Why did the defendants refuse compliance with it? Not because they were defrauded or imposed upon, but because the agent of Putnam demanded the goods and notified them not to fulfill the agreement. ’The arrangement to bring the goods on to Cincinnati afterward can not injuriously affect the plaintiffs. They might be charged with the additional transportation. But the carrier’s lien for this, if it ever attached, was destroyed by the tender and refusal on the way, as was that for the transportation from New Orleans to Louisville by the payment on the river. At Cincinnati the originally contemplated voyage was complete; the whole freight had been paid, or tendered and refused. There remains no shadow of lien for carriage on the part of the defendants. A lien once parted with can not be resumed. Abbott on Ship. 246; 6 East, 662. If the consignee requires a delivery to him on board the ship, and directs the goods not to be landed, it is said the master must obey. 4 Term, 260. The general rule is, when there is no special agreement or custom to the contrary, that a deliverance must be to the consignee in person; but if there is a custom or agreement, then a delivery at the wharf discharges the master. 5 Term, 389; 3 Bod. & Bing. 177; 6 Moore, 469; 4 Price, 34; 2 Barn. & Ald. 356; 2 Barn. & Ald. 58; 1 McClel. & Young, 129; 4 Bing. 476.

The question remains, what right had the defendants, who are mere carriers, to take these goods from the wharf at Cincinnati to their store-house, and defend their possession against the very ■persons with whom and to whom they covenanted to deliver them? Their charge had been fully paid and tendered. The demand interposed by Bradley and Clark, in no event can go beyond their rights. The consignees were solvent; their circumstances had un■dergone no change since the shipment of the goods upon an agreement that they should advance freight and insurance, and have the profit of selling, which confers upon the vendors any equitable right to interfere with the contract, to prevent great and unjust loss. There was nothing which, by the terms of their contract *with Putnam, in any aspect of it, they were to do, to be entitled under the contract that remained undone. It is not a ■case of a naked shipment without contract or interest in the consignee. The right of Putnam, therefore, to rescind the contract at his own pleasure is not very apparent. By the issues, the defendants claim no right in themselves; and the jury had a right to consider the facts, and have the law given them upon each issue in the cause.

The defendants conduct their defense for the benefit of Bradley and Clark; yet much is said about the hardship of the case, and we are admonished that our decision not only involves the commercial character and credit of the state, but the character of the judiciary also. It was in evidence that the plaintiffs offered the defendants ample indemnity against loss from a delivery to them, which was refused. If they be now without indemnity it is their •own folly, and calls for little sympathy even from those in a situation to yield to its influence. Conflicting claims'to goods often .arise, and it is difficult for a carrier to know who has the right. In such cases, Chancellor Kent, in his 3 Com. 170, says, " pru dence would dictate that he deliver the goods to the person on whose indemnity he can most safely rely.” Again, “if the consignee has failed, and the goods have not been actually sold by him on their transit, he should, without doubt, deliver to the consignor; if otherwise, to the consignee. The consignor having made a consignment has not an unlimited power to vary it at pleasure. He may do it only for the purpose of protecting himself against the insolvency of the buyer or consignee. If the difficulty be great he may deposit with some bailee, and compel the contending parties by bill of interpleader to litigate their rights between themselves.” 3 Kent, 6, 171; Abbott on Ship. 381; 6 Rob. Ad. 321. Without some step of this kind we do not see how he can defend his possession against the express terms of his own bill of lading, by which he is excused from delivering only by the act of God and the public enemies. Co. Lit. 89, a; 3 Esp. 127; 1 Wil. 281. The commencement of this suit did not prevent a resort to the bill of interpleader, to secure the control of the goods for the benefit of the successful party; but no step of that kind is taken. Upon a view of all the circumstances of the *case we are satisfied that both the law and the facts are with the verdict. The motion is overruled.

The defendants’ counsel, in the event of a decision against them on the motion for a new trial, have interposed a motion in arrest of judgment, on the ground that tho plaintiffs’ replications and pleas to the avowries are departures from their declaration :

1. In declaring upon a property in themselves, and in their replications and pleas setting up a lien.

2. In declaring for an unlawful taking, and setting up in their replications and pleas only an unlawful detainer.

The usual method of taking advantage of a departure in pleading is upon demurrer. Here the parties joined several issues to the country, and a verdict has passed. The defendants come with a bad grace now with objection to a judgment, because there was a departure in pleading which they chose to overlook at the proper time. Tet if the issues are so perfectly immaterial that thq court can not know for whom to give judgment, it is not aided by the verdict, and a repleader will be awarded. In this case there are several issues upon which no departure is alleged, and against which no want of materiality is urged. The verdict on the first-finds the defendants guil ty of the matter alleged against them i n the declaration ; on the second, that they took the goods; on the third, that the property was not in Bradley and Clark. Without- a necessity for looking further, we can easily see on these issues for whom to render judgment. Indeed, it would be difficult to find a departure in pleading here, if the question was properly presented. A new trial is never granted for a defect in the pleading. 1 Johns. 510; 15 Johns. 212.

The motion can not be sustained. Judgment on the verdict.


source: Caselaw Access Project

author: Judge Collet:

