text:
    George D. Sites v. Keller and Skinner.
    Upon parol contract for the sale of lands, mere payment of the consideration does not take the case out of the statute of frauds and perjuries.
    This cause was adjourned from the county of Hocking, upon the following state of case: The bill charges that the defendant, Keller, being possessed in fee of the northwestern quarter of section 25, town 14, range 16, on or about April 1, 1831, contracted with, ■complainant through the agency of one Jonas Criglow, who was thereunto duly authorized by complainant, *and for the [484 ■consideration of a certain stallion known by the name of “Paymaster,” which said stallion was there and then delivered by said •Criglow to the defendant, agreed to sell and convey complainant, by deed in fee simple, to be delivered to complainant within a reasonable time, the tract of land aforesaid. The complainant •confiding, etc., by his said agent bargained with the defendant, and agreed to give and deliver said stallion to him for the consideration of said land so to be conveyed as aforesaid, and did there and then by his said agent, in full performance of his part of said agreement, deliver said stallion as aforesaid to the defendant, who received said stallion in full of the price and consideration of said land.
    That said defendant (as complainant is informed and charges) after said contract was made, and with a view to the performance thereof executed a deed for said tract of land to complainant, and delivered the same to one Daniel Skinner to be by him delivered to complainant, but that said defendant, at the time he delivered said deed to said Daniel, instructed him not to deliver it to complainant, unless he (complainant) would pay said Daniel for the use of defendant twenty-five dollars, which complainant avers he was in nowise bound to do the contract aforesaid. That said Daniel being thus limited has not yet delivered said deed, but refuses so to do, unless complainant will pay the twenty-five dollars. That a reasonable time has expired for the performance of said contract by the defendant, but that he has wholly neglected, and now refuses to perform the same.
    That defendant Keller, further intending, etc., has recently bargained with the defendant, Skinner, and agreed to convey said tract of land to him. That such conveyance is not yet made, and that said Skinner has not paid to said Keller any part of the purchase money by him agreed to be paid for said land, and that said Skinner has full notice of complainant’s equitable right in the premises.
    Prayer for process against the defendants for a specific performance by Keller of his contract with complainant, and for general relief.
    The defendant, Keller, plead, that neither he, nor any person by him lawfully authorized, did ever make or sign any contract or agreement in writing, for making or executing any deed or other conveyance to said complainant of said tract of land or any part thereof, or to any such effect, as by the bill is suggested, or 485] any note or memorandum thereof in writing, etc. *And that he did never execute a deed, and deliver the same to ono Daniel Skinner, to be by him delivered to the said complainant, with a view to the performance of said pretended contract; but with a view if practicable of disposing of said tract of land on terms, upon a consideration yet to be fulfilled and complied with, and in such event to be delivered, otherwise of no validity, etc.
    The case came before the court for hearing on the bill and plea.
    Hunter, for complainants:
    Upon the state of the pleadings now presented to the court, the distinct and only question is, whether “ full payment of the purchase money is a sufficient part performance of a parol contract for the sale and conveyance of lands, to take it out of the statute of frauds.”
    W e have not been able to find any case in England or America, in which this question has been presented, except a case referred to in Freeman, 281, decided by Lord Nottingham. Frequent references are made to this case, but the one stating the point decided most distinctly is in a note (1 Sch. & Lef. 40), where it is said to have been decided by Lord Nottingham, “when the purchase money was paid, and the deeds refused to be sealed, that they should be sealed.” All of the cases on this subject in England, in which there would seem to be much conflict of opinion, have been cases in which part only of the purchase money has been paid. And although there is undoubtedly a difference of opinion to be found in the cases, it is yet quite obvious that the weight of authority is in favor of the position, that payment of a substantial part of the purchase money will take a case out of the statute.
    In the note above referred to, 1 Sell. & Lef. 40, New York edition of 1808, the authorities on both sides are stated. Opposed to the position that payment will take a case out of the statute, are the following cases,, viz : Seagood v. Meale, Prec. Chan. 560; Lord Fingal (or Pengal) v. Ross, 2 Eq. Cas. Ab. 48, and what is said arguendo in Coles v. Trecathic, 9 Ves. jr. 242, to which list may be added the case of Clinan v. Cooke, 1 Sch. & Lef. 40. On looking into these eases it will be seen the part payment relied upon has been but *an inconsiderable sum. In the first case, Sea- [486 good v. Meale, the payment was one guinea.
    The cases referred to on the other side aro Lacon v. Morton, 3 Atk. 1; Main v. Melbourn, 4 Ves. jr. 720, and Buckmaster v. Harrop, 7 Ves. jr. 341. In truth, the case of Main v. Melbourn should perhaps have been enumerated with them in support of the other side of the proposition, as the decree in the case was against the relief, on the ground that the part payment relied'upon, being only •five per cent, of the purchase money, was too insignificant a part. But it was proper at the same time to be referred to, as an authority in support of the other position, that payment of a sub■stantial part does not lay the foundation for relief. The language of the chancellor is strong and decided that way. He says: “ Payment of part of the purchase money is certainly a part perforiu•ance; but this five percent, is mere earnest.” And, again, he says: “ It is not disputed that if part of the purchase money substantially is paid, that it takes it out of the statute,” etc. This case was decided in 1799, and is the last of note before the case of Clinan v. Cooke, decided by Lord Redesdale, in 1802. There are many other cases touching this point besides those referred to in the cases above cited, most of which, ho wever, are cited in those cases. And although it is said by Lord Redesdale, in the case of¡ Clinan v. Cooke, that “it has always been considered that payment of money is not to be deemed part of performance to take a case out of the statute,” it must be manifest his lordship was, in some degree, in error in that particular. That, in fact, at the time he made the remark, the weight of authority was clearly the other way, except in cases where the part payment was of an inconsiderable sum. Indeed, the only case referred to by his lordship, in support of the position, is that of Seagood v. Meale, in which the sum paid was only one guinea. It is true, after this decision by Lord Redesdale, it was looked upon as in some measure settling the question. It was so viewed by Mr. Sugden, in his treatise on Yendors and Purchasers. But no such sanction has ever been given judicially so far as can be ascertained.
    The case of Lacon v. Morton, above cited, was a parol contract to convey lands in consideration of three hundred pounds, two-thirds of which was paid in hand. By accident the estate became more valuable after the contract, and the vendor agreed to pay one hundred and forty pounds more. The case was held to be 487] out of the statute. And in *case of Child v. Comber, 3 Swans. 427, payment of counsel fees, drawing drafts and engrossing them, and preparing purchase money was holden to take the case out of the statute. This case is long subsequent to that of Clinan v. Cooke, and may be considered as overruling it.

