author: *Birohard, J.

text:
    William P. Darst v. Robert J. Brockway, Horace Baldwin, Walter D. Herrick, and Erastus Webb.
    Belief will he afforded, in a court of equity, against the payment of notes-given for a void patent right.
    Money paid on such notes may, on the ground of failure of consideration, he recovered hack.
    An injunction will he allowed against the collection of such notes as may he outstanding and in the hands of the vendors of the patent right.
    This is a bill in chancery from Pickaway county.
    On March 3, 1837, the complainant executed to the defendants four several promissory notes for 35375 each, payable, with interest, on March 1, 1838, 1839, 1840, 1841, in consideration of certain patent rights assigned to him. At the time he executed the notes, complainant received an assignment in these words: “This indenture, made this 3d day of March, a. d. 1837. between R. J. Brockway, H. Baldwin, W. D. Herrick, and E. Webb, parties of the first part, and William P. Darst of the second part, witnesseth : That the parties of the first part, *for and in consideration of the sum of $1,500, to them in hand paid by the said parties of the second part, the receipt whereof is hereby acknowledged, have, and by these presents do grant, bargain, and sell unto the party of the second part, his heirs and assigns, the use of the American cement, as patented to Obadiah Parker, for making cisterns, and as patented to Samuel Booth, for making cisterns, and as patented to Horace J. Shumway, for making cisterns, cider vats, tanners’ vats, vaults, and reservoirs of all kinds for the purpose of holding large quantities of water or liquors; also, the right of selling or of any way disposing of the right to use said cement, under and by virtue of either of the above patents, as described, in the counties of Putnam, Peoria, Fulton, Schuyler, Iroquois, McLean, Champaign, Macon, Yer-million, Edgar, Clark, Coles, and Shelby, in the State of Illinois, as per Mitchel’s pocket-map of 1835, as fully as we can own the same.

    “ R. J. Brookwat, [seal.]
    H. Baldwin, [seal.]
    W. D. Herrick, [seal.]
    E. Webb, [seal.]
    “ By their agent, B. J. Brockway.”

    “ Signed, sealed, and delivered in presence of S. A. Moore.”
    The bill alleges that, at the time the notes were executed, the-defendants represented that valid and legal patents had been granted to the several individuals named as patentees, securing to-them under, and in pursuance of, the laws of the United States, the right to use, and vend to others to be used, the article called American cement as described in their respective patents. It avers that no valid patents were in fact issued; but, on the contrary, the patents claimed by the defendants were void.
    The bill sets forth that two of the notes, given on the purchase of the patent rights, were assigned by the defendants, and complainant has been compelled to pay the amount thereof to the assignee. The prayer is, that the notes, still held by defendants,, may be given up and canceled, that the money already paid by complainant may be refunded, and for general relief.
    *The defendants, in their answer, deny that any representations were made at the time the notes were given, other than are contained in the instrument of assignment by them executed.
    They insist that legal and valid patents were issued, under the-laws of the United States, to Samuel Booth, Obadiah Parker, and Horace J. Shumway, copies of which they set forth, viz:
    1. Patent to Samuel Booth, August 20, 1833, for “ a new and useful improvement in constructing the water cistern.”
    2. Patent to Horace J. Shumway, dated November 19, 1833, for
    a new and useful improvement in making water cisterns, cider
    vats or cisterns, salt vats or reservoirs, fish ponds, tanners’ vats, and such other cisterns, vats, vaults, reservoirs, etc., as may be necessary for holding large quantities of liquids.”
    3. Patent to Obadiah Parker, September 15, 1834, for “ a now and useful improvement on Samuel Booth’s patent for constructing water cisterns.”
    To these patent rights for the territory sold to complainant, the ■defendants claim title by various assignments, set forth in their answer.
    Much testimony was taken in reference to the use and novelty, and other merits of the pretended inventions, the material parts whereof are stated in the opinion of the court.
    H. H. Hunter and H. Stanbery, for complainant:
    The patent rights, sold by defendants to the complainant, are void:
    I. Because the cement was previously known and in use for the ■same purposes.
    .2. Because the cement had been previously known and described, in various prints and public works, before the issuing of the patent.
    3. Because various things are included in the specifications which were not discovered, nor first applied to use by the patentees.
    *4. Because the pretended discoveries were neither new nor useful, but were frivolous, Evans v. Eaton, 7 Wheat. 356; 5 Cond. Rep. 307; Phil, on Pat. 272; Lowell v. Lewis, 1 Mason, 189; 5 Conn. 307; and the patents being void, the consideration for complainants’ notes has failed, and he is entitled to relief against them. Jones et al. v. Ryle, 5 Taunt. 486; Fuller et al. v. Smith et al., 21 Eng. C. L. 379; Wilkinson et al. v. Johnson et al., 10 Eng. C. L. 140; Hayne v. Maltby, 3 Term, 438; Earle v. Page, 6 N. H. 477.
    The complainant is not precluded by the clause in the assignment professing to limit the title sold to the extent possessed by the defendants, because if that clause be not fraudulent, yet patent zúghts are chattels, and every vendor of a chattel does warrant his own title. ' *
    Joseph Olds and B. E. Leonard, for defendants,
    insisted that the patents were valid. 1 Sumn. 485. The complainant acquired by the assignment a good title to the rights intended to be sold, and had a fair consideration for his notes.
    But were they invalid the proofs show no case of fraud, but only of mutual ignorance and mistake in both parties, against which equity will furnish no relief. The complainant having given his negotiable notes, which were, in fact, negotiated and put off, the case becomes in the nature of an executed contract.
    There was neither fraud nor warranty by defendants, and where, on a sale without fraud or warranty, money is paid, it can not, on the ground of failure of consideration, be recovered back.
    They cited Seixas v. Wood, 2 Caine, 48, and cases there cited; Chandler v. Lopus, Cro. Jac. 4; Bree v. Holbeck, Doug. 655; Taylor v. Hare, 4 Bos. & Pul. 260 ; 1 Mass. 65.
    Whatever defects might have existed in the patents, they may be cured under the act of Congress, passed March 3, 1837. 4 Story’s U. S. L. 2549.
   *Birohard, J.

The questions involved in this case are not without difficulty. Although the legal principles embraced in the inquiry may not seem either numerous or difficult, they still are questions not very common to the courts of this state, and their proper application to any given state of facts is far less familiar than principles which, in themselves, are equally difficult, but of more frequent use.

As to what is the law of patents, we have safe guides in the numerous decisions of the courts of the United States; and for the pui'pose of applying the proof in the case with propriety, it may be well to bear in mind that the following leading principles have been authoritatively settled in construing the act of Congress, under which these thz*ee patents were granted:

1. A patent will be void if the thing patented had been in use, or had been described anterior to the supposed discovery.

2. If it include things both new and old.

3. If it be for a mere change of former proportions.

4. It' it be for an effect only.

5. If the same effects were all produced by the application of machinery in separate parts, and the party merely combined them together, or added a new.

6. If it be frivolous or inapplicable to any beneficial use in society.

7. If it be for an improvement, the specification must state specifically in what it consists, and be limited to that; for if it be obscure or doubtful, so that the court can not say which is the particular improvement, and to what it is limited, it is void for ambiguity.

8. If it be for making an old thing out of new materials.

Trying the patents before us with these rules, the first in order of time is to S. Booth, dated August 20, 1833, “ for an improvement in constructing the water cistern.”

After specifying his improvement in terms, by describing things, which, as he claims, are both old and new, he gives this limit to his claim, viz :

*“ The before-described mode of constructing a hydraulic cement cistern, upon a rough wooden stock set up in the pit, without head or hoop, or being jointed, depending entirely upon the cement alone to hold the water.”

The whole specification describes at length, and minutely, the digging of a pit, and setting up staves loosely, and the filling them back with earth, laying a brick bottom, and covering the whole with cement.

Now, so far as the cement, as a material of construction, is concerned, or the digging of the pit, or the plastering on wood, or the making of a cistern of water-lime, or the dependence upon the water-lime alone, to hold the water, is concerned, the proof is clear, that all this was before known. There is here no new discovery.

Is there anything new in putting up the walls of these cisterns of wood ? The proof shows, that walls had, before the date of this alleged discovery, been constructed in this precise form of brick and other materials ; and that this improvement, that is, the pretended new part of it, consists merely in the substitution of one material for another, which is not patentable.

In a letter published in the Utica Almanac, August 15,1820, the writer describes the water-lime, and, among other things, says, “that Judge Wright and Dr. Barrow, think, ‘that as it will adhere to shingles and boards as firmly'as to stone, it may constitute a covering for houses,’ impenetrable to rain, etc. That it will prove useful in forming floors for dairies, cellars, kitchens, etc., and in the construction of “ cisterns for holding water.”

It will be difficult for an ingenious mind, after reading this, to point to a new principle in this patent, which had not been before ■described or known, or to say in what his improvement consists.' It covers too much.

The patentee may not have been aware of it, but still he was not, as he supposed, the discoverer of anything that he claims. We are unanimously of opinion that this patent is void.

*The nest in order is H. J. Shumway’s patent, dated Norembor 19, 1833, for “ a new and useful improvement in making water cisterns, cider vats,” etc.

After giving his specifications at length, he sums up his invention, and thereby restricts bis claim, as follows :

“ 1. For plastering on earthy walls, instead of stone, brick, or wood, as heretofore or now practiced, and building water cisterns, which water may pass through, and be fitted to all uses:
“ 2. For applying said cement to the constructing and building of cider cisterns or vaults, tanners’ vats, salt vats, fish ponds, and other vaults and reservoirs for holding large quantities of liquids, for which said cement has not been used or known.
“ 3. For the use of gravel, to stiffen or harden the mortar, which has not been heretofore used in the manner above specified, or in any other, to form a cement, or to stiffen the mortar.”