license: Public Domain

text:
    *Bush et al. v. Critchfield et al.
    Where, upon demurrer, the matter of a plea is adjudged no bar, and a writ of inquiry awarded, the case is not opened by the jury of inquiry returning a special verdict, finding the ¡same facts. The judgment on the demurrer estops the party against whom it is given.
    A covenant with B. that 0. shall sell and account for the price to B. for all merchandise B. may put into C.’s hands to sell. B. settles with C., finds a balance due, and takes C.’s note, one day after date, for that balancer Held, that if the note is not paid, A. is liable on his covenants.
    Where justice is done by the verdict, the court will not grant a new trial and leave to plead to let in a mere technical defense.
    Tms cause was reserved for decision here, in the county of Knox, and came before the court on special verdict.
    The declaration was in covenant, and stated that on June 27, 1825, the defendants covenanted with the plaintiffs, that if the plaintiffs would furnish one D. B. McConnell with goods, to sell on commission, at such per cent, as the plaintiffs and McConnell had, or might agree upon, that the defendants would be responsible for the faithful performance of McConnell, for one year from the date, and as much longer as McConnell should be justified in the sight of both plaintiffs and defendants; and that McConnell should render a true and just account of all merchandise delivered to him by the plaintiffs, and of all sales made by him, as often as the plaintiffs called on him for them; and that the said McConnell should faithfully perform his covenants with the plaintiffs, contained in an article dated April 18, 1825, whereby he covenanted faithfully to sell, and account for merchandise delivered him to sell by the plaintiffs, on commission, and for the sale of articles he received in barter for the goods, etc. It is then averred by the declaration, that the plaintiffs delivered to McConnell to sell, in pursuance of the articles, large quantities of merchandise, and that he did not, for one year, from June 27, 1825, faithfully account and pay to the plaintiffs all the money he received for said merchandise, but that he had received for said goods eighteen hundred dollars, which he neglected and refused to pay to the plaintiffs. The declaration contains other averments and other breach es.
    The defendants pleaded: 1. Performance. 2. That on April ■ 26, 1826, McConnell settled and accounted with the plaintiffs for all the goods he had received of them, and for all the sales he had made, and returned to them goods to the amount of fifteen hundred dollars, and made and delivered to Chauncey Bush, one of the plaintiffs, a sealed bill for eight hundred and sixty-four dollars and thirty-six cents, payable one day after date, and to H. Tuttle, another of the plaintiffs, a sealed bill for the same sum, payable *at the same time, which notes wore made by McConnell ac■cording to an agreement with, the plaintiffs and McConnell, in full ■satisfaction of all accounts and demands of the plaintiffs, on account of any goods which he had received of them, on said contracts, or on account of any sales made by him of those goods.
    The plaintiffs, by general replications, denied the facts in the pleas, and concluded to the country. The defendants demurred to the replications. On this demurrer judgment was given for the plaintiffs, and the cause continued for inquiry of damages. 4 Ohio, .103.
    On the inquiry, the jury returned a special verdict, by which they found, that on April 17,1826, the plaintiffs and D. B. McConnell had a settlement of their accounts, on which McConnell was found indebted to the plaintiffs in the sum of one thousand seven hundred and twenty-eight dollars and seventy-two cents, for goods sold on commission, and not accounted for; that McConnell then executed two .single bills, one payable to Ohauncey Bush, or order, ■one day after date, for eight hundred and sixty-four dollars and thirty-six cents, his share of the sum of one thousand seven hundred and twenty-eight dollars and seventy-two cents, the other for the same sum, payable one day after date, to H. Tuttle, for his share; that before the commencement oí the suit, one of the defendants admitted that they had a lien on a house and lot to secure them against their liability for McConnell, but which he believed insufficient to cover the balance due on these notes; that in his opinion the defendants were discharged by the taking of the notes; that one of the plaintiffs, after the commencement of this .suit, said, that at the time of the taking of the notes, he considered the securities were thereby discharged. The jury further found that there is due on the two notes twelve hundred and sixteen ■dollars, and submitted that if from the circumstances, the sureties were discharged, the verdict should be one cent, if not, for one thousand two hundred and sixteen dollars.
    H. Stanbert and H. B. Curtis, for the plaintiffs, contended:
    *1. That the special verdict found only the matter of the second plea, which, having been adjudged bad upon demurrer, the ■case was not open to be affected by the verdict. The defendants were estopped.
    2. That upon the facts found judgment ought to be entered for the damages claimed, one thousand two hundred and sixteen dollars.
    On the first point they cited Stephen on Pleading, 128,239; Com. Dig., Estoppel, A, 1. On the second point they cited no authorities.
    G-. James, H. H. Htjnter, and B. S. Brown, for defendants,
    cited no authority on the first point. On the second, they cited 1 Phil. Ev. 148, 149; 2 Strange, 1114; 1 H. Black. 252; Doug. 302, n. 2; 7 Cranch, 299; Cro. Cha. 415; 1 Burr. 9; 9 Wheat. 680; 1 Mason, 313; 1 Paine, 305; 2 Saund. 412; 4 Taun. 339; 2 Caines’ Cases, 1; 10 Johns. 180; 7 Term, 254; P. Wms. 532; 1 Carth. 446.
   Opinion of the court, by

Judge Collet:

The settlement and giving the single bill on that settlement, by McConnell to Bush and Tuttle, for the balance due from McConnell to the plaintiffs, found by the verdict, are facts which wore stated in the defendant’s plea. The plaintiffs contend, that as the replication originally filed to the defendants’ plea in bar denied its truth, and as the demurrer admitted the truth of the replication, and consequently that the plea was false, the defendants are estopped from insisting on these facts, on the inquiry of damages. A demurrer admits the truth of the pleading demurred to, as far as is necessary, to enable the court to determine on the pleading objected to, and no further. In this case the demurrer was used as a demurrer to the declaration ; it admitted the covenants stated in the declaration, that the plaintiffs delivered, in pursuance of the covenant one cent’s worth of goods to McConnell, and that McConnell violated the covenant by not accounting for one cent’s worth of goods, whereby the plaintiffs were injured one cent; it admitted no more, for no more was necessary to enable the court to determine ^whether the declaration was or was not good. A plea in bar frequently contains a number of facts; if either of them is not true the bar is destroyed, and the plea, as a bar, is false. As, where B. covenants with A. to build three houses; A. sues B. for not building them; B. pleads in bar performance, specially ; A. replies, denying the plea. On the trial of the issue, if it appears that two of the houses are built and occupied by A.; that there is one dollar’s worth of work necessary to complete the third, the jury must find the replication true and the plea false, and shall assess the damages of A. at one dollar, or such sum as shall compensate A. for his injury. The evidence produced to» prove the issue is the evidence indispensable to enable the jury justly to estimate the damages.

If there had been a demurrer to the replication it would have-admitted that the replication was true, as the jury found that the facts stated in the bar were so far false as to destroy the bar, and no farther ; that is, that the three houses were not all finished.

