source: Caselaw Access Project

author: Hitchcock, J. Read, J.,

license: Public Domain

text:
    *Samuel P. Witherow v. William Witherow.
    "While a special eontraet remains open and subsisting, it is obligatory and binding upon the parties; and if suit is brought upon the same, it must be a special action upon the contract.
    A vendor of personal property,—the property to be delivered within a specified period, and payment to bo made for the same upon a day certain, after the period within which delivery was to have been made,—failing to deliver the entire property within the time specified, can not recover in indebitatus assumpsit for any part delivered, unless there is a sufficient excuse for the non-delivery of the residue.
    It is the business of the court to enforce contracts, not to violate, or encourage the violation of them.
    This is a writ of error, reserved in Butler county.
    The original action was commenced by the defendant in error before a justice of the peace, and appealed to the court of common pleas. In the latter court the defendant in error declared against the plaintiff in assumpsit for goods sold, money had and received, etc.

      To the declaration the then defendant filed a plea of the general issue, and gave notice of special matter relied on by way of defense.
    The ease was tried by a jury, and a verdict returned in favor of the then plaintiff, upon which judgment was entered.
    On the trial a bill of exceptions was tendered by the counsel for plaintiff in error, and allowed by the court. From this bill of exceptions the following facts appear: To sustain the issue on his part, the defendant in error proved the delivery of 21G| bushels of corn in the barn of the defendant, in the month of December, 1843, which corn was received by defendant, and' that said corn was worth, or delivered at, fifteen cents per bushel. The plaintiff, in error to sustain the issue on his part, offered evidence tending to *prove a special contract, made and entered into between the plaintiff and defendant, in the month of November, 1843, under which the defendant in error sold to the plaintiff, the whole undivided half of the corn in a certain twenty-acre field. The same, at the time, was supposed by them to amount to 500 bushels or upward ; the corn, to bo delivered by the defendant in error in the barn of the plaintiff during the fall and ensuing winter, and that in consideration thereof, plaintiff in error agreed to pay fifteen cents per bushel, to be paid March 1, 1844. That the corn delivered was part of the corn aforesaid. Some other evidence, tending to prove a subsequent understanding between the parties upon the subject of said contract, was also given ; and, the evidence being closed, the counsel for the then defendant moved the court to instruct the jury “that if from the evidence they believed there was a special contract for the delivery of the whole of the undivided half of said field of corn, during the fall and winter, and that payment thereof was not to be made until the first day of March next, after the date' of said contract, and that said special contract was still open and subsisting, a recovery could not be had under the declaration of the plaintiff.”
    This instruction was not given, but the court instructed the jury “that if they were satisfied from the evidence that a part of said corn had been delivered, and received and accepted, and kept by the defendant, and that after the plaintiff had failed to deliver the balance, no notice had been given by him to the plaintiff to take back the corn so delivered, that the plaintiff might recover for the coi’n so delivered, and that the defendant might reduce the amount of the recovery of the plaintiff for the corn delivered, by showing the incomplete performance of the contract, and the amount of damages sustained thereby.”
    The errors assigned are:
    1. That the court erred in refusing to charge the jury as requested by the plaintiff in error.
    *2. That the court erred in the charge actually given to the jury.
    3. The general error that judgment was given for the plaintiff when it should have been given for the defendant.
    Thomas Milliken, for plaintiff in error.
    Campbell, Bebb, Swan & Andrews, for defendant in error.
   Hitchcock, J.

The amount in controversy in this case is not of much consequence, but the principle involved is one upon which there is groat contrariety of opinion, as well as many contradictory decisions. Under such circumstances, it is not to be expected that any determination wo can make will be satisfactory to all. It can hardly be entirely satisfactory to ourselves.

The true question presented is this, whether where one man undertakes to sell and deliver to another, property which is to be delivered in parcels, from time to time, within a specified period,— —payment to bo made on a day certain, subsequent to that period, and delivers but a part of the property, he can avoid his contract, that contract still subsisting, and recover against the vendee the value of that portion of the property which he has delivered, in an action of indebitatus assumpsit. Or, in other words, whether in case of'such a contract, the party who neglects and refuses to perform the contract on his part can, notwithstanding such neglect and refusal, recover from the other party to the extent that property has been delivered.

No such doctrine has as yet been recognized by this court as a sound principle of law, though it seems to have been acted upon by the court of common pleas, in the case under consideration. This court have always held that where there was an open subsisting contract for the performance of labor or the delivery of goods, if an action is brought, it must be upon the contract itself. If the oontract has been ^performed, then an action may be brought upon the contract, or an action of indebitatus assumpsit for the work and labor, or for goods sold and delivered, as the case may be. So in a contract like the one now under consideration, if there were any matter which would evince that the vendee had waived full performance, or that the vendor had been prevented, by inevitable accident, from full performance, he might recover for the corn actually delivered. But this court has never gone so far as to say that where there is a special contract for the performance of labor, for the delivery of goods, or upon any other subject, the party violating and refusing fully to comply with his contract, can have an action at law in any form, to recover a pro rata compensation so far as he has performed. . It has seemed, and still seems to the court, that the establishment of such a principle would have a tendency to encourage the violation of contracts—to diminish, in the minds of contracting parties, a sense of the obligation which rests upon them to perform their agreements. Any principle which would have such an effect ought not to be recognized as sound law. It is the duty of courts to enforce the performance of contracts—not to encourage their violation.

The same principle as to the form of action, where there is a subsisting special contract, seems to be entertained in the Supreme Coui’t of the United States. In the case of Chesapeake and Ohio Canal Company v. Knapp and others, 9 Peters, 565, that court say, “there can be no doubt, that where the special contract remains open, the plaintiff’s remedy is upon the contract, and he must set it forth specially in his declaration ; but if the contract has been put an end to, the action for money had and received lies to recover any payment that has boon made under it.”

I know that action of assumpsit is said to be an equitable action, According to Lord Mansfield, an action of indebitatus assumpsit is as broad as a bill in equity. But it seems to me that it would be a strange reason for the interference of a court of equity, that a complainant had ^neglected or refused to perform a contract in respect to which he seeks some kind of relief. • Courts of equity will grant relief in cases of fraud, accident, or mistake, but never, I apprehend, where the culpable negligence of a complainant is relied upon for relief. Especially where the only apparent excuse for such negligence is, that the complainant did not do what he had agreed to do, merely because he did not choose to do it. And still this is precisely the hypothetical case before the court. The court of common picas held that in such a case the negligent party might have relief in a court of law.

We are aware that there are authorities which sustain the ruling of the court of common pleas; and perhaps a majority of the modern cases go to sustain the ruling of that court. These cases are referred to by the counsel of the defendant in error. The leading one is the case of Oxendoll v. Witheral, 17 Eng. Com. L. 401. The principle advanced in that case has been adopted by the courts of Pennsylvania, Massachusetts, and New Hampshire—and perhaps by the courts of some of the other states in the Union. But the case of Oxendoll v. Witheral has been expressly overruled in the State of New York, both by the Supreme Court and the Court of Errors. In the case of Champlin v. Rowley, 18 Wend., the chancellor, in speaking of this case, says, “this decision, carried to the extent it was in that case, can not be considered as good law anywhere, for it is not founded upon equitable principle, but is contrary not only to justice, but to common sense. The only way I can account for it is upon the supposition that the facts of the case are not properly stated in the report; or that the injustice of requiring the party, who was not in fault, to be at the expense of returning bulky articles of this description, or even of seeking him for the purpose of making an offer to return them, to protect himself from an action, was not presented for the consideration of the court. Again, in that case, as in this, the contract was not to deliver the whole quantity at one time, but to deliver the whole within a ^specified period. Neither was there any agreement, either express or implied, that the defendant should not be permitted to sell or use the several parcels, delivered from time to time, until the last period for completing the coutract had actually expired.”

In the case now -before this court, the contract assumed by th& plaintiff in error (whether the assumption was correct was a-question for the jury) was that the defendant in error agreed to deliver to the plaintiff the one-half of the corn which had been grown on a certain parcel of ground, the delivery to be made during the fall of 1843. and the ensuing winter, for which the plaintiff was to pay, on the 1st day of March next ensuing, at the rate of fifteen cents per bushel. The contract is still open and subsisting. Thereby the delivery of the corn—of the entire crop— was a condition precedent. Had the contract been such that the whole quantity was to be delivered at one and the same time, a delivery of a part at the time, and the acceptance of that part by the vendee, might have been construed as a waiver of the delivery of the entire quantity. But it was not so. By the contract the corn was to be delivered during the fall and winter,—to bo delivered in different parcels and at different times, and it was to be so received.

