author: Birchard, J. *Lane, C. J.,

text:
    *The State of Ohio, ex relatione Abijah Ives, v. George W. Choate.
    The legislature may change the boundaries of a county, and when such change-places an associate judge within the limits of another county, who does not, within a reasonable timo, remove into the limits of the county for-which he was appointed, he forfeits his office.
    A person who attempts to exercise the office of associate judge in a county wherein he does not reside, is guilty of intrusion and usurpation.
    The legislature may fill a vacancy that has happened, or that is certain to-happen, before the meeting of the next general assembly.
    This is an information, in the nature of a quo warranto, from Huron county.
    The relator alleges, that on March 19, 1840, the defendant, late-a resident of said county, but then a resident of the county of Erie, did usurp, intrude into, and unlawfully exercise, and from thence up to August 4, 1840, continued, without any right, to exercise the office of an associate judge of the.court oft common pleas of said county of Huron, contrary to the constitution and statutes of the state of Ohio.
    The relation also sots forth, that said Choate, by the act extending the county of Erie, became a resident thereof, and that on March 14, 1840, said Ives was duly elected to said office, and-on the 20th day of March was commissioned as such judge, and on the 26th’ day of March took the oath of office required by law, and became entitled to exercise the duties of said office.
    To this information the defendant has pleaded not guilty, ancf has also traversed the right set up by Ives to the office.
    The case is submitted on an agreed state of facts, which shows-that Choate was elected and received a commission as associate-
    judge of Huron county, on which he duly took the *oath of office on April 28, a. d. 1838; that he then, and ever since, has resided in the town of Milan, and has exercised the office of an associate judge of Huron county; that Milan was attached, by the act of the General Assembly of March 6, a. d. 1840, to the county of Erie; that said Ives was elected on March 14, 1840, and commissioned on March 20, 1840, as associate judge of Huron-county, and a certificate of his due qualification deposited with the clerk of the court of common pleas of said county, on March '30, 1840; that at a special term, and at the May term of the court ■of common pleas, in the year 1840, Ives appeared and claimed his seat; but Choate refused to give it up, and sat in court, with the concurrence of the other persons claiming to act as the judges of the court of common pleas.
    John 'Wiiitbeck and D. Higgins, for relator.
    Boalt & Worcester, for defendant.
    No arguments were furnished to the reporter.
   Birchard, J.

The constitution of this state authorizes the gen•eral assembly to create new counties and to change or alter the boundaries of old ones. The only limit to this power is a prohibition against creating a new county of less, or the reduction of an old county to less, than an area of 400 square miles. There is nothing in the instrument whatever that further restricts this right -of the general assembly, and it is not necessary to hold, nor should it be held, by any implication that does not force itself irrresistibly upon the mind, that this convenient power of modifying the limits of counties is to be restricted beyond the letter of the constitution itself. It is a prerogative belonging to the sovereignty •of the state, and no sovereignty can be presumed to have parted with any power essential to the public welfare, nor can *it be adjudged to have parted with it, without express and unequivocal evidence showing the fact affirmatively.

This being the law, how stands the case of the defendant? He had been elected and commissioned as an associate judge of the •county of Huron, for a term limited by the constitution to a period of seven year if so long he behaved well, and if so long he resided in the county for which he was so elected.

The words of the constitution are (art. 3, sec. 3), “ There shall be appointed in each county, not more than three nor less than two associate judges, who, during their continuance in office, shall reside therein.”

What, then, is the effect of the commission which was granted to defendant, Choate? Did it authorize him to claim the office of judge for Huron county after his political connection with that community had ceased? Could he act as a conservator of the peace therein? The constitution is mandatory, “he shall reside therein.” No one could contend that a voluntary removal was not a forfeiture and resignation of his office. Indeed the legislature of this state have, by express enactment, declared that it shall be so held. Can it make any difference when this removal is effected by the exercise of a constitutional right of the general assembly and by an act of omission in the officer? It seems to us it can not. It is, however, alleged that this rule will enable the legislature, at any time, by a general law, to oust from office, without the form of impeachment and in violation of the spirit of the constitution, many associate judges and any president judge of this state, by changing the limits of the counties and of the circuits in which they severally reside, so as to place their residence in some other county or circuit. Arguments of this nature, which assume the possibility that a co-ordinate branch of government will wantonly violate its plain duty, ought to be held of little weight in a court of justice where the legal presumption obtains that every legal functionary will faithfully observe the obligations of duty imposed upon him by his oath of office. The-general assembly, if it should ever attempt to violate a measure, as the argument supposes, could not effectually ^accomplish the object. The judges would, in all cases, be able to defeat the scheme by a seasonable removal within the newly prescribed limits of his county or circuit. So, in this case, had Choafe preferred to retain his office, he could have changed his residence after the passage of the act attaching Milan to the county of Erie. This he neglected to do at the time; neglected to do when the special court was called requiring his official attendance; neglected to do so at the May term of the court, and still neglected up to the 2d day of August.

We are of the opinion his right to the office of associate judge of the county of Huron was forfeited, and that he is guilty of the-usurpation and intrusion with which he stands charged in the information.

Our next duty is to ascertain the rights of Abijah Ives. Section 3 of the statute (Swan’s Stat. 770) requires us to pass upon his rights. He has received a regular commission as an associate judge of Huron county, and has been duly qualified, which is ample evidence of his right to claim and exercise the duties of that office, unless there is something in the case agree'd showing that the general assembly transcended their powers in going into-the election in the manner stated. It is contended that no election could have been legally held at that time, inasmuch as no vacancy had then occurred, and none could have been legally anticipated. If the facts were clearly such as the position assumes there would be, doubtless, greater difficulty in the case than wo now have to encounter. It is certain, from the agreed case, that at the time of the' election the general assembly had no reason to expect that a vacancy would be prevented by the removal of the defendant within the newly-prescribed limits of the county. We may presume that the members of the two houses understood the tenure of office, and the condition on which it was held by the defendant, Choate. If so, they knew that without such removal by him there would be a vacancy ; and, if so, it -would be but an ordinary exercise of their power to provide for it.

^Whatever may have been the practice of other states, wo know that, from the earliest history of Ohio, it has been the practice of the general assembly to provide lor vacancies that are likely to happen during the term of office of the persons composing their own body. Three of the members of this present court have held judicial offices on appointments thus made, and, indeed, the bench of the Supreme Court has scarcely ever been filled without one or more of its members holding his commission in virtue of such an appointment, and we have yet to learn that the right has been seriously questioned. A practical construction of the power conferred by the constitution — so frequently exercised by the general assembly — so long acquiesced in, and which is coeval with the instrument itself, ought not to bo questioned for slight reasons. We feel bound to consider it correctly settled that the legislature of this state has the right, at its regular session, to fill an elective office in all cases where a vacancy is to happen prior to the ensuing annual meeting of the general assembly.

From the agreed case, it appears that Ives’ election was held on March 14,1840, and that a resolution passed both houses declaring a vacancy, which bears date on the 17th day of March. There is this discrepancy in dates. It is, however, easily accounted for by persons familiar with the proceedings of legislative bodies. The election always appears to have been held on the true day. The journal, kept by the clerk, alone shows when the two houses assemble and'go into an election by joint ballot. This jouimal can not show a date varying from the true one. Not so with a joint resolution or a law. The date affixed to them is the date of the signatures of the presiding officers,, and, in most cases, is of necessity two or three days subsequent to the action of the two houses. "We may suppose that, in this case, the resolution dated the 17th day of March, declaring a vacancy in the offices of the two associate judges of Huron county, actually passed on the morning of the day of the election and before the election was held; and wo think that, as to the right of Ives, we ought so to presume, on the principle that the official ^acts of legislative bodies are to be considered legal until the contrary appears. This, then, would avoid all objection to the claim of Ives. But, it maybe said that this reasoning will defeat a proposition, above stated, recognizing the right of a former incumbent to retain his office, by a removal in a reasonable time, within the limits of the county, as established by the act of the 6th of March. The objection would bo well founded if .the joint resolution were to be held conclusive of the fact of an election to forfeit the office, as regards the rights of Choate; but we do not hold that the legislature, any more than a court, could conclude his rights without giving him a hearing. He would, undoubtedly, be allowed to controvert the resolution and overthrow the presumptions arising from it, by proving facts inconsistent therewith. In this inquiry nothing growing out of the resolution has been allowed to prejudice his claim. His rights have been passed upon wholly independent of it, and have been considered and adjudged, as we trust they would have been if such a resolution were wholly disconnected with the cause. This was all he had a right to require at our hands, for it left his own claim to be decided upon its own merits; and those merits show a forfeiture of office by him. It matters not to him how the general assembly acquired a knowledge of the intended and actual forfeiture at so early a period, nor is it material for us to inquire. Since we have ascertained the fact that such a forfeiture occurred, it does not behoove us to hold that the legislature erred in making the discovery before us, and that, therefore, the election of Ives is void.

