text:
    John Inglebright (Constable, etc.) v. Bezaleel Hammond.
    Where a witness who is interested in a case is called to testify in favor of himself, it is not error to permit his testimony to go to the jury, unless the record shows that the opposite party objected to his testifying, or asked the court to rule out the evidence.
    A custom cannot be proved to change the title to property, varying a general rule of law.
    Evidence of the common report of a neighborhood, disconnected with the acts and admissions of the parties sought to be charged as partners, is not admissible to prove the partnership.
    Where a person taking his wheat to a mill to be ground, by the assent of the miller mingles it with the wheat of the miller, he does not thereby lose his property in the wheat, but retains a property in so many bushels of the common stock as he has put in ; although, by a contract between the parties, the person delivering it is to receive a certain quantity of flour fct a certain number of bushels of wheat.
    Where a party asks the court to make a charge in a series of connected propositions, some of which are law and some not, it is not error to refuse to charge as asked.

      This is a writ of error to the Supreme Court for Jefferson county.
    The action in the common pleas was replevin, brought by the defendant in error, for ten barrels of flour, which bad been levied on by Inglebright, as constable of Wayne township, in Jefferson county, upon an execution against George and Thomas Webb.
    Judgment was rendered for the plaintiff below, which was affirmed by the supreme court, and- to reverse the judgment of the supreme court, this writ is prosecuted.
    Hammond had on the 22d day of April, A. D. 1846, entered into an agreement with Geo. A. Webb, for the sale of a mill. Among other payments to be made by Webb to Hammond, for the mill property, was the following, as appears by the contract of sale:
    “ Together with four hundred dollars’ worth of grinding, to be done by the said George A. Webb for said Bezaleel Hammond, between the said first day of June, 1846, and the first day of April, A. D. 1848, at any time within said time, when said George A. Webb has no customers’ work in the mill; that is, when he may be slack of grinding, for the want of the general custom of the mill. The grinding to be done for the payment of the four hundred dollars aforesaid, is to be made out of the wheat furnished by the said Bezaleel Hammond, and the flour made therefrom is to be delivered by the said George A. Webb, in Steubenville, for Bezaleel Hammond’s use. Por the expense of delivering said flour to Steubenville, said George A. Webb gets the offal made by the grinding of the said Bezaleel Hammond’s wheat.” * *
    “ As respects the grinding to be done by the said George A. Webb for said Bezaleel Hammond, between the 1st of' June, 1846, and the first of April, 1848, mentioned before, in further explanation of the same, for every four and one-half bushels of wheat furnished by the said Bezaleel Hammond, the said George A. Webb is to manufacture and deliver, as aforesaid one barrel of flour, as aforesaid, for said Bezaleel Hammond’s use. Said Bezaleel Hammond is to pay to said Webb thirty-three and one-third cents on each barrel for the manu factoring of said flour.”
    In January, 1847, Thomas Webb, the brother of George, joined him, and came into the contract for the purchase of the mill property, when a deed was made by Hammond to George and Thomas Webb, their joint notes executed to Hammond, for the remaining money payments due upon the contract, payable at the same periods, and for the same amounts. The one half of the grinding, stipulated by the old contract to be done between the first of June, 1846, and the first of April, 1848, it seems had been performed, and the joint note of the brothers, payable at the same time, as stipulated in the old contract, was executed as follows :
    “ f200. On the 1st day of April, 1848, we, or either of us, promise to pay to Bezaleel Hammond, or order, two hundred dollars’ worth of grinding, on or before the above "date, for value received. Witness our hands and seals, this 20 th day of January, A. D. 1847.
    “ GEORGE A. WEBB, [l. s.]
    “ THOMAS H. WEBB, [l. s.]
    “ Witness, William Yantz, James Madwell.”
    All the notes were secured by the mortgage of the brothers upon the premises. The mortgage describes “ their promissory notes for two hundred dollars in grinding, to be done against the first day of April, A. D. 1848.”
    Between the first day of January, 1848, and the 13th of February, 1848, Hammond delivered at the mill 1642 bushels of wheat, in different parcels. The wheat was poured into a sink or vat on the second story of the mill, which was large enough to contain about 150 bushels, and transferred thence by elevators to the third story, where it was emptied from a spout to the floor. At the time Hammond commenced delivering his wheat, two hundred bushels of Webb’s wheat were on the floor of the third story, and between the same period of time, within which Hammond’s wheat had been delivered, Webb had purchased from divers persons, 974 bushels of wheat, which had been emptied into the same sink, and discharged by the same elevators, upon the third story of the mill, and mixed with Hammond’s wheat.
    Upon several occasions, while Hammond’s wheat was being de • livered, Hammond was present, and upon one occasion, weighed á draught of Webb’s wheat, which was poured into the same vat in which his own had been poured. All of Webb’s wheat and of Hammond’s had been mixed by being conducted through the elevators, and discharged in one pile on the floor of the third story.
    From the 24th of January to the 14th of February, 274 bai’rels of flour had been manufactured by Webb, taken to Doyle’s warehouse, entered there in the name of G. A. & T. H. Webb, delivered by Webb as his own, and on the 14th of. February sold by him to Doyle, &nd the money received by him from Doyle.
    The Webbs both absconded; Thomas left in the latter part of January, and George on the' 14th of February, and have not since been heard of.
    On Saturday, the 12th of February, as George was about leaving the mill for Steubenville, he gave'these instructions to Roland, the miller: “ To grind out the wheat then in the mill, and deliver it to Hammond in Steubenville, to take care of his family and stock till he returned, and to get Blackburn to help him.”
    On Monday, the 14th of February, when in Steubenville, when he sold the flour to Doyle, he told Doyle “ that all the grain that was then in the mill belonged to Hammond, and tha’t he was grinding it out for him, and that he would not send in any more flour on his own account, but that the balance that would arrive would be Hammond’s.” '
    On the 14th of February, there were about 1000 bushels of wheat in the mill. So soon as it was known that Webb had absconded, Hatton, Swearingen, Devinney, and others, cred itors of the Webbs, without judgments or executions, came down to the mill to secure their debts by seizing the property. Mrs. Webb let them into the mill upon the pledge -that they would remove no wheat out of it. They then, each for himself, proceeded to measure into separate piles what each one thought would be sufficient to satisfy his demand, when they left the mill. A day or two after, Roland, the miller, in pursuance of the instructions left with him by Webb, proceeded to deliver up all the wheat in the mill to Hammond, who took possession accordingly. Roland then employed Blackburn to grind it, which Blackburn agreed to do, Hammond becoming security for his wages. He ground of the wheat in the mill fifty barrels, which were removed by Hammond to a neighboring stable. All further proceedings were then stopped by the creditors, who, having obtained judgments, levied their executions upon all the wheat, and upon the fifty barrels of flour. The ten barrels replevied were part of the fifty placed by Hammond in the stable.
    The court charged the jury, amongst other things—
    “ That wheat delivered to the Webbs by the plaintiff, (Hammond,) to be ground, in performance of the promise of Webbs, in their note of Jan 20, 1847, to pay to plaintiffs, or order, two hundred dollars in grinding, on or before the first day of April, 1848, would not, by such delivery, become the property of Webbs.”
    The court charged further—
    “ That the part of .the article of agreement in evidence between the plaintiff and George A. Webb, relative to grinding to be done by George A. Webb for the plaintiff, (Hammond,) is not, by the terms of the note of January 20, 1847, made part of the contract evidenced by the note ; and that whether the two Webbs, in performance of their promise to pay plaintiff two hundred dollars in grinding, (as Specified in the note,) were to be governed by the stipulations, as to the terms and manner of grinding stipulated in the article of agreement, or not, might be shown by parol evidence; and as there was evidence in the case to that question, it was for the jury to find how the fact was from the evidence.”
    The court was asked by the defendant to charge the jury: “ That they might look to the circumstances attending the delivery of the wheat by the plaintiff in replevin, to ascertain whether such delivery was under and in pursuance of the note of January 20, 1847, or not; and that if the jury shall find that there was an undertaking or agreement, either expressed or implied, between the Webbs and the plaintiff, at the time the wheat was delivered by Hammond, that Hammond was to receive flour for it, without reserving flour to be made out of the specific wheat delivered, that a sale of the wheat and not a bailment is imported, arid that such understanding may be inferred from the acts and declarations of the parties.”
    The court refused to charge as requested, for which refusal, as well as for charging as aforesaid, the defendant excepted.
    Exception was also taken to the ruling of the court, in the reception and rejection of testimony, the facts in relation to which appear in the opinion of the court.