      W. W. Irwin, for defendants:
    Section 5 of the act for the prevention of frauds and perjuries, provides that no action shall be brought whereby to charge the defendant upon any contract for the sale of lands, tenements, hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within one year from the-making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be changed therewith, or some other person thereunto by him or her lawfully authorized.
    In Great Britain, after the passage of the act of that country for the prevention of frauds and perjuries, it became a question, whether the part payment would take a case out of the statute ; and if so, what sum would suffice for that purpose. The subject underwent much discussion, and there are contradictory decisions; but it seems to be now settled that payment of the whole of the purchase money will not give validity to a parol agreement in relation to lands.
    Sugden, in his treatise of the Law of Yendors, page 80, after giving a view of the decided cases, says, “ that since the above observations were written, a decision of Lord Redesdale has appeared, in which he held clearly that payment of the purchase money is not a part performance, and although his lordship did not advert to all the cases on the subject, yet it is sincerely hoped that his decision will put the point at rest.”
    The reason assigned by the chancellor why payment will not take a case out of the statute is, that the statute has said that in another case, viz : with respect to goods, it shall operate as a part performance. And the courts have heretofore considered this as excluding agreements for lands, because it is to be inferred that when the legislature said it should bind in case of goods, and were silent as to lands, they meant that it should not bind in case of lands.
    *This process of reasoning is resorted to by the chancellor, [488 for the purpose of arriving at the intention of the legislature, and having found it, he refuses to depart from it.
    By our statute, the agreement is declared to be inoperative, unless it be reduced to writing, and signed by the party to be charged. If the legislature intended to exclude contracts, where payment' or part payment of the purchase had been made, from the operation of the statute, it certainly would have been so expressed. The design of the legislature was to prevent litigation, by rendering certain all contracts relating to land. Indeed, it may be said to be vitally important to the well being of society, to reduce disputes in relation to land titles to the smallest possible number. Will this be effected by the exclusion of this great class of cases from the provision of the act? Can any one for a moment suppose that such was the intention of the legislature.
    In the case of Phelps v. Thompson, 1 Johns. Ch. 146, it is asserted, by the chancellor, that unless the plaintiff his clearly established the contract, as charged, and also a part performance of the same contract, he has not entitled himself to the relief sought. This opinion shows the propriety of- considering the plea in connection with the answer, and is here referred to for that purpose. '
    In the course of his remarks in that case, Chancellor Kent observes, “ that (that) case, like many others, shows the utility of the statute of frauds, and the danger of relaxing the sanction of its provisions. I agree with those learned judges,” said the chancellor, “ who have declaimed that ‘ the courts ought to make a stand against any further encroachment upon the statute, and not to go one step beyond the rules and precedents already established.’ ”
    So far as I have examined the subject, it is to prevent fraud that parol agreements in relation to lands, partly performed, have been specifically decreed. When payment of the purchase money is all that has been done, then it can be recovered as in other cases when there has been a failure of consideration. But when the purchaser has taken possession, and made improvements with the knowledge and assent of the vendor, it presents a very different case. To compensate him would require an estimate of his time and expenses in taking possession ; the value of the improvements, and also an estimate of the losses and inconveniences he 489] would be put to in breaking *up his settlement and seeking a new home. The fact of the vendor’s looking on, and seeing improvements made, when he intended to avoid the agreement, amounts to a fraud, and it is upon that ground that relief ought to be afforded, and not on a strained construction of the act in search after the intention of the legislature, which neither reason nor common sense will warrant.
    The positions here assumed are fully warranted by the decision of this court in the case of Wilber v. Paine, 1 Ohio, 254. The court say, it has been repeatedly decided by them that part performance may take a case out of the statute, and although the policy of such exceptions have been questioned, they were induced to believe that if admitted with caution, they might have a salutary tendency in preventing fraud. The court further say, that no case had been decided by them from which any general rule could be inferred as to the description of part performance that would take the agreement out of the statute. The court also assert, that it has been settled in England, that payment of money alone will not do it.
    From the most attentive perusal of this case, I can see nothing to warrant the.belief that the court intended to'lay down any rule that would enlarge the class of cases that should be exempt from the provisions of the statute. So far from this being the case, the reasoning of the court has satisfied'me that it was not their intention to go farther than was absolutely necessary to prevent just the same kind of frauds that have given rise to the equity jurisdiction of this subject.
   Judge Lane