Judgment of ouster'against Choate, and judgment for Ives.

The same judgment was rendered in the case of the State, ex rel. Sears, v. Somers, upon a similar state of facts. Judge Lane dissented in both cases, and delivered the following opinion:

*Lane, C. J.,

dissenting. The justice of the opinion of the ■court, in these cases, does not rest on the ground that a vacancy •is created in these offices, from the simple operation of the act of ■the general assembly leaving the defendants without the county ■of Huron, by a change of the county lines. Such a doctrine, which would subject the tenure of office of all judges in the state, ■whose functions are territorial, to the will of a majority in the legislature, would be too gross- an abandonment of the slender judicial independence which the constitution has endeavored to ■secure. It is, therefore, not necessary for mo to show that a case cited by the plaintiff’s counsel, 21 Wend. 563, has no application. That case has no bearing upon the question of constitutional protection ; it relates to a public office, created by statute, and liable to modification by the same authority, and it decides nothing, except that where the existence of a public municipal corporation is terminated by lawful'authority, and two new ones are substituted in place of the old, that an officer in the old corporation is not an ■officer in the new one.

Neither does the opinion of the court, in the case before us, depend upon any implied resignation. The statute of 1805, Swan’s Stat. 611, section 3, which provides that a judge who “removes his residence ” beyond the limits within which his duties are to be exercised, “shall be considered as having resigned and vacated his office,” expresses the condition which the constitution annexes to his office, and under which he accepts it, and it specifies the act which affords evidence of resignation. But it is an act done by him, not a mere omission; an act visible, notorious, and provable, by which third persons will not be misled, and whose effect can not be mistaken by himself.

And it is not a point of difference among the members of the court that a judge may lose his right to his office from a noncompliance with this constitutional condition of residence. It is not doubted that a judgment of ouster might justly be pronounced against a judge who fails to keep his residence within the county for which he is elected, after notice of a change of ^limits, and a reasonable time and opportunity to conform to his duties.

But the present opinion of a majority of this court involves the affirmative of the following propositions: That these defendants, after the change of the boundaries of Huron county, unreasonably neglected to take their residence within it; that, in consequence of their neglect, and without judicial proceedings, their offices became vacant, so that the election of the relators, on the 14th day of March, was valid. It is to these propositions I am unable to lead my mind to assent.

It appears to me a sufficient objection that no such case is made by the pleadings. The prosecuting attorney avers the defendant unlawfully exercised his office from the 19th day of March to the-filing the information. Had he stopped there, the defendant must-have shown his authority. The State v. Commercial Bank et al., 10 Ohio, 541. But he.proceeds to disclose the specific ground of forfeiture, viz: “ That by the extending the limits of the county of Erie, the defendants became the residents of Eric county,, and are non-residents of Huron county, by reason whereof the aforesaid office of associate judge became vacant.”

No notice of the law, no neglect to remove, no opportunity to comply, is shown; but the forfeiture is claimed in pleading to have become absolute by the bare extension of limits. It is to this cause of forfeiture that the defendants have plead; and it is to this case of forfeiture which the counsel, on both sides, have argued, and it seems gratuitous to decide- a case which neither counsel have contemplated, and which lies not within the record»

But, passing over this question of pleading, I can not see how these offices could have become vacant on March 14, 1840. The vacancy must have existed on that day, because the election of the relators could not be holden valid unless a vacancy existed then, for an election to fill an office not vacant is void. 1 Kent’s Com. 224; The State v. Constable, 7 Ohio, 1; 2 Bac. Abr. 20; 2 Term, 280; Ang. & Ames on Corp. 65, The only known exception is *the usage of our legislature to provide for the termination of an office, which must, of necessity, happen .before its next session, by limitation of time, and, for obvious reasons, has never been held to extend to a contingent vacancy.

Now a lawful public officer, whose doings affect third persons, who holds a commission under the broad seal, is not to loso his title by a bare private,' perhaps secret, act of omission. The tenure of such an office has never before been held determined, without the intervention of some proceeding of an analogous public nature,, as a judgment in quo warranto, or, in some cases, by a writ of supersedeas, or discharge. Dyer, 155, 198, 211; 9 Co. 98; Co. Lit. 233; Cro. Car. 60, 61; 1 Sid. 81, 134; 3 Co. 44; 1 Roll. Abr. 580; 3 Mod. 335; 3 Lev. 288; The State v. Bryce, 7 Ohio, 82. His sit nation is similar to the holder of a franchise. In both casos, although the forfeiture is incurred, no right is lost, until declared by some judicial or other public proceeding; Rex v. Corporation of Carmarthen, 2 Burr. 869; Commonwealth v. Union Insurance Company, 5 Mass. 230; Terrett et al. v. Taylor, 9 Cranch 51; Trustees v. Hills, 6 Cow. 23; Slee v. Bloom, 5 Johns. Ch. 366; 16 Serg. & Rawle, 140; State Bank v. Indiana, 1 Blackf. 267; and in both cases the reason is the same-to give the officer a day in court, to answer for his neglect, and to afford evidence to him, and to all the world, where the right is. I regard this rule as affording the most abundant reason for holding the election of the relators, or the 14th of March, void, for want of a vacancy.

Yiewing the case, however, upon its broadest merits, what is the act by which the defendants incurred a forfeiture as early as the day on which their places were supplied by the relators. An office is one of the kinds of incorporeal property, an estate in the lawful owner, the possession and tenure of which are governed by rules as definite and as well settled as those which regulate the ownership of other kind of property. Its lawful owner is not to lose it except by lapse of time, or by his own express consent, or from some fault, negligence, or misconduct. Now what have these defendants done * which they ought not; or, what have they not done which they ought? Choate lives on a tri-weekly post route, 114 miles distant from Columbus; Somers at a distance of 130 miles, near a post-office, at which the mail is received once or twice each week. The law altering the county limits was passed on March 6, 1840; the election of the relators occurred on the 14th day of March. The interval of time between these events, excluding the day of passing the law, the day of election, and Ihe intervening Sunday, is six days. It was the duty of the defendants,, as soon as the passage of the law was made known to them, to have made their choice whether they would remove their residence, and to complete such change within a reasonable time; but no forfeiture would accrue except from such neglect to remove, and the legislature would have no pretense to regard the office vacant until such neglect was made known to them. It may not be easy to define what precise time the law would adjudge reasonable. The case most analogous, is the law requiring clerks of new counties to keep their offices at the seats of justice within six months after they are established. It should be at least such a length of time as would permit the master of a household conveniently to make the change; and he must be a very strict constructionist who would exact the speed with which a man would fly from his enemy. The very statement of the case, therefore, involves knowledge of the passage of the law, the opportunity of •choice, convenient time to change one’s residence, and information communicated to the legislature, that such removal had been neglected. Is this interval of six days, such reasonable time, within which all these things may be presumed to have ocurred ? Why, •there was not sufficient time to send from Columbus to take a deposition. There was only time enough to send a letter to Choate and secure bis answer by mail. There was not time to communicate, by the ordinary course of mail, with Somers. There was barely time for a man to ride to them from Columbus, and return, on a good horse, with good weather and good roads. I can not persuade myself, therefore, that these cases call for so swift a judgment.


source: Caselaw Access Project

author: Read, Judge.

license: Public Domain

text:
    Samuel Brown v. Ezekiel S. Haines, Thomas Carr, John Fisher and James Barr.
    A court of equity will not compel-the specific performance of a contract in favor of one who has not been diligent in performing his own part of the contract.
    After an appeal to the Supreme Court, and decree rendered therein, it is too-late to object, on bill of review, to the regularity of the appeal.
    This is a Bill in Chancery, to review a decree of the Supreme-court of Clermont county.
    On the second of October, 1829, the following agreement was entered into between the complainant, and the. defendant, Haines :
    “ This agreement, between E. S. Haines and Samuel Brown, witnesseth, that the said Haines hath this day sold, to the said Brown, parts of surveys 4441, and 4442, in Clermont county, estimated at 250 acres, 2] at $1 50 per acre, to be paid, $25 00 *in cash, atthe time of survey, and the balance in one year from the said survey ; and, upon such payment being completed, the said Haines agrees to convey to the said Brown, by a general warranty deed.
    “ Witness our hands and seals, this second October, 1829.