      Greorge W. Mason, for plaintiff in error, cited the following authorities:
    Story on Bailments, sec. 40, 283; 1 Phillips Ev. 547 ; 2 Atk. 383 ; 2 Bro. Ch. C. 219; 7 Ves. 218 ; 4 Taun. 786 ; 2 Barn & Cres. Rep. 634; Chitty on Cont. 5 Am. ed. 19, 27, 104; Smith v. Clark, 21 Wend. 83 ; Jones on Bailm. 64, 102; 3 Mason’s Rep. 478; Holbrook v. Armstrong, 3 Fairf. 31; Dearborn v. Turner, 4 Shep. 17 ; Diving v. French, 1 Blackf. 353 ; Hurd v. West, 7 Cowen 752.
    R. S. Moodey, for defendant, cited these:
    Story on Contracts, sec. 73; Phillips on Ev. 443, 4; 1 Greenl. Ev. sec. 288; 2 Stark. Ev. 768, 9; 2 Black. Com. 405 ; Slaughter v. Green, 1 Randolph’s Rep. 3.
   Caldwell, J.

The first error assigned on the record of the court of common pleas, is, that the court erred in not ruling out the testimony of Daniel Hammond, he being an interested witness. This witness was called by Bezaleel Hammond, the plaintiff below, and testified in the cause. After his testimony was through, several witnesses-were called, who gave evidence, tending to prove that he was a partner of said plaintiff, and had an interest in the property in controversy. The evidence to this point is strong. It does not, however, appear from the bill of exceptions that any objection was taken to his testifying. He was not interrogated as to his interest, nor does it appear that the court was asked to rule out his testimony. If the opposite party would avail himself, on error, on account of an interested witness being allowed to testify, he should, if the fact of interest were known to him, object to the witness testifying; or if by evidence after-wards offered in the case, the interest of the witness should become apparent, he should ask the court to rule it out. Nothing of this kind being done, it was not error in the court to permit the testimony of the witness to go to the jury, although he might have been interested.

It is alleged that the court erred in ruling out the testimony of John T. Leslie. This witness was called for the purpose of proving that Daniel Hammond was an interested witness. He testified that it was generally reported in the neighborhood that Bezaleel and Daniel Hammond were partners, but that he knew nothing about the matter of his own knowledge, nor had-he ever heard any thing respecting it from either of the Hammonds. We think the evidence was incompetent, a,nd that the court acted properly in ruling it out. If the Hammonds, by word or deed, had held themselves out to the world as partners, that might have been proved ; but the neighborhood report, without proving any act of theirs, was not competent evidence to prove that they were partners.

The defendant on the trial offered to prove that it was a custom amongst millers, that when a person took wheat to a mill, and consented to its being mingled with the miller’s, that the property in the wheat passed to the miller. The court refused to admit this evidence. The custom offered to be proved in this case was contrary, as we think, to the rule of law. Where an article of the same kind and value, which is calculated by the bushel or pound, is mingled together by the consent of parties, each party is entitled to have divided to him so many pounds or bushels as he may have put in — and is recognized in law to have a property in so much as he may have put into the common stock.

Evidence of custom may properly be given to explain and give the proper effect to the contracts and acts of parties; but it would be carrying the doctrine too far to permit a custom to change the title to property, contrary to an established rule of law. The court decided correctly in refusing to admit the evidence.

The court charged the jury that if wheat was delivered by Hammond to be ground by the Webbs, in payment .of their two hundred dollar note, the property in the wheat, by such delivery, would not pass to the Webbs ; that the two hundred dollar note did not in terms connect itself with the first agreement made between Bezaleel Hammond and George Webb, and that whether the Webbs, in performing their promise to pay two hundred dollars in grinding as specified in their said note, were to be governed by the stipulations by the first agreement of Hammond and George Webb, was a matter to be determined by the jury from the evidence. They further charge that parol evidence was admissible to prove that fact, and as there was evidence on that question, that the jury would consider it in coming to a conclusion on the subject. We do not discover any error in this charge. The Webbs, in the two hundred dollar note, merely agreed to pay the amount in grinding. That grinding had to be done in a certain manner,' and on certain terms. If no price was fixed, before the grinding was done,'then the Webbs would be entitled to receive credit for so much as the work was worth, and Hammond would be held to have im pliedly promised to allow them that amount. Or the parties might agree upon what was to be ground, and the price al lowed for the same, eithey verbally or in writing, and such agreement could be proved, by parol evidence, if verbally made, or by the written instrument, if reduced to writing. And if the wheat was delivered under both these contracts, the first fixing the price at which the grinding was to be done and specifying the article to be ground, and the other specifying the quantity to be ground, such fact might be proved by parol; that it would neither be adding to, contradicting, or varying these written agreements. The one would still evidence how much was to be done, and the other the terms on which it was done. The parol evidence in that ease would merely show the performance of these agreements. And as the court say there was evidence in the case, that was proper for the jury to consider in determining the question whether this wheat was delivered in performance of these two contracts. The court read a long extract from Story on Bailments, page 44, (on the subject of a mixture of corn, etc.,) which they told the jury was good law, and applicable to the ease on trial. This is assigned for error. As the extract is long, we do not intend to refer to it specifically. We would merely say that, as the court said in that case, we suppose it to be good law, and the evidence in reference to the mingling of the wheat, certainly, made it applicable to the case.

The court charged the jury that if they should find that the wheat in the mill was -the property of the Webbs; and that the Webbs were indebted to Hammond, and that after the Webbs left, the wheat out of which the flour was ground was delivered over to Hammond in payment of his claim against the Webbs, by a person authorized to do so, that the verdict should be for the plaintiff Hammond. This is assigned for error. We do not see any error in this charge.

The defendants asked the court to charge: That they might look to the circumstances attending the delivery of wheat by the plaintiff, to ascertain whether such delivery was under and in performance of the note of January 26, 1847, or not. And that if the jury should find that there was an understanding or agreement, either expressed or implied, between Webbs and the plaintiff, at the time the wheat was delivered by Hammond, that Hammond was to receive flour for it, without reserving flour to be made out of the specific wheat delivered, that a sale of the wheat and not a bailment was imported, and that such understanding might be inferred from the acts and declarations of the parties. This charge the court refused, which refusal is assigned for error.

Now the charge asked embraced several different propositions. A part, taken by itself, was no doubt good law, and-proper to be given to the jury in the case — a part had already been given to the jury by the court. In determining, however, whether the court erred in refusing the charge, the charge must be taken as a whole. And the question, on error, for refusal to charge, is whether the whole charge asked was law, and proper to be given to. the jury in the case. The party presents his own ideas, in his own form, and asks the court to adopt them. If the court cannot adopt the whole they may refuse the whole. There was one proposition embraced in this charge that we think was erroneous ; and that was, that if Hammond was to receive flour for the wheat, unless such flour was made out of the specific wheat delivered, the% jury should consider it a sale of the wheat, and not a bailment. We have already given our views of the law in reference to the mingling of wheat by the consent of the owners, or other articles admitting of a similar division. Each party retains the property in a quantity equal to what he has put into the common stock. Nor do we think that it necessarily alters the case that the party is to receive his return in flour, as is alleged in this case, at a barrel of flour for so many bushels of wheat. This is but another mode of dividing to the party his property in the flour, in which it was agreed by the parties it should be received. If so many pounds of flour was considered as equivalent to a bushel of wheat, then receiving flour at that rate would, to all intents and purposes, be the same as a division of the wheat. We think then that it was "not necessary to create a bailment, that the flour should be made out of the specific wheat delivered,' and that the court did not err in refusing the charge. We do not discover any error in the record.