delivered the opinion of the court:

This case fairly raises the question, whether the payment of consideration, in an agreement for the sale of lands, removes it from the operation of the statute of frauds. The statute was probably intended by its makers to take away the right of action upon every executory parol agreement. But it was immediately found, that by this strict construction, a law intended to prevent fraud became the instrument to effect it. Whenever a denial of relief in equity would produce the evils which the statute was enacted to suppress, it became necessary to sustain the validity of the agreement, although not in writing. Whenever an agreement has been partly performed, and the terms of it are confessed, or ■are satisfactorily found, i-t will be enforced *notwithstand- [490 ing the statute. Acts of part execution to be attended by this ■consequence must be of the substance of the agreement, or such that the party executing “ would suffer an injury amounting to fraud” by the refusal. Possession taken and improvements made are acts of this kind. Whether the payment of the part or the whole of the purchase money produces this effect, has been the subject of contradictory adjudication. The cases are cited in the elementary books. 1 Mad. 381. The earlier decisions admit the ■dectrine; but is doubted or denied by all the later opinions, and the law is summed up in 1 Dane, 248, “ on the whole it appears, though not clearly, that merely paying purchase money does nob take the case out of the statute.” A good foundation subsists for this distinction. After such acts of performance as possession or improvements, to rescind the contract would not restore the parties to their original situation ; but full compensation for the payment of the purchase money is made by the restoration .of principal and interest.

Plea sustained. Bill dismissed without prejudice to his rights at law.


source: Caselaw Access Project

author: Judge Wright

license: Public Domain

text:
    Bradly v. Sneath.
    If, upon appeal from the common pleas to the Supreme Court, no bond is taken, the jurisdiction of the Supreme Court does not attach, and exception may be taken by the appellee, after trial and verdict agninst him.
    Appeal does not lie from a nonsuit, unless it is shown by the minutes that such nonsuit was ordered by the court.
    An appealed cause may be retained, that application may be made to amend in the common pleas.