      “ E. S. Haines. [ ]
    “ Samuel Brown. [ ]”

      On the first of February, 1836, Brown filed his bill in chancery, in the Common Pleas of Clermont county, against the present defendants, ■setting forth, among other things, the above contract. That he had gone into possession under it, had made some improvements, and entered into agreements with the defendants, Fisher and Barr, to sell them portions of the tract, and had always been ready, and willing, to comply, on his part, with the contract. But that the defendant, Haines, had always neglected, and refused, to have the lands surveyed, and, in October, 1835, while the complainant was absent, and sick, in the State of Indiana, Haines had sold a portion of the same tract to the defendant Barr, and had conveyed another portion to the defendant Carr, who had full notice of complainant’s claim, and now refused to perform his contract with complainant. The bill prayed a specific performance, by Haines, that Carr might, also, be compelled to convey to complainant, and for general relief.
    Haines, in his answer, denied that he had ever been requested to execute the contract, by Brown, until this bill was filed; and set up, for defence, that Brown had never paid any portion of the purchase money. That, complainant having gone off to the State of Indiana, Haines-, under the belief that he had entirely abandoned the contract, had conveyed a portion of the land to Carr, and, commiserating the situation of Barr, who had purchased from complainant, and made improvements, he had, also, agreed to convey to him 104 acres of the tract. The other defendants also answered, and much testimony was taken.
    At the April' Term, 1837, of the court of Common Pleas, it was ,3] ordered, and decreed, that Carr should convey to the com*plainant the one hundred and three acres conveyed to him by Haines, and “ that ■said Carr should pay the costs by him occasioned; and cause continued, as to said Haines; and bill dismissed, as to said Fisher and Barr.”
    The defendants gave notice of appeal, and, on the 12th day of May, 1837, Haines and Carr filed their bond, which was approved by the -Clerk.
    At the April Term, 1838, of the Supreme Court of Clermont county, •the cause came on to be heard, and the bill was dismissed with costs.
    To review that decree, this bill was filed, and the errors assigned, ;are,
    First: That the Supreme court took jurisdiction, as to the defend.ant, Haines, when no final decree had been rendered by the court of ■Common Pleas against him ;

      Second . That the court erred as to the merits, and dismissed the bill, when a decree ought to have been rendered in favor of the complainant ;
    Third: The court erred in decreeing all the costs against the complainant ;
    Eourth: A general assignment of error.
    The material points in the testimony are noticed in the opinion of the court. Extended arguments, upon the facts, were presented on both sides, which are omitted.
    John M. Jolieee and R. W. Clarke, for complainant, contended, that, before it became the duty of the complainant to pay the purchase money, the land had to be surveyed. That it was incumbent on Haines to cause the survey to be made, and he could set up no understanding, or agreement, out of the written contract, by which that duty could be shifted from himself to the purchaser.
    When parties reduce their contracts to writing, the obligations and rights of each are described by the instrument itself. Taylor v. Riggs, 1 Pet. 600; Hunt v, Rousmanier, 8 Wheaton *174; 2 Peter’s [4 Digest, 235 ; Renner v. Bank of Columbia, 9 Wheat. 581.
    Heretofore the court seem to have fixed upon the surveying of the land as the turning point in this case ; if, indeed, it be so considered, it would seem that Haines, alone, is the party in default. Brown had nothing by which to direct a survey, and could not have made it, if attempted. The law imposes upon no one impossibilities ; its requisitions are reasonable. It was but reasonable that Haines should have surveyed the land; it was unnatural to have required it at the hands of Brown. In the case of Longworth v. Taylor, 1 McLean’s Rep. 404, the court say, “ The vendor binds himself 'to make a deed, and it is his duty to make it. Besides, the exact quantity of ground seems not to have been ascertained by the contract; and the price was fixed at one hundred and twenty five dollars per foot. It was the duty of the defendant (the vendor), before he made the deed, to ascertain the number of feet, by actual measurement.”
    The agreement between the parties, (in the above named case.) was, that the vendor, within three months, should make a deed for the ground : this he failed to do, and the court, in reference to that failure, say, “ Being thus in default, was he in a condition to exact a strict performance of his obligations from the complainant ? Until he executed the deed, or offered to execute it, could he have called upon, courts of equity to decree a specific execution of the contract ? ”

      Again, in the same case, the court say,“ Can a vendor disaffirm his contract,while he is himself in default ? Can he enforce a strict compliance with the contract against the vendee, whilst he, himself, disregards the terms of it? The rule, that he who asks equity must do equity, applies, with equal force, to both parties,”
    The land being in possession of the complainant’s tenant, the defendant, Carr, is chargeable with notice.
    In Chestermann v. G-ardner, 5 Johns. Ch. Rep. 23, it is decided, that it is a rule in equity, that the possession of a tenant is notice to pur5] chaser of the reversion of the actual interest of * the tenant, and of the whole extent of that interest, and he is bound to admit every claim which could be enforced against the vendor, referring to the case-of Daniel v. Davidson, 16 Yesey, 249.
    According to the well settled rules of chancery practice, notice, either before the obtaining the title, or before payment of the consideration, is sufficient for the purpose of overreaching the legal title in the hands of a purchaser, in favor of the prior equity. Thompson, and wife v. Mason, 4 Bibb, 199.
    In Allen v. Anthony, 1 Merivales, 282, 283, the Lord Chancellor says, “ It is so far settled, as not to be disputed, that a person purchasing where there is a tenant in possession, if he neglects to inquire into the title, must take, subject to such rights as the tenant may have; and, in that case, it was further decided, the possession of the tenant was notice to the subsequent purchaser of a right of the tenant to-timber, although such right accrued by a title posterior to that on-which his possession was grounded.”
    If a tenant has even changed his character, by having agreed to-purchase the estate, yet his possession amounts to notice of his equitable title, as to the purchaser. Sug. on Vendors, (9ch ed.) 337, 338
    They also cited the following authorities : Executors of Wilson v. Tappan, 6 Ohio, 172 ; Sug. on Vendors, 157 ; Striker v. Mott, 6 Wend. 465 ; House v. Beatty, 7 Ohio, part II, 88; Pennington v. Kelly, 7 Ohio, part II, 102 ; Maynard’s Lessee v. Cable, Wright, 18; Griffith v. Depew, 3 Marshall, 179.
    Wright and Walker, with J. T. and S. Brush, for defendants, argued :
    First. That the decree of the Common Pleas affected the subject of the controversy, and would have concluded the parties to the suit, as h‘, it, if it had not been appealed from. It transferred the land Haineshad deeded to Carr, by deed with full covenants to Brown, without his having paid a cent for it, ^or being required to pay for it, or find- [6 ing a single fact upon which the decree was founded. Now, this decree, more or less, affected all the defendants. It was final as to Brown’s right to the land, and it finally took the land from Carr, and left Haines liable on his covenants. Three of the defendants had an express interest in it; all gave notice, and appealed. We suppose it clear they had a right to do so, and could not, otherwise, protect their interest. But, if it were otherwise, and the appeal merely brought before the-appellate court, Brown and'Carr, it was entered for all; the complainant regarded all before the appellate court; he took ’McG-intry’s deposition against all; he brought his cause to hearing against all; and the hearing resulted in a decree against all. Can complainant now avail himself of these, his own errors, to reverse the decree? We think not.
    Second. That the written memorandum of the contract was, in itself, too uncertain to form the ground of a decree for complainant. This uncertainty is not helped by Brown’s possession and improvement — first, because the contract did not authorize Brown to enter upon the land to be sold ; and, second, because it is not alleged that it did, or that Haines put Brown into possession, or knew of his possession, or what portion he possessed or improved. And the entry, improvement, and occupation, by Brown, and those under him, were a ■continued trespass, and could give no right under the .contract.
    Haines was not bound, by the contract, to make the survey, and, although the proof is uncertain as to what the understanding was, in this respect, yet, there is proof, furnished by the complainant, that he ■caused a survey to be made. That neither the survey, nor any notice of it, was ever given to Haines, nor was any tender made of the $25, or obligation for the remainder ; nor did Brown even pay the taxes, or do any thing in the matter, either to inform Haines of the quantity or the bounds, or of his entry, or of any thing else; and the matter lay for several years, until Brown had left the country, and, as some said, never to return.
    * Third. As to the costs. We understand the costs, in chan [7 eery, always to be subject to the discretion of the Chancellor; and the rule is, never to examine, or re-examine, a case merely to dispose ■of the question of costs.
    Fishback and Lowe, on the same side.
    A party, seeking for the specific performance of an agreement, must show that he has performed, or offered to perform, on his part, the acts which formed the consideration of the alleged undertaking on the part of the defendant. Colson v. Thompson, 2 Wheaton. 336.
    In the ease of Benedict v. Lynch, 1 Johns. Ch. 378, Kent reviews this doctrine, and, adopting the language of the English authorities, he says, “ That Lord Kenyon was the first who set himself against the idea that had prevailed, that when an agreement was entered into, either party might Come at any time; and that it was then perfectly known, that a party can not call upon a court of equity for a specific performance, unless he had shown himself ready, desirous, prompt and eager.” Chancellor Kent further adds, “ Prom the review I have-taken of the cases, the general principle appears to be perfectly established, that time is a circumstance of decisive importance, in these contracts, but it may be waived by the conduct of the party; that it is incumbent on the plaintiff, calling for a specific performance, to show that he has used due diligence, or, if not, that his negligence arose from just cause, or has been acquiesced in ; that it is not necessary for the party, resisting the performance, to show any particular-injury or inconvenience ; it is sufficient that he has not acquiesced in the negligence of the plaintiff, but considered it as releasing him.”
    “ These principles appear, to me, to be founded in natural justice, and to be equally conducive to public convenience, and to the maintenance of public morals.”
    In commenting further on the case, Kent seems to be considering the very one before this court. He says, “ Here the purchaser has 8] paid nothing, but suffered defaults to accumulate, * year after year, as if he had forgotten he was under any obligation to pay ; and if the land had not risen in value within the last two or three years, so as to render the purchase an object of speculation, there is no reason to believe that the plaintiff would ever have attempted to raise the money out of the benevolence of his friends. I think that, within the reason and spirit of all the eases, here was a gross negligence on the part of the plaintiff, that takes away his claim to assistance.”
    In Thompson v. Todd, 1 Peter’s C. C. R. 380, it is said that “ a court will not compel the specific performance of a contract, where the party who asks its assistance is chargeable with unfair conduct, in relation to the contract he seeks to enforce, but will leave him to his legal remedy.” 3 U. S. Cond. 523.
    In the case of Scott v. Field et al., 7 Ohio, part II, 94, this court, quoting the language of Lord Erskine, and adopting it, say, “ That it would be a very dangerous thing to permit parties to lie by, to see whether the contract will prove a gaining or losing bargain.” And Judge G-rimke adds, “ And I believe Ihe mind of every man, who has reflected on this subject, has been convinced that this is the correct view.”
    The case of Remmington v. Kelly, 7 Ohio, part II. 98, is, we conceive, analogous to the one now under consideration. This court there decided, that, although a contract for the sale of lands contains no-express stipulation that a failure to pay shall authorize the vendor to rescind, yet, the vendor may, upon such failure, by prompt action, and proper notice, put an end to the contract, so that equity will not decree a specific performance.
   Read, Judge.