Now. all of these things are included in the patent, and claimed to be Shumway’s new discovery.

■ The right must be maintained to the whole, or his patent covers too much, and is void. On this point, the evidence does not leave us in doubt. His claim for plastering on earthy walls was not new, nor a discovery by him. Joseph A. Roof testifies, that he had a cistern constructed in 1828, at Hagerstown, and the plastering was on an earthy surface; other witnesses corroborate him, establishing this fact. This, therefore, vitiates the whole patent.

But his second ground of claim is not less vicious. For he does not attempt to set forth how he will apply his cement to cider cisterns, and the other vessels named, so that the court, or a meehanic, or the public, could, by possibility, form any judgment whatever, whether it be new or old.

Now it is well known that water-lime has been applied to the construction of vats and cisterns for centuries. That its application in this manner was known to the eastern nations, before the discovery of Columbus; and, for aught we know, *they may have made use of them for holding large quantities of various kinds of liquids, precisely in the manner intended by the patentee. Mr. Shumway should have stated particularly his manner of using .this cement, in order to enable the public to determine the novelty of his supposed discovery, and to use what was before known without coming in conflict with his invention ; and also to enable courts and juries to judge whether he had embraced that to which he had no exclusive claim. His specification is silent on this point. This silence is fatal to the patent. It is probable that a minute description would have been equally fatal, by showing that no part of this claim was new.

His third claim is for the discovery of the use of gravel to stiffen the mortar, which the specification describes thus: “If, by means of springs or other causes, greater consistency of mortar is required than can be easily obtained by the mixture of water-lime, sand, and water, gravel may be used, either mixed with the mortar or sprinkled on, after having been plastered.” Were thin not a false claim, it would be difficult for a court to fell, from the» description, wherein this mode differs from the common mode of stiffening mortar by the use of sand and gravel, familiarly known to every mason who has lived within the last century; and this ambiguity also renders void this patent.

The third and last patent is Obadiah Parker’s, dated September 15, 1834, for a new and useful improvement on Samuel Booth’s patent, first above mentioned.

After specifying what his improvement is, he sums up and limits his patent in these words: “In forming and making the cistern of hydraulic cement, without having any wood or perishable matter left about it, and in the manner above specified, by the means of molds for the body and top, thereby making a more firm and perfect cistern, it being a complete jar; also in making it above ground, and as an improvement on said Booth’s patent.’’

The specification is lengthy, but its substance may be abbreviated. It consists, if the cistern is to be situated below the ^earth’s surface, of plastering on the outside of a mold placed in the pit, so as to form the circumference of the cistern, and then filling back with earth, and removing the mold. If to be constructed above ground, by using a mold, which, when the mortar is hard, is to be removed.

That this invention is not new is shown by the testimony of G-eorge Olden, who knew water-lime, prior to 1834, to' have been used in constructing cisterns, both above and below ground, for plastering houses, making tombstones; and Dr. G-eorge Boerstler has seen it used in like manner, and for troughs, trunks of mills, etc. But these witnesses have seen it used upon brick, plank, or stone, without the perishable matter about it, so that it would, perhaps, be difficult to say from this testimony alone, that Parker had not made a new discovery in ascertaining that the cement alone might be depended on for forming the walls of the cistern. But when we look back at Booth’s patent, which is prior in time, we find him claiming also this identical principle. It is described in Booth’s patent, though not claimed, so as to be included in it. Although Parker disclaims anything which was patented to Booth, the fact is fatal to his patent, for he could not claim to be the discoverer of what was before known or described. It is not a more firm or perfect system than Booth’s, when his wood has rotted away. And were it not that Parker proposes to remove his wooden mold, before rotting, and Booth proposes to remove it by rotting, the difference between their cisterns, when constructed below ground, would be simply this, the one builds his cistern within his mold, the other without it, which, in point of principle, looks very like a frivolous matter.

Were this, however, insufficient to show the invalidity of the patent, there is, in the last clause, an exclusive claim set up to the-right of making cisterns above ground. This he is not entitled to,'if, as we are bound, we believe the witnesses, who had, years before, seen and- erected above the surface.

He claimed too much when he sought to appropriate that locality to himself, and was guilty of false suggestion.

*Then, if there be anything new in the whole matter, it is mixed up promiscuously with the old, rendering the patent void for ambiguity, and void, because it includes more than the discovery.

The patents being disposed of, the question turns upon complainant’s right to the relief sought. We are of opinion that the right is clear.

The notes given were negotiable; the consideration failed; and, though there may have been no fraud in fact, there was, in legal contemplation, a fraud committed, whore rights, in patents obtained upon a false suggestion, were sold, and transferred for a valuable consideration, to a person without knowledge of the facts. The notes, also, were liable to be so negotiated as to defeat all just equities, and bar a defense at law. Under such circumstances, a resort to a court of equity, without waiting a suit at law, or for the notes to be passed to bona fide holders, was justifiable. Having acquired jurisdiction for a lawful purpose, a court of equity will retain the cause, and do full justice between the parties. Some of the negotiable notes were assigned before they became due, and before the institution of this suit, to innocent purchasers, and have been paid by complainant, to the holders, since the suit was commenced. It is urged that a recovery back should not be had. We think the authorities are otherwise. It is a general principle, that when money, or other valuable, has been paid on a consideration which has entirely failed, it may be recovered back; that, in sales of personal property, there is an implied warranty that the vendor has title to the property. Hero, then, the defendant undertook to sell rights, as conferred by patents. A patent, if valid, confers .an exclusive right to use, vend, etc., and the dealers in such property (unless expressly stipulating to the contrary), ought ever to be held to the same implications which the law raises against the vendor of any species of personal property.

Decree for complainant.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    *William Sargent v. The State of Ohio.
    After a jury have returned their verdict, have been discharged, and have separated, they can not be recalled to alter or amend it.
    In criminal cases, the verdict should be received in the presence of the prisoner, that he may have the jury polled.
    The court may, and, in some cases, ought to keep the jury together until their verdict is rendered, and should require the sheriff to furnish them with proper accommodations, and keep them in close custody.

      This is a writ of error to the court of common pleas of San-dusky county.
    The plaintiff in error was indicted upon two counts; in the-first, ■for uttering and publishing a counterfeit bank bill; in the second, for an attempt to utter and publish said bill. The record shows that, at the September term, the prisoner was put upon his trial. 'The cause being submitted to the jury, they retired to their room and returned in the evening, after adjournment of court, with a sealed verdict, which was delivered to one of the associate judges, and the jury wore discharged. Upon opening the verdict in court next morning, it appeared to be signed by the jurors^ .and was in these words: “We, the jurors, find the defendant .guilty on the first count.”
    The court proceeding to enter the verdict, the prisoner’s counsel ■objected to any entry as to the second count. The court suggested that “ not guilty ” might be entered upon that count. The counsel still objecting, the court directed the jury to be called. Upon their appearing, they were asked if they found the prisoner not guilty on the second count, but guilty only on the first. The jury answered that they considered finding him guilty on the first count was finding him guilty also on the second, and that they intended a general verdict of guilty. The court thereupon ■ordered a general verdict of guilty on the indictment to bo entered.
    *A bill of exceptions was thereupon taken. It is assigned on the record for error:
    “ 1. That the jury did not render a verdict upon the whole indictment, but only upon one count, and that the court erred in recalling the jury to give a verdict upon the second count after they had been discharged and had dispersed.
    “ 2. That the court also erred in receiving a general verdict of guilty after the jury had returned their verdict upon the first count.
    “ 3. And in rendering judgment upon a verdict given after the jury had been discharged and were dispersed.”
    William Mat, for the plaintiff in error.
    S. B. Otis, for the state.
   Read, J.

In both civil and criminal cases, the court may, in -their discretion, during the progress of a trial, permit the jury to •disperse for the purpose of obtaining food and rest, and may in either ease direct them to bring in a sealed verdict; but in no case can the jury after they have retired to consider of their verdict, be permitted to separate and disperse until they have agreed. In criminal cases, although the court direct the jury to bring in a. sealed verdict, the whole jury must be present at the time of its delivery, in the presence of the prisoner, that they may be polled, if the prisoner desires it. A single judge may; also, in the presence-of the prisoner, receive the verdict. After the verdict has been received and the jury discharged, whether it may have been received by a single judge or in open court, the control of the jury and of the court over such verdict is at an end. The court cannot alter it, nor can the jury be recalled to alter or amend it. As-well might any other twelve men be called to alter it, as the men who were jurors. The office of a juror is discharged upon the-acceptance of his verdict by the court.

In Oliver’s work upon the rights of American citizens, 284, it is said, “after the trial is over and the verdict is once recorded,. ’■'■there seems to be no remedy, even though the jury have made a mistake in their finding, and make an affidavit to that effect. For all mistakes ought to be corrected at the time of trial, and before the verdict is recorded. Courts will not listen to the representations of jurors, contrary to their verdict.”