The court of common pleas seem to have based the right of the defendant in error to recover upon the fact that there had been no offer on the part of the plaintiff in error to return that portion of the corn delivered; and this is the doctrine established in the case of Oxendoll v. Witheral. But would it have been reason-

able, under the terms of this contract, to require of the vendee to keep on hand the portion of the corn delivered until it should be ascertained whether the vendor would comply with his contract by the delivery of the remainder ? Such could never have been the intention of the parties. " Such is not the meaning of the contract. It must have been understood that the corn delivered, upon the delivery, became the property of the vendee to be used or disposed of as he might think proper.

*The court directed the jury#that if the vendee had sustained damage, by the non-delivery of the corn, the amount of that damage might be deducted from the value of the part delivered. Assuming the previous instructions to have been proper, there would be no very strong objection to this part of the charge. It is only extending the principle of set-off beyond what is authorized by the statute. It is only permitting unliquidated damages to be set off against a liquidated demand, a thing which has never been allowed in this court. And in order to do justice it would be necessary to go further, and permit tho defendant to recover a balance, provided the damages sustained should exceed the value of the property delivered. To do this would be to introduce an additional new feature in our judicial pi’oceedings.

The principle adopted by the court of common pleas is admitted to bo of modern invention. It has never been recognized in this court. It may operate well, but we incline to the opinion that it will be found to be mischievous in its operation and consequences. We are not as yet prepared to adopt it. In our opinion the court of common pleas erred in the instructions given to the jury, and in refusing to instruct as requested by the plaintiff in error.

The judgment of the court of common pleas is reversed, and the cause is remanded for further proceedings.

Read, J.,

dissenting. Whore a contract is entire and indivisible, and payment is to be made on complete performance, complete performance is a condition precedent, and suit can not be brought on part performance. But where the contract is capable of division, and its entirety has been destroyed by part performance, beneficial to the recipient, and accepted by him, the law implies a promise that he shall pay to the extent of the benefit received, and suit may be maintained upon such part performance, after the time has expired for the completion of the full contract. On such suit the defendant, to lessen the amount of the recovery, may prove any damage he may have sustained by breach *of the contract; and this, not upon the principle of set-off, but to show the extent of the benefit he has received, and for which the law holds him responsible. The right to reduce the recovery in this way, by proving damage, has its foundation in the very contract itself. Hence, if the damage were greater than the benefit, the defendant would not bo permi tted to recover the excess. He has the option to resort to his cross-action to recover damages for the breach of the contract, or to give it in evidence to reduce or defeat the recovery, by showing that the part performance of the plaintiff conferred no benefit.

These doctrines, respecting the right to maintain an action for part pei’formance, are so consistent with principle, and commend themselves so strongly to reason and justice, and indeed are so necessary to prevent manifest injustice, that they have become almost of universal adoption in modern decisions, and have been freely extended to building contracts, contracts for work and labor, and the sale and delivery of goods.

This doctrino was recognized to the fullest extent in the case of Oxendoll v. Witheral, 17 English Com. Law, which was an action upon the common counts for 130 bushels of wheat; and the jury found that the contract was entire for 250 bushels.

The learned judge, who presided at the York assizes, was of opinion that even if the contract was entire, as the defendant had not returned the 130 bushels of wheat, and the time for completing the contract had expired before suit was brought, the plaintiff was entitled to recover the value of the 130 bushels which had been delivered and accepted by the defendant. The verdict was entered with liberty to move for a nonsuit, if, in full bench,'the court were of opinion that the plaintiff was not entitled to recover. Brougham accordingly moved. But Tentcrden, C. J., and Bayloy and Parke, Judges, held that the law had been rightly ruled and judgment was entered for the plaintiff.

It was so ruled in Bowker v. Hoyt, 16 Pick. 555, *where a recovery was had for 410 bushels of corn—although the proof was that the 410 bushels of corn h ad been delivered in part performance of an entire contract for 1,000 bushels, and that the defendant demanded a fulfillment of the entire contract. Wilde, J., remarked: “ The defendant accepted the 410 bushels of corn, and promised to settle the account therefor; and if there had been no such promise, the acceptance of the corn was a severance ot the entirety of the contract, and the defendant was bound to pay for the corn so delivered. But the defendant may reduco the plaintiff’s claim- by showing any damage he may have sustained by the plaintiff’s failure to fulfill his contract, and thus substantial justice may be done without subjecting the defendants to the necessity of bringing a cross action.”

This doctrine is recognized in Chitty on Contracts, both in the text and notes, 6th Amercian edition, from 3d London, 430, 446, 479, 743.

The American cases fully sustain it in Massachusetts, Pennsylvania, Yermont, and New Hampshire; and in some of the other states there has been a conflict of decision.

There is a large collection of cases which support the doctrine for which I contend, in a learned and elaborate note to the case of Cutter v. Powell, in 2 Smith’s Leading Cases, 24.

Indeed, it is recognized, both in England and America, both in ancient as well as modern cases, and has become a fixed principle in the text-books, that on a delivery of part of the articles under an entire contract, unless the vendee return the articles so received in part perlormance of the entiro contract, such reception and retention severs the entirety of the contract, and authorizes a recovery upon an implied obligation in law, to the extent of the value of the articles so retained, after the time has elapsed for the performance of the entire contract; up to which time the vendee has the right to rescind and return the articles.

The contrary doctrine is unreasonable and unjust, and fraught with mischief. It enables the vendee, who has ^received a part of the articles, and who perhaps has sustained no injury from the non-delivery of the balance, to retain them without compensation, if the vendor bo unable to deliver the whole. It operates unjustly upon the great class of producers in the country—men who have grain and hay and pork to sell—who oftentimes, at the time of the contract of sale, may not know exactly thé amount they may raise, and yet contract to deliver a given amount. Now if the vendee receives a part, it should be regarded as a waiver of the entirety of the contract. It is in fact a waiver by the act of the vendee. To hold that a vendee may receive and hold articles without compensation, where the value of those received does not depend upon the delivery of the whole, is a violation of all equitable consideration. To say that a man may retain 999 bushels of corn because the odd bushel is lacking on a contract for a 1,000, or that the builder of a house is not to receive compensation because the last nail may not have been driven, or the last door hung, or that the laborer for fifty-nine days shall receive no pay because he has not worked the sixtieth, shocks every man’s sense of justice. I hold such is not the law, and never was the law, and that the mistake has sprung up in misapprehending what was an entire and what a divisible contract.

The distinction which will reconcile most of the cases, and which conforms to strict principle, is, between contracts which are entire and indivisible, and those which are entire, but capable of severance and division. A failure to recognize this distinction has intx-oduced some confusion and conti’adiction into the authox’ities. In the first instance, the contract must bo pex-formed befox’o action can be maintained. In the latter part, performance severing the contract, the law imposes the duty of compensation, and implies an obligation of payment which will support an action, and authoxúzo a recovery to the extent of the benefit received. This distinction is founded in l’oason. If the contract be entire, and incapable of severance, and no part be completed, thei’e is no certain mode of determining the value of the *part performed in reference to the value of the whole; and the law can not imply an obligation to pay a sum certain. If the contx'act embrace the completion of a single thing, that must be done before a right of action accrues. Because, if a man contract to pay an entire sum for the completion of a single thing, the law will not break the-single thing into fractional parts, and compel payment in proportion to its relative value, to a full completion; for, in such case, the part performance is of no value unless the completion takes place, and the law will not presume or compel completion to give value to the fractional performance ; and hence, no suit can be maintained upon it; for it may be that no complete performance ever will take place; and, if not, no benefit 'has been received. But where the contract is entire only in embracing a given number of acts or things, each of which is complete in itsolf and of value, performance to any given number of these distinct and separate things will authorize a recovery to that extent, although all may not have been performed.

The entirety of a contract does not depend upon the words of the contract, but upon the subject matter. If the subject matter is one thing or a mere aggregation of relative parts—although each may be complete in itself, yet of necessary combination ta produce the thing contracted for—the contract is entire and not capable of division. As, for instance, a contract to make a watch: the parts are complete in themselves, but they must be combined to make the watch, and are of no value in their separate form, except as to the material; a?id a recovery could not be had until such contract was complete. But a contract for the sale and delivery of one hundred watches is capable of division—for each watch is of distinct and separate value in itself, and its value is. not increased or diminished from any relation which it bears to the other ninety-nine; and, hence, upon the delivery and acceptance of any .part of the number of watches contracted for, the law will allow a recovery to be had, although the whole number may not have been delivered. True, the vendee *may refuse to accept a part, or he may return the part delivered, and rescind the contract; or on action brought he may give in evidence' any damage he may have sustained by not having the whole delivered, to reduce or defeat the recovery; or he may bring his cross action, but this-has nothing to do with the right to bring an action, for the part delivered or retained. Now to hold that before the delivery of sixty watches, that no suit could be brought for theix value, shocks the moral sense of every man. The vendor may ■not have been able to deliver them; the accidents of trade, unforeseen misfortunes of various kinds, may have prevented it, .apart from mere willful refusal. In such case, every man admits there must be a remedy; but how will it be had upon the principle that such a contract is entire and not capable of division ? It can not be had at law, because the action is upon the contract, •and it is not completed. It can not be had in equity, because the contract is the measure of right, both in law and equity; and contracts must have the same effect in either forum.