This is a bill to review a decree of the Supreme-Court of Clermont county, dismissing a bill, seeking a specific performance of a contract for the purchase of a tract of land from Haines, and a conveyance, from Carr, of the legal title of part of said tract of land, upon the ground that Carr acquired the title from Haines after said contract, and with a fuil knowledge of the equities of this complainant.

* One ground of error upon which the decree is sought to be [9 reversed, is, that the Supreme Court had no jurisdiction of the case, as to Haines. That the decree from which the appeal was taken, directed Carr to convey to Brown ; dismissed the bill as to Barr and Fisher ; and continued the cause below as to Haines ; Haines and Carr executed an appeal bond, and brought up the cause. There is no-doubt but this is Such a final decree in the cause, affecting the rights of Haines, as warrants the appeal; besides, the objection now comes too late.

All other errors assigned look to the merits. If the court were right in dismissing complainant’s bill, we would not deem it erroneous to order him to pay all the costs.

No disputed or doubtful principle of equity or law is involved in this case. It depends merely upon a determination of fact.

On the 2d day of October, 1829, Haines and Brown entered into an agreement, under seal, for the sale and purchase of a certain -tract of land in Clermont county, a part of surveys 4441 and 4442, estimated at 250 acres ; price, $1.50 per acre ; twenty-five dollars to be paid at the time of survey, and the balance in one year. Upon which payment being made, Haines was to execute to Brown a general warranty deed.

Brown went into possession, and enjoyed the rents and profits up to the year 1836; made some small improvements; and cut and sold some timber. Haines negleeting to make a survey of the land, some time in the year 1833 Brown procured a survey to be made, with which Haines expressed himself satisfied. Upon survey being made, Brown, by the terms of the contract, was bound to pay down $25 ; and the balance of the purchase money within one year. Brown did not, .at the time of the survey, or at the time Haines expressed himself satisfied with it, pay the $25 ; nor has he, up to this time, paid one dollar of the purchase money. Two or three years after Brown should have paid the purchase money, and the land had risen in value, and a part of it had been sold to Carr, Brown proposes to complete'the contract, and Haines declines.

* A court of equity will not lend its assistance to enforce the

specific execution of a contract for the purchase of land, unless the party seeking it has performed all the contract requires of him. In the language of the books, he must show himself ready, desirous, prompt, and eager.

Bill dismissed.


author: Lane, C. J. Birchard, Judge,

text:
    William Johnson v. Jonathan Mullin.
    If the declaration contains a good count, among defective counts, the court on error will intend that the verdict was well taken, on the good counts, unless the record shows it was rendered upon those defective.
    It should he made appear upon the record, by bill of exceptions, that the evidence was not applicable to the good counts.
    The amount of damages can not be corrected on error, unless the record supply the means.
    The correctness of judicial proceedings -will be presumed, unless the errors appear on their face.
    This was a Writ of Error to the Supreme Court of Hamilton county.
    From the record, it appears that the action was assumpsit. The declaration contained three special counts on a guaranty of a note : one count for money lent and advanced; one for money had and received; and one count for goods sold and delivered. Plea, nonassumpsit.

      At the April term, 1843, the cause was tried to a jury, who found, “ that the plaintiff did undertake and promise, in manner and form as the plaintiff hath declared against him, and assess the plaintiff’s damages, by reason of the premises, at the sum of $102.71.”
    A motion being made in arrest of judgment, it was overruled, and judgment rendered upon the verdict. ' .
    * J. Frazer, for plaintiff.
    The execution of the note was not a sufficient consideration, per se, to sustain the guaranty. The act was passed and performed without Mullen’s intervention, or having any interest in it, and no new consideration is averred.
    An agreement to become guarantor, or surety, for another’s engagement, is within the statute ; if it be a guaranty for a subsisting debt or agreement of another person, not only the engagement, but the consideration must appear in the writing. Wain v. Walters, 5 East., 10 ; Rawne v. Hughes, 7 Brown’s P. C. 550 ; Saunders v. Wakefield. 4 Barn, and Aid. 595 ; Jenkins v. Reynolds, 3 Brod. and Bing., 14; Morley v. Bootley, 3 Bing. 107 ; Newberry v. Armstrong, 6 Bing. 201; 3 Kent’s Com. 121.
    It does not appear that Muliln gained, or Johnson was prejudiced, by the contract, as set forth in the first count; and unless that were the case the plaintiff below was not entitled to recover. It was his duty to set out the entire consideration. 6 East. 519 ; 1 Saund. 210; 2 Saund. 136.
    The case of Greene v. Dodge et al. 2 Ohio Rep. 439, is conclusive upon this point. The declaration ought to aver some legal and valid consideration for the promise upon which it is sought to charge the defendants. The mere fact of writing their names upon the note would not subject the defendants. To charge them, it must have been done upon some description of contract with the plaintiff, by which the defendants might gain, or the plaintiff might be prejudiced. And that contract, whatever it was, ought to be substantially set out in the declaration. This is not done; and for that reason, the plaintiff can not recover.
    At a subsequent term, the court say: “ We contravene no decision made in our own courts ; Greene v. Dodge et al. is in no way impugned.” Bright v. Carpenter, 9 Ohio, 141. And in Parker v. Riddle, 11 Ohio 102, the consideration is set out in the declaration.
    Another defect in the first count must prove fatal to the declaration. The sum guaranteed does not appear ever to * have become due. [12 The note, it is alleged, was made on the first day of April, and payment was demanded on the second ; but there is no allegation that it was payable on demand, or one day after date, or at any other period. For aught that appears, the note may not yet have matured. If the principal was never liable to pay it, the guarantor can not now be liable.
    In the last count it is not averred that the judgment against the drawer of the note remains unreversed.
    Where the declaration in a civil suit contains several counts, part bad and part good, and a general verdict thereon, judgment will be arrested. 1 Chit. Pl. 288, and authorities there cited. Nelson v. Ford, 5 Ohio, 478. In Maxfield v. Johnson, 2 Ohio, 208, the decision is made expressly on the ground that the count objected to, sets out a good title, although it is done defectively. The counts now objected to, do not set out a good title, by any means. The consideration, without which there could be no guaranty, is wholly omitted.
    The statutory provision upon this subject is amendatory of the common law, and, to some extent, affords.a remedy where there are good counts, by authorizing the court to render judgment on them, upon striking out the defective ones. Swan’s Stat. 688, see, 6.
    Thomas J, Strait, for defendant.
    The first question that presents itself, is, can the judgment be reversed, because three of the counts are defective, when there yet remains other good counts to support the verdict and judgment ? To settle this question in the negative, I think it necessary only to refer to the 6th section of the act to amend the act entitled “ an act to regulate the practice of the judicial courts,” passed March 9, 1835 ; Swan’s Stat. 688.
    I think it can hardly be contended, that the common counts are not sufficient to sustain the verdict and judgment, in this ease ; for we can not now inquire what the evidence was, as no bill of exceptions has 13] been taken to present it. We can only * look to the record to ascertain whether sufficient there appears to sustain the verdict, or whether any one count in the declaration would have been sufficient in itself to entitle the plaintiff to judgment, suppose it had stood alone, and the evidence, on trial, was applicable thereto.
    Before the statutes, a general verdict, on a declaration with some bad counts, could not be sustained. The courts have always held the reverse in criminal cases.
    Every intendment is made in favor of a verdict; and many defects, that would have been good on demurrer, are cured by verdict. In the case of Maxfield v. Johnson, 2 Ohio, 208, the court say: “After a jury have passed upon a case, every thing is to be presumed, which consistently can be presumed, to sustain their verdict.”
    The court say, further, that “ whatever might have been the opinion of the court upon a demurrer to the declaration, it is too late, after a verdict, to take exceptions to it.”
    When any thing is omitted in the declaration, though it be matter of substance, if it be such as that without proving it at the trial the plaintiff could not have had a verdict, and there be a verdict for the plaintiff, such omission shall not arrest the judgment. Tidd’s Practice, 826.
    In a note to the 2 Saunders’ Reports, 228, is the following; “Where there is any defect, imperfection or omission, in any pleading, whether in substance or form, which would have been a fatal objection, upon demurrer, yet if issue joined be such as necessarily required, on trial, proof of the facts so defectively or imperfectly stated, or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, their verdict, such defect, imperfection or omission, is cured by the verdict.
    The difficulty in the defective counts, is, that the contract upon which the guaranty therein stated was made is defectively set out. They do not sufficiently aver the consideration, or the contract of guaranty, yet it is shown that there was a contract of guaranty, and a consideration for the guaranty ; but the manner of setting out the same is so defective as to *make the counts bid on demurrer. Never- [14 theless, no objection is made in that way ; and the contract and consideration must have been proved on trial in such manner as to entitle the plaintiff to a verdict, if correctly set forth, or the court would have charged, and the jury found against him.
    The defective matter was directly in issue, and found in the verdict.
    The law, as laid down in the note, in Saunders, in Tidd’s Practice,, and in Maxfield v. Johnson, 2 Ohio, 208, is applicable, and settles that even those counts are good after verdict.
   Lane, C. J.