In the case of the United States v. William Keen, 1 McLean, 429, the indictment contained five counts. The jury found the-defendant guilty upon the last four, but did not pass upon the first. The court held that the verdict could not be amended so far as to-enter not guilty upon the first count, nor amended at all. Judgment, however, was rendered against the prisoner upon the counts-on which he was found guilty, the prosecutor being permitted to enter a nolle prosequi upon the first count. The court held that this could be done without subjecting the prisoner to a second trial upon that count, as the conviction upon the other counts could be plead in bar. Although in modern times the ancient strictness-has yielded to & more enlightened reason, yet no rule tending to insure the impartial administration of justice and the purity of jurors has in the slightest degree been abandoned or impaired. In case of persons charged with high misdemeanors, or when excitement prevails, or when there is any just reason to suspect that improper influences may be brought to bear upon the jury, the court are at liberty, and, in the last-named instance, it would be their duty, not to permit the jury to separate at any time during the trial, up to the time of rendering their verdict, but to direct the sheriff to furnish them proper comforts and keep them in close custody. These matters are wholly committed to the sound discretion of the court, but in no case can it be permitted to recall a jury to alter or amend their verdict after it has been received and the jury discharged. This would jeopardize the jealous guards with which the law has surrounded jurors, to insure the pure administration of. justice, and to protect the citizen.

Judgment reversed.


author: Lane, C. J.

text:
    *The Lessee of Frederick Kinsman v. Loomis and Wood.
    A conveyance -without warranty works no estoppel to the grantor who afterward acquires title.
    A person defending his possession on no other ground than that one of the grantors in the series of deeds had no title, is hound by the recitals of the deed, to the same extent as if he were privy to the grantor.
    Where a deed for land in Ohio was made in the State of Connecticut,- and thero acknowledged before an associate justice of the common pleas of the county in which the land was situated, the acknowledgment is sufficient.
    This was an action of ejectment, from Lake county.
    The plaintiff counts upon a demise from three of the four heirs ■of John Kinsman, and upon a demise from Jabez Adams. The •defendant shows no other title than the possession. The plaintiff’s right to recover something is admitted, and the point in dispute is, for what quantity judgment shall be taken.
    The case was argued by Webb, Perkins and Osborn, for plaintiffs, and by Hitchcock and Wilder, for defendant.
    The facts and points will be found in the opinion of the court.
   Lane, C. J.

In 1796, an association of persons, calling themselves the Connecticut Land Company, purchased of the State of ■Connecticut, for the price of $1,200,000, all the land, except the western half million acres, which the state owned within the present limits of Ohio. By the arrangements of the company, the title was vested in three trustees, to hold until partition should be made, and to convey to each proprietor, after partition, in the1 proportion which each had advanced, to make up the consideration.

On October 7, 1800, the trustees of the Connecticut Land Company made conveyances to certain of the proprietors, of whom are Kinsman, Swift, and J. and A. Adams, of portions of the land held by them, among which is lot No. 95, embracing the premises now in dispute. To that portion, which ^passed by this deed to Jabez Adams, and three-fourths of the share of Kinsman, the plaintiff shows a good title, exeept only for what may be deducted on account of a tax sale, which will be referred to hereafter.

But the plaintiff claims the further interest of Swift. Swift was a proprietor in the Connecticut Land Company. In 1798, Swift, Kinsman, J. and A. Adams, and a number of the other proprietors in this company, whose shares amounted, collectively, to $84,000, formed a separate association, under the name of the Erie Land Company. The members of .the Erie Land Company entered into a deed of indenture with certain trustees, in which they recited that the trustees of the Connecticut Land Company had conveyed to them their respective shares, and that they associated themselves together for the more convenient management of their property, under the name of the Erie Land Company; and in carrying their scheme into execution, they thereupon proceed to-convey their respective interests to certain persons to hold as trustees of the Erie Land Company.

This association dissolved itself in 1801, and on the 21st of April in that year, the trustees of the Erie Land Company, retransferring the estate they held in trust, made a deed to Swift, in which they recited that partition had been made, and they thereupon conveyed to him, without warranty, his due proportion of the land. This deed purported to be made in Connecticut, and to be acknowledged before Camden Clcaveland, “ one of tho justices of the court of common pleas of the county of Trumbull, in the Northwestern Territory.”

In 1803, Swift conveyed to Kinsman whatever he acquired! under the last-described deed. The right to recover this interest of Swift in this action depends, therefore, upon determining the nature and extent of the estate, which the trustees of the Erie Land Company had and transmitted to him.

The defendants insist that nothing passed to Swift by this deed, because the trustees of the Erie Land Company had not themselves, at that time, acquired a legal title. The individuals composing that association conveyed to their trustees in *1798; but the legal title was then held by the trustees of the Connecticut Land Company, from whom it did not pass until 1800. This objection well lies; the deed of 1798, made by those who have no legal title, and being a release without warranty, transfers no legal interest, although the grantor should afterward acquire a legal title; for a release, where no estoppel arises from warranty or otherwise, operates only on their existing rights.

The plaintiff relies upon evidence of legal title, from the production of “the drafts,” or “the book of drafts.” While the title of the Western Reserve was with the trustees of the Connecticut Land Company, a plan of division was adopted, the names of the proprietors were arranged in classes, and an appropriation of land was “ drawn” for each class, after the form of drawing a lottery. This act of the association, which affects all the land lying within the territory, held under this title, and embracing ten populous counties, is called “ the draft,” and the book of the association, where it is registered, is called the “book of drafts.” It is urged that a proceeding of so public a nature, affecting so large a quantity of land, and so many individuals, and executed at so early a day, before actual settlement of this part of the state, may be relied on as a legal title. It is doubtless evidence of an equity against the trustees; and it is a matter very generally necessary to show what land is covered by a deed. But the parties to that association never contemplated any further effect from those proceedings, than a partition among cestuis que trust; and the trustees in all cases, except those of gross negligence, have conveyed the fee of.the separate interests to their respective owners.

If, however, much of the land yet remains unconveyed, the evils which the defendant’s counsel apprehend, will, in most cases, be removed by the operation of another principle. Where a cestui que trust is found in possession (especially if such possession has continued for a long time) of land which a trustee ought to have conveyed to him, such conveyance will be presumed. Jackson, ex dem. Colden et al. v. Moore, 13 *Johns. 516; 1 Hill. Abr. 224. But this presumption will not aid the plaintiff here. It springs from possession ; it is raised to support a possession; it bas no existence in Ms favor who attacks the rights of one who holds the possession adversely against him.

The recital in the deed from Swift and others, to the trustees of the Erie Land Company, is next to be considered. The preamble sets forth : Whereas, the trustees of the Connecticut Land Company have, by separate deeds, dated on the-day of-, 1798, reconveyed to the parties of the first part, respectively, all the right, title, and interest, in and to,” certain lands, including tho premises. Now, the plain effect of such a recital as this is to conclude the parties to that deed, and all who claim through them, from denying the existence of such conveyance as, in this deed, is averred to have been made. The estoppel upon them is as effectual, as if it were from warranty. Douglas v. Scott, 5 Ohio, 194; Scott v. Douglas, 7 Ohio, 227. And it is too limited a view of the effect of such an estoppel to confine its operation to those only who claim an interest through the deed. A person in possession sustaining his possession by no other title than a denial that a former owner has parted with his right, is not a stranger; he becomes privy in estate to him whose title he retains, and is concluded by what destroys it in his hands; for, if title can be traced by B. to A., and B. can fasten upon A. the incapacity of asserting his right, in consequence of his admission that he has convoyed to B., it is not just that a stranger, standing on A.’s claims only, and relying on no superior right, should be permitted to. contest the existence of a fact, which those interested have settled. The law, therefore, wisely attaches the disability of A. to all who maintain his title, and permits such estoppels to be used not merely defensively, but to sustain actions of ejectment. 2 Hill. Abr. 401. The present case affords a proper application of these rules. The sole defense consists in maintaining an outstanding title in Swift; but a fact is shown by Swift’s admission', which proves this title has no existence, and that the estate has passed to the ^plaintiff, an admission which binds not Swiit only, and his heirs and assignees, but all who seek protection under the shelter of his name.

Since then, by the operation of this doctrine, the title may be traced from Swift to the trustees of the Erie Land Company, the next deed in the sories is the reconveyance from these trustees. The only defect in this is its acknowledgment. The deed was made in Connecticut and was acknowledged there, but before ah ¡associate judge of the common pleas of the county, in the then territory of Ohio, in which the land was situated. We need not now decide if any extraterritorial act of a state judge can be supported, because the validity of deeds executed like this, was established many years since. Lessee of Moore v. Vance, 1 Ohio, 1.

A decision which has become a rule of property, which we must not unnecessarily disturb.

The result of this investigation shows that the law attaches to the several acts of the parties the effects they designed, and invested in Kinsman the interest he purchased from Swift. An investigation of the right of Jabez Adams to the interest of Asahel, is attended with the same consequence; so, that both these estates may be recovered by the plaintiff.