On an inquiry of damages the jury would not have had to try the issue ; the demurrer had admitted that the facts stated in the plea were so far false as not to be a bar; but they would hear all the evidence relative to the building of the houses; that would be-indispensable to justice, and not incompatible with the admission that there was no bar. The decision of the court in'this ease, that the replication was good, determined the issue, deprived the defendants of their bar, and subjected them to have damages assessed against them on the inquiry, but nothing more. On an inquiry after a default, or a judgment or demurrer to the declaration, or against the defendant on any other pleadings, the question with the jury is the same ; what damages has the plaintiff sustained by the breaches assigned ? The evidence must, of necessity, be the same.

“ An estoppel is where a man is concluded by his own act or-acceptance, to say the truth.” Comyn’s Digest, Estop, A, 1. When the jury find the truth of the fact the court will give judgment according to the finding, without regard to the estoppel. Ibid. E, 10. All pleas in estoppel are regarded unfavorably, and must be certain in every particular. Steph. Pl. 357. The evidence on this ground can not be rejected. *But that these notes to Bush and Tuttle so changed the contract with McConnell and the plaintiffs, as to be a discharge of the defendants on an inquiry for damages, can not be successfully contended. The inquiry with the jury is, what damages have the plaintiffs sustained by the unfaithfulness of McConnell ? The defendants, on the inquiry, could prove that McConnell received no goods of the plaintiffs, or that he had returned them all, or that he fairly sold all he received, apd justly accounted for, and paid to the plaintiffs the whole amount of the sales, if the facts were so, and reduce the damages to one cent. If pleaded these would have been bars, but they are subjects, properly, of inquiry with a jury, in assessing damages. There are-other bars not so; as infancy and duress. 1 Chit. Pl. 479. They ffo not show that the plaintiffs sustained no damage, nor that the damages have been paid; and, therefore, the jury of inquiry in covenant, can not consider them ; so in this case, these notes being given to Bush and Tuttle, or that they were made payable one day ■after date, does not show that the plaintiffs sustained no damages, or that the damages have been paidj but the contrary.

The defendants, if the court are of opinion that they can not avail themselves of this defense, in mitigation of damages, move for leave, on terms, to plead it in bar. We do not know the exact terms of the second contract between McConnell and the plaintiffs, under which he received and sold the goods, after the date of the defendants’ covenants. By the defendants’ contract, if McConnell was furnished with goods, by the plaintiffs, for a year at least, to retail, the defendants undertook that he would faithfully sell, and ■account with, and pay over the proceeds to the plaintiffs. That he should retail some on credit was not inconsistent with their undertaking ; if he did, it could not be inconsistent with the defendants’ undertaking, that, on a settlement with McConnell, he should have a reasonable time to collect and pay over that part of the price of the goods, which was uncollected; neither could it be inconsistent with it to take McConnell’s note or notes, evidencing the balance found due from him on the settlement and giving time to pay. Before the end of the year for which McConnell was to be ^supplied with goods, he and the plaintiffs closed their business. Could it be expected that time would not be necessary for McConnell to pay?

The object of the ordinary letter of credit, given to a merchant, warranting his pay for goods he might purchase, is that he may have time to pay; the giving him the ordinary eredit, the taking .a note for the amount, the indorsing the note to a bank in the neighborhood of the maker, or to an individual for collection, is not a discharge of the guarantor’s undertaking; it is all within .and according to it.

The opinions of the plaintiffs or defendants, as to the effect of giving these notes, on the guaranty of the defendants, can not affect it. Will the opinion a man may entertain of his title to a tract of land either vest or divest the title? Will the court admit or reject the deeds according to the opinion that the parties may -at some time have, expressed ? That an act done under a mistake ■of the law should bind, is a principle hard, and complained of; but that the mere error, without any act being done in consequence of it, should divest a person of his right, would be still harder. That the defendants were indemnified, canmot subject them to the-demand of the plaintiffs, if they would not otherwise be subject to it.

Whether taking the notes, one payable to Bush, the other to Tuttle, for their several proportions of the balance due from McConnell, and not to the plaintiffs jointly, is such a variation of the contract with McConnell as to discharge the defendants, it is not necessary for the court to decide. If it would the court would not grant a new trial, and leave to plead, to enable the defendants to set up such a bar; they would grant it only to let in a defense,, where substantial justice required it. The taking these notes in this manner did not in any way injure them. The defendants-covenanted with the plaintiffs, that if they would deliver the goods to McConnell they would indemnify them for any loss they might, sustain by McConnell’s not paying over the proceeds of their sale. Relying on this, the plaintiffs advanced their goods to McConnell,, and he, of the proceeds of these goods, has kept back, and still, keeps back, twelve hundred and sixteen dollars.

*Every principle of justice requires that the defendants should pay this sum to the plaintiffs. 3 Cranch, 492. Judgment must be entered on the verdict for twelve hundred and sixteen, dollars and costs.


author: Judge Wright:

text:
    Isaac Bates v. Thomas Cooper.
    New trial not granted, because against equity if conformable to law.
    Bepleader not awarded after trial upon issue where the merits have come fairly-up, and the court can safely pronounce judgment on the verdict.
    The act of assembly for constructing the canals, authorizing the taking of materials for that purpose, is constitutional, and extends to taking materials for repairs.
    This case was adjourned here for decision from the county of' Hamilton. It came before the court upon a motion made by the plaintiff for a repleader and a new trial. It was an action on thecasé brought by the plaintiff, owner of the reversion in certain-lands through which the Miami canal passed, against the defendant, charging him with entering the land unlawfully, and digging up and carrying away the soil. Two pleas were pleaded not guilty, upon which issue was joined. A special plea in bar, alleging that the defendant was a superintendent of the Miami canal ; that a breach was made in it that rendered repairs necessary;, that for the purpose of procuring materials for such repairs, and for no other purpose, the defendant, by direction of the canal commissioners, entered upon the land which adjoined the canal, at the most suitable and convenient place to obtain earth and gravel to repair the canal, and took the earth and gravel for that-purpose and no other. The plaintiff replied that the land and place of entering and taking the earth and gravel was not the-most suitable and convenient place for taking, etc., upon which issue was joined. '
    On the trial a question arose, whether the canal laws authorizing the commissioners to take materials for repairing the canals were constitutional. The court ruled that, under the issue, that question could not legally be drawn into discussion. The jury found for the defendant.
    A motion was ‘made for a new trial, on the ground that the verdict was against equity and law. A motion was also made for a, repleader, alleging that according to the opinion of the cour.t, at the trial, the issue was immaterial.
    *Storer and Eox, in support of the motions,
    cited 2 Dow. Par. Cas. 519; Cooper, 78; 20 Johns. 104; 7 Johns. Ch. 315; 5 Petersdoff, 3-15; 1 Maule & Sel. 32; 1 Black. Com. 140; 1 Chit. Plead. 510, 512; 3 Ohio, 426; 11 Mass. 265; 12 Mass. 466.
    N. Wright, against the motions,
    cited 2 Saund. 319, n. 6; 2 Ohio, 208; 1 Wil. 255; 2 Tidd, 827, 828; Willes, 443; 3 Ohio, 410; 20 Johns. 740; 7 Johns. Ch. 337; 1 Cow. 564; 7 Cow. 352, 565; 8 Cow. 143.
   Opinion of the court, by