The declaration consists of five counts. The first,, second and fifth are upon the guaranty of a note ; the third and fourth are the common counts. After a general verdict, a motion was made-to arrest the judgment, from the insufficiency of the three counts on •the guaranty, which was overruled by the court, and this suit is brought to correct the alleged error.

But a question must be first settled, whether the 142d section of the Practice Act (Swan’s Stat. 688) does not require courts to sustain verdicts, even upon defective counts, where one good one is found among them. It authorizes the court taking the verdict to strike out the bad counts, before or after motions in arrest, to give judgment upon those .good ones, to which the evidence applies ; “ and where sufficient appears t,o sustain the verdict, the judgment shall not be reversed on account of the defective counts.” This last clause relates to the duty of the court on error, for the word “ reverse” is applicable to no other.

A majority of the court find on this record enough appearing to sustain the verdict. They find two counts upon promises well plead, .and the verdict that they were made as set forth ; and they will intend that the damages were computed upon these, unless it appears by the evidence, spread upon the record by a bill of exceptions, that it was not thus applicable. For errors in the amount of damages will not be corrected in error unless the record supply the means, and the court 15] of * error will presume the correctness of the proceedings they are called to inspect, until the errors appear on their face.

Judgment affirmed.

Birchard, Judge,

dissenting. The special counts in this case do not show any consideration for the promises which they set forth, and are, therefore, defective. The common counts are good. The verdict is general, and the judgment sought to be reversed isa general one. At common law, such a judgment would be erroneous ; I think it is so under our statute. The act of the 9th March, 1835, (Swan’s Stat., 688,) is relied upon to sustain it. The words are : “ Whenever sufficient appears to sustain the verdict, the judgment shall not be reversed on account of such defective counts.” If the fact, that a verdict was found for the plaintiff, satisfies the words of the statute, and shows that sufficient appears to sustain that verdie't, then my brethren are correct, and I am in error. But, is that the meaning of the law ? If it is, why did not the Legislature say, iu direct terms, that, in all cases, where the declaration contained one good and some bad counts, and the verdict was for the plaintiff, the judgment should be held good ? Why require that sufficient should appear to sustain the verdict, if they meant that the mere verdict appearing, it should sustain itself? Looking at the mischief to be remedied, and the statute together, it appears to me clear that the object of the Legislature was to save those verdicts only, where the record, independent of the verdict, shows the party entitled to recover upon the good counts. This record shows nothing of the kind. No man can tell from it whether the verdict was right or wrong. It does not appear that the jury were in possession of the slightest evidence to sustain the common counts. Nothing that tends to their support appears.


author: Wood, Judge.

text:
    * The State of Ohio, on relation of John Whitbeck, Prosecuting Attorney of Huron County, v. Pruden Alling.
    The appointment of a clerk of the court of Common Pleas, at a regular session, by judges de facto, although not judges dejvre, is a valid appointment.
    This is an Information in the nature of a Quo Warranto, from Huron county.
    In the information, it is averred by the relator, that the defendant, on the 6th day of June, 1840, at Norwalk, in Huron county, usurped, intruded into, and, without any legal warrant, appointment, or right, whatsoever, unlawfully held and exercised the office of clerk of the court of Common Pleas of said county, and used and enjoyed the profits, emoluments, rights and privileges of said office, in contempt of the constitution, contrary to the form of the statute, and against the peace and dignity of the state of Ohio.
    To this information the defendant has filed his plea, taking issue upon the usurpation charged. And in bar, he avers that, on the 6th day of June, 1840,.the office'of clerk of the court of Common Pleas was vacant by the decease of David Gibbs, the former clerk of said court, and that he, the defendant, was duly appointed to said office by the court of Common Pleas of said county, at a regular term thereof, holden on the said 6th day of June, 1840, for the constitutional period of seven years, from and after the date of said appointment; and was duly qualified as such clerk, as by the journal, records and proceedings of said court will appear; and, in virtue thereof, on the 6th day of June, and from thence, used and exercised the said office of clerk of the court of Common Pleas of Huron county ; and claims to' be the legally appointed clerk thereof, 'and prays that said office may be adjuged to him, eto.

      To this plea, in bar, a replication has been filed, in which it is, •among other things, denied that the defendant was, on the said *6th [j7 June, duly appointed and qualified as clerk of the court of Common Pleas of Huron county; but it is averred, that the defendant was nsurpingly and unlawfully placed in the office of clerk by Ozias Bowen, President Judge, Timothy Baker, his associate, and George W. Choate and Benjamin Somers, who usurped, intruded into, and unlawfully exercised the offices of Associate Judges of said Huron ■county, on the 6th day of June, aforesaid, and in the appointment of defendant.
    Other matters are embraced in the replication. Amongst these, the •facts are set out, from which the conclusion is drawn that Choate and Somers were not, on the 6th of June, aforesaid, when the appointment of Clerk was made, judges of the court of Common Pleas of Huron -county. These facts will be found in the case of the State of Ohio, ■on the relation of Ives and Sears, v. Choate and Somers, 11 Ohio, 511.
    To this replication the defendant has demurred.
    D. Higgins, for the Relator.
    The rule, that the official acts performed by officers, de facto, shall be sustained, is a rule, not of strict right, but of policy. For the details of investiture, and the regularity with which a person has acceded to official station can not be investigated by every one who has affairs to transact with an official functionary ; and it becomes necessary for those who appear, de facto, to be officers, to be accounted such until the defect in official title is manifested.
    The rule is founded upon the consideration that such officers have some colorable title to the office. They suppose themselves rightfully invested, and act in good faith. But upon investigation, it is found that the person has not been legally invested with official authority.
    His acts, from that time f,rth, must cease to possess the characteristic of legal validity, while those previously performed are recognized IB] as valid and legal from motives of policy. * But in this case, there is presented by Somers and Choate no such colorable claim to the office of Associate Judges as to render their usurpation at all •doubtful, or to leave any hesitation in the mind that they acted in bad faith, and with full knowledge that they were doing wrong. They were not judges, de facto. The act of the General Assembly, setting off the i.erritory, in which Choate and Somers resided, to Erie county; their continued residence therein ; the declaration of the vacancy, by joint resolution of the General Assembly; the election of Ives and Sears, Associate Judges, to supply that vacancy ; and their commissions and the record of their qualifications, were public acts, notorious, and such as all were bound to take notice of.
    These judges, Choate and Somers, had no more right, therefore, to sit and constitute a quorum of the court, than would have had any other strangers.
    I have supposed this to be the law about officers, de facto: the moment that the official authority is questioned, your officer, de facto, acts at his peril. In order that his acts may be sustained, they must be performed without his authority being questioned.
    Every fact shows that Choate and Somers acted at their peril; that their right to the office was contested ; and, therefore, acting with full knowledge of their want of authority, their acts ought to be considered void.
    Boalt and Worcester, for defendant.
    Two questions arise upon the replication and demurrer:
    First: Did the offices of the judges, Choate and Somers, become vacant by the setting off the territory, in which they resided, to the eounty of Erie ?
    Second: If they did, was not the appointment of the defendant, while they were judges, de facto, good ?
    For an argument upon the first point, the court are referred to the argument in the eases of informations of quo warranto, filed against the judges themselves.
    *The second point presents the question whether the appoint- [19 ment of the defendant Ailing, by the judges constituting the court of Common Pleas, de facto, is not good.
    On this point we refer the court to the following cases :
    The People v. Collins, 7 Johns. 549. McInstry v. Tanner, 9 Johns. 135. 7 Cowen, 402. Fowler v. Beebe, 9 Mass. 231. Riddle v. Bedford County, 7 Serg. and Rawle, 386, Parker et al. v. Loughborough, 10 Serg. and Rawle, 249. Jones v. Gibson, 1 N. H. 268. Johnson v. Wilson, 2 N. H. 208. Moore v. Graves, 3 N. H. 408.
    The ease of Taylor v. Skinner, 2 S. C 696 ; and 7 Abr. and Amer, C. L. 142, was a motion to set aside an execution, on the ground that the decree from which it issued was passed by a chancellor, whose appointment was invalid. After the rendition of the decree, the appointment of the judge was brought before the court for adjudication, and it was pronounced bad ; but the court say, that the judge acted under color of office, in passing the decree ; and, being an officer, de facto, his act, as such, could not be objected to.