Before these shares can be ascertained from lot No. 95, the eight acres sold for taxes must be deducted from the whole lot; for if defects exist, they have not been pointed out by counsel, and they have escaped our search. . Judgment for plaintiff.


author: Wood, J.

text:
    *Lewis Evants v. The Administrator and Heirs at Law of James Strode.
    Where an instrument, by a mistake of the parties as to the legal effect of the terms used, fails to carry out' their intention, relief may he afforded in equity.
    A mistake of law may he corrected in equity.
    This is a bill of review for errors in law. The object of it is to reverse a decree of the Supreme Court of Fairñeld county, rendered at the November term, 1840.
    The complainant states that, in his original bill, it was set forth that, on July 2, A. d. 1831, the complainant purchased,, of James Strode, fifty-five acres of land, at two dollars twelve and one-balf cents per acre; paid all the purchase money, amounting to ■$116.87^-, and took from his vendor his written agreement for a warranty deed, upon a survey, thereafter to be made. That his vendor died intestate, without executing the contract; and, on? June 5, 1833, defendant George H. Strode, as administrator of his estate, filed his petition, in the court of common pleas of Licking county, setting out the contract; that the intestate died without oxecuting the conveyance; that, at the time of his death, he was seized in fee simple of the land, which had descended to his heirs-at law, all of whom were minors, and made defendants. That the said administrator prayed the court to make an order, authorizing the petitioner to convey the land to the complainant, and his-heirs. That the minor defendants, by their guardian ad litem, filed their answer to the said petition, and, at the September term, 1833, the said court of common pleas made an order, that' said administrator make a warranty deed to complainant, in fetv simple, for said tract of land, conveying to him all the right, title, and estate, both in law and in equity, in said tract of land, descended to the said defendants as heirs at law. That on October 8, 1833, the ^administrator undertook the execution of said-order of the common pleas, by making a conveyance in pursuance of its provisions; but by mistake, or some other cause, omitted to insert a clause of warranty, but executed a deed purporting to convey only such title as the intestate had in such premises at his decease. That the complainant, being ignorant of the law, and the legal effect of the words used in the deed, and reposing full confidence in the good faith and integrity of the administrator, who represented to said complainant that said deed was made according to agreement, and the order of the court of common pleas, accepted the same, not doubting but his remedy over against the heirs of said decedent, in case of eviction from said land, was complete, in virtue of said deed.
    The original bill also states that both real and personal property, to a large amount, descended to the heirs at law of said James Strode, who are still minors, and that one Daniel Arnold, who was made defendant, had become the legal guardian of said’ heirs at law, and was possessed of a large sum of money, part of the assets of the estate. The bill also charges that, at the October term, in the year 1839, of the court of common pleas of Licking county, by the judgment of said court, the complainant was-evicted from said land by the paramount title of the heirs of one John Macum, and put to great costs in the defense of the suit and prayed an account of what was due the complainant, in equity, for his purchase money and interest, costs, trouble, and expense, in litigating the title to said land.
    The complainant, in his bill of review, further states that the administrator filed his demurrer to said original bill, claiming that the contract, set forth therein, was merged in the deed, and that the remedy of the complainant was at law, and not in chancery; and said minor defendants answered said bill by their guardian ad litem. That the cause came on to be heard in the common pleas; the demurrer was overruled, and a decree entered for the complainant. That an appeal was taken to the Supreme Court, and, at the November term, 1840, *the demurrer was sustained, and the bill dismissed.
    Several errors are assigned upon the record:
    “ 1. That the agreement, set forth in the bill, is not merged in the deed, as was supposed by the court.
    “ 2. The court must have supposed the deed to contain a clause-of warranty.
    “ 3. That the deed being accepted, through the representations of the administrator, under the supposition that it contained a clause of warranty, the acceptance of the same by the complainant could not have been a waiver of the warranty agreed to be given, as supposed by the court.
    “4. The opinion of the court is otherwise erroneous.”
    Robert H. Carree, for complainant:
    To determine the questions raised in this case, it becomes necessary to inquire into the mode pointed out by the statute, for the-execution of contracts by deceased persons. Swan’s Stat. 214, sees. 5, 6; Swan’s Stat. 365, see. 148.
    The deed in question was executed by the administrator, under the order of court; the order of court pursued the contract, and required a “ warranty deed in fee simple;” the deed recites the-order of court, but does not warrant the title in terms.
    If the contract requires a warranty, the deed, executed under the contract, whether by the person, in his lifetime, or by the administrator, under the order of the court, must bind the estate to-defend the title. If the deed does not “fully execute the contract,” the law is not complied with in its execution; the contract is not executed, and is not merged in the deed. There is, then, a clear mistake in the execution of the deed, such as courts of equity will always relieve against. Hunt v. Rousmanier’s Adm’r, 1 Pet. 1, 13, 15, and 8 Wheat. 174; 5 Pet. Cond. 401; Hunt v. Freeman, 1 Ohio, 501; Lynn v. Richmond, 2 Johns. Ch. 51; Williams v. Hobson, 2 Har. & Johns. 474; Churchill v. Rodgers, 3 Monroe, 81. *And the complainant can not be prejudiced in his rights by his acceptance of this deed.
    George JB. Smythe, on the same side:
    Equity will entertain jurisdiction in all cases where there is not a complete and adequate remedy at law. Snook’s Adm’r v. Friend’s Adm’r, 9 Ohio, 78; Wright, 61, 731; 3 S. C. Eq. 325, n. It is not enough that there may be a remedy at law; it must be plain and adequate; as efficient to the ends of justice as the remedy in equity. 3 P. Wms. 390; 3 Pet. 210; 4 Wash. C. C. 204, 349; Snook’s Adm’r v. Friend’s Adm’r, 9 Ohio, 78. And in Cases most unfavorable to equitable relief, whenever any difficulties embarrass the legal remedy, courts of equity will interpose. Starr v. Starr, 1 Ohio, 128; 13 Price, 721; 1 Story’s Eq. 106; 1 McClell. 505; 1 Ves. Jr. 417.
    Where the equitable and legal estates, equal and co-extensive, unite in the same person, from different sources, the former merges. 3 Ves. 121, 339. But does the partial execution of an equitable contract, by one of the parties, merge the contract? I apprehend not, unless the full execution of the contract be expressly waived by the other party.
    H. H. Hunter, for defendants:
    The ground of equity asserted is, that the contract stipulates for a “warranty” deed, and that the deed delivered contains no warranty.
    Without stopping to inquire what sort of a warranty would be required under such a contract, and assuming that it would be a general warranty, we insist that the complainant would not be entitled to any relief against James Strode, if living, and if he had delivered to the complainant a deed, such as this is, without any covenant of warranty. In other words we claim that where there is no fraud (and none is charged in this case), *if a vendee, who was entitled to require a deed with warranty, accept one without, he has no remedy against the vendor, although he shall have been evicted by a paramount title.
    . The law upon this subject is distinctly and well settled. The principles are laid down and the authorities referred to in Sugden ■on Yendors, 345. The principle is briefly this: “If a purchaser is evicted before the conveyance is executed, he may recover back the purchase money, etc. But if the conveyance is actually executed, and the purchaser is evicted by a title to which the covenants do not extend, he can not recover the purchase money either at law or in equity.” Crips v. Reade, 6 Term, 606; Johnson v. Johnson, 3 Bos. & Pul. 162; Bree v. Holbeck, Doug. 654; Dorsey v. Jackman, 1 Serg. & Rawle, 42; Frost et al. v. Raymond, 2 Caine, 188; Howe v. Barker, 3 Johns. 506; Sergeant Maynard’s case, 2 Freem. 1; Anon., 2 Freem. 106; Abbott v. Allen, 2 Johns. Ch. 523; 3 Ves. Jr. 235; 2 Bos. & Pul. 23.
    As regards the defendant, George Strode, the administrator, who alone demurs, the third ground of the special demurrer is, we think, well taken. The bill admits that he .has fully settled and paid over to the guardian of the heirs the assets. There is no ground for relief against him, except so far as may be necessary to control the funds of the estate to satisfy any decree the complainant may be entitled to. This can not be done by any decree against the administrator. He was therefore improperly brought before the court.
    John Garraghty, on the same side, insisted that-the mistake relied upon does not, in fact, exist. The application of the authorities cited relates to a totally different class of cases.
    In the case of Day v. Brown, 2 Ohio, 345, it is held that a covenant to warrant and defend, as executors are bound by law to do, is not a personal covenant, and that they are not required to warrant in any form or to any extent. The administrator was under no legal or moral obligation to bind himself personally; and any special warranty set forth in the *deed in question would not, under the authority here cited, have been any stricter compliance with the contract of the intestate. All that the administrator was required to do, and all that he could by possibility do, was to execute such deed as would effectually pass all the legal and equitable interest to the estate in question, vested, by descent, in the heirs at law of the intestate. The statute expressly declares that such conveyance shall be binding on all such heirs, and all others interested, in the same manner as though the conveyance had been by the person making such contract in his lifetime. Swan’s Stat. 214, see. 6. The administrator, then, having performed his whole duty, by the execution and delivery of a deed of conveyance, which passed the largest interest known to the-law, and beyond which he was incapable of going, it is obvious that no mistake, either in fact or in law, could, by possibility, exist.
    Courts of equity have uniformly relieved against fraud, accident, or mistake. This is one of its distinguishing features. But, in the application of this principle, courts of equity proceed no farther than to enforce the true meaning and intention of the parties, in all such cases where a mistake intervened, contrary to such intention. There must be actual mistake. Kennedy v. Umbaugh .& Reed, Wright, 327.
    H. Stanbert, for the complainant, in reply:
    The acceptance of the deed is admitted to have been under a mistake and misrepresentation of its legal effect. Such an acceptance is not the sort of merger, or, more properly speaking, of performance or execution of contract, which satisfies a court of equity. Where there is an acknowledged mistake as to the legal effect of a deed or other'jnstrument, a court of equity gives relief. Edwards v. Morris, 1 Ohio, 531; Hunt v. Rousmanier, 8 Wheat. 174.
    It is said if the contract is not merged in the deed, then our relief is, at law, upon the contract. All this would be very true, if a court of law followed the doctrine in equity as to ♦mistakes in matters of law ; but this jurisdiction is peculiar to equity. A court of law takes a contract or deed as it is, and decides according to its legal effect — not according to what it was intended to be, or, by misconception, supposed to be.
    It is also said the administrator ought not to have been made a party. If that were granted, the decree we seek to review is not, therefore, right. If the proper parties are before the chancellor, it is a new doctrine that you can not have relief against them because you have brought an unnecessary party into court with them. Aside from that, it was very proper to make the administrator a party, as it is in all cases where a claim for money is set up against the estate of a decedent.
   Wood, J.

This case is by no means new to one member of this court, who was present, and pronounced the decree now sought to be reversed.

I supposed, at that time, it was consistent with the weight of .authority, although its result was the most palpable individual injustice. It remains to be seen whether the opinion then entertained is the law of the case.