      This case was adjourned from the Supreme Court in Seneca county, where it was docketed as an appeal from the common pleas. The proceedings of that court, as certified up under the-statute, show that the parties appeared, a jury was impaneleu there to try the issues, and that the plaintiff “ thereupon fails further to prosecute his suit, and the jury were discharged.” Judgment was rendered against the plaintiff for costs. He gave notice-of appeal. There is no evidence that an appeal bond was given. At the late term of the Supreme Court in Seneca, the cause was-tried to a jury, and a verdict found for the plaintiffs for eight hundred dollars damages. After verdict, the defendant moved the court to strike the cause from the docket for want of jurisdic491] tion, which was ^reserved for decision here. He also moved in arrest of judgment and filed his reasons, which the decision of the court makes it unnecessary to state.
    O. Parish, in favor of the motion, argued :
    The record of the common pleas shows that both parties appeared, and caused a jury to be sworn to try the issue, and then the plaintiff failed to prosecute his suit further. There was no action of the court in the controversy. The plaintiff voluntarily abandoned the prosecution. He voluntarily became nonsuit. From such a proceeding the plaintiff can not, by the law of Ohio, appeal. 29 Ohio L. 75, sec. 96, Practice Act. As well might the plaintiff have stood mute when called, and refused to answer (when he certainly must have been nonsuited), as to appear, impanel a jury, and then reiuse to say anything farther in his case. No matter in what language the record of the common pleas is made up. The fact that plaintiff became nonsuit is palpable on the face of the proceedings of that court. No matter whether this-proceeding is called nonsuit, discontinuance, retraxit, or dismissal, he can not appeal to the Supreme Court.
    The jury gave no verdict; they were discharged from all consideration of the cause. The record shows that the plaintiff appeared, but would not answer. He would do nothing. The court could not but pronounce the judgment of the law. In effect, they have said, on their record, “the plaintiff refusing to give any evidence of his demand, or attempt to give any such evidence, he jmust .be, he is nonsuited.” I give no attention to the attempt of the plaintiff to patch up the record. The memorandums of the president judge are not records. They are worthless, except they aid the clerk in making up the journals.
    C. L. Boalt, for the plaintiff
    In the court below, judgment of nonsuit was directed to be entered against the plaintiff for the alleged irrelevancy of his testimony. From this judgment the plaintiff appealed. In making his entry of the decision of the court, the clerk took no notice of the reason assigned for the nonsuit. At the term subsequent to these proceedings, the counsel of the plaintiff Amoved the [492' court to amend the entry of the clerk from the notes of the presiding judge. The defendant now moves to strike the cause off the docket. We object;
    1. The entry of the clerk was sufficiently full and explicit as-made. It was not necessary for him to notice the particular reason or grounds of the nonsuit on the journal or transcript, in order to perfect in the plaintiff his right of appeal.
    By statute, 29 Ohio L. 58, it is made the duty of clerks “ to enter and record all the orders, decrees, judgments, and other proceedings of the courts.” And in the practice act it is enacted that “for the purpose of preventing errors in entering judgments, orders, and decrees of each court, the judges thereof, before every adjournment, shall cause the minutes of their proceedings to be publicly read by their clerk, and corrected when necessary, and that these minutes shall be carefully kept among the records.” 29 Ohio L. 94. The necessary inference from these clauses of the statutes is that these minutes of the clerk constitute no part of the records.
    The clerk is to enter and record; the entries are to be preserved among the records; they are to be read for the purpose of detecting errors, and are ultimately to be used by the clerk in making-out a complete record of all the proceedings in the cause during the vacation Subsequent. This construction is fully recognizedjn Marvey v. Brown, 1 Ohio, 268, in which it is decided that “ these minutes can not be considered as the foundation for an assignment of errors.” The minutes are the data, the memoranda, to aid the recollection of the clerk afterward, when from lapse of time the leading facts might have escaped from his memory. Admitting that an omission of this kind would have vitiated, had it appeared upon the record itself, we believe that it may easily be overlooked in the minutes, which seldom contain but a part of the materials from which the record is formed.
    What is the duty of the clerk in case of appeal? He is to make an authenticated transcript of the docket or journal entries, and of the final judgment or decree. 29 Ohio L. 79. In the case before the court he has complied with this requisition to the letter. He has sent up a transcript of the docket and journal entries, and of the final judgment, that of nonsuit; and now, with this transcript on file after verdict and. damages found, a motion is made 493] to set the whole proceedings *on the appeal aside, because the transcript omits to state the reasons that induced the court below to nonsuit us.
    In sustaining this motion the defendant must assume one of the two following positions: 1. That the judgment should have been entered on the journal of the clerk as “a judgment of nonsuit for irrelevancy of testimony,” making the phrase “ irrelevancy of testimony” .a necessary adjunct to nonsuit, and descriptive of the judgment; or that the reasons for the decision of the court below should have appeared elsewhere upon the entry and transcript. In regard to the first position, we submit that no such judgment as that of “nonsuit for irrelevancy of testimony,” as distinct from that of nonsuit without such adjunct, is known to the law. True it is, that under our statute a plaintiff can appeal from a judgment of nonsuit in three specified cases only. But in making provision for these cases, we see no reason for the belief that the legislature contemplated any new judgment, or any change in the form of entry. If so, the several circumstances that confer upon the plaintiff the right of appeal should be entered upon the journal as matter of'description in other cases as well as in this. We should then have in our practice and upon our records not only the new, (and before the passing of the act above referred to) unknown, and unheard-of judgment of “nonsuit for irrelevancy of testimony,” but likewise the equally unheard-of and uncouth judgments of nonsuit, by reason that the testimony adduced did not support the case in the declaration, “ and the judgment of nonsuit, by reason that the testimony was arrested from the jury.”
    If the second position be well founded, it becomes incumbent upon the clerk, not only to enter the judgment of nonsuit itself, but also the reasons that induced the court to pronounce such judgment. The court is to make an entry (in the language of the statute) “ of the orders, decrees, judgments, and other proceedings.” From this it would seem evident, and it accords with the-practice of this officer, that he is to note down certain facts, and not opinions on the evidence of those facts — judgments, and not the grounds or reasons of those judgments. We are well aware-that it has been repeatedly decided that a plaintiff could not appeal from a judgment of nonsuit. But the present statute which confers that right, under certain circumstances, has prescribed no new form for the entries of the clerk, nor in terms, imposed upon him any additional duties. *Had such been the intention [494 of the legislature, would they have been silent in a matter so im-' portant to parties and to the ends of justice? In thus providing a remedy for a,plaintiff, who had been wrongfully turned out of . court, is it reasonable to suppose that .they would, in this manner, designedly have left in his path such a nicely-covered pitfall to-entrap and destroy him? Would they not have specially pointed out the duty of the clerk in such cases, and in so doing made the remedy effectual ? But we have no such special provision in the statute, and conceive that the manner in which the duty of the clerk, in appeal cases, is pointed out, excludes the inference that any was intended. The rule above referred to of the practice act applies to all cases alike — to appeals in nonsuit as well as in . others. “ The clerk is to make an authenticated transcript of the-docket or journal entries, and of the final judgment or decree.”
    Should the court be against us on our first ground, they will allow us to amend the journal entries and transcript, and continue the cause to allow time for the motion to that effect in the court below.
    At common law, we admit that the judgment record and other memorials of the proceedings of courts could be amended only during the same term in which the proceedings took place. The-doctrine was, that such proceedings might be amended while infieri, and they were so considered in fieri during the term in which they transpired. But this ancient strictness is done away, and where justice requires it, amendments are allowed at any time during suit on the proceedings; and these are considered in fieri for the purposes of amendment until final judgment and record-enrolled. This, it seems, was the common law doctrine, 6 Davies’ Ab. 184, before the statutes of jeofails. At common law, as no-final record is yet made up in this case, we have a-right to amend the journal entry.
    The books are full of instances in which amendments have been ■directed under circumstances against the applicant stronger than those here presented. We ask merely for permission to amend, for the purpose of showing the true cause for which judgment was ■directed to be entered against us, and for leave to do this from the notes of the presiding judge. It is not an application to alter the •effect or operation of the judgment of this court, but to supply on the transcript the facts that lead to it, in order that it may be good 495] as it stands, not in matter of ^substance, but in matter of form merely for misprision of the clerk.
    The slips and mistakes of the clerk are more favored than those •of the party. 1 Johns. 276; 6 Dan. Ab. Ch. 184; Salk. 50; Cro. Eliz. 760.
    In 3 Johns. 526, the action was entered by warrant of attorney, but by the attorney’s negligence the defendant’s plea was not .signed by him, and appeared nowhere upon the face of the record. The opurt allowed the plaintiff to amend the record nunc pro tunc by inserting that name, though an after judgment had been given against the defendant on which a performance was claimed. For the practice of our own courts, see 2 Ohio, 32; 1 Ohio, 375; 5 Ohio, 337, which seem full to the point.
   Judge Wright