The judgment of the Supreme Court will be affirmed.


source: Caselaw Access Project

author: Avery, J.

license: Public Domain

text:
    Alexander Campbell and others v. Michael D. Gittings.
    Where an article contains a covenant by one party to execute and deliver a warranty deed, and by the other to execute and deliver, when the deed is tendered, a bond and mortgage for the purchase money, though the party first named neglect or refuse to deliver the deed, the other is not entitled to sue, after having neglected, at the proper time, to offer or tender the bond and mortgage ; and a declaration on the covenant to make a deed, containing an averment that the plaintiff offered to execute a bond and mortgage, without averring a tender, or what is equivalent thereto, is bad on demurrer.
    This is a writ of error to the Court of Common Pleas of Muskingum county.
    The plaintiffs brought an action of covenant in the court below, on an article of agreement between the parties under seal. The article was dated March 2d, 1844, and was executed by said Gittings of the one part, and by said Campbell, William Ricketts, A. Baker, and one Simon Shurtliff, since deceased, of the other part. By this article, Gittings sold to Campbell, Ricketts, Baker, and Shurtliff, 1250 acres of land, particularly described therein, and situate in said Muskingum county.,
    The only parts of the article required for the purposes of this case, to be set out, are the following: “ And the said Gittings agrees to make and deliver a general warranty deed, m fee simple for said land, on or before the first day of September next to said Campbell, Shurtliff, Baker, and Ricketts, or to such other persons or trustees as they may designate, in trust for them or their associates, now and hereafter to be associated in a society called the Columbian Phalanx. And the said Campbell, Shurtliff, Baker, and Ricketts agree to pay for said land at the rate of sixteen dollars per acre, and that they, or the said trustees, when the said deed is tendered to them or either of them, will execute and deliver to said Gittings their joint and several bond for the full amount of said purchase money, payable in eight years after the first day of April next, with interest payable annually after said first day of April, and also make and deliver to said Gittings a mortgage on said lands to secure the payment of said bond, and the interest on the same.”
    The declaration, after setting out the various covenants in the article, and averring breaches, contains the following averment : that the plaintiffs “ offered to the defendant, to execute and deliver to him, said defendant, their joint and several bond,” setting forth the terms, etc., in the language of the covenant, “ and also to make and deliver to him, the said defendant, a mortgage on said land, to insure the payment of said bond ; and that they then and there requested the defendant to make and deliver a general warranty deed in fee simple for said land; that the defendant did not nor would make and deliver the deed, but neglected and refused so to do.”
    The defendant craves oyer of the article of agreement, which is set out, and demurs to the several breaches assigned, claiming judgment because of their insufficiency. The common pleas gave judgment for the defendants on the demurrer.

      James R. Stanbery, for plaintiff in error.
    The ground for demurrer, as I understand it, is, that the defendant omits to aver, that the plaintiffs tendered to the defendant, the notes and mortgage for the purchase money of the land, at the time they requested of him a tender and delivery of the deed ; and this is designed to apply to all the breaches alleged in the declaration.
    In support of this demurrer, it is maintained, that the covenants of the agreement declared on, are dependent — that the acts to be performed by the plaintiffs and defendant, are concurrent acts, and neither party is éntitled to an action against the other, without the averment of performance or of a tender of performance on his part. That is, that the plaintiffs, in this declaration, should have distinctly stated, that they had prepared and executed the notes and mortgage for the purchase money agreed to be paid, and had tendered and offered the same, so prepared, to the defendant.
    But I contend that, according to the strict rules of pleading, as applicable to the covenants of this agreement, the averments of the declaration, are equivalent to an averment of performance on the part of the plaintiffs. The agreement provides, that upon or before the first day of September, 1844, the defendant will make a deed for the land sold to the plaintiffs, and the plaintiffs, on their part, agree that, upon the tender of the deed on that day, they will make and execute their bonds for the purchase money, with a mortgage on the land to be conveyed by the defendant, to secure them. The declaration avers, that the plaintiffs were, and always had been, ready and willing to execute the bonds and mortgage, upon the tender of a deed by the defendant; that, upon the day specified for the delivery of the deed, they demanded its delivery by the plaintiff, and offered to execute their bonds and mortgage ; but the defendant neglected and refused to comply on his part.
    The plaintiffs have done all it was in their power to do. The contract is, that the defendant shall, on a given day, make and tender a conveyance; and the plaintiffs, upon such a tender, are to secure the purchase money, by their bonds, together with a mortgage re-conveying the land to the defendant. Both acts are to be done at the same time, but they are not, strictly speaking, concurrent acts, nor are the covenants mutual and dependent; for, by the very language of the contract, there is an act to be done by the defendant, before the plaintiffs can make any movement at performance on .their part. A deed is to be executed by the defendant and tendered, and then, and not till then, are the plaintiffs to re-convey by way of mortgage. In the very nature of things, it was impossible that the plaintiffs could make or tender a mortgage of lands to which the defendant had title. They could not mortgage until the defendant had first conveyed. The prior performance by de fendant was essential to the performance by the plaintiffs; and it certainly could not be required, that the plaintiffs should tender performance of an act they could not perform, until the defendant had first executed the covenant on his part.
    But I further maintain that even if the covenants of the parties were different, and no mortgage was provided for, but that the defendant on his part was to make a deed, and the plaintiffs on the same day to give bonds for the purchase money, that, in that state of case, the averment of readiness and offer to performby the plaintiffs, coupled with a demand and refusal by the defendant, are sufficient, and said averments would excuse or be equivalent to an actual tender of performance. A tender, in the legal acceptation of that term, where, upon request, the party to whom it is made, gives notice that it is useless, and refuses to perform, would he a ceremony perfectly idle. Even in the case where money is to be paid, upon the performance of an act or the delivery of a specific article by the defendant, a readiness and present ability to pay, an offer of payment, and a refusal to receive by the defendant, dispenses with an actual production or counting of the money. Indeed it has been held, that the mere averment of readiness and willingness to pay for a specific article, agreed to be delivered, and a refusal to deliver, without averring an actual tender of price, is sufficient : vide Rawson and others v. Johnson, 1 East’s Rep. 203. This is a leading case on this subject. It is stated in the report of it, that it was an action on the case for breach of a contract, whereby the defendant undertook to sell and deliver to the plaintiff a certain quantity of malt at a given price. The declaration, or that count of it upon an objection to which the motion to arrest the judgment was founded, after stating the contract, averred, “ that although the plaintiffs after-wards, etc., requested the defendant to deliver the 100 qrs. of malt, and were then and there ready and willing to pay the said defendant for the same, and although the plaintiffs were then and there ready and willing, and offered to accept and receive the said malt, yet the defendant did not deliver the same, but refused, etc.”
    Lord Kenyon, in deciding the case, says: “ The defendant undertook to deliver the malt when he should be requested, and the plaintiffs plead, they made the request of him, and were ready and willing to have accepted and paid for it, but that he did not deliver it when requested, or. at any other-time, but refused to do so. To be sure, under this averment,, the plaintiffs must have proved, that they were prepared to tender and pay the money, if the defendant had been ready to have received it, and to have delivered the goods; but it cannot be necessary that in order to entitle them to bring their action, they should have gone through the useless ceremony of laying down the money, in order to take it up again. It would' be repugnant to common sense to require it.” The language of Le Blanc, J.,» in the same case, is equally explicit. He says, “ according to the cases which have been determined - on this question, neither of the parties was bound to do the first’act, or perform his part of the agreement be-, fore the other. If so, then neither can be bound to state that in pleading which is equivalent to performance. Now a tender and refusal has always been deemed equivalent to performance; therefore, as performance in this case was not necessary, neither was it necessary to aver that which was equivalent to it. But all that it is required of the plaintiffs tc show is, that they did every thing which they were bound in fact to do. Then if they show they were ready to pay the price, provided the defendant was ready to deliver the malt, that was all that was necessary for them to do, and consequently their pleading a readiness to perform, is equivalent to every thing they were bound to perform, where the defendant refused to perform his part.”
    See also the subsequent case of Waterhouse v. Skinner, 2 Bos. & Pul. 447, where the same doctrine is fully sustained, and which settles the.rule of law, “ that where two concurrent acts are to be done, the party who sues the other for nonperformance must aver, that he has performed, or was ready to perform, his part of the contract.”
    See also the note of Sergt. Williams to the case of Pordage v. Coke, 1 Saund. 320 (a), where all the authorities are fully collected. If, then, in the cases where money is to be paid, as the consideration of performance by the defendant, the mere proof of readiness to pay, and refusal to perform by the defendant, be sufficient to maintain the action, for a much stronger reason are the same averments (with the additional one of an “ offer ” to perform by the plaintiffs) sufficient in this case. But for authority upon the very point reserved, I would further cite the case of West v. Emmons, 5 J. R. 179, where, upon an almost precisely similar state of facts, the court rule, that the averment of readiness to execute the bond and mortgage are sufficient.