The allegations of the bill were, that, by the contract the complainant made with the intestate, he was entitled to a deed, with covenants of warranty, for the lands; that the administrator of the intestate, by virtue of the power conferred upon him by the court of common pleas, undertook to make such a conveyance; but, by mistake, omitted to insert a clause of warranty, and represented to the complainant that the deed was in pursuance of the order of the court of common pleas; and the complainant being ignorant of the effect of the words used, accepted the deed, supposing, if evicted, he had a complete remedy upon it, over against the heirs. These averments, in the bill, are admitted by the demurrer ; and does the case present grounds for .relief in equity? If there was a palpable mistake of fact in the omission of a clause of warranty, which both the complainant and administrator designed to insert, and supposed was inserted, the case would be within one of the *most familiar heads of equity jurisdiction. But it is not so. The parties both knew the terms, and all the terms, used in the conveyance ; both supposed it was in conformity with the authority conferred upon the administrator in pursuance of the agreement, and, in case of an eviction, gave the complainant a right of action upon it against the heirs at law to the extent of the injury, so far as they came into the possession of the assets of the estate.

There was, then, a clear mistake — an error of opinion — as to the legal operation and effect of the words used; and this mistake, it must be admitted, is as fatal to the complainant, and inflicts upon him as essential and unjust an injury as though the parties had believed an actual clause of warranty, in proper form, was inserted in the deed. He has paid his money for his land; he has been evicied by title paramount; and ordinary justice requires he should be remunerated from the property of the intestate. It can not be denied, however, that the mistake in this case is a mistake of law, and if the complainant has a remedy in equity, it must be on the broad principle that, in this peculiar class of cases, such mistakes are relievable. The analogy is strong between the circumstances of this case and that of Hunt v. Rousmanier’s Adm’r, in 8 Wheat. 174, to which we had occasion to refer in the case of McNaughten et al. v. Partridge et al., at the present term, ante, page 223. The rule is, in that case, distinctly and unequivocally asserted that where an instrument fails to carry out the intention of the parties, by reason of a mistake in the effect of the terms employed by the draftsman, there equity will relieve; and the chief justice, in giving the opinion of the Supreme Court of the United States, reviews all the authorities, and lays down the rule that, under such circumstances, a sheer mistake of law is roliovable. The same case was again before the same court, and is reported in 1 Pet. 14; and the same doctrine, in this class of cases, is again maintained. In the case of Champlin v. Laytin, 1 Edw. 467, cited in Hill. Abr. 146, the superior court of the city of New York uses this language: “A contract entered into, under a mutual misconception of legal ^rights, amounting to a, mistake of law in the contracting parties, by which the object of it can not be accomplished, is as liable to be set aside or rescinded as a contract founded in mistake of matters of fact.” In the case of Drew v. Clarke, Cooke, 374, 380, it is said : “ Where a contract is executed under a mistake, in point of law, which mistake is produced by the representations of one of the parties, the other may be relieved, as well as if the mistake was as to matter of fact.” 1 Hill Abr. 146. In 2 Bibb, 449, it is said, however, that “ the facts being understood, erroneous deductions of law afford no ground for relief.” Ib. 168. The same doctrine is maintained in 1 Johns. Ch. 516; 2 Ib. 51, and 6 Rand. 594. But where different rules of action are laid down, by different respectable tribunals, we' ought to adhere to those which are, in our view, most consonant to the general analogies of the law, most conformable to reason, and agreeable to the ends of justice. In our view these require, in the class of cases now before us, that the presumption that every man knows the law-the principle on which some of the cases are founded-should be permitted to be rebutted by proof, and relief granted against a mistake of law.

But it is said, in this case, the only relief which can be afforded would be the correction of the instrument, to conform to the intention of the parties; in other words, the correction of the deed by the insertion of a clause of warranty. This, if it might be effected, would produce more extended and expensive litigation, and the remedy would not, therefore, be as complete and adequate. We have now all the parties before us ; can settle all their rights; prevent further litigation, and do complete justice.

It is urged, also, that if the deed was not executed and delivered in pursuance of the contract, the contract is not merged by the delivery of the deed, and the remedy is upon it, against the administrator, to recover back the consideration for the land. It may, however, be answered that in such an action, if the administrator, as such, be in esse, the complainant could not recover the expenses of the ejectment, and the remedy *would be incomplete; and that, at law, the deed being delivered, although not executed according to the agreement, the defendant would show its acceptance and bar a recovery; for, at law, the deed being accepted, the complainant could not avail himself of any correction of the mistake, and at law the delivery and acceptance of the deed would, ipso facto, be a merger of the agreement.

On the whole,' a majority of the court have come to the conclusion that the Supreme Court did err in sustaining the demurrer, and in dismissing the complainant’s bill, and that the decree of the Supreme Court should be reversed.

Judgment reversed.


text:
    John Creed v. The Commercial Bank of Cincinnati.
    The Commercial Bank of Cincinnati has no right, under its charter, to take, “ upon hanking principles and usages,” more interest than six per centum per annum, in advance, on its loans and discounts.
    If more be taken, the note or bill on which it is taken is void.
    If an erroneous charge be given to the jury, on an abstract proposition, or on a point entirely out of any case made by the evidence, and the verdict, can be supported by the proof made, the judgment will not be reversed..
    This is a writ of error to the Supreme Court of the county of Ross.
    The case was elaborately argued by T. Ewing and A. G-. Thurman, for the plaintiff in error, and by Creighton & Green, and H. Stanbery, for the defendant in error. The points made will be’ found in the opinion of the court.
   Wood, J.

This is a writ of error to- the Supreme Court of the-county of Ross, made returnable in bank. Its object is tho reversal of a judgment of the Supreme Court, affirming *that of the common pleas, on a like writ of error, in a suit in which a recovery was had in the latter tribunal, by the defendants, against the plaintiff in error, for more than $17,000.

The amount of this recovery, alone, is sufficient to indicate its importance. It is, however, of little moment, in comparison with the rights and interests of the whole moneyed corporations of the state, and their debtors, when the extent is considered to which they will be affected, if not directly, at least indirectly, by a decision in tho highest judicial tribunal known to our law. Such adjudication must, of course, become tho rule of action, in all future cases which may arise, whore the facts are substantially tho same, and they are, at the present moment, believed to embrace evidences of claim to a very great extent.

We have, therefore, endeavored to bring all our energy into this investigation, to understand the facts, to apply the law, as we are enabled to find it exists, both from our own researches and tho lights afforded us by the counsel, who not only prosecute, but also defend, with ability and zeal. 'Amidst the storms of party conflict, and tho commotions incident to party animosity, originating, whether justly or unjustly, doubtless, in an honest conviction of tho hostility of banks to the welfare of the community, if we have been able to hold the scales of justice with a firm and ■steady hand, our duty is performed, and we are not responsible Tor tho result.

The papers in this case are voluminous, but the important inquiry is within a narrow sphere, and embraces nothing intricate .or difficult of solution.

The question is, did the court of common pleas err in its pro•ceedings, in the rendition of the judgment affirmed by the Supreme Court? If so, it follows, as a necessary result, that the judgment must be reversed. Or, in other words, did the Supreme Court err in the affirmance of that judgment? That it did err is the only error assigned, and in stating the proposition in either alternative, the record spreads before us the same ground of inquiry.

*The action was assumpsit, founded on four bills of exchange; the declaration containing also the common money counts. The first of these bills bears date at Cincinnati, August ], 1837, at sixty days’ date, drawn by Cox and Eckart, on J. Cox, for $2,000, payable at the Bank of Louisville, to the order of John Creed, and by him indorsed to the Commercial Bank.

The second bill is by the same drawers, on J. Cox, of the same date, August 1, 1837, at the same place, for $3,000, at ninety days’ date, payable at the Bank of Kentucky, Louisville, to the order of Creed, and by him indorsed to the Commercial Bank.

The third bill is by the same drawers, on John Cox, New York, bearing the same date, at the same place, for $10,000, payable at four months, at the Bank of America, New York, to the order of George F. Ball, indorsed to Creed, and by him to the Commercial Bank.

The fourth is drawn by Cox and Eckart, on John Cox, New York, dated Cincinnati, January 30, 1838, for $5,829.47, at four months, payable at the Bank of America, New York, to the order of John Creed, and by him indorsed, in like manner, to the Commercial Bank.

To the declaration the plaintiff in error filed the plea of the general issue, and the cause was submitted to the jury, in the court of common pleas. A bill of exceptions was taken, during the progress of the trial, by the counsel for the plaintiff in error, and to that we must look, exclusively, for the history of the case, to sustain the assignment of error, for, aside from this, there is no error in the record.

To .this bill of exceptions we shall only refer for the important facts on which our conclusions are based, and leave the residue for a more convenient season, and for those whose tastes are curious in judicial history, to peruse at leisure, and this of necessity, for it contains twenty-three pages of closely written folio 1 It appears from it, the ground relied upon as a defense, in the court of common pleas, by the now plaintiff in error, was, that there was between the Commercial Bank and *the drawers, at the time of the sale, or discount, of these bills, some corrupt agreement or understanding, or some shift or device, by which more interest than at the rate of six per centum per annum, in advance, was reserved by the bank, as interest, for the use or loan of its money ; and assuming this as proved, it was then claimed, and is again urged, that these bills, thus bought or discounted, were void from a defect of power, in the defendants in error, to enter into any such contract. The Bank of Chillicothe v. Swayne et al., 8 Ohio, 257, is cited as an authority. With the principles settled in that case we are entirely satisfied. They rest on safe and solid foundations, and sound policy requires they should be asserted and maintained. According to them, life and health, and energy and vigor, are only conferred upon a corporation by its charter. No natural rights are recognized ; its powers and privileges must be expressly conferred. None other are incorporated into existence, unless implied from strong necessity, in order to carry out those which are expressly granted. In the case of Bank of Chillicothe v. Swayne et al., the bill was discounted by the plaintiff, and more than six per cent, per annum reserved, in advance, as interest, against an express prohibition in the charter. It is clear that there was a defect of power, and the whole transaction void. Nor would this be a new principle, where all the parties are natural persons, that a bond, bill, or note, purporting to be executed, by A., should be declared void, because B. was not authorized to affix the seal or signature of A. We do not think it advisable to either enlarge or limit the principles fixed in the case above cited, but leave it on its own foundation for support.