delivered the opinion of the court:

Two objections are made to the jurisdiction of this court:

1. The want of an appeal bond.

2. That the appeal, if taken, is from a voluntary nonsuit.

As to the first objection, it has been repeatedly decided that the •appeal bond, in due time and form, was necessaiy under our system to remove a cause by appeal from the common pleas; and whatever may be our individual opinions upon the expediency of those decisions, they have been made and acquiesced in, and it is improper for us to change them. The statute expressly provides that parties desirous of appealing from the judgments of the court of common pleas, shall do the following things to effect the appeal: 1. Give notice during the term when the judgment,is rendered, on the minutes of the court, of the intention to appeal. 2. File within thirty days after the last day of that term with the clerk a ■bond to the other party, in at least double the amount of the judgment, conditioned to pay the condemnation- money and. costs in the Supreme Court, if judgment shall-be-entered there in favor of the appellee, and with security to be approved of by the clerk.. 29 Ohio L. 78. A compliance with these requisitions is held necessary to vaeate the judgment of the court of common pleas. The jurisdiction of the Supreme Court only attaches to the case when the judgment rendered in the court of common pleas has been thus vacated. If the parties to a judgment, after its rendition, should agree orally, or in writing, that the judgment was vacated, would such agreement have the legal effect of vacating the judgment ipso facto? Were suit brought on the original cause *of action after such agreement, and former recovery was [498 pleaded in bar, could the plea be avoided by replying over the agreement? Upon common legal principles the replication would be adjudged bad on demurrer. Judgments can not be discharged by parol; inchoate rights may be. We are asked in the ease at bar to take jurisdiction without evidence that the judgment of the common pleas has been vacated. That a compliance with the requisitions of the statute is essential to the jurisdiction of this court, has been held in Wilson v. Holman, 2 Ohio, 253; Bliss v. Ling, 5 Ohio, 276, and ante, 34, and by numerous decisions on the circuit not reported. A jurisdiction dependent upon the agreements of parties only constitutes the judges arbitrators; and if they act at all under such authority, they act as arbitrators — not as public ministers of justice. It is, however, insisted that a bond was in fact filed. It would be convenient if the clerks of tho common pleas would send up with the papers either the original bond or a copy of it. He is the judge of the sufficiency of the security, and should indorse on it the fact of his approval and the time of filing. These facts appearing in the proceedings certified up, the delays now so frequent, occasioned by disputes in relation to these facts, would be avoided, and this court would know whether its jurisdiction attached to the case. The fact of there being a bond in this case can be shown, if it exist.