But it may be said, and is said, that these circumstances may be averred as an excuse for non-performance, and will authorize a suit, when they exist, for part performance. The objection to this rule is want of certainty; it has no fixed limit, and extends as well to contracts, where the thing is entire, as where it is divisible ; and yet no lawyer would contend that on a contract to make a tub, that the finishing of one stave would authorize a recovery to that extent, although a misfortuneor inevitable accident might prevent its completion. The truth is, there is but one rule which ■can be adopted, that will harmonize with principle, and be of safe and certain practical application, and that is, that where there is ■a contract capable of division, to permit a recovery to be had upon part performance, under the restrictions and limitations I have before mentioned. The rule that a contract which is entire in its words, though not in its subject matter, must be completely performed before suit can be maintained for performance in part, oftentimes *works such gross and manifest injustice that j feel myself safe in saying that it is not the law. It sprung into ■existenee from having more regard to the words than to the sub■stance of the contract, and is rather a phantom of verbal Iogic> than a conclusion of reason from a perception of the true relation ■of things. There is a constant endeavor to escape its operation ■even where it is recognized as binding law, in the broad margin which courts sometimes allow to a jury to do justice in their finding, in opposition to some unreasonable rule, and then refuse a new trial, upon the ground that substantial justice has been ■done. I am wholly opposed to the recognition of a rule which it is oftentimes regarded as a merit to cheat in practice. It renders legal results doubtful, and shakes confidence in judicial proceedings.

It is the glory of the common law, that it possesses the inherent power of conforming to reason. It is a fundamental maxim, that when the reason of the rule ceases, the rule itself ceases, and much more does it possess the power of shaking off an error which has sprung into life from misapprehension. It is the duty of courts to shape the symmetry of the law to the harmony of reason, and, where wrong is the result of a rule, although it has been ■sanctioned by precedent, to examine it closely upon the broad light of principle, and to alter and shape it, or discard it if justice require. It is the boast of the law that it is the perfection of ■reason, hence it is oftentimes more safe to walk by its light, than to hobble upon crutches of precedent. But in the present case I conceive that the rule, for which I contend, has ever been the law, and that lack of discriminating between the nature of contracts entire in words and divisible id substance, has produced the error; and that there is as much weight of authority to support the action on part performance of a contract, entire in words, but divisible in substance, as can be arrayed against it, and that the main current of modern decisions is in its favor; and, thus supported, and backed by reason, I had hoped it would be adopted .as law in Ohio.


author: *Avery, J.

text:
    *Noah Carroll and another v. Lessee of Aaron G. Olmsted and others.
    The special act, passed by the legislature January 7, 1813, authorizing a partition and sale of the lands of the devisees of Aaron Olmsted, deceased, was constitutional, and the sales made by the trustees named in the act are legal, and a bar to any claim of title set up by said devisees or any person claiming under them.
    This is a writ of error, directed to the court of common pleas of Lake county.
    From the bill of exceptions, these facts appear:'
    In 1801, and( from thence till the time of his death, Aaron Olmsted, of East Hartford, Connecticut, ancestor of the lessors of the demandants, was seized in fee of 30,000 acres of land, in the north part of Ohio, of which the demanded premises was part.
    In 1804, James Lewis, of New England, then having agreed with Aaron Olmsted that he might select a lot from said lands for purchase, and settle on it, moved into Ohio, and having selected the demanded premises, settled thereon and commenced improvements.
    In 1806, Aaron Olmsted came to Ohio and found James Lewis in possession of the premises in question, and entered into this further agreement with him: that he might continue to occupy the lands on which he had settled, and continue to make improvements, and that he (Olmsted), would either sell him the lands for a reasonable price, or pay him for the improvements then made, and which should thereafter be made by him; and they proceeded then to appraise the improvements already made. Olmsted returned to Connecticut, made his will as hereinafter mentioned, and died. Lewis remained in possession of the land, and continued his improvements till 1842, when he died, and the lands passed into the possession of his heirs, through one of whom the defendants hold that part of the demanded premises embraced in the ^consent rule. And the defendants, and those under whom they claim, have hitherto held possession of the premises, claiming title adversely. They had occupied it thirty-nine years, when this action was commenced.
    By his will, Aaron Olmsted appointed his widow, Mary L. Olmsted, Benjamin Olmsted, and Caleb Goodwin, executors thereof, who entered on those duties. In 1809, these executors, reciting that one David Abbot, held of said Aaron Olmsted, or his attorney, a contract for the demanded premises, deeded the same to him in fulfillment of the said contract as they say in the deed. This deed, though containing these recitals, is insufficient to convey the lands, unless by estoppel, being informal, conveying the right and title, which they as executors had, as is claimed by the demandants. In 1811, James Lewis, finding Abbott had this deed, for the pmpose of strengthening his title, purchased the land of him and took his deed. This deed of the executors to Abbott, and all the subsequent conveyances down to the plaintiffs in error, were ruled out by the court holding that the executor’s deed was bad, and the others depending on it were inadmissible also.
    Aaron Olmsted died September 9,1806. His will created a perpetual entailment, if, by the rules of law, such estate could be made, in his three sons, Horace Bigelow Olmsted, Charles Hide Olmsted, and Aaron Franklin Olmsted, to whom in equal shares, and to the heirs of whose bodies lawfully begotten, in common forever, he gave the whole of said lands. Two of these three sons, Horace B. and Aaron ‘F., were never in Ohio. In this situation the lands remained till January 7, 1813. The entailment prevented sales, the lands were wild, and unproductive therefore, and the taxes eating them up. January 7,1813, on application of Mrs. Olmsted, executrix of the will, and mother of the devisees, and Caleb Goodwin, then a surviving executor of the will, the legislature of Ohio passed an act, premising that the lands were tied up by the entailment so as to prevent sales; were unproductive; the devisees could derive from them no *means of paying the taxes which were yearly accumulating with penalties and interest, which in a short time must totally divest the devisees of their interest in the lands. In this act the legislature appointed a committee to partition the lands and appraise them, and three trusti ees, Mary L. Olmsted, Levi Goodwin, and Caleb Goodwin, with authority, after giving bonds, to sell and convey the lands, and after paying the taxes and removing the incumbrances, to invest the avails in United States stock, or other productive property, for the benefit of the devisees, etc. For the purpose of laying the foundation for showing that those under whom the plaintiffs in error claim, again purchased the premises of these trustees, out of abundant caution, and again paid for the land to them, and received'a deed from them, they offered this act in evidence, but the court rejected it as unconstitutional.
    Horace Bigelow Olmsted, one of the devisees, died in August, 1817, having two children, heirs of his body lawfully begotten, Aaron G. and George H. Olmsted, two of the lessors of the plaintiff in the original suit. Aaron Franklin Olmsted, another of the devisees, died in January, 1825, leaving four children, heirs of his body lawfully begotten, to wit: Aaron F., Henry W., Delia P., and Julia L. Olmsted, the other four lessors of the plaintiff, all of which lessors have ever resided in Connecticut. This suit was commenced January 10, 1843, nearly thirty-seven years 'after the death of Aaron Olmsted, the ancestor ; twenty-six years after the death of Horace Bigelow Olmsted, one of the devisees; and eighteen years after the death of Aaron Franklin Olmsted, another devisee.