The question then is, does this case come within it? The counsel for the bank contend that it does not. They urge that a charter is a contract, and by it the rate of interest is not fixed which they may receive on their loans and discounts. It is true¡ such express provision limiting the rate of interest, as exists in nearly every other bank charter in the state, either by mistake or design, was omitted in this, and in lieu thereof, it is provided, in the grant of power, that the corporation, among *other things, may discount bills of exchange on “banking principles and usages.” As other banks were then supposed to be limited to six per centum, and were so, mostly, by express prohibition to receive more, it is probable the legislature thought it a part of the “usages and principles of banks,” to discount bills of exchange at the rate of six per centum interest, in advance, and no more. In any event, it could never have been the design that the limit of exaction by any moneyed institution should only be fixed by its inordinate cupidity, and thirst after gain.

We should find no difficulty, were it ¡necessary in order to determine this case, in arriving at the conclusion, from the terms “principles and usages,” as employed in this charter, that the legislature intended to limit the discount on notes and bills, etc., to six pei’ centum, in advance. But, if wrong in this, and if interest is entirely overlooked in this charter, it is clear it falls within the general law, which is applicable to natural persons, and can legally receive no more, nor could any usurious excess of interest be recovered by this corporation; and, placing a bank charter on the footing of a most solemn contract, unalterable by subsequent legislation, it is not violated by a law prescribing a rate of interest, which has not been fixed by its charter, but wholly omitted. A majority of the court, therefore, design expressly to be understood! that the Commercial Bank, under its charter, occupies the same ground, as the Bank of Chillieothe was .found to occupy in the case against Swayne and others, when the facts are the same. It can receive no more than six per centum per annum, in advance, as interest on its loans and discounts; and when it does receive more, there is a defect of power to make a valid contract.

Let us then look to the testimony, which is contained in the bill of exceptions, and see whether this transaction is brought within the case of the Bank of Chillieothe v. Swayne et al. Before proceeding to that evidence, however, it may be remarked, that after the defendants in error rested in the court of common pleas, having given in evidence the four bills of ^exchange counted upon in the declaration, Creed, the defendant below, offered in evidence to the jury seven other bills of similar character and amounts, a part or all of which, it was claimed, formed a connected transaction with the bills in suit, which were given to renew prior paper, and also an abstract of an account current of Cox and Eckart with the Commercial Bank. This evidence went to the jury without exception, and it was claimed’that it conduced to prove the issue made, that the Commercial Bank, when the bills in suit were purchased, reserved more than six per centum, in advance, as interest.

Hall was then called by Creed, the defendant below, as a witness, and testified, that he had been the cashier of the Commercial Bank since the year 1836 ; that on the 30th of July of that year, the bank purchased of Cox and Eckart two bills, for $5,000 each, dated on that day, at four months, drawn on Brunson and Colt, payable at Now York, and the only discount charged was'the interest at six per cent, per annum. These bills were not paid, but protested and returned. They were paid in Cincinnati, on March 21, 1837, with the addition of six per cent, damages, and eight dol•Jars each, for costs of protest, postage, and interest at the rate of six per cent., per annum, from the date of maturity until paid. On November 29, 1836, the bank purchased another bill of Cox and Eckart, on New York, indorsed by Creed; the proceeds were applied to pay the first draft, and this was paid at maturity, in New York ; they are consequently out of the case. On,February 8, 1837, the bank bought of Cox and Eckart a bill drawn by Jo-line, indorsed by Creed, Ball & Co., on Cox and Eckart, payable in Now York, dated January 25, 1837, six months after date, for $10,000. This draft was protested in New York, and paid in Cincinnati, with interest, after maturity, protest and postage, and three and one-half per cent, exchange, being the difference of exchange between Cincinnati and New York, on March 21, 1837. Hall then gives the history of the purchase of the other bills, including those in *suit, and swears that no more than six per centum interest was reserved, with the regular rates of exchange, from time to time, between Cincinnati and the places where drawn payable.

On some occasions, the damages due the bank on protested bills, in renewing paper, were received, and no exchange charged. Mr. Hall never heard of any agreement, before the maturity of either of the bills, that the same should be extended. On some occasions, Cox and Eckart stated they had shipped produce to those on whom the bills were drawn, to meet them, and that they would be paid at maturity. That the transactions on the part of the bank were intended to be in good faith, and it was always supposed the bills would be met at maturity. On the Louisville bills, the bank charged six per centum interest per annum, and one per centum exchange, which was the market value of such bills, and the same rate at which they were purchased by other banks in Cincinnati; although exchange between the two places, Cincinnati and Louisville, on sight bills, was at par. There are other depositions, several letters, etc., which appear from the bill of exceptions to have gone to the jury without objection. With this testimony on a writ of error, and no exceptions to its admission, we have nothing to do in ordinary cases. It was probably spread but on this record, to show the true character of the litigation, and to enable us fully to comprehend the true import of the chargo of the learned judge, who presided on the trial in the court of common pleas. To the charge as given, and the refusal to charge as requested, the exceptions alone were taken; it was tho origin of the supposed errors, for which tho writ of orror was prosecuted in the Supreme Court of Ross county, and for tho affirmance of which judgment of the common pleas, by the Supreme Court, this writ of error is before us.

The record then shows that, the evidence being closed, the counsel for Creed asked tho court to instruct the jury, that if they found any of the bills of exchange were negotiated by the bank on any contract or understanding, by which the bank was to have more than six per centum per annum, in advance, *for the loan of any money, under whatsoever name it might be taken, if it was received in fact, for tho loan, at a rate of interest exceeding six per centum per annum, any bill of exchange made to carry out such contract was void.

2. That if tho jury should find the bills of exchange, executed on August 1, 1837, were made in consideration of such usurious bill, in whole or in part, or formed a part of the consideration of the contract for the negotiation of said bills, or any of them, that such bill was void, and tho bank not entitled to recover on such bill or bills of exchange.

3, 4, 5, 6, and 7. The court were asked to charged the jury, in substance, the same in respect to each of the four bills in suit; and, that if any of the former bills were void, for any of the aforesaid reasons, and they formed any part of the consideration for the bills in suit, such bills were also void; and whether such void bills immediately or remotely formed a part of the consideration for the bills in suit; and whether such excess of interest was taken immediately on the bills in suit, or prior bills which formed a part consideration for the bills in suit, or whether such excess of interest was taken in the name of exchange, or otherwise, the bank was not entitled to recover. That any custom of the banks in Cincinnati, by which they take more than six per cent, per annum is void.

These instructions together, as prayed for, the court.refused to give; but charged that the clause in tho charter which permitted the defendants in error to discount upon banking principles and, usages, was as binding on the Commercial Bank, as the clause in the charter of the Bank of Chillicotho was upon it; and if the Commercial Bank violated its charter, in discounting a bill of exchange, not according to banking principles and usages, such contract would be void. But these principles and usages were the general principles throughout the commercial world, and not those of the banks of Ohio merely. That the usages of the banks of Cincinnati, where the Commercial Bank was situated, were chiefly to be regarded; but the usages of banks in the interior, such as Lancaster and Oircleville, were entitled to *but little weight. That the fact that such usages existed in Cincinnati, and not the legality thereof, was to be regarded; and if, by the established usages of the other Cincinnati banks, more than six per centum was taken on their loans, the Commercial Bank had the right to take more also.

The court also charged, that the law, fixing the rate of'interest, prohibited the Commercial Bank from taking more than six per centum; and if they took more, the excess was forfeited; and if they took more than they were authorized to do by the usage of banking, they forfeited only the excess, if they believed at the time they wore not exceeding banking principles and usages; but if they took such excess against the usages of the banks of the city, the whole transaction was void. This is substantially the charge of the court, and, if erroneous, and the plaintiff in error may have been prejudiced by it, the Supreme Court for Ross county erred in affirming the judgment.

In order to understand the nature of the defense and the application of the charge, I have before remarked that the evidence was spread out in the bill of exceptions. It is reasonable to suppose all the evidence in favor of the defendant below is before us in this case, and the whole charge may be disposed of in few words. A large portion of it, if erroneous, is so by being too strongly in favor of the plaintiff in error, and of this, he has no right to complain; and as to those parts of the charge which may be supposed to operate against the plaintiff in error, to wit, that if the Commercial Bank took more than six per centum, and acted in conformity with the usages of the other banks, and such usages wore illegal, the illegality could not be inquired into ; that if they violated the usages of banking, and did it in good faith, the excess only was void ; if in bad faith, or in violation of banking principles and usages, the whole transaction was invalid; and that the jury must principally regard the usages of the banks of Cincinnati, and look but little to banking through the commercial world, etc., it is perfectly clear the whole of it is entirely out of any case made by the evidence. There is not one particle of testimony conducing to prove any such facts. The evidence *is perfectly conclusive, that no more than six per cent, interest was received; and if certain rates of exchange were received, they were the fair market rates at the time, and often in lieu of damages to which the bank was entitled on the protest of the bills, and for a less amount, when the bank might have received both. There was no evidence of any illegal customs, usages, or principles; no evidence of any excess of interest; and to decide that the Commercial Bank can not deal in exchanges, and either buy or sell at the fair and honest market value, would, in our view, contravene the whole current of decisions in other states; and there soems to us Co be nothing else in reality, in the ease at bar.