      C. C. Convers, for defendant.
    The declaration is defective. It avers that the plaintiffs only offered to execute and deliver to the defendant, the bond for the purchase money, and to make and execute the mortgage to secure its payment.
    An averment of a tender of the bond and mortgage — the securities themselves — is essential. These securities are, by the contract., substituted for the purchase money. The averment in the declaration in this case is as fatally defective as if, in case where the payment is required to be made in money, it were averred that the vendee offered to procure and pay the money.
    It is, in all cases, an essential element of a tender, that the party not only “ offer,” but that the offer be, at the same time, coupled with a, present ability, instantly, to pay. The party to whom the tender is to be made, is not bound to wait, while the other goes to provide the coin, or bank notes, or individual, notes, in whichsoever the payment is to be made. The party offering, must, at the time of his offer, be prepared with the medium of payment in hand — whether it be money, or notes, or other securities — so as to be able, at once, to pay it over to the other, if he be ready to accept the tender.
    Where, by the terms of the contract, as in the present case, the purchase money — or notes, or other securities in lieu thereof — is to be paid, and the conveyance to be made at the same time, neither party can maintain an action against the other, without showing such other in default. This, the party suing — if he have not already fully performed the contract on his part — can only do by showing that he has, himself, at the proper time, made prompt and full tender to the other party of all that, by the terms of the contract, such other was entitled to require.
    In the present case, before the defendant could be required to perform, the plaintiffs, when they demanded the deed, were bound to present, for his acceptance, the bond and mortgage — in esse — prepared and ready in hand, so that the instant he parted with the title, by delivery of his deed with the one hand, he might — eo instanti — with the other, lay hold of the securities. Neither party was bound to trust the other. Neither could be required to part with any right, unless, at the same time, he received what the other had stipulated to give in return for such right. Neither one, after being called upon to perform, is bound to wait for the other, while he goes about to provide himself with the means of full and complete performance. The party, who w-ould charge the other with default, must himself have gone so far in the way of performance, on his own part, that nothing remains to be done, so far as he is concerned, but the simple exchange of the money, or securities for the deed of conveyance. When he summons the other to strict performance — and in case of his failure to respond, subjects him to damages — he must have previously placed himself in such condition, that if the other had responded to his demand, he will not then be obliged to interrupt the instantaneous fulfillment, and ask for time to make himself ready to perform, by providing his money or securities.
    The plaintiffs should have done towards performance, before calling upon the defendant, all that they could do alone — every thing that did not require the co-operation of the defendant— and when having gone thus far, but not before, if the defendant refused, a right of action against him would have accrued.
    The plaintiffs, however, stopped far short of this. They had no bond or mortgage with them. Neither was yet in existence. They might have had both in hand, ready for delivery. But they chose, without any offer of the securities which they could themselves have prepared, to call upon the defendant for performance, when he could not have secured himself if, yielding to such call, he had then delivered the deed.
    The plaintiffs, therfore, having failed to aver, in their declaration, a proper tender of the bond and mortgage, the judgment in the common pleas — sustaining the demurrer — ought to be affirmed.
    The authorities fully sustain the judgment of that court: McCoy’s Adm’r v. Bixby, 6 Ohio Rep. 310 ; Dustan v. Newcomer, 8 Ohio Rep. 50 ; Sherdine v. Gaul, 2 Dallas’ Rep. 190; Breed v. Hurd, 6 Pickering Rep. 356 ; Otis v. Barton, 10 New Hamp. Rep. 433 ; Glasscott v. Day, 5 Esp. Rep. 48 ; Huxam v. Smith, 2 Camp. Rep. 21; Thomas v. Evans, 10 East’s Rep. 101; Bakeman v. Porter, 15 Wend. Rep. 637.
    I ask, therefore, an affirmance of the judgment of the court below.
   Avery, J.

On examining the article of agreement, we have deemed it important to remark upon such parts of it only, as are found in the statement of the case; and the averments of the declaration relating to these portions of the article, are all that require notice in deciding the present cause. Here are covenants to be performed by each of the parties. The defendant agrees to make and deliver to the plaintiffs, a deed for the land, on or before the first of September. The plaintiffs agree to execute and deliver to the defendant, their bond for the purchase money, and also, their mortgage to secure the payment of the bond. It is claimed, in behalf of the plaintiffs, that an offer by them to make the bond and mortgage, must be considered sufficient in the case, and that it is unreasonable and even absurd to require of a party to execute a mortgage upon land before he has a title to it.

But the plaintiffs have agreed to execute it, and they have not provided, by the express terms of the contract, that the deed to them shall be made first. The plaintiffs could have put themselves in readiness to perform, as well before the deed was offered, as after; and to give a mortgage upon this land, as well as upon other land then actually owned by them. They had access to the article, and could describe the land in a mortgage, as well as set it out in a declaration. The mortgage, also, so executed, would be valid, if the defendant should perform the agreement on his part. Performance of the covenant, on the part of the plaintiffs, would have been actually executing and delivering the bond and mortgage.

The covenants of these parties, respecting the deed, and the mortgage to secure the purchase money, being both to be performed on the same day, are dependent covenants, in which, according to a clear legal principle, performance can not be exacted from either party, as a condition precedent. Both, it is understood, must perform at the same time, neither being under any obligation to trust the other.

That these covenants are dependent, see 6 Ohio Rep. 310, Mc Coy’s Adm’r v. Bixbee’s Adm’rs; and 8 Ohio Rep. 49, Dustin v. Newcomer.

These eases determine, also, the effect of dependent coy enants upon the right of the parties, and settle what must be done by each before he can sue the other. The first case was upon covenants between Bixbee and McCoy, for the sale of land by one, and payment of the purchase money by the other, where the court pronounced the covenants mutual, and in which they say, if McCoy would show a good title to sue, on the covenant of Bixbee, he must aver, either that he has paid, or that he has tendered, and is ready and willing to pay.

The case in the 8th Ohio Rep. re-affirms the principles established in the 6th, and declares that, by the English practice, neither party can sue, without making his part of the contract a condition precedent; and that this rule is strictly adhered to by our courts in cases at law.

The case made according to the declaration before us is this : The parties meet on the day when the acts required of each in the article, are to be done; the defendant refuses to perform on his part, and therefore, the plaintiffs neither perform, nor tender performance. The consequence to the defendant of his neglect and refusal, is, that he can maintain no action at law for the purchase money, because he has neither delivered nor tendered a deed. Apply the same rule to both these dependent covenants, and the plaintiffs, who do not show themselves ready to perform by offering or tendering the bond and mortgage, cannot maintain this action for the deed.

Great strictness is required of a party to suit, who would avail himself of a tender or of an offer to perform. The American and English authorities are substantially alike in this respect. See 2 Dallas 190; 6 Pickering 356; 17 Mass. 389 ; 5 Espinasse 48; 10 East 101; 15 Wend. 637.