Will an appeal lie from a voluntary nonsuit ? The act of assembly, 29 Ohio L. 75, provides for an appeal, when the court order a nonsuit by reason of the irrelevancy or insufficiency of testimony to support the plaintiff’s declaration, and where non-suit results from the courts arresting the testimony from the jury. All these cases, which are exceptions from the common rule, suppose the interposition of the court. This is essential to the appeal. The case before us shows no such interposition. The common rule does not allow an appeal from a voluntary nonsuit. It is, however, urged that by the docket of the judge presiding in the court of common pleas, it does appear that the court below ordered the nonsuit.

"We are asked to amend the entries of the court of common pleas so as to conform them to the minutes. We can only notice the proceedings of the court of common pleas when property certified to us. The objection made to such amendment, that it is matter of record, has no legal foundation. By the present law, 497] no record is made in the court of common *pleas, when a case is appealed, unless ordered by one of the parties; the original papers, with a copy of the journal and docket entries, are sent up. If the case, then, was appealed, there is probably no record — none of course, or without the special order of one of the parties, and no such order appears. Nothing remains in the common pleas but the docket and journal entries of the proceedings and judgment of the court. The docket kept by the presiding judge contains his original minutes of the doings of the court. It is from this the clerk generally makes his journal entries. We see no impropriety in that court correcting the mistakes of their clerk in transcribing these minutes — correcting them by the original entries. It would be strange if the law prohibited such correction. The whole proceedings of the court of common pleas, if the cause has been appealed, is in paper, and may be examined, and any error of fact corrected. The decision on the motion may be suspended, to afford time to examine into the matter.

But the suit was commenced in August, 1823; the fourth count in the declaration alleges the words to have been spoken at the next term after when the declaration was filed. While examining, it may bo well for counsel to inquire how to avoid this difficulty.


author: Judge Lane

text:
    Belmont Bank of St. Clairsville v. Walter B. Beebe.
    Declaration that defendant warranted a person applying to the plaintiffs for a loan to be a respectable man of Tuscarawas county, named Adam Biggie, and averring that- the person was not Adam Biggie, whereby plaintiff lost the money loaned, held insufficient.
    If in assumpsit, the undertaking is collateral and conditional, and notice should be averred.
    If for deceit, an intention to deceive should be averred.
    This cause was adjourned from the county of Belmont.
   Judge Lane

stated the case and delivered the opinion of the court:

This case stands before the court on a demurrer to the declaration. The plaintiffs declare, in a plea of trespass on the case, “that on November 25, 1830, at the county aforesaid, a person, to the plaintiffs unknown, made application and requested plaintiffs to loan him one thousand dollars for sixty days; that said person so unknown, referred the plaintiffs to the defendant, concerning his person, name, character, and standing; that *sáid de- [498 fendant, so referred to, in consideration that said plaintiffs would loan the said person the sum of one thousand dollars, warranted' him, so unknown, and so applying, to be a reputable and respectable man of Tuscarawas county, of the name of Adam Riggle, and thereby induced plaintiffs to loan him one thousand dollars for sixty days. That plaintiffs, confiding in these representations, loaned the money; whereas, in fact, said person so unknown, and so warranted to be a reputable and respectable man of Tuscarawas county, by the name of Adam Riggle, was not a man oí the name of Adam Riggle, of Tuscarawas county; by means of which defendant, falsely and fraudulently, deceived the plaintiffs on the loan aforesaid, and thereby said sum of money became wholly lost, and plaintiffs have been subjected to great expense in endeavoring to discover the name and residence of said person, and in recovering the money to their damage, one thousand eight hundred dollars.

The extreme indefiniteness, the utter want of precision, and the language used by the pleader in this plea, makes it difficult to understand his meaning, still, more difficult to express it. I do-not know whether he intended the suit to be assumpsit or case, .and it becomes necessary to examine if it can be supported in •either.

Hubbard, for plaintiff.

Cowen, for defendant.

Is it assumpsit? If it be a contract, it shows a loan made to another person, who was under a liability to pay ; the liability of the defendant was, consequently, not absolute to pay at all events, but a liability arising from the default of the principal, to raise •which he must have notice. The omission of this averment makes the count bad ; when notice is omitted which ought to be averred, -it is good after verdict, but’ bad on demurrer. 1 Chit. Pl. 287.

To make a good declaration in case for fraud, it is necessary to rshow that he made the affirmation fraudulently with the intention to deceive, or knowing the contrary to be the truth. No such •character is attached to them by the pleader, except near the close, where he states that, by means of the premises, the said plaintiff falsely and fraudulently deceived the defendant. This seems rather an inference of the plaintiff than a direct averment of the fact. Such an averment was held good after verdict in New York. 11 Johns. 550. But it seems to have been there sustained only because objection was taken so late.