The judgment of the Supreme Court is affirmed.

Judgment affirmed.


text:
    The Commercial Bank of Cincinnati v. John Reed.
    Six per centum damages on a protested bill of exchange, addressed by mistake to the defendant in Ohio, instead of Philadelphia, where the bill was payable, can not be recovered back, nor be set off against a subsequent claim, if paid with a full knowledge of the facts.
    Such damages, if settled and reserved by a bank out of a second bill of exchange, discounted to pay the first, is not evidence of a reservation of more than six per centum per annum, in advance, on its loans and discounts.
    This is an action of assumpsit, from the county of Clinton.
    The case was submitted to the court, on the last circuit, in Clinton county, and reserved here for the consideration of all the judges.
    The declaration counts upon a bill of exchange, drawn by James Reed and Absalom Reed, on the defendant, John Reed, dated on January 2, 1841, at Cincinnati, for $3,666.99, payable to the order of Eli Hall, at the Bank of Philadelphia, four months after the date thereof. It is averred, that the defendant accepted this bill of exchange, and that the same was ^indorsed, etc., and
    came to the possession of the plaintiff. There is also a second special count on the same bill, with the common money counts.

      To this declaration, the defendant filed a plea of the general issue, with a notice of special matter in bar of the action.
    Under the plea and notice, the defense set up is, that the bill of exchange in question was discounted by the plaintiff, under a corrupt agreement, and more than six per centum reserved, in advance, as interest, and that, therefore, the bill in question was void. The facts in proof are stated in the opinion of the court.
    Williams & Johnston, with Wright, Coeein & Miner, for plaintiff.
    Thomas Corwin, for defendant.
   Wood, J.

In the case of Creed against the Commercial Bank of Cincinnati, at the present term, it was decided by this court, that the Commercial Bank had, under its charter, the capacity to reserve no more than six per centum per annum, in advance, on its loans,- and if a higher rate was reserved as interest, either directly or indirectly, or by any shift or device, the security taken would be void ; and the reasons for that opinion are fully stated in that case. A majority of the court see no reason to change the ground there assumed. It is necessary, therefore, to ascertain the facts. From the depositions on file, it appears the Reeds, who are parties to this bill, were drovers of cattle to the Philadelphia market, and, for that purpose, occasionally borrowed money of the plaintiff, and made their paper payable in Philadelphia. The bill in question was bought by the plaintiff. Seventy dollars wore reserved as interest, being less than at the rate of six per centum per annum, for the time the bill had to run. The proceeds of Lhe bill were paid on the defendant’s check.

The plaintiff’s clerk testifies, that the plaintiff had before purchased a bill drawn by Absalom Reed, dated *July 8, 1840, for $3,500, payable at four months, in Philadelphia, and accepted by the defendant, John Reed, and by mistake addressed to him in Ohio. This bill was protested for non-payment. The costs and interest, after maturity, $33.65 ; $210 for six per centum-damages; and $3,500 for principal in the bill; in the aggregate, $3,743.65 was computed and paid from the avails of the bill in suit, which was discounted for that purpose, by John Reed, the delendant’a check for $3,595.65, and $150 in cash.

In the language of counsel, we may inquire, where is the usury? It is said to exist in the reservation of the $210, on the discount of the bill in suit, as six per centum damages. It is true these damages could not be recovered at law by the bank, because the bill was addressed to the drawee and acceptor in Ohio, instead of Philadelphia. In answer to this, the proof is, that by the agreement of the parties, the bill was to have been drawn on Reed, in Philadelphia, and a sheer mistake prevented. There was, therefore, a moral obligation, after the protest of the bill,.to rectify the mistake, and pay the damages; and with a full knowledge of these facts, and supported by this moral consideration, it was agreed they should be paid on the discount of the bill in suit, and wore applied accordingly. It does not appear to us that this evidence, by any means, sustains the defense. It is, however, urged by counsel, that these damages should be deducted from the amount of the bill, if their receipt does not constitute usury, and avoid it ab origine.

We think differently; upon a moral consideration, if money is paid, or upon an agreement for usurious interest, if it be executed, and the interest once advanced, the parties are pari delicto, and it can not be recovered back.

Judgment must be entered on the verdict.

Judgment for plaintiff.


text:
    *The Commercial Bank of Cincinnati v. Absalom Reed et al.
    Action of assumpsit from Clinton county.
    Williams & Johnston, with Wright, Coeein & Miner, for . plaintiff.
    Thomas Corwin, for defendant.
   Wood, J.

This suit was on the same bill of exchange. The same defense is presented as in the ease of the Commercial Bank of Cincinnati v. John Reed, reported above, and the decision in that case determines this. Judgment for jdaintiff.


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

text:
    Morris Seely v. The State of Ohio.

      A special act, authorizing the complainant to file a bill, as in chancery, against the state, and requiring the cause “ to be decided upon principles of justice and good faith,” will be construed as intending to relieve the complainant from all technical objections that might arise in a proceeding according to the hnown usages of law and chancery, and as conferring power upon the court to examine the claim in the spirit of liberality, which would be proper for the general assembly to exercise.
    Anticipated profits, or speculations in real estate, can not be recovered as damages on a breach of a contract.
    .Actual expenditures, under the contract, can be recovered.
    This is a petition in the nature of a bill in chancery against the State of Ohio, under a special act of the general assembly, passed March 12, 1839, 37 Ohio L. 220, which provided: “That Morris Seely, of the county of Montgomery, be *and ho is hereby authorized and empowered to institute, commence, and prosecute an amicable suit, by filing his petition in the nature of a chancery proceeding in the court of common pleas, within and for the county of Montgomery, at any time alter tlie passage of this act, against the State of Ohio, for the recovery of any and all such damages which he may have sustained by reason of the non-performance upon the part of the state of any contract entered into by her duly authorized agents with the said Morris Seely, which suit in chancery, so commenced, shall be investigated tmd decided by said court upon the principles of justice and good faith, and upon the final hearing of the cause, upon the principles aforesaid, the court shall render such decree as, in their opinion, the principles of justice and good faith demand.”
    There was in the act a proviso: “That nothing in this act contained shall be so construed as to recognize the existence of any contract between the State of Ohio, or her duly authorized agents, and the said Morris Seely, on which said Seely should be entitled to recover damages.”
    In January, 1829, Morris Seely made a proposition to the board of canal commissioners to “ sell to the State of Ohio any quantity of land, not exceeding ten acres, at such price as the board of canal commissioners, or the acting canal commissioners, should consider a fair price, at such point or points as he or they should deem the most eligible for the control of such water power, or he would lease the water privileges at $400 a year for the first ten years, and subject to a reappraisement perpetually.

      “ Your immediate attention to this proposition will be gratifying to me, inasmuch as it would enable me, in case we should agree, to facilitate the excavation of a basin, and, I would beg leave to add, advance the great interests of the state generally, and those of the town of Dayton in particular.”
    To this proposition the following reply was made:
    “Office of the Canal Commissioners, Columbus, January 15, 1839. The proposition of Morris Seely to convey to the state, for the use of the canal fund, one or more acres of ground, or *out-lots number three or seventeen, in the town of Dayton, for the purpose of selling or leasing, on said ground, the water which passes from the feeder into the canal below'was considered; whereupon, it was resolved, that the board will purchase of said Seely one or two acres of ground, at the rate of $500 per acre, to bo selected by the acting commissioner, provided the title is made free from incumbrances, and the said Seely, or others interested shall make a cut from the canal, and upon the same level, up to a convenient point for the use of the water upon said Seely’s ground for the free flow of the tail-race water into the canal.” To which reply is added, “I concur in opinion with the board of canal commissioners in relation to the purchase of the lot or lots mentioned in the within agreement, and my assent to the contract is hereby given. February 20, 1829. A. Trimble.”
    Two and a half acres of land were selected, a conveyance made to the state, and the purchase money paid.
    Seely went on to construct the race, and, with a view to speculation, made along the line of the race large purchases of land, which was laid out in town lots.
    In November, 1829, the race being in a great measure completed, the commissioners, at the request of Seely, advertised a sale of water power. The sale was enjoined, upon petition in chancery, against Mieajah T. Williams, canal commissioner, by Coopor’s heirs, which injunction continued in force until dissolved by the court in bank. Cooper v. Williams, 4 Ohio, 255.
    In the meantime Seely had become insolvent, and made an assignment to the commissioner of insolvents. The race was left uncompleted, the work abandoned, and the speculation failed At the session of the legislature in 1838, ’34, Seely petitioned for relief, and $5,000 were granted to, and accepted by him from the state.
    In March, 1839, Seely being a member of the general assembly, the special act authorizing him to file a petition against the state was passed.
    -Hinder this act, a petition was filed, setting forth the transactions between Seely and the board of canal commissioners, alleging that ho had been induced, by representations of the board or some members thereof, to sell his land to the state, and to undertake the construction of the race or canal, in which he had actually expended nine or ten thousand dollars; that he had also, in consequence of said representations, made large purchases of real estate, with a view to sale for profit, and from which, if the work had been completed, and the water power sold Out by the state, as contemplated, he would have realized many thousand dollars profit.
    That, in consequence of the injunction and unnecessary delay, he had been involved in pecuniary embarrassments, and had suffered great losses, and the state having abandoned the original design of selling out the water, as contemplated, he had been deprived of all his anticipated profits, etc., etc. Compensation was claimed for the work and expenditures on the race, for the value of the land occupied by the race, which was now abandoned, and for the loss of anticipated speculations on lands and town lots. The cause had been referred to a master, and much testimony taken on the part of Seely, in respect to the value of the work, and of the land occupied by the race, and of the probable speculations, which, on certain contingencies, Seely might have realized.
    And, from the master’s report, two estimates were presented.
    The first claiming to recover for—
    “ The loss only sustained by the increased value of the lots, not being realized by Seely:
    “The loss of profits on 60 lots, on plat 4, bought of Brabham, and sold by Seely, on July 23, 1829, and interest, -------$ 8,104 66
    “To damages by loss of increased value on 188 lots, 29,727 50 “ Loss of increased value of one-third of 321, on plats
    3, 5, and 6, - - - - - - - - 13,910 00
    $51,742 16;