There is found in this article, in connection with the covenant, on the part of the plaintiffs, the following expressions: “ when the said deed is tendered to them,” they will execute, etc.; and it may be asked whether the character of the covenant is not changed by the introduction of these words. We think not; to tender the deed was precisely what the defendant was bound to do, to entitle himself to an action for the purchase money, if, by the neglect or refusal of the other party, he could not effect a delivery of it. The demurrer, in the opinion of the court, was well taken, and the judgment of the common pleas is affirmed.


author: Hitchcock, C. J.

text:
    In the matter of the accounts of E. N. Gregory’s Administrator.
    By the constitution of the state, exclusive jurisdiction in probate and testamentary matters is vested in the courts of common pleas, and the orders of those courts made in the progress of such matters, cannot be reviewed in the supreme court upon certiorari.
    This is a writ of certiorari to the Court of Common Pleas of Eranklin County, and comes before the court on a motion to-dismiss the writ.

      Henry Stanbery (attorney general), and P. B. Wilcox, in support of the motion.

      Swan and Andrews, contra.
   Hitchcock, C. J.

The question reserved for decision in this case, arises .upon a motion made to dismiss a certiorari,, which had been previously allowed, to reverse an order of the-court of common pleas, acting as a court of probate.

The transcript returned in obedience to the certiorari, shows that at a special session of the court of common-pleas of Franklin county, on the 13th of August, 1838, letters of administration were granted to Mary Eliza Gregory and Nehemiah Gregory, upon the estate of Edward N. Gregory, then late deceased. At the March term of the court, 1841, on motion of the creditors of the estate, it was ruled that Nehemiah Gregory, the administrator, file a full account in the particulars specified in the rule, the account to be filed in forty days from the rising of the court — afterwards in the next term of the court, Nehemiah Gregory, as surviving administrator, filed his account for partial settlement — at the February term, 1842, N. Gregory resigned his trust as administrator, and the court ordered letters of administration de bonis non to be issued to Anthony S. Chew, who accepted the trust — at the (September term of the court- in the same year by order of the court, the administration accounts of Nehemiah Gregory were referred to Warren Jenkins, as special master — at the May term of the court, 1843, the said master filed his report — at the May term, 1844, the court having examined the report, made an order that Gregory should appear before the master, and submit to an examination under oath touching the accounts. The transcript shows nothing further in the case until the April term of the court 184T, when E. Backus, the special master, filed a report, and the case was again referred to him to make a further examination, and report. It does not appear what disposition was made of the report of Jenkins, nor does it. appear-when or how Backus was appointed special master. The matter was further continued from term to term to afford an opportunity to file exceptions to the report. At -the February term, 1848, the matter was continued, and by consent of parties, Backus was authorized to amend his report, with leave to all parties interested, to except by the first day of the next term. A similar entry was made at the October term, 1848. At the March term, 1850, on motion, the report of Backus was set aside, the court being of opinion that as a court of probate, they could not in this manner settle the accounts between the admistrator de bonis non, and the former administrator.

Such is a summary statement of the matter as appears from the transcript, and the error complained of is, that the court set aside the report of Backus.

The motion to dismiss the certiorari, is based upon the ground that this court have not the constitutional power to interfere in matters of a testamentary and probate nature or character.

The second section of the third article of -the constitution provides “ that the supreme court shall consist of three judges, any two of whom shall be a quorum. They shall have original and appellate jurisdiction, both in common law and chancery, in such cases as shall be directed by law.” In the latter part of the section, provision is made, that after a certain period, the court may consist of four judges.

The third section of the same article has reference to the court of common pleas, and prescribes that that court “ shall have common law and chancery jurisdiction in all such cases as shall be directed by law.”

In another section, that is, the fifth, it is further prescribed that “ the court of common pleas, in each county, shall have jurisdiction of all probate and testamentary matter, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law.”

In view of these different provisions, this court, since my acquaintance with it, has uniformly held that jurisdiction in probate and testamentary matters, was exclusively in the court of common pleas. And that in the exercise of that jurisdiction, it could not be interfered with by this court. The furthest extent to which we have gone, has been to review the proceedings of that court, in orders made for the sale of the lands of an intestate for the payment of debts, and this has been done, alone upon the consideration, that under existing laws, proceedings in such cases, are somewhat in the nature of adversary proceedings or suits.

As the matters which we are now called upon to review', are purely of a probate character, in accordance with the uniform practice of this court, the writ of certiorari must be lismissed.


author: Caldwell, J.

text:
    Philo Chamberlain and another v. James Sawyer and others.
    A declaration averring the existence of a bond, and making profert thereof, ia not sustained by proof of a lost bond.
    Where the bond is lost after the declaration is filed, the plaintiff must amend.
    This is a writ of error to the Court of Common Pleas of Summit county.
    The action in the court below, was brought upon a bond for $7000, with a condition containing certain stipulations of indemnity, given by the plaintiffs in error to the defendants in error. The declaration is in debt, making profert of the bond. The defendants plead non est factum, with notice. On the trial of the cause, the plaintiffs did not produce the bond; but proved that a bond with a condition, properly set forth in the declaration, was destroyed in the great fire at Akron, in December, 1849, and rested their cause. The defendants moved for a non-suit, which motion the court overruled, and permitted the evidence to go to the jury. A verdict was returned for the plain tiffs, and judgment rendered thereon. The refusal of the court to grant a nonsuit, is assigned for error.

      Tilden & Bierce, for plaintiffs in error.

      Otis & Wolcott, for defendants.
   Caldwell, J.

The question presented for our consideration is, whether a party declaring on a bond or other instrument, as in existence, can sustain the declaration by proof of a lost instrument. The plaintiff declared on a bond in existence, he is bound to produce the bond on the trial, if it be in existence, and within his control. The declaration under which he offers his evidence, avers its existence, and we think he is bound by this averment, and that proof of a lost bond, will not sustain the declaration. Nor do we consider it a mere matter- of form.

In many cases the defense may depend solely on the pro duction of the writing declared on, as in cases where there are indorsements of payment or performance, on which the defendant may rely as a partial or complete defense, or when the execution of the instrument is denied: and many other cases might arise, where the defense might be rendered wholly unavailable by the non-production of the instrument.. Take the case in hand as an example. The issue joined was on the making of the bond, the plea of non est factum, not being sworn to, the bond on production would prove itself prima facia. But suppose the defendants wished to rebut this prima facia case, and had their witness in court, to* prove that the signatures were not those of defendants; if the bond were not produced, they could not avail themselves of the testimony of such witnesses. If the bond were not to be introduced on the trial, a different mode of proving the truth of the defense would have to be adopted. The defendants should therefore have notice of that fact.

If the bond be lost, before the bringing of the suit, the plaintiff should declare on it as a lost bond. If, as is said to be the fact in this case, the bond was lost after the declaration had been filed, the plaintiff should amend, so as to have his pleading conform to the evidence, to be presented on the trial.

This doctrine is very clearly laid down in the case of Smith et al. v. Woodward, 4 East’s Rep. 585.

We think the court erred in, admitting the evidence and refusing to grant the nonsuit. The judgment will therefore be reversed. We have not thought it necessary to pass on the other points in the case.