But in this statement of the cause of action, it is not shown •489] ^hovr any injury arose from the act of the defendant. He is said to have warranted the person to be a respectable and reputable man of Tuscarawas county, of the name of Adam Higgle, whereas he was not a man of Tuscarawas county by the name of Adam Higgle, by means of which he deceived the plaintiff, and the debt was lost. He does not show how it was lost. If it was John Higgle instead of Adam, or if it were Adam Higgle of^ Belmont county,-the representation would not be true, yet no injury would necessarily follow.

It is not shown that the person was not Adam Higgle, or that ■there was no such man. It seems to be indifferent to the plaintiff; whether the representation was true or not, the inference must, follow the premises, the injury must be shown to arise from the representation, or the pleading is ill.

Demurrer sustained.


text:
    Joseph Hunter’s Will.
    When the judges of the court of common pleas are so interested that a quorum can not sit to take proof of a'will, the case can not he certified to the Supreme Oourt for taking such proofs.
    The last will and testament of Joseph Hunter was presented to ■the court of common pleas, in Franklin county, at June term, 1834, by the executors therein named, for probate. There not being a sufficient number of disinterested judges of that court to form a quorum, the application and the will was certified to the Supreme Court. The will was again offered for probate in the Supreme Court, the evidence taken, and the questions arising under it reserved for decision in bank.
    G. Swan, for the application,
    cited 3 Bl. Com. 295; Jac. Law Dic., Action; 1 Inst. 285.
    42^384
   Judge Wright

delivered the opinion of the court:

The jurisdiction of the Supreme Court to hear the probate of a will, is sought to be maintained under the provisions of section ■63 *of the practice act, 29 Ohio L. 70, in which it is enacted, [500 that if, in any suit or action in the court of common pleas, it shall so happen that there is nota sufficient-number of disinterested judges of such court to sit on the trial of any particular cause there pending, it shall be the duty of the court, on the application of either party, to cause such fact to be entered on the minutes of the court, and to certify the fact with the papers to the next Supreme Court. The Supremo Court is thereupon to take cognizance of the case, and proceed to hear and determine it in like manner as if it had been originally commenced in that court. No question is made but the-certificate of the court of common pleas in this case conforms to the law, if the ease be one which that court was authorized to certify up, and which the Supreme Court is empowered to take cognizance of.

The jurisdiction of our courts depends upon the constitution and laws of the state. The constitution imparts to the Supreme Court capacity to receive jurisdiction, “both in common law and chancery, in such cases as may be directed by law.” Const., art. 3, see. 2. The like capacity is conferred upon the court of common pleas,, to “have conmon law and chancery jurisdiction in all such cases-as shall be directed by law.” Another and distinct section of the constitution confers upon that court “ complete criminal jurisdiction,” and in another section it is doclared, that the court “ in each county shall have jurisdiction of all probate and testamentary matter, etc., and such other cases as shall be prescribed by law.” Const., art. 3, secs. 3, 4. The act organizing judicial courts confers original jurisdiction upon the Supreme Court “ in civil cases, both at law and in equity, where the matter in dispute exceeds one thousand dollars, and appellate jurisdiction from the court of common pleasdn all civil case's in which the court of common pleas has original jurisdiction.” The same act confers upon the common pleas original jurisdiction in all civil cases, in law or equity, where the sum in dispute exceeds the jurisdiction of a justice of the peace ; and gives the court power to take -probate of wills, to grant letters testamentary thereon, to grant administration upon intestate estates, and to hear and determine all case of a probate and testamentary nature.

It is evident from these provisions, that the framers of both the constitution and law had in view the several distinct jurisdictions as distributed to the English courts, and exercised in that country 501] by the courts of common law and of chancery, *and by the ecclesiastical tribunals. In speaking of each, the appropriate language is used. The distinction is preserved throughout our legislation. The act to regulate the practice of the judicial courts directs the mode of practice in the courts of common law; the act directing the mode of proceeding in chancery directs the practice in the courts of chancery; while all subjects counected with the probate of wills, granting letters testamentary, of administration and guardianship, as well as the power of divorce (all matters pertaining to the ecclesiastical courts in England) form the subject of distinct and special legislative acts. This course of proceeding indicates a determination to keep those several jurisdictions as distinct and separate as can be done with our judicial organization.

The appellate jurisdiction'of the Supreme Court is limited to civil cases at common law, in which the court of common pleas has original jurisdiction. 29 Ohio L. 56. In chancery cases, the appellate jurisdiction varies but little. No ecclesiastical juris•diction original or appellate is expressly conferred upon it except in cases of divorce. The question before us is one of jurisdiction, of appellate jurisdiction. That is limited to civil cases in law and •in equity. Is the probate of a will a civil case in law or equity within the meaning of the constitution or the laws ? In the case of Chapman’s will, ante, 148, this court decided that the rejection of the probate of a will was not within the provisions of the statute of wills, which gave an appeal “from the decisions of the court •of common pleas, when any will or other motion relating thereto .shall have been contested.”