      The declaration contains three counts. The first is on the joint demise of the six lessors—i. e., the children of Horace Bigelow Olmsted and Aaron Franklin Olmsted ; the second is on the joint demise of the two children of Horace Bigelow Olmsted; and the third is on the joint demise of the four children of Aaron F. Olmsted.
    To the ruling of the court errors are assigned as follows:
    1. The court erred in not charging the jury, that if they found *that James Lewis went into possession of the premises under the license to enter and make improvements, and Olmsted could pay him for the improvements, or convey him the land at a reasonable price, and he did make such improvements and continued in possession to his death, and his heirs possessed and improved after him, that in such case he acquired a right of possession, which descended to his heirs and passed by their conveyance to the defendants, of which they could not be divested till the conditions were complied with:
    2. The court erred in rejecting the deed of the executors of Aaron Olmsted to David Abbott, and the other deeds subsequently offered in evidence.
    3. The court erred in ruling out the special act of the legislature offered in evidence.
    Perkins & Osborn and Swan & Andrews, for the plaintiffs in error, submitted the following authorities:
    Scott v. Douglas, 7 Ohio, 228, pt. 1; Riddle v. Bryan et al., 5 Ohio, 48; Baird et al. v. Kirtland et al., 8 Ohio, 21; Wilson et al. v. Chalfant, 15 Ohio, 248; Jackson v. Moore, 13 Johns. 516; 1 Hilliard’s Ab. 224; Kinsman v. Loomis et al., 11 Ohio, 477; 2 Blackf. Com. 345; 5 Cruise’s Dig. 7, 8; Swan’s Ohio Land Laws, 265-279; 2 Blackf. Com. 110, 111; Helfenstine’s Lessee v. Gerard et al., 7 Ohio, 275, pt. 1; Thompson’s Lessee v. Gibson et al., 2 Ohio, 339.
    Hitchcock & Wilder, for the defendants in error, presented the following authorities:
    Scott v. Douglass, 7 Ohio, 228, pt. 1; 5 Cruise’s Dig. 7, 8; Sug. on Powers, 263; 4 Mon. 91; 6 Ib. 594; Wilkeson v. Leland, 2 Pet. 627; Const. U. S., art. 8, sec. 16; Fletcher v. Peck, 2 Cond. 308; 2 Black. Com. 236; 4 Cond. 466; 5 Ib. 369; 1 Bay, 90; Vanhorne v. Dorrance, 2 Dall. 304; Hamilton v. Hempsted, 3 Day, 332.
   *Avery, J.

The court of common pleas erred, it is said, in refusing to charge the jury, as required, upon the defendants’ right of possession, and erred also in rejecting the deed from the executors of Aaron Olmsted to David Abbott, and the other subsequent deeds in the chain of title. These points have been examined at some length by the counsel, but we are not satisfied that in either case there was any error. We come, therefore, to consider the third alleged error, which has been amply discussed* and treated, we think, with reason, as presenting the important question in this case to be decided. This third error assigned is, the exclusion of the act of the legislature offered in evidence by the defendants. The act alluded to was passed as early as in the year 1813, January 7th, and the preamble recites substantially as follows: That whereas, Aaron Olmsted, late of Hartford, Connecticut, by his will devised to his three sons, Horace B., Aaron F., and Charles H. Olmsted, all his estate in the Connecticut Western Reserve, in Ohio, containing about 30,000 acres, to be to them (his said three sons) in equal shares, and to the heirs of their bodies lawfully begotten forever; and whereas said lands are unimproved and unproductive, and by reason of the entailment unsalable, whereby the aforesaid devisees are unable to derive any benefit' therefrom, or any means of paying the taxes thereon, which are yearly accumulating, with penalties aud interest, which must in a short period totally divest the said devisees of their interest in said lands, which to prevent, and to render said property useful to said devisees and their posterity. After reciting as aforesaid in the preamble, the act went on to provide that a committee should make partition of the lands among the three devisees; that they should be governed by the provisions of the general act to provide for the partition of real estate, and should make return of such partition to the Supreme Court for the counties within which the lands were situated. Three trustees were appointed by the act, to wit: Ma^r L. Olmsted, Levi Goodwin, and Caleb Goodwin; one, to wit, Mary L. Olm.sted, said to be the ^mother of the devisees, and the executrix named in the will, and another of the three, Caleb Goodwin, executor also of the will. The trustees were required to give bond to the acceptance of the Supreme Court, in double the value of the lands, conditioned for the faithful performance of the trust. They were authorized to sell and convey all or any part of the lands, and to apply the first proceeds to the payment of taxes and the removing of incumbrances; and the principal sum, after making the disbursements aforesaid, to be vested in property or funds, that should be deemed secure and most beneficial to the devisees, the interest or profit to be applied, from time to time, to the use of the devisees. There is this provision, also, among others: that in case of the death of either of the devisees, his share of said estate, whether in the lands or other property derived from the sale of them, should descend to the legal representatives in the same manner as other similar property; and the trust estate and entailmont, so far as regarded the share of the deceased devisee, should cease, and the estate become absolute in such representatives; except if such deceased devisee should leave •a widow, her dower estate should continue during her life. The introduction of the act in evidence was to have been followed by proof, such, we understand, as the following: that the trustees sold the land, to wit, the 30,000 acres, and executed conveyances to the purchasers; that the act was procured by persons acting for the devisees; that the devisees had issue born before conveyance executed by the trustees; that the title through the trustees •came down to the defendants by deed; and that for a long period of time none of the devisees or their representatives pretended to .assort any title to these lands; and that the proceeds of the sale were paid out according to the provisions of the act, and the pro•cecdings under it were acquiesced in by all the parties who were capable of acquiescing. But a statement of the intention to offer further evidence in connection with the act does not appear upon the record; and the omission to make this offer of further proof, and to cause it to be noted *in the bill of exceptions, should, as it is now urged, preclude the defendants in ejectment from claiming that they had such proof.

Upon the trial of a cause, it is not essential that the facts to be proved should be introduced in any given order, though the party, 'before the close of his case, must be prepared to show each link in the chain of his evidence. Nor is it customary, before offering the proof of a fact, to state what further facts will be proved j such statement not being often of any use for the purposes of the trial. But if the cause is to be taken up by writ of error, and the judgment of the court questioned for rejecting evidence, then it may be desirable to know the state of facts connected with the evidence offered. A statement of the offer of further proof above spoken of, is usual and proper in the bill of exceptions; but there is no rule or settled practice making it indispensable. There is nothing in the case to show that the omission was not accidental, nor ground to suppose that any defect of evidence was concealed. The objection, therefore, which has been taken and urged, is not sustained.

The important question in the case, and whieh we are now called to decide, is, whether the act, with the evidence in connection with it, will support the title of the defendants in ejectment. And here, in behalf of the children of the devisees, the ground is taken, that the act is unconstitutional and therefore void; that it is a special act, attempting to take the property of one person, and without or against his consent, to give it to another. This makes it proper to inquire, what kind of estate was to be operated upon by this act. It is described in the will of Aaron Olmsted, as devised to his three sons in equal shares, and to the heirs of their bodies lawfully begotten forever. The law must determine what estate the devisor meant to convey, and what power over it belongs to the devisee. We may go back to the early periods of the English common law, and in the search among its ancient records we shall discover that words such as are employed in this will meant in England, first, *a conditional fee, and afterward, by the operation of statute de donis, a fee tail.

By the law, under the first description of estate, if the grantee had issue, the estate became absolute in him, so that, by his conveyance, he could bar both his own issue and the reversioner; and, even before issue, the grantee could have barred his issue. But in England a restraint was imposed upon this power of alienation by the above-mentioned statute, and the result was, that this conditional fee became a fee-tail. Such a fettering of estates created great uneasiness and dissatisfaction, but the struggles to obtain relief beiore the parliament, were without any success. Afterward, while the evil was pressing with great severity upon the body of the English subjects, and parliament, to whom the duty properly belonged, refused to interpose and pass the necessary laws, that relief, in another form, was obtained from this great national grievance. It was secured by what has been characterized as a bold and unexampled stretch of the power of judicial legislation. The English judges, upon consultation, resolved that an estate tail might be barred by a common recovery; and these recoveries have been since considered simply a conveyance on record, invented for the express purpose of giving the tenant in tail an absolute power to dispose of his estate.

The tenant holding a conditional fee could, by the common law, pass a title to the estate. By an act of parliament, the statute de donis, the owner was deprived of his ancient power of alienation ; and, by this act, it is said, the true policy and rule of the common law was overthrown. But this resolve of the judges before mentioned, in effect, at once removed burdensome restraints which had been imposed upon alienations, by the express provisions of a statute, and furnished a memorable instance of an act of the English judges, which could resist and overturn the power, sometimes irreverently called omnipotent, of an English act of parliament. This interposition of the courts of law took place as early as in the reign of Edward IY. Afterward ^restraints were in various ways further removed ; and estates tail in England have long been reduced to almost the same state even before issue born, as conditional fees were at common law after the birth of issue. 4 Kent’s Cora. 12, 13, etc. In which case, as has been before stated, the grantee can pass a perfect title, barring both his own children and the reversioner.