Judge Wright:

The plaintiff, who has the reversion of certain lands described in the declaration, in the possession and occupancy of his tenants, complains that the defendant entered the premises, dug up and removed the soil, etc., to his damage.

The defendant pleaded, first, not guilty, and secondly, that the-defendant was a superintendent of the Miamicanal, duly appointed, and a lock and part of the bank of the canal having become low and broken, the defendant, for the purpose of completing the canal and rendering it navigable, and for no other purpose, by order of the canal commissioners, entered upon the land which adjoined the canal at the most suitable and convenient place to obtain earth, etc., to repair the canal, and took the earth necessary to complete such repairs, and for no other purpose, doing no unnecessary damage.

The plaintiff replied, that the land and place of entering and taking the gravel, etc., was not the most suitable and convenient place for obtaining earth to repair the canal, upon which issue was joined.

The state of pleading presented to the jury the general issue, and the fact whether the place where the party entered, etc., was the most suitable place for obtaining the gravel for repairing the canal. All the other allegations in the plea not being denied were, for the purpose of the trial, admitted; and loft upon the defendant the burden of proving the affirmative of that proposition.

On trial, a verdict passed for the defendant, and it is now Amoved to set aside the verdict, because it is contrary to equity, and contrary to law. The plaintiff also moved the court for a repleader, because the issue made up was an immaterial issue.

As to the motion for a new trial, but little need be said. If would be novel to grant a new trial, because the verdict was against equity, if it corresponded with the proof and the issue. No reason is urged to support the claim that the jury were misled in the law arising on the evidence, by the court, or otherwise. The judges who tried the cause are satisfied that the verdict followed the issue, and could not have been different on the issue submitted to the jury.

The application for a repleader is strenuously urged by counsel on one side, and warmly resisted by those in opposition. The •court are asked to adopt the rule of the court of King’s Bench, to reject applications for a repleadcr, after demurrer, or favor of the party committing the first fault in pleading. Tidd’s Prac. 824; 2 Saund. 319, n. 6. We think that rule is too rigid for our practice, and would often interpose obstacles in the way of the great ends of justice. Where an issue is taken on some point that will not determine the merits of the cause, and the court is at a loss for whi.eh of the parties to give judgment, we should consider the issue immaterial. Gilb. H. C. P. 147; 1 Lev. 32; 2 Saund. 319, n. 6. And we are not prepared to say we would render judgment in such eases, the merits undetermined, to punish the party first in fault, or who had put in a demurrer. The application in this ease is in time, provided the case be made o.ut of a finding upon which no judgment can be rendered.

In favor of the repleader two points are relied upon:

1. That the matter of the special plea is no bar to the action.

2. That if the matter were otherwise a bar, that the law of Ohio authorizing the taking materials for the structure of the canals is .unconstitutional and void.

3. If valid, that the authority does not embrace the taking materials for the repair of the canal.

The plea sets up a justification under the canal laws, authorizing the entering of lands adjoining the canal, and appropriations *of materials for the structure, and brings the defense within the wording of the act, all which the plaintiff, in his replication, admits, except only the allegation that the place of entering the land and taking the earth was at the most suitable and convenient place. If the defense is good in law, we think there is no objection to the form of the plea or its extent.

Is the law unconstitutional ? If it is, it has no binding force •on the court or the citizen. The clause in the constitution which is supposed to be violated is in these words: “ Private property shall always be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.” Art. 8, sec. 4. The Supreme Court, in this state, has uniformly decided those acts of the legislature constitutional, which authorized private property to be taken for the public use, for roads, etc., where provision has been made by law for compensating the owner; so that the person injured might get compensation if he desired it. 4 Ohio, 284. But we are not advised that the courts have ever held, that compensation must be actually assessed and paid over to the owner, before a public work can progress, whether he desire it or not. The constitution must receive a construction that will leave it possessed of practical utility. The public interest is to be promoted while private rights are secured — but can it be for a moment supposed that a road or canal of general importance to the community should be interrupted or suspended at the capricious will of an individual? Chancellor Kent, in New York, 20 Johns. 744, goes much further, and maintains a law constitutional, and a valid justification to an officer, which authorized the taking materials without providing any compensation, upon the ground that all are bound to confide in the good faith of the legislature to make the required compensation when required. See also 7 Cow. 352, 585; 8 Cow. 147; 11 Mass. 364; 12 Mass. 468; 7 Johns. Ch. 315. The law in question contains ample provision for a cheap and easy assessment of individual damage and the payment of the amount in money, and we are of opinion it conforms to the constitution. If the law is constitutional it must afford protection to the officer acting under it.