      *The second, claiming for “loss sustained by the complainant by costs of excavating lands for right of way, depreciation of value of lots, abating the $5,000 paid by the state, with interest; also, the actual sale money of the Brabham lots, abating the depreciation of $50 on each lot subdivided, sixty in number. '
    “ To balance of cost of excavation, with interest, after
    deducting the $5,000 appropriated, with interest, $8,308 34 “ To the amount of sales of lots got of Brabham, 60 in number, with interest from the day Seely sold, on July 23, 1829, to May, 1842, - - - 8,104 66
    “To value of land occupied by highway and canal,
    8 75-100 acres, at $200 per acre, with interest, 3,062 50 “ To loss occasioned by the depreciation of all the lots, 17,750 00
    $37,225 50
    “Deduct depreciation on 60 of Brabham’s lots, $50
    per lot, -------- 3,000 00
    “.Amount of decree under this calculation, - - $34,225 50”
    An answer was put in, on the part of the state, in which it was insisted that no other contract was made by the state or its agents, with Seely, than for the purchase of the two and a half acres of land, for which it was admitted he was paid at the time. That the digging of the race, and the purchase of lands, and laying out town lots, was his own act, in view of anticipated profits, for the failure of which the state was in no way accountable. That even supposing such contract had been made, the completion of the race by Seely, was a condition precedent, which was never complied with. That had such contract existed, and wore there no default by him, ho had received from the state $5,000, in full satisfaction and discharge of all claims. And, finally, that having made an assignment to the commissioner of insolvents, %fter the [506 alleged breach on the part of thie state, whatever interest he had passed to the commissioner for the benefit of his creditors, so that in no possible view could Seely have any right to recover.
    P. P. Lowe, Odlin & Schenck, and Thomas Corwin, for Seely.
    J. Crane, D. Peck, and E. M. Stanton, for tho state.
   Birchard, J.

This proceeding is had under a private act of the general assembly, which authorizes complainant to sue for any damages sustained by reason of the non-performance of any contract entered into with him by the duly authorized agent of the state, and requires the court “to decide the controversy upon the principles of justice and good faith.”

The first difficulty which we meet in the investigation of this case, arises upon a construction of the special act conferring jurisdiction. Are we required to be governed by the known rules of law and equity as applied between man and man, or by the principles of a more enlarged rule of moral right, untrammeled by technical rules?

This is made a question. If the object was to leave us to determine the merits agreeably to the well-recognized rules of chancery and law, it maybe presumed that no specific directions would have been found in the act, or, at least, that words would have been used of a definite and certain legal import. Instead of which we are directed to observe no other guide than justice and good faith. Cases daily arise between individuals, in which strict morality imposes higher obligations upon a party than could be enforced in chancei’y. In some of them the obligation of good faith, as the words are usually understood by mankind, would require performance. As if one were to make a naked agreement to aid another, which would lead to a great expenditure of money in expectation of that aid, and after the expense incurred, the promise should be violated. This would give no right of action in any court, *yet no moralist would pretend that good faith had not been broken.

Whatever may have been the motive of the general assembly in conferring this jurisdiction upon us — whether it was done for the sole purpose of bringing into exercise the facilities provided for courts in collecting facts, or for any other purpose — it seems to us that we are made arbiters by the act, between the state and a fellow-citizen, by a jurisdiction specially conferred, to be exercised sui generis, and that it is our duty to be governed by those liberal principles which should be the guide of a committee of either house of the general assembly. Under these views of the power conferred upon us and of our duty, we feel untrammeled by the technicalities of the law and at liberty to adjust this controversy upon as liberal principles as could the general assembly, had the duty not been delegated to us. Guided by these rules, the first inquiry is, did any of the duly authorized agents of the state enter into a contract with complainant, which has not been kept and performed in good faith, whereby he has sustained damage? There was a contract for the sale of two acres of land. The land was conveyed pursuant to it. The object of the complainant in vending this property was to secure the flow of the surplus water of the canal through complainant’s adjoining land; and it was understood, between him and the agent of the state, that-he should construct a tail-race at his own expense, looking to the enhanced value of the lands, to be caused by the flow of water, for his remuneration. The essence of the agreement, and the inducement held out by the state, although not embraced in the deed, was that the surplus water, to the amount of two thousand cubic feet per minute, should be turned into this channel; and, aside from technical rules, we ought to treat this engagement as a part of the contract. Seely had a right to expect the surplus-water would be turned in that direction. It was, in part, the consideration which induced him to make the sale, and the sole consideration for expending money in purchasing and dedicating the ground occupied by the basin and race, and in excavating the same.

*For three years the state was enjoined from complying with the agreement on her part, and when the injunction was dissolved, justice and good faith required that the surplus water should have received the direction originally designed. But for some probable or sufficient cause it was deemed to be for the-public interest to do otherwise. No legal contract was violated in so doing, and yet justice and good faith to Seely were disregarded, for he was left with a useless piece of canal on hand, and all hope» and means of realizing the costs and expenses of constructing it were destroyed, save that which he is now pursuing.

We believe that compensation should be made to him. That is, if we were acting as legislators we would support, by our votes, a bill passed upon these principles.

Claims have been presented to the amount of from $30,000 to-$50,000, for the losses sustained in the depreciation of real estate, purchased with a view to speculation, and now rendered of little value, owing to the diversion of the water of the canal, contrary to the understanding of the parties. These items of the master’s report must be rejected. It is possible that profits to this amount might have been realized by the complainant if the state had fulfilled the engagement of the canal commissioner. This, however,, could have only happened by sales of property at an increased price beyond the purchase money, acquired by purchases made subsequently to the date of the contract entered into with the state. It would be injustice to the state to hold the complainant entitled to anticipated profits of this nature. In fact, he had no such profit, and can not, therefore, with strict propriety, be considered as. having sustained a damage in losing what he did not possess. If this is correct reasoning, the only claim which he can sustain is, for constructing the race through which the waters of the canal were to pass, between the points of leaving and being returned to the main channel, and the value of the land dedicated 1,0 the state and destroyed. All else was a matter of private speculation, with which it seems the state *had nothing to do. These are the only items- of the report which should not be wholly rejected.

The report embraces all the expenditures made by the complainant in excavating the race, grading streets, etc., prior to his insolvency. How great a proportion was for work upon the race itself, does not appear, nor does the testimony and report furnish us with the means of determining. It must be returned to the county, with directions to the master to take further testimony, and report in accordance with these principles.

It remains to dispose of an objection to complainant’s right to prosecute this petition, since his assignment to the commissioner of insolvents. In the views which we have taken of the case, the act under which we have jurisdiction in this matter confers all the right that complainant has to anything that may bo decreed in his favor. At law, or in equity, he had no interest which could pass to a commissioner of insolvents. Ho had not so performed as to acquire such legal right, even if the state could be sued as a natural person ; consequently the interest in this claim is conferred by the bill, and is a grant to him, subsequent to the assignment, based upon his moral, as contradistinguished from his legal rights.

Lane, C. J.,

dissenting. I can not bring my mind to concur with the views of my brethren in this case.

When the legislature committed the interests of Seely to our hands, to be determined by the principles of justice and good faith, I do not understand that they have given us any other rules than those which always guide the conscience of the chancellor. I eertainiy can not infer that the state intended to exercise a spirit of reckless generosity at a season when it is unable to meet its hon-est debts.

I can not attach to this contract any terms except those which the parties have written. Seely offered to sell the state any quantity of land not exceeding ten acres, at $500 an acre. The state accepted two acres if Seely would construct a tail-race. This is •all. The state took as owner *in fee, without obligation to use it in any particular manner. That it should be so used, Seely trusted, not to the stipulations of the contract, but to the interests •of the purchaser. His schemes of improvement, his plans of action, his efforts to make his land the seat of business, were motivos which led him to make the offer, but matters in which the state incurred no obligation. His hopes and expectations were not created by the agents of the state, nor does anything they have done impose upon it the obligation to indemnify him for his failure or disappointment.

But, admitting the state was bound to transmit water from the •canal, on Seely’s land, I do not perceive how Seely has placed himself in a position to claim this duty. The race which Seely should prepare has never been completed; the means of performance which Seely should provide, have never yet been rendered possible.

Admitting the obligation, and the failure of the state to comply with it, it seems to me Seely has already received the amplest compensation for all losses he sustained from this failure, by the $5,000 which have been already paid. But, even if he has not, the acceptance of that sum on a claim he preferred, is to be taken as a satisfaction of that claim.

But, passing over all other difficulties, and conceding the liability to make this compensation, it belongs to Ms creditors, and should be distributed to them through the commissioner of insolvents, to whom he has assigned his effects, but who is not a party to this bill.

It is with the most profound respect for the opinion of my brethren, I feel constrained, for these reasons, to record my dissent.