It is asked, in the present case, whether an estate tail could ever have existed in Ohio, and whether any such estate was recognized when the will of Aaron Olmsted took effect, on September 9, 1806. We have had some legislation in this state, by which, in terms, the English common law, and statutes made in aid of the common law, wore introduced into this state. The last act upon the subject repealed the law which had expressly adopted the common law, and certain statutes made in aid thereof, which were not mentioned by name. The repealing act was passed in January, 1806. What was the effect of this legislation, first adopting the common law in a body, and then repealing the law which had so adopted it? It has not been to exclude the common law. That has always been in force, and it could not have been excluded without producing effects marked in character like those which follow in the train of a revolution. If that could have been actually excluded, we must, from necessity, have been driven to adopt at once the civil law, or some other code, to furnish a system of rules needed to act upon the countless and complicated interests of such a community as ours. No one can suppose, however, that there was ever a time when the common law of England was not in force here. It was indispensable to the action of our courts at all times. But with us, as in the other states of this Union, parts of the common law, not applicable to our circumstances, or not suited to the genius of our institutions, were not introduced, and formed no part of our law. To our courts the power seemed, in many cases, necessary—and then they always exercised it—of deciding what portions of that law were not applicable. Applying *our principles to this law of entails, should we be likely to give force to the statute de donis?—to adopt its restraints upon alienation, imposed for the sole benefit of a great landed interest, and in opposition to the liberal policy of the common law—burdening industry, and embarrassing the business of the country ? Or, following the course of the English judges, without the stretch of power, should we reject it as inapplicable? If. any restraints were left in this estate, beyond what belonged to it by the common law, they would not probably be adopted.

Upon one of the English laws, the statute of uses, which was deemed objectionable, this court passed in the case of Helfenstine’s Lessee, 7 Ohio, 276. Of this law, they there say, if ever in force, it became so by the statute of 1795 or 1805, and was-repealed by that of 1806.

It will be discovered, by this view of the case, that the title of issue, even if an estate tail be created by the words of the will, would not probably have been deemed a serious obstacle in the way of any conveyance, when such conveyance was believed to be demanded by circumstances. But upon the supposition that rights were actually created by the will, which would become vested rights in th e issue of the devisees, upon the birth of such issue, then it is to be determined in that aspect of the case, whether the act in question, or so much as authorized a sale of the premises, is valid.

The legislature undertook to provide, by a private act, that certain trustees named in the act should have power to pass the title to this estate. Had they the power ? It can not be claimed that in England, from which mainly we derive the principles governing in our system of jurisprudence, innumerable private acts of parliament have been passed; and from a remote period down to the present time, the courts of that country have given to such acts their sanction. Amongst these acts will be found such as pass the titles of estates ; convert estates tail into estates in foe, authorize sale of lands held by tenant for life with remainder in fee *to such as have no power to convey ; such also as confirm partitions by which infants or remainder-men will be barred. A private act is there said to be as powerful and effective, if duly obtained, as a public one, in transferring the legal estate in lands from one person to another, and in binding all who are intended to be bound by it. 5 Cruise’s Dig. 9. Private acts passing the title to lands, and in various ways operating upon individuals, have not been unfrequent in many of the states of the union. In our own state, since its organization, private acts have been for a long time, and often, passed, authorizing the settlement of estates, appointing trustees, and giving directions to make conveyance of land in fee. Under laws of this kind large bodies of land, in various parts of the state, have been conveyed; and if titles so acquired shall prove not to be valid, an evil of no common magnitude will be the consequence. As private acts, authorizing the sale and transfer of lands, have been passed by the practice of the legislature for many years, and extensive interests have been acquired upon the faith of these legislative acts, a court would with reluctance declare such acts void when fairly obtained. Uoneral laws for the sale of land, in behalf of minors and others who are and should be themselves incapable of conveying, are found constantly upon our statute books; and no evil is discovered to arise from this source, or none sufficient to cause their repeal. The special law under consideration was passed between thirty and forty years ago. It recited, in its preamble, just motives and reasons for its passage. It may be, when proof is taken, that none of its statements can be contradicted, and no evidence be given to show that any but fair means were employed to procure its passage; that the friends of the devisees petitioned for it. This act- provided, indeed, for converting real estate into personal, but it took care to secure fidelity in the agents appointed to make the sale; and in this case, as in many others of a similar kind, a conformity to the general law where practicable was directed. Ample bonds were required, and the proceedings of the ^trustees were from time to time to be brought before the Supreme Court. By the act, the trustees were empowered to sell and convey, or to lease the land. They were to vest the proceeds, after certain disbursements, in property deemed secure and most beneficial for the said devisees. They did sell and make deeds of conveyance, we are to suppose; and the title which they passed went to purchasers, it is claimed, with whom was connected an occupancy of nearly forty years. In addition to this, it is asserted that the devisees received the proceeds of the sale, and acquiesced for years in all the proceedings of the trustees.

Upon legal principles, as applied to this case, we think the defendants in ejectment had a right to give the special act in evidence, and that the common pleas erred in rejecting it.

Judgment reversed.

Hitchcock, J., having been one of the counsel in the case, did not sit on the trial.


author: Hitchcock, J.

text:
    Gideon B. Somers v. John Harris.
    A promissory note can not he given in evidence -without proof of its execution, unless specially declared upon.
    This is a writ of error, directed to the court of common pleas of Stark county.
    The original action was assumpsit, commenced by John Harris against Somers, the plaintiff in error. The declaration contains but odo count, and that is for money had and received. To this declaration there was a plea of non assumpsit. The case was submitted to a jury, and a verdict returned in favor of the then plaintiff, upon which judgment was rendered.
    *On the trial of the case to the jury, exceptions were taken to the ruling of the court, which exceptions appear from the following bill, signed and sealed by the judges of the court, and made part of the record. “ The plaintiff offered in ovidenco three promissory notes, purporting to be signed by the defendant, for $37.50 each; but the defendant objected to the admission of such notes, without proof of the signature of the defendant, or other proof showing that such notes were executed by him; but the court overruled the objection, and' suffered said notes to go in evi•dence to the jury.” To this ruling of the court the plaintiff in error excepted.
    The errors assigned are as follows:
    1. The court erred in overruling the objection of the defendant below to the admission of the notes in evidence as set forth in the bill of exceptions.
    2. The court erred in permitting the notes to go in evidence to the jury without first proving their execution by the plaintiff in error.
    3. The court erred in rendering judgment for the plaintiff, when judgment should have been rendered for defendant.
    J. D. Taylor, Folger & Underhill, for plaintiff.
    John Harris, for defendant.
   Hitchcock, J.

The single question in this case is, whether to sustain a plaintiff’s demand, where he declares for money had and received, a promissory note, purporting to be made by the defendant, can be given in evidence without previous proof of its execution. And this question must be answered by the construction of the statutes of the state, dispensing with proof in certain cases. By the rules of evidence, as known to the common law, the execution of such note must be proved before it can be read to a jury. How far has this rule been altered by the legislation of Ohio ?

*By the act of March 9, 1838, amendatory to the act entitled “ an act dispensing with proof in certain cases,” it is enacted, ‘‘ that upon plea of non est factum to a bond, offered by the person *charged as the obligor or grantor of a deed, or plea of non assumpsit, or nil debet, offered by the person charged as the maker, or indorser of any jmomissory note, or drawer, indorser, or acceptor of any •bill of exchange, it shall not be necessary for the plaintiff to prove the execution of the deed, the making of the note, or the drawing or accepting the bill of exchange, upon which suit is brought, or any indorsement thereon, unless the party offering such plea shall make affidavit of the truth thereof,” etc.

This statute would seem to be sufficiently explicit, and, at the time the first law upon the subject was passed, could not have been misunderstood. The plea to be verified by affidavit must be •offered by a person “ charged ” as the obligor of a bond, or maker of a promissory note. When, in legal parlance, and in the progress of a suit, can a man be said to be “ charged” as the maker of a promissory note? Unquestionably, when the suit is against him, and in the declaration, it is alleged that he made the note. This charge must be made before plea pleaded, that the defendant may know to what he is called upon to answer or plead. And this being made known to him, if he would put the plaintiff to the common-law proof, he must verify his plea by affidavit. Certainly, a defendant can not be said to be “ charged ” as maker, within the meaning of the statute, when upon trial the note is offered in evidence. It is then too late for him to make affidavit to the truth of his plea, or that he did not make the note.

It is said, however, that the promissory note may be given in evidence to sustain a declaration for money had and received, and that it is a very common practice to introduce promissory notes in evidence under such declarations. This is all very true. But the note is received in proof, not because it is a promissory note, but as furnishing evidence that the maker has received money of the payee. It is received *upon the same principle as is [265 an accountable receipt. The latter, however, can not be received without proof of its execution, neither should the former, both being offered with the same view, and to effect the same purpose.