*It is further urged that the case made in the plea is not within the legal import of the acts of the legislature. It is claimed that the authority only extends to the taking materials for the construction of the canal, and does not authorize the taking materials to repair a casual breach. The act to provide for the internal improvement of the State of Ohio by navigable canals, 23 Ohio L. 50, makes it lawful for “ the canal commissioners, and each of them by themseles, and by any and every superintendent, agent, and engineer employed by them, to enter upon, and take possession of, and use all and singular any lands, waters, streams, and materials necessary for the prosecution of the improvements intended by this act, and to make all such canals, etc., and other works and devices as they may think proper for making such improvements, doing nevertheless no unnecessary damage,” and “if the lands, waters, or materials are not donated by the owners to the state, they shall vest in and become the property of the state on the payment of damages to be assessed by appraisers.”

The defendant’s counsel admit that this provision, if constitutional, would afford protection against the taking of materials to-prepare the canals for public use, yet contend that it extends no-further than the opening of the canals for navigation. The work-being then completed, that further legislation is necessary to empower the superintendents to take materials for repairing a breach. If this position were tenable, it would be difficult to give it application to the present case. The issue presents no such fact to the notice of the court, and we can hardly be asked to take judicial notice of such a fact as if it depended on general law. If the plaintiff would have presented that matter to the court, he should have> so replied, and not taken issue as he has on the single proposition, whether the place whence the materials were taken was the most suitable and convenient place for obtaining earth for the repair of' the canal. The statute must receive such a construction as looks to the accomplishment of the great objects the legislature had in view, and not such a one as would make it powerless to attain to-that end. The object was the structure and maintenance for use of navigable canals. Power was given or intended to *be given to effect that end.' Is the grant of power so narrow that no authority is given to change an improvident location, or to repair the failures and breaches of daily or hourly occurrence in the prosecution of such a work? If the. authority to take the materials for the prosecution of the improvements intended by the act does not embrace cases of casual sinking of the banks and repairing-breaches, we are at a loss to discover its practical benefit. Such a construction would be altogether too narrow for the liberal policy of the act, and would warrant the setting up a petty private-interest in opposition to the great interests of the whole people of the state.

Several cases have been pressed upon our consideration, where-private corporations, for constructing canals; have been restricted to a rigid exercise of the literal power granted in their act of incorporation to appropriate to their public structure private property. 2 Dow’s Parl. Cas. 519; Co. R. 78; 5 Petersdorff Ab. 3-14; 1 Maule & Sel. 32; 20 Johns. 104; 7 Johns. Ch. 315. Whatever construction we might feel constrained to put upon an authority given to individuals to appropriate the property of others to their private advantage, we can not believe the cases have any very material bearing on agents and officers exclusively public, engaged in-the construction of a great public improvement, for the sole benefit of the state. It would, however, be a sufficient answer to this-objection to say that the plea justifies the entering the premises- and to bring the earth “to complete the canal and for no other-purpose.” After verdict an objection to the form of the plea, either for the purpose of obtaining a new trial or a repleader will not be received, particularly if it appear, as in this case, not to be in.furtherance of justice, but an effort to -place technical impediments-in the way of its advance.

Both motions overruled.


author: Judge Collet :

text:
    *John J. Brice v. Christopher Myers and others.
    • Claims of creditors against voluntary conveyances of their debtors are to be favored. Bather who is in debt, or liable upon a contract for damages, conveys property to his children, without intent to defraud the creditor at the time.
    ••Conveyance held fraudulent if necessary to secure a creditor.
    This was a suit in chancery, adjourned here for decision from •the county of Knox.
    The complainant was a creditor of Christopher Myers, and the ••object of the hill was to set aside certain conveyances made by •him to his sons as fraudulent, and to subject the property conveyed to the payment of the complainant’s debts. The case made in the papers was this :
    In the year 1819, Christopher Myers contracted with the com•plainant for an exchange of land, valued at twelve thousand dollars. Of this sum, nine thousand dollars was paid by the conveyance of a tract of land. The payment of fifteen hundred dollars •was secured by a mortgage upon part of the land obtained from complainant, and a covenant was executed by which C. Myers bound himself to convey to complainant, within five years, a house .and lot in Zanesville, or pay him fifteen hundred dollars. This house was then the property of a son-in-law of C. Myers.
    In 1820, C. Myers conveyed to his sons and sons-in-law, who are .nil defendants, five tracts of land, one to each, for the consideration expressed of one thousand dollars each, but, in truth, for the cqnsideration of natural love and affection, and an annuity from
    • each, during life, of twenty dollars. At the time these conveyances were made, they included all the property then owned by ■0. Myers.
    At the time of making the original contract with complainant, the sons and sons-in-law of C. Myers were present, and it was declared by him, in the presence of them and of complainant, that his object was to provide for his sons and sons-in-law, and settle them arouud him.
    Subsequent to the conveyances by C. Myers to his children, he •failed to obtain for complainant a conveyance of the house and lot :in Zanesville. Suit was brought,, and judgment recovered for fifteen hundred dollars, which is the debt which the bill seeks to-have paid.
    At the time of making the original contract, C. Myers was not in* volved in debt. In the different answers of the ^defendants, it is alleged that complainant agreed that upon receiving a conveyance of the house and lot, he would release an equal value .of the mortgaged lands. That he refused to do this, but prosecuted the mortgage, and sacrificed the lands ; and for this reason the. conveyance-was not made. A conversation importing an understanding, such as is claimed in the answers, was proved to have taken place,, while counsel was preparing the deeds and mortgages.
    Ewing and H. Stanbery, for complainants,
    contended that it’ was a plain case of a voluntary conveyance, made by a person indebted at the time ; and therefore void against creditors. They cited 3 Johns. Ch. 481; 8 Wheat. 238; 11 Wheat. 205; 1 Atk. 16; 2 Blk. 600.
    Sullivan, for defendants,
    maintained that at the time of making, the conveyances to the sons and sons-in-law, C. Myers was not so indebted as to affect the validity of these conveyances, otherwise made in good faith, and for a valuable consideration. He cited Com. Rep. 255; 2 Ves. 1; 1 Atk. 15; 2 Cowp. 711; 1 Cox, 273; 2 Ves. 326; 1 Pet. C. C. 460, 464; 1 Day, 525; 2 Des. 332; 1 Bay, 163; 1 Ohio, 321; 3 Ohio, 527; 2 Brown, 90; 15 Mass. 92; 1 Ves. 128; 1 Johns. Ch. 429; 17 Mass. 328; 1 Cox, 405; 1 Johns. Ch. 485; 1 Swift, 274.
   Opinion of the court, by

Judge Collet :

The question first to be determined is, are the deeds of Chris* topher Myers to his sons and sons-in-law fraudulent as to the demand of Brice.