Judgment reversed.


text:
    William Bowrell v. Samuel Zigler.
    A judgment of an inferior court cannot be reversed on error, for any erroi committed by the court in its proceedings, after the rendition of the judgment.
    The imprisonment of a judgment debtor upon execution, operates as a satisfaction so long as the imprisonment continues, or if he is discharged from such imprisonment with the assent of the creditor; but if the debtor escape or is discharged without the assent of the creditor, it is not a satisfaction.
    This is a -writ of error to the Court of Common Pleas of Butler county.
    The transcript of proceedings, or copy of record from the ■court of common pleas, shows that a certiorari was issued from that court to John Morse, a justice of the peace, commanding him to certify into that court a copy of proceedings lately had before him, in a case in which Samuel Zigler was plaintiff, and William Bowrell was defendant.
    In observance to this writ the justice certified to the court a transcript, of which the following is a copy:
    Samuel Zigler I sujt bought on a due bill of which the Wiffiam*'Bowrell. j Mowing is a copy.
    One day after date I promise to pay unto Samuel Zigler, the full sum of seventy-five dollars, for value received of him, with six per cent, interest.
    William Bowrell.
    June 6th, 1848, defendant came forward and confessed that the note is just; therefore judgment was rendered for seventy-five dollars and costs of suit.
    June 6th, execution issued and directed to constable William S. Hile. Execution returned by constable Hile indorsed, served this writ on defendant by reading, June 10th 1848, no property found whereon to levy, returned July 1.
    William S. Hile, Constable.

      Upon the oath of Samuel Zigler execution issued July 3d, 1848, execution issued and directed to William S. Hile, constable. Execution returned by constable indorsed, July 3d, within named William Bowrell hath. not sufficient goods and chattels whereof to make the amount of this execution, and for want thereof I took his body and tendered the same at the jail of Butler county, to the person in charge thereof, who said he was authorized by the jailor to receive and confine persons, who refused to receive the same until he should be paid a fee of $3, and there being no one present on behalf of the plaintiff'to pay the same, after having waited a reasonable time, I left the prisoner at large.
    William S. Hile, Constable.
    Issued upon the oath of Samuel Zigler, John Brown, and James C. Beatty, execution.
    July 10th, 1848. Satisfaciendum issued and directed to constable William S. Hile.
    Satisfaciendum returned by constable Hile indorsed July 10th, 1848, no property found whereon to levy, and for want thereof, according to the command of this writ I have committed the within named defendant William Bowrell, to the jail of Butler county.
    September 5th, 1848. Execution issued and directed to constable Hile. September 8th,'1848, the said William Bowrell, by his attorney, came and moved the court to quash this writ of execution, in this case issued on the 10th day of July, 1848, and on the 5th day of September, 1848, for the following reasons, to wit:
    1. Because said first mentioned writ was issued without the proper affidavit and evidence.
    2. Because said first mentioned writ was issued after the judgment in this ease had been satisfied by the arrest of the said Bowrell’s body, and release of the same by the constable of said township, as shown in his return against the writ issued July 3d, 1848.

      3. Because said second writ was issued after the satisfaction of this judgment, as in the aforesaid second cause mentioned.
    4. Because both of said writs have been issued against the goods, chattels, property, and body of said Bowrell, after he was fully discharged from said debt, secured by said judgment.
    September 8th, 1848. And this motion having been fully considered by me, it is overruled.
    Execution returned by constable Hile, indorsed,’ September-7th 1848, served on defendant by reading, levied on one lot of oats in the stack, one fanning mill, etc.
    October 3d, 1818. Returned, proceedings overruled by the court.
    William S. Hile,. Constable.
    The proceedings stayed by the court of common pleas, until February term, 1849.
    I do hereby certify that the above is a true copy taken from my docket, this 22d day of January, 1849.
    John Morse, J. P.
    Upon the return of the transcript, Bowrell, at whose in stance the certiorari was issued, assigned the following errors:
    1. “ Said writ of capias issued July 10th, 1848, and said execution issued September 5th, 1848, were issued after the-judgment in this case was satisfied, by the imprisonment and discharge of said Bowrell’s body, on the writ of July 3d, 1848, as shown in the return of the writ of said constable.”
    2. “ Said justice erred in overruling the motion of defendant’s counsel, to quash said writ.”
    3. “ Neither of the writs aforesaid was legally issued, the. first having been issued without the proper afiidavit and evidence, and the second having been issued while the defendant was in custody on the first.”

      At the September term, 1849, the case was heard in the court of common pleas, and the judgment and proceedings before the justice were in all things affirmed, and that court ordered exe cution to be issued for the amount of said judgment and costs.
    To reverse the judgment of the court of common pleas this writ is prosecuted.

      Richardson and Brown, for plaintiff in error.

      Ryan and Milliken, for defendant.
   Hitchcock, C. J.

This case, so far as my experience is concerned, is somewhat novel in its character. The record shows that a judgment was rendered, by a justice of the peace, in favor of the defendant in certiorari, against the plaintiff, on the 6th June, 1848, and this judgment was rendered on con fession. There is no complaint that this judgment was erroneous, but still it is now sought to reverse it, because, as is claimed, the justice refused to quash certain executions subsequently issued upon it, and enter satisfaction upon the judgment. The errors assigned, are all alleged to have intervened subsequent to the judgment. Eor such error the judgment itself cannot be impeached.

It is, to say the least of it, extremely doubtful whether this plaintiff, admitting that he has been injured as alleged, could have redress by certiorari. The use of this writ in removing cases from a justice of the peace to the court of common pleas, is regulated by statute, and seems to be intended for those cases alone, where there is error in the proceedings and rendition of the judgment. It is used to remove cases from a justice’s court to the court of common pleas, in the same manner that a writ of error is used for removing cases from the court of common pleas to this court. The 61st section of the justice act, provides that if the judgment be affirmed, the case may be remanded to the justice for execution, “ or such court,” that is, .the court' of common pleas, may award execution, to carry into effect the judgment of such justice, in the same manner as if said judgment had been rendered in the court of common pleas. And the 62d section provides that if the judgment of the justice is reversed, the cause shall be retained for trial and final judgment, as in cases of appeal.” (Swan’s Stat. 616.)

But aside from these considerations, what are the pretended grounds of complaint ? The record shows that the judgment was rendered on the 6th day of June, 1848. On the same day execution was issued, and on the 10th day of the month returned not satisfied.

On the 3d of July, 1848, upon the oath of Zigler, the creditor, another execution was issued and delivered to the constable, and was by him returned the same day, indorsed by the constable that the debtor had not sufficient goods and chattels ; that for want thereof he “ took his body and tendered the same at the jail of Butler county, to the person in charge thereof, who said he was authorized by the jailor to receive and confine persons, who refused to receive the same until he should be paid a fee of three dollars, and there being no one present, on behalf of the plaintiff, to pay the same, after waiting a reasonable time,” he left the prisoner at large.

Now the question arises, was this such an imprisonment of the debtor as in law satisfies the debt. This is the principal point in controversy between these parties. We suppose where a creditor causes his debtor to be imprisoned on execution, while the imprisonment continues, it is a satisfaction. Or if the debtor is discharged with the assent of the creditor, it will operate as a satisfaction. But if the debtor escapes, or if he is discharged without the assent of the creditor, there is no satisfaction. In the case now under consideration, there was no assent on the part of the creditor. The constable having the debtor in custody, upon the refusal of the jailor to receive him into the jail, permitted him to go at large. He was never committed to prison. It was an escape.

If we are correct in this, it disposes of the case as to all the objections raised except this one, that the execution oi the 10th of July, was issued without any sufficient affidavit. Whether it were so or not the court of common pleas could not know, nor can this court know, from any thing apparent upon the record. It was an objection made by the attorney of the judgment debtor. The objection. was overruled by the justice. Upon this point there must have been evidence. The affidavit of the party and of the witnesses, must have been before the justice. Upon the evidence before the justice he must have decided. But no part of this evidence,was introduced into the transcript. No part of it was before the court of common pleas, nor is it before this court. How then could the court of common pleas say, or how can this court say, that the justice erred in the decision by. him made ?