This practice of declaring for money had and received, and sustaining the declaration by the exhibition of a promissory note in evidence, is of modern invention, and introduced, I suppose, to save the labor of declaring specially. But if this labor-saving process is adopted, the party adopting it must suffer the consequences. And it will be found easier, I imagine, to declare specially, than to bring forward witnesses to prove the execution of a note. This principle of dispensing with proof, unless the plea of the general issue to an action upon a bond, or upon a promissory note, was verified by affidavit, was first introduced into our system by an act of February 4,1813. Chase’s Stat. 797. At that time, the uniform practice was to declare specially upon such instruments, and the law was intended to meet such cases. And it is for this cause I have said, that when the first law upon the sub ■ ject was passed, it could not have been misunderstood.

But it is said, it can make no difference with a defendant whether the declaration is general or special, for the reason that he may, if he will, compel a plaintiff to furnish him with a bill of particulars.. It is true he may do it, but he is not bound to do it. Nor is his plea an answer to, or to be controlled by the bill of particulars. The ploa is intended as an answer to the declaration.

Suppose, however, that the bill of particulars is furnished. If from that it should appear that the declaration is intended to be sustained alone by the introduction of a promissory note, a defendant might venture to make affidavit to the truth of his plea. But suppose the bill of particulars should contain other matters, for which he knew himself to be liable, how could he then swear to the truth of his plea? He could not do it without putting himself in danger of a prosecution for perjury.

* Again, the proof dispensed with is proof of the execution of the bond or note 11 upon which'suit is brought.” Can a suit be said to be brought upon a bond, unless the bond is the foundation of the suit—unless it is declared upon ? Nor can a suit be said to be brought upon a promissory note, unless it shall appear from the pleadings that such is the fact. It would not be sufficient to show it by the proofs in the case.

Upon a careful examination of the statute, we are brought to the conclusion, that it is only, where a note is specially declared upon that a defendant will be compelled to make affidavit of the truth of his plea, in order to put a plaintiff upon proof of the execution of such instrument. If the plaintiff elects to declare for money had and received, he can not avail himself of the provisions of the statute. In such case he is left as at common law.

There is nothing new in this decision. In the case of Putnam’s Ex’r. v. Clark, Wright, 595, which was an action upon a note, the defendant pleaded the general issue, and gave notice of set-off. Under this notice the defendant offered in evidence a promissory note, made by the testator, without proof‘of its execution, but it was rejected by the court. Now, a notice of set-off can not be more general than is a declaration for money had and received. And it would be far from administering even-handed justice, to permit a plaintiff, under.such a declaration, to give a promissory note, without proof of its execution, in evidence, and to deny the same privilege to a defendant under his notice of set-off. This case was decided by Judges Lane and Wright.

The same question was presented to Judges Wright and Wood in the case of Hamilton v. Phelps, and decided in the same way. Wright, 689. In this case the court say, “ the statute referred to, exonerate the plaintiff from, proving the execution of a promissory note declared upon, unless a defendant annex to his plea of the general issue an affidavit of its truth.”

This question is now for the first time presented to the *court in bank. The case of Harris v. Clark et al., 10 Ohio, 5, was an action by the holder of a promissory note against a remote indorser. , The special count in the declaration being defective, the plaintiff offered the note under the count for money had and received. There was no controversy about its execution, or as to the indorsement. The court held that it was competent evidence, but say: “ This mode of declaring in a case like the present, is one, probably, which ought not to be encouraged ; nor can a plaintiff, by adopting it, gain any advantage that he would not have had by declaring specially. By adopting it, .he might, by possibility, lose the benefit of our statute dispensing with proof in certain eases, if not the penalty, accruing upon appeals for delay.” Had this particular question been presented to the court) in the case last referred to, I have no doubt that it would have been held that proof of execution could not be dispensed with, unless the note was specially declared upon. And the above intimation was unquestionably made to warn the profession of the danger to be apprehended from adopting this loose mode of declaring.

We are of opinion that the court of common pleas' erred in permitting the notes referred to in the bill of exceptions, to go in evidence to the jury, without proof of their execution and for this cause the judgment must be reversed, with costs, and remanded for further proceedings.


author: *Reai>, J.

text:
    George C. Sargeant v. The State of Ohio.
    A recognizance to appear and answer to a criminal charge, taken by a single judge, must be returned to the court of common pleas of the county, and a memorandum thereof entered on the minutes of said court to make it matter of record.
    A declaration upon such recognizance will be bad unless it-aver that such return and memorandum were mado.
    Such recognizance can not be declared upon as a common-law bond.

      *This is a writ of error to the Supreme Court of Hamilton county.
    The action below was debt, brought by tho defendant in error against the plaintiff in error, George C. Sargeant, upon a bond of recognizance for 1750, made jointly and severally by one David Burgett and said George C. Sargeant. The condition of this recognizance was for the appearance of said David Burgett before the court of common pleas of Hamilton county, on the first day of the next (then) criminal term of that court, “to answer to six charges of larceny, and all things that may be objected against him, and not to depart the court without leave, and abide the judgment of the coui’t thereon.”
    The facts of the case are as follows .
    On May 15, 1844, Henry E. Spencer, then mayor of the city of Cincinnati, committed the said David Burgett to the county jail of Hamilton county, for want of sufficient bail, on the charge of having committed six separate larcenies. On May 18, 1844, while in the custody of the jailor of the county, Burgoft desired to be admitted to bail, and upon that day Burgett and Sargeant, the plaintiff in error, entered into the above-mentioned recognizance, before Hon. Henry Morse, one of the associate judges of the court of common pleas of Hamilton county, and Burgett was discharged from custody. That in July term, 1844, six indictments were found against said Burgett, and on tho 25th day of the same month, and during the same term, the said parties to the recognizance, being solemnly called, came not, but made default. The court thereupon ordered the said recognizance to be forfeited, and entry thereof was made upon the minutes of the court. On the 27th of the same month, the said recognizance and indictments, with other papers, were stolen from the court-house, where they had been left by tho clerk. This action was brought by the state to recover the amount of said bond, and judgment was rendered for tho plaintiff below, as also *in the Supremo Court for Hamilton county. The plaintiff in error, the defendant below, seeks to reverse said judgment, for the following errors assigned :
    1. That tho declaration aforesaid, and the matters therein contained, are not sufficient in law to maintain said action, for the reason that it contains no averment that on the return, of the recognizance to the court, a memorandum thereof was entered on the minutes of the court.
    2. That there was no proof that the recognizance was ever forfeited in the court of common pleas.
    3. There was do.evidence that the defendant ever signed, sealed, or delivered the recognizance (or bond of recognizance), as alleged in the plaintiff’s declaration.
    4. That the declaration sets forth a cause of action arising from a bond of recognizance, and not a “ recognizance of record.”
    5. That the evidence of said recognizance was improperly introduced, as there was no proof of the signing, sealing, and attestation of the same, as alleged in the declaration, and no proof that such a recognizance had been lost.
    6. That the recognizance, as described in said declaration, is to answer six several charges of larceny jointly, instead of answering to each of six several larcenies, in a separate amount to each offense, and could not be apportioned.
    7. That the recognizance being lost, and no record remaining, there was nothing upon which the defendant could have surrendered Burgett in discharge of said recognizance.
    • 8. That said judgment was given for said State of Ohio, when, by the laws of the land, it ought to have been given in favor of the said George C. Sargeant.
    J. A. Pugh, for the plaintiff in error.
    Henry Stanbery, attorney-general, for the State,
   *Reai>, J.

Several errors are assigned in this case; but,from the view taken by the court, it is only necessary to consider one, and that one as to the sufficiency of the declaration.

Section 4 of the act directing the mode of trial in criminal cases, authorizes a single judge to take a recognizance for the discharge of a prisoner, and directs that he shall forthwith deposit it with the clerk of the court of common pleas.

Section 8 of the practice .act provides, that whenever any recognizance shall be returned to any court of common pleas by a justice of the peace or other officer authorized to take such recognizance, a memorandum thereof shall be entered in the minute-book of the court; whereupon the same shall be considered of record in such court, and proceeded on by process issuing out of said court, in the same manner as if such recognizance had been entered into before such court, and the same recognizance shall be made out and recorded in full, in the book of records of said court, in the same manner as recognizances taken in such court.

The statute makes it requisite that a recognizance, to bo of any validity, should be of record. To make it a record, there must be a memorandum of its return entered upon tho minute-book of the court. The declaration contains no averment that a memorandum of the return of this recognizance was entered upon tho minute book of the court, nor does it count upon it as a record.