A person is trusted or obtains credit in proportion to the property he appears to own ; the creditor, when he trusts him, looks to his possessions as evidence of his ability to pay, and as a fund' from which, if other resources of the debtor fail, he is to receive his demand. After the credit is obtained, for the debtor to divest himself of his property by giving it away, thereby rendering him. self unable to pay his debt, or to perform his contract, is unjust; it is a fraud upon his creditor. Whether, by making the gift, ther ■debtor intended to prevent the payment of the debt or not, can make no difference as to the rights of the creditor; his injury is the same. *It is the duty of the debtor to retain at least a sufficiency of his property to pay all his debts, and perform all his ■ contracts ; if he doe's not, justice requires that the property should be followed into the hands of the donee by the creditor. He who combines with a debtor to defraud his creditor, by buying his ■property, even at a full price, and receiving a conveyance of it, ■does a wrong to the creditor for which he should answer by having the property subjected to the creditor’s demand. He who gives or sells property, and remains in the possession and enjoyment of it, as before the conveyance, has the credit of being owner ■of such property, and it should be subject to his debts contracted while he so appears to be owner. A man who falsely represents another as being the owner of a thousand dollars’ worth of land, knowing it to be false, and thereby induces a stranger to credit the person so represented, should, if necessary to prevent the creditor’s losing, pay him one thousand dollars.

To enforce these principles, to prevent creditors from suffering by their violation, was the object of the statute of 13 Eliz., c. 5, and is the object of that part of section 2 of our statute for the prevention of frauds and poi’juries, which relates to creditors As to the relief of creditors these statutes are co-extensive; each makes void conveyances made with “ intent ” to defraud creditors; they are declarative only of the common law, which, as now understood, would, without the statutes, have effected all that can be effected with them. The statute of Elizabeth, as to the relief of creditors, has, from its enactment, in courts both of law and equity, uniformly received a most.liberal construction, notwithstanding it subjects the committers of the forbidden fraud to a prosecution for a penalty. Cowp. 343; Roberts on Frauds, 14; 1 Fonb. Eq. 260, 267; 1 Cranch, 316. Our legislature, when they, in 1824, by section 10 of the act “for the punishment of certain offenses therein named,” subjected the maker of a conveyance to defeat creditors to a criminal prosocution, did not intend to prevent the courts from giving as extensive relief to creditors, under the statutes of frauds and perjuries, as they had before given or could have given, had not the act of 1824 been passed. When relief is given against frauds, even of the grosser kind, *the perpetrators are frequently in no worse, and sometimes in a better condition than they would have been had not the fraud been committed. That the perpetrators of such frauds should be really punished, and thereby such frauds be prevented or made less frequent, •was probably the only object of the legislature. Before the statute of Elizabeth, the courts in England held that a voluntary conveyance to a stranger, made by a person indebted at the time, was void as to creditors ; after, they held that a conveyance to a child by a parent, if the parent was at the time indebted was void, not only .as to debts contracted before, but also as to those contracted after. 1 Fonb. Eq. 260, n. a.

In the case of Russell v. Hammond, 2 Atk. 13, Lord Hardwicke says, that he “ had hardly known of one case, where the grantor had been indebted at the time of the conveyance, that the conveyance had not been deemed fraudulent.”

In the case of Reede v. Livingston, 3 Johns. Ch. 500, Chancellor Eent, after a laborious examination of the English cases, says, that “ the conclusion to be drawn from them is, that if the party be indebted at the time of the voluntary settlement, it is to be presumed fraudulent in respect to such debts, andno circumstances will permit those debts to be affected by the settlement, or repel the legal presumption of the fraud.” It is even doubtful whether, by the English decisions under the 13 Elizabeth, a voluntary conveyance to a child of land worth one thousand dollars, when the parent at the time owned land of the value of four thousand dollars, if the father at the time owed only fifty dollars, would not be deemed fraudulent and void, and the land liable for the debts contracted by the parent, after he made the gift to- his child.

The law abhors fraud; a statute relieving against it must be liberally construed. When we adopt, in substance, an English statute, the construction before given by their courts to their statute is, in general, to be considered as adopted; but when the statute is declarative of the common law, and when the construction would-here be injurious, arising from a settled difference in the mode of •doing business, and from the situation of property, it becomes the duty of the court *not to follow them in their construction. To hold here, that the parent being indebted at the time he makes a voluntary conveyance to his child, is conclusive evidence of fraud, such as can not be rebutted or resisted, no matter how small the debts, or how small the property conveyed to the child, or how ample the property still retained by the parent to pay his debts, and for his own and his family’s support, is going too far; farther than the Supreme Court of the United States went in the case of the Lessee of Hinde v. Longworth, 11 Wheat. 199.

The security of the creditor of ordinary diligence does not require it, and it would be injurious to the debtor and his family, and to society. A parent is under obligations to his children as' well as to his creditors ; those to the creditor are paramount, and to be preferred; but when his circumstances are such as to enable him to discharge both, it is his duty to do so; hardly any man, especially the diligent and prosperous, can say at any time, “I owe not a dollar.” Shall he be prevented from making the most reasonable provision for a child, unless by way of marriage settlement, until he can say so ?

In England, parents before the marriage of their children, but with respect to it, convey their lands to them by way of marriage settlements. The contemplated marriage takes place ; their courts decide that the marriage is a valuable consideration, and that the creditors of the parent, neither prior nor subsequent, can follow the lands into the hands of the children. Marriage settlement is almost unknown here; the donations to children are generally after, presently after the marriage — not connected with it; the-marriage has made it necessary. To force prudent parents into marriage settlements, to discharge their duty to their children, would be giving no additional security to creditors, but the reverse; it would do society no good, but an injury.