      The rule applies equally to ministerial as to judicial officers, as may be seen by the above references.
    Fowler v. Beebe, 9 Mass. 231, was an action wherein the defendant-plead in abatement, that the writ in that suit was served and returned by a deputy of one Smith, the sheriff of the county of Hampden, in Massachusetts, and that the sheriff was appointed by the Governor of the State, when no such county or office was in existence. Parsons, J ustice, decided that Smith was sheriff, de facto ; and that they could not declare void each act of his, as such, in cases where he was not a party, and where the interests of third persons were drawn in question. Smith was afterwards ousted from his office of sheriff of Hampden, on the same state of facts ; 10 Mass. 290.
    Here, the appointment is sought to be invalidated because the court was not properly constituted; but the rule applies in all cases, except. 20] when the question comes up between the * State and the parties usurping the office; 7 Serg. and Rawle, 386; and here the defendant is a third person, in respect to that act.
    The circumstance, that the act we are now inquiring into consisted of the exercise of the duties of the offices of the judges, as a court of Common Pleas, in making the appointment in question, instead of rendering a judgment or decree, or doing any other act that they might do as a court, does not distinguish this case, in principle, from those above referred to. If it did, then it would, upon the same principle, be competent for the court to nullify each act of the court of a like nature, in detail, without giving the officers an opportunity to' be heard; and Ailing’s acts, as clerk, could be impeached in the same way. They also cited Alderman Purdy’s case, 2 Hill, 32.
    Peter Hitchcock also submitted an argument on the same side.
   Wood, Judge.

This court held, in the ease of the State v. Choate, 11 Ohio, 511, that Choate and Somers were not judges of the Court of Common Pleas of Huron county, de jure, when this appointment of clerk was made. The only question raised by this demurrer, is, whether such appointment, when conferred by judges, de facto, and who are not such of right, is legal and valid. Many authorities are cited by the defendant’s counsel to establish the validity of the acts of officers, de facto, both ministerial and judicial ; and we hold that, so far as the community, or third persons are concerned, neither the validity of the appointments or judgments of a court, de facto, can be gainsayed or denied.

It is, however, insisted by the relator, that Choate and Somers were not judges, de facto, but usurpers and intruders, and assumed the judicial functions without any color of right or office.

We think differently. They had been long, previously, judges de jure. They were ejected from office by a legislative act, dividing Huron county, and by their continued residence within the new organization ox Erie county. They hall beeji commissioned *for the con- [21. stitutional period; and until the question was decided by this court, it may have well been doubted whether Choate and Somers did not continue judges, de jure, of the Huron Common Pleas, after the passage of the aforesaid act, and their continued residence in the new organization.

At all events, they held commissions, and were acting under color of office; and as to the public, or individuals, their acts must be held, valid. Judgment will, therefore, be given for defendant, on the demurrer.

Judgment accordingly.


text:
    David Putnam, for the use of the Bank of Marietta, v. David Rees.
    Whether the action of debt on simple contract, where the liability accrued under the statute of limitations, of 1804, and 1810, is barred by the subsequent acts. Quere.

    The case of Hazlett v. Critehfield et al., 1 Ohio, 153, considered.
    Where there is an equal division of the court upon the question of sustaining a demurrer, the demurrer is overruled.
    This is an action of Debt, from the' county of Fairfield.
    The plaintiff counts orfa promissory note, bearing date the 21st day of October, 1807, executed in the county of Fairfield, and payable sixty days after date, to Samuel Kratzer, or his order, at the store of Benj. Ives Grillman, in Marietta, tor $2000, which note is indorsed by the payee, to the plaintiff. The declaration, also, contains the common counts in debt.
    To this declaration, the defendant plead.
    First: Nil debet;

    Second : In bar, that the causes of action did toot, nor did either of them, accrue within six years next before the commencement of this suit;

      * Third: That the said causes of action did not, nor did either of them, accrue within fifteen years next before the commencement of this suit.
    To the second plea, the plaintiff replied, that the said causes of action accrued, and were evidenced, by simple contract, and not by specialty; and that the said causes of action accrued before the 25th day of February, 1824, and after the 4th day of January, 1804.
    To the third plea, the replication is the same, in substance.
    To these replications, the defendant demurred, and plaintiff joined in demurrer.
    The case was argued by H. H. Hunter, for the plaintiff,
    who contended that the action of debt, on simple contract, was not barred by the act of 1804, in force at the time the cause of action accrued.
    That it has been well settled, that debt, on simple contract, was not barred by the act of 1810, and that the subsequent acts, of 1824, 1826, and 1831, barring debt on simple contract, applied only to causes of action accruing after their passage.
    H. Stanbery and T. Ewing, for defendant,
    insisted that, upon a •proper construction of the act of 1824, the action was barred. But, to remove doubts upon the question, the act of 1826 was passed. And the act of 1831, in its express terms, was made to apply to -causes of action which subsisted under former acts.
    It was also urged, that the doctrine laid down in the ease of Hazlett v. Critchfield et al., 7 Ohio, part II, 153, was not tenable.
   Wood, Judge.

The question intended to be presented by the demurrer, is, as we Understand it, whether, as the act of 1804, in force when the cause of action, as laid in this declaration, accrued, does not bar the action of debt on simple contract, it is barred by either of the subsequent acts of limitation.

* It is not claimed that the act of 1810 is a bar for the action -of debt, for rent only is enumerated in that act; but it is insisted, the act of 1824, as explained by that of 1826, and the act of 1831, bar the plaintiff’s claim.

I can only say, the court are equally divided in opinion, two of the judges holding, upon the authority of the ease of Hazlett et al. v. Critchfield et al, 7 Ohio, part II, 153, that all actions, and causes of action, must be governed by the limitation law, in force when the -cause, or causes, of action accrued ; and two others holding that the causes of action, as laid, are barred by the acts of 1824, 1826, and 1831, and that the ease of Hazlett et al. v. Critchfield et al. is not law. There not being, therefore, a majority of the court in favor of sustaining the demurrer to the replications, the same is overruled. Judgment for plaintiff.


text:
    David Putnam, for the use of the Bank of Marietta, v. James Hampson.
   The same questions being involved as in the preceding case, and upon a similar state of pleadings, the same judgment is rendered.