It is not good under the statute, and not valid as a common-law bond. Hence the declaration is defective, and will not support the judgment. Judgment reversed.


author: Avert, J.

text:
    *Lessee of Richard Douglass v. Thomas Massie.
    “Where a summons has been served upon a part only of several named as defendants, and judgment is rendered against all, the judgment is erroneous and voidable, but not void.
    If land be sold by virtue of an execution upon such judgment, a title to a proportion, if not the whole, will pass to a purchaser at the sheriff’s sale. Lands, on the death of the ancestor intestate, descend to the heirs, and may be sold on execution against the heirs, hut subject to the rights of the administrator, in case they are needed for the payment of the ancestor’s debts.
    This is a motion to set aside a nonsuit and grant a new trial, in a case reserved in Ross county.
    The action is ejectment, to recover 244 acres of land, part of Nathaniel Massie’s survey (No. 5,011), patented to said Massie in 1809.
    Before the Supreme Court in Ross county, the plaintiff gave the evidence following:
    1. Tho survey and patent to said Massie.
    2. That Massie died intestate in 1818, leaving children and heirs.
    3. A judgment in Ross common pleas, in favor of Riddle and wife, administrators of Hughey, against said children and heirs, in 1832.

      4. An execution and levy upon this land, on the 29th of June, 1833, and subsequent vendíes until the land was finally sold to the lessor of the plaintiff.
    He also proved the sale, confirmation of sale, and execution of the deed, and the recording of the deed, January 30, 1840.
    The transcript of the judgment, produced in evidence, shows that the suit was brought by Riddle and wife, as administrators of Hughey against William L. Thompson and Elizabeth his wife, Nathaniel Massie, Richard H. Massie, Nancy Massie, and Henry Massie,—heirs of Nathaniel Massie. The action was brought for a breach of covenant of ^warranty in a deed. The summons bears date April 10, 1830, and the sheriff returned that he had summoned Nathaniel and Richard H. Massie; and as to the others, that they were not summoned.
    Declaration was filed against all the defendants, and judgment rendered against all, at the June term of the common pleas, for $1,625.27 damages and costs of suit, to bo recovered and made from any assets which have come to the defendants by descent from their ancestor.
    The entry made in the Supreme Court in Ross county is that the parties submitted the cause to the court, and having proceeded in part with their evidence, a nonsuit was ordered by the court, upon which a motion was made by the plaintiff to set aside the nonsuit, and this motion, for the purpose of hearing the whole case, was reserved to the court in bank.
    Richard Douglass, for plaintiff.
    Leonard & Massie. for defendants.
   Avert, J.

Two objections are made to the plaintiff’s right to recover in this ejectment:

1. That the judgment before the common pleas, under which the lessor of the plaintiff purchased the premises in controversy, is'void; and,

2. That if the judgment bo good, still no title could pass to the purchaser under execution.

It is claimed that the judgment is void, because, upon part of the defendants named in the original suit, no service was ever made. Now it is conceded, that if there had been no service upon either of the defendan ts; nor in any other way an appearance in the case of either one of the defendants, the court would have had no jurisdiction, and in such case, according to the authorities, the judgment would have been a nullity, and all proceedings under it void. Such a judgment, execution under it, and sale, would not have jiassed *any title, and would not be treated as evidence in an action of ejectment.

But that is not the present case. Two of the defendants were summoned, and were therefore in court, because, by our law, where the summons is served, the defendants are declared to be in court. Over the two defendants, then, the court has jurisdiction. Could the judgment be pronounced void because, with some who were liable, others not liable were joined? That the judgment Would be erroneous is certain ; and we have had frequent occasion upon writs of error to reverse such judgments. The judgment, too, because it is joint, would be reversed as to all the defendants. But the reversal of judgment does not put the cause out of court. The cause is left, as still pending against the parties who had been served with process; and the difficulty which would arise from a joint judgment, may easily be avoided. By our law, when some of the- defendants have been served and others not, upon a proper return being made by the sheriff, a declaration may be filed against such of the defendants as are served, and a valid judgment rendered against them. Afterward, if it is thought advisable, by means of a scire facias, the others may be made defendants to the same judgment. Now, though this judgment is erroneous, upon principle, it can not be collaterally impeached; and until reversed it is admissible in evidence. But even if the judgment in this case were already reversed, the pui’chaser’s title would, notwithstanding, under our law, be secured to him. Considering the judgment erroneous, and therefore voidable, but not void, the court decide that an execution could have been lawfully issued, and lands by virtue of it subjected to sale. What extent of interest would pass by the sale, this is not the time to determine.

The second objection stated is, that no title could pass to the purchaser of. this land, under the judgment.

The land belonged to Nathaniel Massie, and he died intestate. It may, as it is urged, yet be needed to pay tho debts due from Massio’s estate; and estates are to bo settled and *the lands sold, according to our law, by an administrator. It is true that the sale of lands belonging to an estate, for the payment of debts, must bo made by the administrator. He is authorized and required to sell for that purpose. But he can not sell without an order of court; and can not obtain such an order until he proves that there are demands against the estate, and no sufficient personal property to pay them. In the meantime the land, according to the decision of our courts, descends to the heir, and he is entitled to the possession and control until the administrator shall be authorized to sell it. If the land i s not required for the payment of debts, the title becomes absolute in the heir, and he can convey a perfect title to his grantee. He may pass a title immediately upon the death of the ancestor; but it will be subject to any legal call of the administrator, if at any time needed for the payment of debts. As the heir has a legal interest which he can convey, that interest must of necessity be subject to sale on execution to pay his debts.

The execution in this case was against the defendants as heirs; was levied upon land descended to them from their ancestor; and the title, certainly, of the two defendants served with process, passed by the sale under execution. The plaintiff has shown a title to recover in this action. The nonsuit, therefore, will be set aside, a new trial granted, and cause remanded to Ross county.


author: Read, J.

text:
    Abner Kern’s Administrator v. John Foster.
    An appeal lies from an order of the court of chancery confirming a sale of land made under a previous decree of that court.
    Certiorari is not the proper mode of bringing the question of the legality of such order of confirmation before the Supreme Court.
    This is a writ of certiorari, directed to the court of common pleas of Ross county.
    *The object of the writ is to reverse an order of that court, made when sitting as a court of chancery, at the June term, 1847, confirming the sale of land under a decree for the sale of mortgaged premises.
    The decree was rendered at the April term, 1843. Yarious writs of sale were issued, and appr aisements and re-appraisements were had, from the date of the decree until the sale, a period of more than four years.
    While these proceedings were in progress, the defendant died, on December 24, 1846.
    Tho only error alleged against the confirmation of tho sale is, that it was made after the death of Kern, without a bill of revivor to make his representatives parties.
    J. L> Taylor, for plaintiff in certiorari.

    Henry Stanbery, attorney-general, for defendant.
   Read, J.

These proceedings are not properly before us.

writ of certiorari is not the mode of questioning the regularity of a sale and order of confirmation in chancery. An order of confirmation of sale in chancery, is such a final sentence or decree as authorizes an appeal to the Supreme Court, under section 52 of the chancery, act. Swan’s Stat. 713. To sustain appeals from such orders has been the constant practice. The case of Hay v. Schooley, 7 Ohio, 48, pt. 2, and Craig’s Adm’r v. Fox & Miller, decided at the present term, were both appeals from orders of confirmation of sales had under decrees in chancery. The only doubt which ever existed upon this point was, whether such appeal brought up the whole case and opened the original decree; but it was decided in Hay v. Schooley that it only reached the confirmation and proceedings had subsequent to the decree which settled the merits. A plain method existing, then, of bringing the question of confirmation and the regularity of the sale before tho Supreme Court by appeal, we are not disposed to recognize the additional remedy *of a writ of certiorari, which proceeding, if not wholly unknown to chancery, would, at furthest, only be resorted to in cases where there was no other remedy. But the question which it was sought to bring up by this writ has been decided at this term, in tho case of Craig’s Adm’r v. Fox & Miller, adversely to the applicant for this writ, and therefore nothing is lost to the party by its dismissal. Writ dismissed.


author: Avert, J. Read, J.,

text:
    William Treat v. Canal-boat Etna.
    Under tbe act providing for proceedings against steamboats and other water-crafts by name, where a person has engaged to build and deliver a boat at a future day, for a price named, and has delivered the boat in pursuance of such agreement, he can not afterward proceed against it, in the possession of a third person, to recover for “ materials, supplies, and labor ” expended in building the same.
    This is a motion for a new trial, reserved in Summit county.
    The facts of the case, sufficient to present the point decided, appear in the opinion of the court.
    S. J. Andrews and R. Hitchcock, for plaintiff in support of the motion.
    R. P. Spalding, for defendant, contra.
   Avert, J.

This cause was tried at the September term, 1846, of the Supreme Court in Summit county, when a judgment was rendered for the plaintiff. Upon a writ of error prosecuted in behalf of the defendant, this judgment, at the December term following of the court in bank, was reversed, and the cause remanded to Summit county. It was *again tried before the Supreme Court in that county, at the September term, 1847, when a verdict was rendered in favor of the defendant. The plaintiff thereupon filed his motion for a new trial, and the motion was reserved for decision here. In the ease in error, above referred to, 15 Ohio, 585, the precise question was determined which arises in this case. But the counsel for the plaintiff desired that the question might be heard again in bank, and the court who tried the cause in the county, were disposed to give another opportunity to examine the subject here.