Upon examination of the whole case, we cannot discover any error in the action of the court of common pleas, and the judgment of that court is affirmed with costs.


text:
    Harriet Peck and another v. Mark Clark and others.
    The statute of March 12, 1845, relating to state and county roads, and providing that county roads shall be vacated by non user for seven years, only applies to roads that have been authorized, but never opened.
    This is a writ of error to the Supreme Court for Summit county.
    The original action in the court of common pleas was for trespass to real estate. The defendants plead not guilty, and gave notice that one of the defendants, David Isabel, was supervisor of roads in the district where the lands were situated, and that the alleged trespasses were committed by-defendants under his direction, and whilst he was engaged in the performance of his official duty, and that no more in jury was done to the premises, than was necessarily attendant on removing obstructions put by the plaintiffs across a highway under his supervision. It appeared from the evidence in the ease, that the highway referred to ran’through the lands of plaintiffs, that it was laid out and opened as a county road in 1810, and was used as such until 1837, when plaintiffs obstructed it by building a fence across it, and that it had remained closed, until opened by the defendants, being a period of more than seven years. The plaintiffs on the trial in the court of common pleas, claimed that the road, having been closed for more than seven years, had thereby become vacated, under the provisions of the statute “ relating to state and county roads,” passed March 12th, 1845. The defendants asked the court to charge the jury that the statute above referred to, did not apply to a county road that had been opened and used as a public highway, but merely to a road that had been authorized, but never opened. The court of common pleas refused to give this charge, but did charge that the statute applied as well to a road that had been opened and used, as to one that had been merely ordered but never opened.
    • This charge was excepted to by the defendants, and a verdict having been returned for the plaintiffs, the defendants brought a writ of error to the supreme court on the circuit. The supreme court decided «that the charge of the common pleas as above set forth was erroneous, and on that account reversed the judgment. To reverse this judgment of the supreme court this writ of error is prosecuted.

      Otis and Wolcott, for plaintiffs in error.

      Hitchcock, Wilson & Wade, Carpenter Mc Clure, and D. R, Tilden, for defendants.
   Caldwell, J.

The only question presented to this court is, whether the statute of the 12th of March, 1845, refers merely to roads that have been authorized, but never opened, or whether it applies also to roads that have been opened and used. That statute reads as follows :

That any county road, or part thereof, which has heretofore, or may hereafter be authorized, which shall remain unopened for public use for the space of seven years, at any one time, after the order made, or authority granted for opening the same, shall be, and the same is hereby vacated, and. the authority granted for erecting the same is barred by lapse of time, and any state road or part of any state road which has heretofore, or may hereafter be authorized, which shall remain unopened for public use, for the space of ten years after the passage of the act authorizing the same, shall be vacated, and the authority for opening it repealed, for non user.”

We would remark in the first place that all the terms used to describe the road, are such as are strictly applicable to a road that has been authorized but not opened, and none of them would aptly describe a road that had been opened and used. It first speaks of a road that “ may hereafter be authorized, which shall remain unopened for public use, for the space of seven years,” not a road that shall be closed or obstructed. The seven years is not to commence from the time the road ceases to be used as a public highway, or from the time it may be obstructed; but from the time of the “ order made, or authority granted for opening the same.” Now if the statute applies to a road that has been opened and used, why date the seven years from the time of the authority granted for opening the road ? From the very nature of the case it becomes impossible to do so. Take the present case as an example. The seven years could not commence running until the obstruction was placed across the road, in 1837. How then could it in any way date from the authority granted for opening the road in 1810 ? It is admitted that so far as state roads are concerned, the statute refers to such roads as have never been opened or used; yet we do not see that there is any rational difference between the description of the two kinds of roads; the phraseology, although slightly different, is in substance the same. The time in the case of state roads is ten years, in place of seven ; but this is easily accounted for. A state road being longer than a county road, it required more time to open and prepare it for travel than a county road, and hence longer time should be given, from the time it is authorized, than in the case of a county road. The expression “ at any one time,” that is used in the case of county roads, is dwelt on by counsel for plaintiffs in error as making a difference between state and county roads. This phrase we suppose means continuously. It has no force as used in the connection in which it is, and had much better be left out; still it would be an objectionable mode of construction to do away with the force of all the other terms used in the statute, in order to make them conform to this single expression, which in either view of the case would be altogether unnecessary.

The terms used in the statute are só clear and explicit, that we think it can receive no other construction, than that it applies to roads authorized but never opened and used, and to no other. But if the meaning of the statute were doubtful, if it admitted of either construction, the- reason of the law is so apparent as to confine it to the construction which we have given. It would indeed be a singular anomaly in legislation, if the legislature, after passing a law making it a penal offense to obstruct a highway, should also pass a law by which a premium should be offered for committing such obstruction. If the construction coiitended for by counsel for plaintiff in error, were adopted, it would be an encouragement to persons over whose land the road might run, to close it up. If they could keep up the obstruction for seven years, they would get the use of the land over which the road ran; although every day previous to the expiration of the seven years, they would be liable to indict ment for such offense. Long before the passage of this law, and up to the present time, we had a statute making provisions for vacating a useless or unnecessary road that has been opened. Any person, at all acquainted with the situation of the country, will at once perceive the object and necessity of this statute. Many roads had been authorized through the country, that, from the difficulty and expense that would be attendant on their opening, or, in some instances, 'because they were not necessary, remained unopened. Persons were purchasing and improving lands,'over which these roads were to run; without knowing of their existence, other avenues of travel were, opened in the neighborhood, that, in many instances, supplied their place, and rendered them unnecessary, even if necessary when first authorized. Whenever a road, that had for a long time been in this situation, was attempted to be opened, great difficulty and disquietude were thereby produced, and the legislature, to obviate such difficulties, and presuming that a road that had been authorized, but not opened for so long a time, was unnecessary, passed this statute. We think the supreme court gave the proper con struction to the statute. The judgment will therefore be affirmed.


text:
    The Clinton Bank of Columbus v. Samuel M. Hart.
    A scire facias to make one who was named, but was not served with process, in the original suit, a party defendant to the judgment therein, will be bad on demurrer, if it show that no judgment could have been legally rendered against the defendant had he been served with process in the original case.
    Suits by banks are not within the meaning of the first section of the act of March 12th, 1844, “ to regulate the practice of judicial courts,” but said section has reference to suits by individuals only.
    Whether this section refers to suits, except upon indorsed paper : quere.

    This is a writ of error to the Court of Common Pleas of Fairfield county.
    The original- action was upon a promissory note, of which Jesse B. Hart, Samuel Crim, William Hart, and Samuel M. Hart, were charged as being the joint makers. Samuel M. Hart was named as defendant, in the process, but the sheriff returned as to him not found. This was noted in the declara'tion, and the case proceeded, against the other three defendants. Jesse B. Hart, one of the defendants, was in default for want of plea, and the issue joined upon the plea of Crim and William Hart, was found in favor of those defendants. The court of common pleas entered judgment against Jesse B. Hart, on default, for the amount due upon the note, and at the same time, entered judgment in favor of Crim and William Hart, upon the finding that they did not undertake and promise.
    A writ of scire facias was issued against Samuel M. Hart to make him a party to this judgment against Jesse B. To this scire facias, he interposed a demurrer. The demurrer was sustained in the court of common pleas, and to reverse the judgment of the common pleas in this behalf, this writ is prosecuted.

      H. H. Hunter, for plaintiff in error.

      Henry Stanbery, (attorney general,) for defendant.
   Hitchcock, C. J.

At common law, if two or more persons are charged as the joint makers of a promissory note, or the joint obligors in a bond, the plaintiff suing upon such note or bond cannot recover, unless all charged are found to be liable. If, upon trial, it shall be found by a court or jury, that one of the individuals charged, did not make the note or execute the bond, such finding, for the purposes of that action, must operate to discharge all the defendants, although it may so happen that all the other defendants are in default. If this be so, then it is apparent that the original judgment upon which the scire facias under consideration was issued, is erroneous. That judgment should have been in favor of all the defendants, whereas, in fact, it was against one of them.

But it is said that the defendant, Hart, who was not served with process in that case, and was not a party to the suit, cannot avail himself of that error, in the present proceeding. This is true. But if the record, which is the foundation of the scire facias, shows that no judgment could have been legally rendered against him had he been served with process in that case, it is a sufficient reason why he should not now be made a party to the judgment which was then pronounced. He cannot be placed in a worse situation, in consequence of not having been served with process, than if he had been served. He is-now entitled to the same defenses he could have made in the original suit.