Judgment for plaintiff.


text:
    * James McMillan v. Thomas C. Theaker.
    In an action of assumpsit on a warranty pf chattels, it is sufficient to aver, in the declaration, a sale at, and for, a certain price, without specifying the amount actually paid.
    But where the pleader has undertaken, in his count, to specify the price paid, and offers in evidence a contract which shows the payment of a different sum, it is a fatal variance.
    This is a Writ of Error, to the Supreme Court of Belmont county.
    The action below was assumpsit- upon a warranty of a pair of French Buhr Millstones. The declaration contains five counts; the first four counts are special; the fifth is the common count for money had and received, etc.
    The first count alleges that, “ in consideration that the said plaintiff, at the special instance and request of the said defendant, would buy of him, the said defendant, a certain pair of French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain price or sum of money, to wit, the sum of one hundred and eighty dollars, to be paid therefor by him, the said plaintiff, he, the said defendant, undertook, and then and there faithfully promised the said plaintiff that the said millstones then were good, both in quality and workmanship; and ■the said plaintiff avers, that he, confiding in the said promise and ■undertaking of the said defendant, did afterwards, to wit, on the' day and year aforesaid, at the county aforesaid, buy the said millstones of the said defendant, and then and there paid him for the same, the said sum'of one hundred and eighty dollars.”
    The second count alleges that, “ in consideration that the said plaintiff, at the like special instance and request, of the said defendant, had then and there bought of him, the said defendant, a certain other pair of French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain price, or sum of money, then and there agreed upon, between 25] him, the said ^plaintiff, and the said defendant, he, the said defendant, undertook, and then and there faithfully promised the said plaintiff, that the said last mentioned pair of French Buhr Millstones, at the time of the said sale thereof, were good, both in quality and workmanship,” etc.
    The third count alleges that, “ in consideration that the said plaintiff, at the like special instance and request, of the said defendant, had then and there bought of him. the said defendant, a certain other pair of’ French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain other price or sum of money, then and there agreed upon, between him, the said plaintiff, and the said defendant, he, the said defendant, undertook, and then and there faithfully promised the said piaintiff, that the said last mentioned Millstones, at the time of the sale thereof, were good, both-in quality and workmanship.”
    The fourth count alleges that, “ in consideration that the said plaintiff, at the special instance and request of the said defendant, had them and there bought of him, the said defendant, a certain other pair of French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain other price, or sum of money, then and there agreed upon by him, the said plaintiff, and the said defendant, he, the said defendant, undertook, and' then and there faithfully promised the said plaintiff, that the said last mentioned Millstones, at the tin e of the said sale thereof, were good, both in quality and workmanship,” &c.
    The fifth count is the common count, in the usual form throughout.
    It appeared from the bill of exceptions that the plaintiff offered in evidence under this declaration, and to make out his case, the following paper; '
    “ Willow Grove Mills, Belmont county, O. Oct. 5,1887. Received of James McMillan the sum of one hundred dollars, in part pay for a pair of French Buhr millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, * Pennsylvania — warranted [20 good, both in quality and workmanship — for the sum of $186 ; the balance payable in one year from date, and exclusive of irons, received by me. Thomas C. Theaker.”
    To the admissibility of this papor the defendmt objected, and the court sustained the objection. And the counsel for the plaintiff admitting that the ease could not be made out without the evidence which was contained in the paper, and offering no other testimony, the court •ordered a nonsuit.
    The rejection of this paper is assigned for error.
    Cowan and Jewett, for plaintiff in error.
    The special counts do not, either of them, undertake to describe any paper, nor do they refer to any paper. They set out the contracts, for the breach of which they complain. In setting out the contracts, those counts describo the millstones, and the warranty of defendant, and the first count states the price which the plaintiff agreed to pay for them, and (under a videlicet) that the price was paid on the day the contracts are (also under a videlicet) alleged to have been made. The first count, the only one which specifies the price agreed upon, does not*allege the time of payment.
    The receipt offered, and rejected, describes the millstones, the warranty and the price, identically, and, except in some instances of words in full for figures and abbreviations^ literally as they are set out in the declaration.
    The receipt is for $100, and shows a credit for the remaining $80 of the price, of one year. The first count says the price was $180 ; none of the counts state any time of payment. The contract described must be proved, in substance, as stated, or the plaintiff can not recover.
    The proof 'of particular stipulations in the contract, however, not in any way varying the stipulations mentioned, though not noticed in the declaration, is not a variance. A farm described as situated in Belmont county, Ohio, may be shown to be in Richland township, Belmont county, without a variance. An * agreement described [27 as a promise to pay $180, may be shown to be a promise on time, without a variance. If, which is not admitted, there is not sufficient ■certainty of description in the declaration, that defect is not ground for rejecting evidence. There is nothing in the paper inconsistent with the declaration; the latter omits, the former fixes, the time of payment.
    The pleader has described the contract according to its legal effect. True, a promise to pay without naming the time of payment, is, in legal effect, a promise to pay, in a reasonable time ; and perhaps a contract set out, in hcea verba, to pay money without naming the time of payment, would be understood to be a promise to pay in a reason* able time. Such, however, would not be the understanding of the description of such a contract, according to its legal effect, where the time of payment is omitted. In such case it is a clear omission to State that part of the contract; and the court can no more supply the omission by inference, than it can supply any other omitted fact. Where a contract is described by its legal effects, those legal effects are treated, and will be regarded, as facts, and marks of identity; and whatever is presented, having the marks given, will be taken for the thing described.
    But the declaration neither describes nor refers to a paper. If the paper offered tended to prove a material fact in the plaintiff’s case, it was admissible. If it tended to prove a contract unlike that described, in some particulars, it was the receipt of the defendant, and the plaintiff, though he introduced it, would not be estopped from showing that in those points of difference, the mistake was in the receipt. A party may not impeach his own witness by proving his bad character, but he may show that his statements are not true in whole or in part.
    Again : here is a count for money had and received by the defendant to the plaintiff’s use. There are many cases where, if money has been paid by him, the party injured, upon a false warranty, can recover back for money had and received. If the goods sold be wholly worthless, or, being of some value, have been returned to vendor, or 28] tendered to and refused by * him, the money paid for them may be recovered back under the count for money had and received.
    We, therefore, confidently insist that the paper in question was improperly rejected, and that judgment should be reversed.
    The declaration describes a contract, not a paper. It describes a contract for the sale of millstones, for money, at a certain price, with warranty. The paper rejected shows a sale of similar millstones for a. like price, and with a like warranty. The paper shows a credit of one year for part of the price. The declaration says nothing of the time of payment. We say this is no variance between the proof and declaration ; that if it were a variance, it would not be good ground for rejeefcing a paper not referred to as the ground of action, or depository of the contract ; and, we furthermore insist, that the paper should have been received as evidence of material facts under the count for money had and received.
    William Kennon, jr. and Henry Kennon for defendant in error.
    This declaration purports to be on a contract of warranty between the parties : and, upon principle, or from the authorities, it would seem to be essentially necessary to describe and set out, in its legal effect, at least, the contract, accurate and specific, as to its terms, in the. declaration. 1 Chitty’s Pleadings, 334; 1 Saunder’s Pleading and Evidence, 137 ; Jones v. Ashburnham, 4 East. 464; King v. Robinson, Cro. El. 76; Symmons v. Knox, 3 T. R. 67.
    The first count in this declaration alleges, that the sum of one hundred and eighty dollars, being the full consideration, was paid at the time of making the contract of warranty. Here the payment of one hundred and eighty dollars was the consideration of the warranty that the property was good, both in quality and workmanship ; but when the contract is produced in evidence, it shows that one hundred dollars was received, in part pay, and that the balance, eighty dollars, was to be paid in one year.
    *The contract alleged here, and the contract offered to be proved, [29’ are different and distinct contracts, in terms. The one shows the whole consideration-paid; the other shows part of the consideration paid, and a part to be paid at the expiration of one year ; the one shows an executed consideration in full; the other proves a consideration, part executed, and a part executory.
    This count claims to recover back the money paid, and for this purpose avers that the property, warranted and delivered, was of no value. Is it not, for this purpose, necessary to state truly the money paid, and to set out the contract as it really existed. If the contract be truly stated, in this count of the declaration, the plaintiff is entitled to recover one hundred and eighty dollars, being the consideration paid,, with interest; this is, by the count, his measure of damages, if the property delivered be of. no value ; and the sum recovered in the Common Pleas follows the count in this particular, as the record shows ; but when the real contract is produced, the title to recover materially changed ; one hundred dollars, with interest, is the measure of damages — eighty dollars, by the terms of the contract, was, and still is, in the plaintiff’s hands, unpaid. There -can be no doubt thus far, that there is a material variance between the contract alleged, and the contract offered in evidence. “ Where the declaration stated the consideration to he the purchase of sheep for £54 11s. 6d and the price proved was £5412s. 6d. the plaintiff was nonsuited for the variance.” Saund. Pl. and Ev. 137, 138 ; Symmons v. Knox, 3 T. R. 67.
    So, where the consideration stated was the forbearance of payment of £21 16s., and the sum proved was £21 18s. it was held a fatal variance. Saund. Pl. and Ev. 138 ; Amfield v. Bate, 3 M. and S. 173; 1 Chitty Pl. 326, 327 ; 6 East. 568; 12 East. 1 ; 13 East. 102; 2 B. and P. 116 ; 3 Day 312.
    The second, third and fourth counts of this declaration, in setting out the contracts, are precisely the same ; and the only difference appearing, is in the assignment of breaches. The pleader, in these counts, attempts to declare upon a contract, the consideration of 30] which, upon the part of the plaintiff, was * executed — was performed, without stating what, or how much, the consideration was ; but so far as the question upon this record is concerned, it can make but little difference, whether the consideration on the part of the plaintiff be executed or executory. If the consideration be executed in the contracts stated in these counts, then a part of the consideration of the contract offered in evidence is executory; if, upon the other hand, the consideration is executory, a part of the contract offered in ■ evidence is executed. One or the other views of these counts must be taken. And no count in the whole declaration avers this contract to be what it really is No count avers that, in consideration of the payment of one hundred dollars in hand, and the further sum of eighty dollars, to be paid at the expiration of one year, the defendant warranted the millstones to be “ good, both in quality and workmanship.”
    This is the real contract between these parties ; and if it be true, as the pleader alleges, that the property delivered was of no value, the measure of damages to be recovered will be one hundred dollars, with interest; but, by the contract set forth in these counts, money that has never been paid by the plaintiff, is sought to be recovered.
    The consideration and contract must be accurately stated. 1 Chitty Pl. 326, 327; Saund. Pl. and Ev. 144; Churchill v Wilkins, 1 T. R. 447 ; Sands v. Ledger, 2 Ld. Raym. 792.
    “ In a case where the plaintiff purchased a horse for £55, defendant warranting it sound, and agreeing to give £1 back, if it did not fetch plaintiff £4 or £5, and the averment was, that in consideration that the plaintiff would buy of defendant a horse for a certain price, to wit, £55, defendant undertook the horse was sound, it was held a fatal variance.” Saund. Pl. and Ev. 144; Blyth v. Bampton, 3 Bing. 472.
    The only question remaining, is whether the plaintiff can recover upon the common count. The contract is special, and fetill open, and has not been rescinded by mutual consent, so far as appears from the contract, alleged, or offered to be proved ; and the bill of exceptions admits that the case could not be made, out without the evidence contained in the contract * rejected. The warranty can only be tried [31 upon a special count. If the property had been delivered back, and received, the common count could be sustained for the money paid. The warranty was not in question -in that event, and it would be unnecessary to prove that the contract was rescinded, and the property •delivered back.
    The bill of exceptions here shows that the plaintiff can not sustain his ease, without proof of the contracts offered : this proof and this contract would be of no use, unless the warranty was a question in the case, and then the common count can not be sustained.
    “ Where a special contract is still open, and has not been rescinded by mutual consent., it is necessary to declare specially ; as if a horse be sold with a warranty of soundness, although it be unsound, and •the purchaser immediately offer to return it, he can not recover baek the price on the count for money, had and received, if the vendor refuse to receive back the horse, for the warranty can only be tried upon a special count. 1 Chitty Pl. 388; Doug. 23; 7 East. 274; 2 Campb. 416 ; 3 M. and S. 349 ; Thornton v. Wymer, 12 Wheat. 183.
    It is claimed by the pleader that the consideration in the first count is laid with a “ videlicet” and therefore, the contract offered ought to be received under that count. If a material averment in a declaration, being so laid, can be made immaterial and not traversable, it is rather new doctrine in pleading. This doctrine is well settled. 1 Saun. 170, n. 2 ; Grimwood v. Bavrit, 6 T. R. 460 ; Symmons v. Knox, 3 T. R. 67 ; Hastings v. Lovering, 2 Pick. 223 ; Gleason v. McVikar, 7 Cow 42; 1 Chitty, Pl. 643.
    It is also claimed by counsel that, notwithstanding the contract offered in evidence by the plaintiff, still he was not bound by it, but might show a different and distinctlcontract; one, perhaps, that would meet the contract laid in the declaration. Admit, for the sake of argument, that the contract in writing may be passed over, and a parol •contract shown still the bill of exceptions rests upon the contract offered, and admits that, the ease can not be made out without the contract offered. If * another contract could have been offered, why [32 make this admission? If it could be explained, why not explain, and open the way for its admission ? It is believed, however, that a written contract can not be explained in a court of law. The bill of exceptions admits that the contract offered must be received under some count of the declaration, or the plaintiff fails on the ground of variance.
    The promise and warranty of the defendant, on one side, and the consideration paid, or to be paid, on the other, must be accurately stated. No recovery can be had without stating the promise and warranty correctly, and equally so the consideration. The one is tho consideration of the other, and both together constitute the contract.
    Upon no principle of pleading can this contract set forth in the-bill of exceptions be admitted under either count of the declaration, and it is confidently believed, that the court did not err in rejecting the evidence offered, but are amply sustained by the law of pleading.
    Cowan and Jewett, for plaintiff, in reply.
    The special counts, in this ease, are copied from the precedents in 2 Chitty’s Pleading, 279 to 280.
    Counsel are mistaken, in supposing that the first count states the payment of $180 as the consideration for the warranty. The consideration is, that plaintiff would buy the millstones. Payment is not a necesssry allegation to support the action. 1 Chit. Precedents, 187, and 2 Cowen’s Treat. 615.
    Counsel are again mistaken, in supposing, that “ this count claims to recover back the money paid.” It is for damages arising from the breach of warranty. The money paid may be considered in assessing damages.
    It is assumed, that the receipt proves that $80 of the price of the millstones is unpaid. It proves the payment of $100. The $80 may have been since paid, and, if so, might be proved. It was admitted that plaintiff could not make out his case without the paper in ques-33] tion. It might be the only evidence of *the payment of $100. It might be the only evidence of the warranty. These were material facts: the warranty to make a case, the payment upon the amount of damages.
    Under the count for money received, the payment of money was a material fact. This the receipt proved. Plaintiff, having proved this fact, might have proved the mutual rescindment of the contract upon-which it was paid, the failure of defendant to deliver any millstones, or any other fact, showing that it was wrong for defendant to retain any part of the money. The court, at this stage of the trial, will not assume that plaintiff has not evidence of other material facts, and, therefore, rule out evidence to one material fact.
    The second, third and fourth counts are good. They allege, that, in consideration that plaintiff has bought millstones of defendant, for a certain price, defendant warranted them.
    The receipt is for $100, in part pay for millstones, warranted for $180, balance payable in one year.
    The receipt is not the contract, It is not referred to in the declaration. It is evidence, however, that plaintiff bought millstones of defendant for a certain price, and, that, in consideration thereof, defendant warranted the millstones.
    If the facts in the receipt varied from the allegations, still it would be competent under the count for money had and received, or, as it is the receipt of the party from whom the objection comes, it might be shown to be untrue, where it varies from the declaration.
    If, upon the payment of money, a receipt be given for the money, and in the receipt, from mistake, or by design, statements are made prejudic al to the party paying the money, which are untrue, the holder of the receipt may use it to prove the payment, and show the falsehood of the other statements.
    The authorities cited, we think, are misapplied.
   Read, Judge.