The question in the case arises under the act providing for the collection of claims against steamboats and other water-crafts. Swan’s Stat. 209. And the words of the act, touching the matter in hearing, are as follows: “That steamboats and other water-crafts, navigating the waters within or bordering upon this state, shall be liable for debts contracted on account thereof by the master, owner, steward, consignee, or other agent, for materials, supplies, or labor, in the building, repairing, furnishing, or equipping the same.” The facts of the ease may be found in 15 Ohio, 536, where it will be seen, that Standart, Griffith & Co., in 1840, contracted with the plaintiff, Treat, for two canal-boats, at 81,075 each. According to the contract, Standart, Griffith & Co. were to furnish from their hardware store whatever materials the plaintiff should want, and pay him 8500 on the delivery of the boats. The balance was to be paid as the boats should earn it, and tho plaintiff did not expect the whole of his pay that year. Materials from the hardware store were furnished as agreed, and the boats were delivered. But the contract price of the boats was not paid; and some two years after the delivery, a considerable balance being still due, tho present suit was brought

The water-craft, it is in this statute provided, shall bo liable for debts contracted on account thereof, by the owner. Who, in the sense of this statute, is the owner, made liable for materials or labor in building the boats? The court, at the last term, answered, that Treat, the plaintiff, was the *owner, until he parted with his ownership, by delivering the boats over to Stand-art, Griffith & Co.; that for the timber and other materials furnished, and for the wages of tho workmen employed in building the boats, Treat was liable, and not Standart, Griffith & Co. It still appears, to a majority of the members of the court, who participate in the trial of this motion, that Treat was the owner of the boats while they continued in his possession, and that the former decision was right. The argument, furnished at this term for the plaintiff, admits that if a man build a boat for the market generally, and afterward finds a purchaser, he would not have a lien under this statute. Such a purchaser, we think, also, is clearly not an owner within the meaning of the statute. And the builder, in that case, would have no security, except in his contract of sale. Can it be said of the purchaser, either in that ease, or the one under consideration, that he is liable for the debts contracted on account of the boat, to the persons who furnished the timber and materials for the boat, or to tho persons who were hired by the boat-bitildor to aid in building it? We think that a suit could not bo successfully prosecuted against either of them. But we think that a suit for materials or labor would lie against the builder, and that it could clearly bo maintained, under this statute, against the boat in whatever hands she might be found. Upon this last point, neither the language nor meaning can admit of any doubt. Now, under the construction claimed by the plaintiff, this right might be defeated, if the sale, under the builder’s suit, passes the title of the boat, and it may be a much larger interest than that of the builder. The bulk of the materials may have been furnished, and the principal part of the labor performed, by others; and still this contractor, under the name of builder, after he has delivered over the boat, is to enforce his lien for the whole of the contract price, to sell the boat and receive himself the money, leaving others, whose claims, perhaps, are much larger, with no resort but to his personal responsibility. This lien of the builder, if it exists at all, *is for the whole cost of the boat, or rather for the price which has been fixed in the contract, and not for the proportion which he, as distinct from others, actually contributed toward building the boat. Now, as between the claimants, he who seeks, as in this case, to engross the whole security, did not need, in the same sen'se as did the others, that a specific lien should be given to him by statute; for he could provide by the terms of his contract,- or, having the identical security already in his possession, he could retain it till his claim should be made otherwise secure. There are, nevertheless, reasons, and not without considerable weight, for extending the paling of this law to builders, who may be supposed always anxious to obtain employment in their trade. But these reasons must be addressed to the legislature, who can limit and shape the relief as circumstances may require. The claim set up by this plaintiff is one, as wo believe, not embraced within the meaning of the law under consideration, and therefore his suit can not be maintained.

Motion for a new trial is overruled.

Hitchcock, J., having been counsel for one of the parties, did not sit i'n the case.

Read, J.,

dissenting. If a person contract to build a boat, and deliver it to another at a specified time for an agreed price, the builder has a lien upon such boat under the statute. The person for whom the boat is built, although not absolute owner until delivery, is yet the owner within the meaning of the statute, from the moment the boat is commenced being built, for the purposes of the lien. Any other construction would completely defeat the statute in its most material part. I do not understand that the two judges who have made this decision at the present time, deny the correctness of this construction. With this construction the statute is preserved, and the lien of builders secured. But I understand that the judges wish now to take the distinction, *that if a person build a boat upon his own account for the purpose of sale, and then sell it, no lien attaches, as against the vendee, in favor of the vendor or builder. To this view of the statute, there is perhaps no objection. But I understand that the contract under which it is claimed in this instance that the lien of the builder attaches, was in substance this, that Treat should build the canal-boats, and deliver the same to Standart, Griffith & Co. for SI,075 each. The boats were then built in pursuance and in completion of the contract; and this brings the case within the first proposition, and gives the builder his lien. I do not understand it to be the case by the owner of a boat-yard, building boats upon his own account for the market. But the two judges who acted upon this case, when up for consideration heretofore, acted upon wholly different reasons from those now stated by the judges ; although I do not know whether these reasons prominently appear in the opinion of the court.

The instructions of the Supreme Court given to the jury on the trial in the county, which was held to be erroneous heretofore by the judges in bank, were as follows : “ If .they found from the evidence that the plaintiff, Treat, built the boat by contract, for Stand-art, Griffith & Co., at a specified price, and delivered her under the contract, a liability attached to the boat in favor of said plaintiff, under the act of February 26, 1840, entitled an act for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name, and the plaintiff was entitled to recover in this suit.”

The whole reasoning of the court in this case was, that the above charge involved the absurdity that Treat, being both owner and builder, it permitted him to contract with himself, and sue himself, and therefore was erroneous. The court say in that opinion : “ Treat had contracted to build her, and deliver her at a particular time. Before the delivery she was undoubtedly his property. Ho was the owner, and had the absolute control of her.” Again, ‘'Treat could not contract with himself, to furnish himself *materials for his own boat, any more than he could sue himself for breaking such contract. Both ideas are absurd, and not one more so than another.” The whole reasoning here is predicated upon the assumption that, on a contract to build a boat and deliver it at a specified time, for an agreed price, that up to the point of delivery, the builder was the owner, and therefore could not contract with himself for labor and materials, and hence that no lien could attach upon the boat in his favor. If that ground be now abandoned, and it be admitted that where a person contracts for the building of a boat for an agreed price, to be delivered at a specified time, a lien attaches, the two judges, in deciding at the present term, have most certainly erred; for it is not disputed but that the contract under which the boat was built, is of that sort, and if it be disputed, let the contract speak for itself; and upon that construction of the contract, the court charged upon the circuit; and the charge was not questioned upon the facts—for they were for the jury—but upon the inference of law. So that if the judges abandon the position taken in the decision of the judges heretofore pronounced, they have now most certainly erred in the conclusion formed; for the judgment now is the same as then, and the facts before the court the same : that the boat was built for Stan dart, Griffith & Co., time of delivery and price specified. If the construction heretofore given be adhered to, the statute, in its substantial part, is a dead letter, and its main object totally defeated. If that construction be abandoned, then the conclusion of law and judgment of court in this instance, are directly against the fact which the court admit should give a lien under the statute. To admit the facts and deny the law which applies to such a state of facts, is only an obscurity of reasoning which unintentionally works a wrong in an individual case, but does not work the general mischief of overthrowing a salutary statute.

But if it be contended that no lien attaches in case of building a boat on a contract, because, up to the time of *delivery, the builder is the owner, it may be replied with equal force that no lien attaches to a part of a boat. The statute says that the lien shall attach to the boat; and hence the lien would only attach after the boat was complete, and begin to operate eo instanti that it was delivered to the owner. But it is said that this construction would bo monstrous, as it would defeat the liens of all persons who had labored upon the boat and furnished materials during her construction. Equally so, I contend, would it be monstrous to deprive all the builders of boats of their statutory protection and remedy, because the boat was built upon contract. It is known from the very nature of ship and boat-building, from the number of hands, amount of material and machinery required, that ship and boat-yards exist for that purpase, and that master-builders own these yards, and that, almost universally, boats are built upon contract. The act had reference to the nature of the business; and the person contracting for a boat is, in universal acceptation, regarded as the owner; and for the purpo.se of security to the builder, the statute regards the person for whom the boat is built as the owner. Any other construction, it seems to me, is unreasonable, in reference to the nature of the business itself, and mainly defeats the object and intent of the statute.