In the opinion of the court, and proceeding upon the principles of the common law, no judgment could, with propriety, have been entered against the defendant, had he been a party in the original case, after it was found that two of the individuals, charged as joint makers with him of the note, were not makers. And as no judgment could have been rendered against him in the original suit, s so no judgment can be rendered against him upon the scire facias.

I do not understand that counsel for the plaintiff in error claims that, according to the principles of the common law, they would be entitled to a judgment against the defendant in the present case. But it is claimed that these principles have been changed by our own state legislation, and especially by the act of March 12, 1844, to regulate the practice of the judicial courts,” (42 O. L. 72.) This act prescribes that the holder of a promissory note, or bill of exchange, may commence a joint action for money had and received, against all the original makers and indorsers thereof, and recover against one or more, or against all the defendants, as the justice and law of the case, as disclosed on the trial, shall justify and require. On the part of the defendant in error, it is insisted that this statute can have no influence upon the case, because the plaintiff in this case is a bank, and also because, although the plaintiff had been an individual, still the case is not within the statute, inasmuch as the defendants were not charged as makers and indorsers, but merely as joint makers of the note in suit.

The points raised are important, and require a careful examination of the legislation of the state upon the subject. It is believed that but three statutes have been enacted, parts of which bear upon it; at least but three have been referred to. The first is the act of January 28, 1824 (Swan’s Statutes 147), to regulate judicial proceedings, where banks and bankers are parties.” The ninth section of this act provides “ that when any sum of money, due and owing to any bank or banker, shall be secured by indorsement on the bill, note, or obligation for the same, it shall be lawful for such bank or banker, to bring a joint action against all the drawers and indorsers; in which action the plaintiff or plaintiffs may declare against the defendants for money lent and advanced, and may obtain a joint judgment and execution for the amount found to be due; and each defendant may make the same separate defense against such action, either by plea or upon trial, that he could have made upon a separate action; and if in the case herein provided for, the bank or banker shall institute separate actions against the drawers and indorsers, such bank shall recover no costs.”

The object of this section is manifest. It was to prevent multiplicity of , suits and accumulation of cost. Previous to its enactment, separate suits might be brought against drawers and indorsers, and separate suits against each indorser. This was an evil, and to remedy this evil the law was changed. This law, however, had no reference to any other than indorsed paper. It would not be applicable to the makers of a note payable directly to the bank, although those notes might be joint, or joint and several. Perhaps the reason of confining this mode of proceeding to indorsed paper might be, that at that day, banks were not in the habit of receiving paper payable directly to themselves. With respect to such paper, if any existed, the bank must sue as at common law, and the case must be determined upon the principles of the common law. If defendants were charged jointly, the recovery must be against them jointly, or there could be no recovery. Neither had the law reference to suits by individuals — these were left as before, to commence suits joint or separate, according to the nature of the contract upon which suit was commenced. This law was in force at the time .of the enactment of the law of 1844, before referred to— and until that time a different rule was prescribed to banks and to individuals, relative to the commencement of certain classes of cases. It continued in force until March 8th, 1845, when it was repealed by an act with a similar title, (43 Ohio L. 67.) This latter act contained a provision substantially the same as the 9th section of the act repealed.

The second section is as follows: “ In actions by incorporated banks, on notes, bonds, or bills, transferred to such bank by indorsement, the bank may sue the. makers, or drawers and indorsers jointly, and declare against them for money loaned and advanced, and file with the declaration a copy, or pertinent description of the note, bond, or bill, upon which suit is brought, with the indorsements thereon, and upon trial, give such note, bond, or bill, with the indorsement or indorsements thereon, in evidence, and have judgment against all the defendants upon whom process shall have been served, jointly, for the amount due' thereon, and in all such cases the defendants may plead and defend jointly, or severally; provided, that if the summons or capias shall be returned, in any such case, as to some of the defendants served, and as to one or more, not served, the plaintiff may have a separate action upon such bond, note, or bill, against such defendants as have not been served with process, for the amount due therein, and proceed in such action, in the same manner as if no joint action had been brought; provided, also, that if separate suits are brought in the first instance, the bank shall not recover costs.”

This does not vary essentially from the ninth section of the act of 1824, but it dispenses entirely with the scire facias to make a party who had not been served with process, although named in the writ, a party to the judgment, and authorizes a different mode of proceeding to effect, in substance,, the same object.

This law still continues in force, so that in fact, since 1824, we have had a law, prescribing a different mode of proceeding upon indorsed paper, where a bank is a party, and where an individual is a party, unless that distinction is done away by the law of 1844.

This law of 1844, is entitled an act “ to regulate the practice of judicial courts.” (42 Ohio L. 72.)

In the first section it is enacted, “ that in all actions, brought by the lawful holder of any promissory note, due bill, or bill of exchange, the plaintiff or plaintiffs may commence, and prosecute a joint action for money had and received, against all the original makers and indorsers thereof, and may give such note or bill in evidence, and each of the defendants may plead separate pleas and make separate defenses, and if upon the trial, any one or more of the defendants should make a successful defense, the court may never theless render a judgment against the balance of said defendants, and if any holder of any note, due bill, or bill of exchange, shall commence and prosecute separate actions, against such makers or indorsers, he shall not recover costs in more than one of such actions.”

A question is raised whether a note not indorsed 'would come within the provisions of this enactment, and upon the solution of this question we do not concur in opinion. The first - part of the section requires or authorizes joint actions “ against all the original makers and indorsers,” clearly indicating that indorsed notes, were the instruments within the legislative mind. But towards the close of the section, where the penalty, if so it may be called, is prescribed for bringing separate actions, the phraseology is, “ shall commence and prosecute separate actions against such maker, or indorsers, he shall not recover costs,” etc. If the conjunction “ and” had been substituted in place of or,” between the words “ makers ” and “ indorsers,” there could have been no doubt upon the subject; as it is, there is room for doubt as to the intention. Still there is precisely the same difficulty in the act of 1824, regulating proceedings where banks are parties, with this difference, the conjunction “or” is used in the first part of the section, the conjunction “ and ” in the latter part. “ It shall be lawful for such bank or banker to bring a joint action against all the drawers or indorsers.” Indicating that all the drawers, or all the indorsers, must ■ be sued in one action. It is subsequently provided, however, “ that if the bank or banker shall institute separate actions against the drawers ‘ and indorsers ’ such bank or banker shall recover no-costs.” Notwithstanding this discrepancy, I believe it has never been doubted that the intention of the statute, was to authorize, nay to require, joint actions against drawers and indorsers.

Why was this act of 1844 passed, and was it intended to-apply to banks and bankers ? The expression used is, “ any lawful holder of a note.” Now a bank may be a “ lawful holder of a note,” and had there been no previous legislation upon the subject, we should -probably have come to the conclusion, that the act was intended to apply to banks as well as to individuals. But so far as banks are concerned, no such legislation was necessary. For twenty years previous to 'the enactment of this law, banks were required to sue precisely as “ the lawful holder of a note ” is required to sue by this law. We suppose the primary, nay, the sole object of the legislature, in this enactment of 1844, was to prevent multiplicity of .suits, and accumulation of costs, in cases where individuals commenced actions. The intention w,as to prescribe to individuals, the same rules which had been previously prescribed to banks. The law of 1824, was left as it stood before — there was no change in it. Besides, if in this statute, the legislature intended to provide for the prosecution of suits by banks, as being lawful holders of notes,” why, at the very next session, did that body revive and re-enact the law of 1824 ?

After full consideration, we have been brought to the conclusion, that suits by banks are not within the meaning and purview of the act of 1844. That banks in commencing suits are to be controlled by the law of 1824, or rather by that law as re-enacted in 1845. That these laws, neither of them, prescribe the mode of proceeding, except upon in dorsed paper. That upon notes payable directly to banks they must sue as if there were no statutory provisions — and that in such cases the rules of the common law must prevail.

Judgment of the Court of Common Pleas affirmed.