That the conveyance of land to a child was in consideration of love and affection, and that the parent was indebted at the time he made the conveyance, is evidence of fraud as to creditors ; but it may be repelled by showing that the debts were small, and that the property retained by the parent was amply sufficient to pay them; that he was in prosperous *circu instances, and not embarrassed, and that the gift to the child was a reasonable provision for him, according to his and the parent’s circumstances. 11 Wheat. 199.

The defendant, Christopher Myers, on March 31,1819, made the bond to Brice, the complainant, conditioned to convey to him a lot in Zanesville, or to pay to him fifteen hundred dollars within five years. Myers did not convey the lot nor pay the money, and' Brice has recovered a judgment against him on the bond for one thousand nine hundred and forty-five dollars and costs. Myershás no other property than an annuity for his life of one hundred . dollars. After the bond was made, on April 17, 1820, Myers conveyed in.fee simple to his sons, the defendants, Isaac, Jacob, William, and to his son-in law the defendant Hahn, in several parcels,, as described in the bill, twelve hundred acres of land; the consideration expressed in each deed is one thousand dollars. At the time the deeds wore made, each grantee made a bond to C. Myers, to pay to him and his wife during their lives, and to the-survivor during his or her life, an annuity of twenty dollars; this was the only valuable consideration for the deeds. C. Myers at the-time owned no other lands, and but little other property, except an equity of redemption in a tract of land, which, in 1822, he released to satisfy the mortgage. C. Myers states, in his answer, that in the spring eff 1819, when he acquired the twelve hundred acres of land, he estimated the lands he gave in exchange for them at nine thousand dollars. Hahn, in his answer, states, that at the-time the deed was made to him for his one hundred and twenty-nine acres, it was not worth more than the annuity he agreed te pay; but there is no evidence in support of the answer. When a child claims to hold land as a purchaser for valuable consideration against a creditor, a suspicion of fraud arises, and more proof of its payment, and of its adequacy is required, than where the purchaser is a stranger. Alexander Harper’s deposition proves that C. Myers, when he obtained of Brice the twelve hundred acres for a farm, said that hid object was to obtain a larger quantity of land to divide among his children, to give each a farm. 0. Myers in his answer states that this was his object. It is manifest ♦that the advancement of the children, and not the annuity, was the object of the conveyances. Love and affection is the only consideration that the defendants can set up. The defendants’ counsel do not insist on any other. To rebut the presumption of fraud which arises from these facts, the defendants contend that, the fifteen hundred dollars contained in the bond, on which the judgment at law has been obtained against C. Myers by Brice, was secured by mortgage, when the deeds were made by C. Myers to his sons and son-in-law. This, it is admitted, does not appear by the bond or by the mortgage, but it is urged- that it is proved by parol testimony, and that this testimony should be admitted by the court.

Alexander Harper testifies, that in the spring of 1819, Brice and 0. Myers came to him and told him that they had agreed to exchange lands; that Myers was to convey his farm in Muskingum county to Brice, for which Brice was to convey to Myers twelve hundred acres, in Licking county, and that they wished him to draw the deeds: that while he was drawing the deeds,'as he thinks, Brice sold to Myers about seven hundred acres, a part of the same tract out of which the twelve hundred acres were taken ; he does not remember the price; Myers made his notes and a mortgage to Brice for the purchase money; he also made a bond to .Brice, to convey to him a lot in Zanesville, estimated at fifteen hundred dollars, the price of two hundred acres of the land sold; that the house and lot belonged to Michael Sockman, who was then in Illinois or Indiana; that two hundred acres of the .land was intended for Sockman, and when the lot was conveyed to Brice he was to release the mortgage as to two hundred acres of ■the land; that there was some conversation as to Brice executing a bond to release the two hundred acres, but the arrangement was effected without.

William Stanberry testifies, that he saw Brice and Sockman together, and that Sockman offered to convey the lot in Zanesville to Brice, if Brice would release from the mortgage two hundred acres of the land. One objection made to it by Brice was that he had assigned the notes and mortgage to the Granville Bank.

Brice, in answer to an interrogatory filed by the defendants, ^states that Sockman, in the fall of 1820, told him that he would not convey the lot in Zanesville unless Myers would pay him fifteen hundred dollars or give him the best lot he purchased of Brice, he thinks lot No. 10; that he recollects no other conversation with Sockman; that Winchel was a part owner of the lands which he, Brice, sold to Myers and exchanged; that, on settlement with Winchel, he assigned to him the notes and mortgage of Myers in payment for his part of the land.

C. Myers states, in his answer, that the purchase of Brice was of six hundred and thirty-four acres; that for the price of four hundred and thirty-four he gave his notes — for two hundred acres, the remainder, he gave the bond for the lot in Zanesville, or fifteen hundred dollars; that to secure the payment of the purchase money, he gave a mortgage on the whole six hundred and thirty-four acres; and that Brice agreed to release two hundred acres on the convey - ance of the lot in Zanesville; that when he released the equity of redemption to Ransom, the holder of the notes and mortgage, he thought all was settled. The other defendants, except Hahn, all state that the purchase of C. Myers was of six hundred and thirty-four acres, and that the. mortgage was for the price of four hundred and thirty-four acres only. Hahn states that the mortgage was for the same.

Sockman states, in his answer, that he offered to convey the lot in Zanesville to Brice, about a year after the bond was made, if Brice would release two hundred acres from the mortgage, according to his contract; that Brice refused, alleging that be had assigned the mortgage to the Granville Bank and had no control over it; from all which it is apparent, that whether the fifteen hundred dollars was secured by mortgage depends on the testimony of Harper. C. Myers, in his answer, states, in general terms, that the purchase money was secured by mortgage. From Sockman’s •answer, and the depositions of Stanberry, and the answer of Brice, nothing is to be gathered but that Sockman offered to convey the lot in Zanesville, if two hundred acres were released from the mortgage, and that Brice refused, and assigned as one reason, says Stanberry, that he had assigned the mortgage to the Granville Bank.