This ease presents a simple question of variance.

The declaration in assumpsit contains four special counts, upon, breaches of warranty upon the sale of French Buhr Millstones, and the usual common count. The common counts will * not be con- [34 sidered, as the record discloses nothing which would authorize a recovery under either of them.

The paper which was offered in evidence, and rejected by the court, as inadmissible under any count in the declaration, reads as follows :

“ Willow Grove Mills, Belmont Co., O., Oct. 5, 1837.
“ Received of James McMillan the sum of one hundred dollars, in part p y for a pair of French Buhr Millstones, four feet diameter,, made by W, W. Wallace, of.the city of Pittsburg, Pennsylvania; warranted good, both in quality and workmanship, for the sum of $180, the balance payable in one year from date, and exclusive of irons, received by me. Thomas C. Theaker.”

The first count in the declaration avers, that one hundred and eighty dollars, the price of the article purchased, which constitued the consideration of the warranty, was paid at the time of making the warranty.

The paper offered to be introduced under this count shows that only $100 was paid at the time the warranty was made, the balance to be paid in one year from date. The paper offered in evidence was different from tbat counted upon, and was, therefore, under that count, properly rejected.

The second, third and fourth counts, which are alike, except in the assignment of breaches, only aver a sale of the millstones at a certain price, without describing it specially as the consideration for the warranty. Under these counts, the paper rejected should have been admitted in evidence.

The distinction is this : in a count upon a warranty, a valid sale must be averred as the consideration of the promise of warranty. To aver that the sale, which was the consideration for the promise of warranty, was for a certain price, without specifying it, is sufficient, because this shows that the sale was for consideration, and valid. But if the pleader attempts to set out and describe, particularly, the consideration of the sale, and introduces a written contract of sale, containing a different consideration, it must be rejected, upon the ground 35] * that the declaration shows a contract of sale, constituting the consideration for the warranty, different from the contract of sale offered in proof. But if the pleader simply avers a valid sale, counting upon it as the consideration of the promise of warranty, he may introduce in evidence any written contract which would go to establish the sale and warranty in respect of the thing sold.

Judgment reversed, and cause remanded.