*Brice sold to Myers three hundred and thirty-four acres of land, at about seven dollars and fifty cents per acre. The agreement was made, Harper thinks, in his presence. Notes were given for the purchase money of four hundred and thirty-four acres, payable in one, two, three, and four years, and a mortgage made on the whole six hundred and thirty-four acres, to secure the payment of these notes. For the price of two hundred acres of the land, the remainder of the six hundred aud thirty-four acres, Myers gave the bond to convey the lot in Zanesville, or to pay fifteen hundred dollars in five years. Harper says, in general terms, that the notes and a mortgage were given to secure the purchase money; that two hundred acres were intended for Sock-man, who owned the lot in Zanesville; that two hundred acres were to be released from the mortgage on the conveyance of the lot to Brice; that there was talk of Brice making a bond to that effect, but it was otherwise arranged.

Why was this bond of Myers’ not referred to by the mortgage, if its performance was intended to be secured by the mortgage? Why was it not stated, in the condition of the bond, that the lot was not to be conveyed or the money paid, unless at the same time Brice released from the mortgage two hundred acres of land ?• Why was not a separate bond taken from Brice, as was talked of, binding him to make the release? That the mortgage does not include the fifteen hundred dollars or refer to the bond, that the bond does not require the release of the two hundred acres on the conveyance of the lot or payment of the money, that the bond of Brice to this effect was not executed, the result of mistake or fraud, is neither proved nor urged. The mortgage was taken to show how far the parties agreed to lien the land — the bond to show on what conditions the lot was to be conveyed. They talked of a bond to affect the mortgage and the bond for the Zanesville lot, but it was not executed — it was not agreed to. Some other arrangement was made; what that other arrangement was we know not. If Brice declined making a bond at the time he received the mortgage and title-bond, which would have materially affected them, on what principle can the court construe the mortgage and title-bond as though he had signed the bond for the ^release? The interest of parties in their contracts is as important and sacred as their interest in their land, and is carefully guarded against the legislature by all our constitutions. If when made they are so sacred, we must as scrupulously avoid; making them for the parties as varying them when made. Unlessi the agreement were drawn contrary to the intention of the parties at the time by mistake or fraud, and that clearly proved, this court can not interfere. Sug. Vend. 93, 116, 117; 1 Pet. 13, 15; 1 Johns. Ch. 127; 3 Stark. Ev. 100-105. The parol testimony must be rejected, and we must hold that it is not proved that the fifteen hundred dollars was secured by mortgage, of that Brice was bound to release the two hundred acres from the mortgage on x'eceiving the conveyance of the Zanesville lot.

It is contended again that the demand of Brice is hard and unjust; that he has already got back, in payment for the land, the whole of the land and one hundred acres of the twelve hundred acre tract; that by mistake the mortgage covered one hundred-acres of the twelve hundred tract.

There seems to have been a mistake in the mortgage of one hundred acres of the east part of lot No. 10. This, though, was known to C. Myers when he released the mortgage to Ransom for dhe notes, secured by the mortgage; he says he thought the whole matter was then at rest, but he does not state or prove that the bond for the Zanesville lot was even mentioned at the time. Why was not.a release of it taken, or some reference to it made, if it was then intended to be discharged?

The lots of land in the deeds and in the mortgage are some of them called for by their number, and not by the quantity; hence, perhaps, the error in the quantity as described. The deeds of C. Myers to the other defendants convey eleven or twelve hundred acres; they call for less than a thousand acres. Yet that the mortgage to secure the payment of little more than two-thirds of the price of about six hundred and thirty-four acres should have been drawn for land, in the mortgage said to be seven hundred and seventy-one acres, and that the bond for the payment of fifteen hundred dollars should have a penalty of five thousand dollars, are circumstances that must awaken suspicion of unfairness; *the penalty has done no harm — the mortgage with full knowledge has been released.

In 1819, when C. Myers purchased the land of Brice, the currency of the country was an unsound one, incumbered by all the notes of the local banks ; they were abundant and had depreciated at least twenty-five per cent., but were passing at the sums for which they were made; the value of land and other property was estimated in reference to this currency. At the time C. Myers released the mortgage in 1822, the depreciated notes of the local banks had ceased to circulate. The price of land and other property had in consequence fallen from thirty to fifty per cent, at least. Eew who purchased land on a credit in 1819 could, in 1822, sell it for two-thirds of the purchase money. Myers appears to have purchased for speculation. The lot in Zanesville with which he was to pay fifteen hundred dollars in five years, was the property of his son-in-law, Sockman. The payments which fell due in 1820 and 1821 were not made. In 1822, when the third payment became due, the lands had fallen, and the mortgage was released in satisfaction of the three first, and also of the last payment to become due in 1823. If the land had raised in value, so that Myers could have paid for the whole, by the sale of two hundred acres in Í822,- whereby he could have gained the four hundred and thirtyr four acres by his trade with Brice, the court could not have relieved Brice; we can not, therefore, as lands have fallen, relieve Myers.

It is stated in the answer of C. Myers, that Brice for a time had possession of the lot in Zanesville. There is no evidence of this fact; if there had been, the court would have ordered Brice to have credited the value of the net rents to Myers. For it is a. principle without exception, that when a party comes into chancery for relief, he must do justice, or relief will be refused. 1 Fonb. Eq. 259.

Sockman admits, by his answer, that when he purchased of Hahn the land conveyed to Hahn by C. Myers, he knew of the-bond on which the judgment of Brice was obtained, and of the consideration for which the land was conveyed to Hahn, and the-circumstances attending the exchange and purchase of lands by C. Myers of Brice.

*Upon the whole, the court .are of opinion that the deeds of C. Myers to his co-defendants, his sons and son-in-law Hahn, and the deed from Hahn to Sockman, are fraudulent and void, as to the judgment of Brice, and so declare them.

The court ordered, that on failure of C. Myers, by a fixed dayr to pay the amount of the judgment, and the costs of this suit, that the land conveyed by C. Myers to each defendant should be separately valued, and the valuation returned to the next Supreme Court, that the court might then order such part of each tract to-be sold as should appear necessary. It was suggested that the-lands were valuable, and that arrangements would be made between the parties.