The act under which this proceeding has been certified up from the common pleas authorizes the removal of suits or actions pending there on the application of either party to the suit. We think ■the terms suits and actions, as used in the law, synonymous. It is evident the case to be removed must have at least two parties, for the removal is to be made on the application of either party. I should define an action to be an abstract legal right in one person to prosecute another in a court of justice; and a suit, the actual prosecution of such right in a court of justice. The application to make probate of a will is not included in the definition •either of an action or suit. It belongs neither to the common law •nor equity jurisdiction conferred upon the court of common pleas, but appertains to the ecclesiastical jurisdiction of the English ■courts, which is specially ^conferred upon our courts of com- [502 mon pleas as courts of probate. The proceeding to make probate ■of a will is ex parte, not adversary. No process is required to notify any whose interests are to be affected. No one is necessarily before the court, other than the party applying to prove the will. No judgment is given. The order of probate is not conclusive •upon the subject of it, for the statute law expressly provides a way in accordance with the common usages of chancery to contest and vacate the probate, if allowed. If rejected, another application may be made, and probate established ou new and better proof.

It is urged that this case should be retained upon the principles on which the court retained the case of Rawson v. Boughtre, 5 Ohio, 328. That was an application to redeem lands sold for taxes. The court held it “in the nature of asuit or, action, and took jurisdiction.” But did so expressly on the ground that the proceeding contemplated by the statute for the redemption of lands sold for taxes, was an adversary litigation.” It will be recollected that notice is required to the purchaser for taxes of the intended motion to redeem, that he may have day in court to contest the right to redeem the title of the party applying, and that the court is to make an order of redemption, award restitution of the premises, and direct the applicant to pay the costs. The analogy between that proceeding and the one before us does not hold in any par-\ ticular. The proceedings to redeem land are summary, but adversary, and the decision or judgment made was final as to the rights of the parties. Probate proceedings are ex parte, and the order of the court, given either way, is not conclusive.

It seems to us the case is not within our appellate jurisdiction, or that provided for by the act for certifying causes from the court of common pleas, where so many of the judges of that court are interested in it as to leave them without a quorum. The application is, therefore, dismissed for want of jurisdiction.


author: Judge Wood

text:
    *John Work v. Helen Massie, Executrix of Henry Massie, deceased.
    Executor resident out of the state, never-having given bond here, not entitled' to appeal, without giving appeal bond with security.
    Adjourned from Ross county.
    The case was debt, on a bond. The suit was commenced by the-plaintiff against the defendant’s testator in his lifetime, and revived against the defendant after his death.
    Plea, the statute of limitations; replication of a demand within, fifteen years ; rejoinder taking issue on the execution.
    The case was submitted to the court of common pleas "and judgment given for the plaintiff. The defendant, who resides in Kentucky, gave notice of an appeal to the Supreme Court, but no-appeal bond was ever, executed, nor had the appellant given bonds as executrix in this state. For this cause a motion was made to quash the appeal.

      Leonard and Swan, for appellant.
    Douglas, for the appellee.
   Judge Wood

delivered the opinion of the court:

The question arising here is on a motion to dismiss the appeal, and the only inquiry, can executors, who have not given bond in in this state as executors, appeal without giving the security required of others. This must be determined by the construction given to our statute. Section 109 of the practice act directs the mode of perfecting an appeal. It prescribes the security to be given and the manner of giving it, but contains a proviso in relation to executors and administrators in these words: “That in no case shall administrators or executors be compelled to give bond and security to perfect an appeal, as is above provided.” This act was passed on March 8,1831, and took effect on the 1st of June of the same year. If this were the only law on the subject, no security could be required of the defendant to perfect the appeal in this case; the legislature, however, on the 12th of March, four days after the passage of this statute, in the act defining the duties of executors and administrators, 29 Ohio Stat. 242, sec. 44, have provided that, every executor and administrator who may have given bond in this state (as such executor and administrator) may appeal ^without giving security on such appeal. This act [50# took effect on the same day with that before mentioned, and in its repealing clause contains these words, “ and all other acts and parts of acts coming within the purview of this act be and the same are hereby repealed.”

Can these two statutes, in relation to the question before us, stand together? The first provides that no executor, etc., shall be required to give security to perfect an appeal; the last enacts that such executor, etc., as have given bonds in this state may appeal without security. If the statutes are not flatly contradictory, they can not be said to be consistent with each-other. When the legislatures say that such executors and administrators as have given bonds in this state may appeal without security, is it not. absolutely clear they intended to exclude all others who had not given such bonds? We think so; and the provision in the former act must be construed with the one in this, and if not repealed by it, which we can not doubt, it must give place to it.

There is reason for permitting executors and administrators who have given bond as such in this state, to appeal without other security. They are under the control of our courts; they can at any time be required to give additional security ; th.ey can be cited in to show cause why they should not settle the estate, and can be compelled by an action on their bonds, within our own jurisdiction, to do right and justice to all concerned. If they reside out of the state, they are beyond our control, and we can not think it was the design of the legislature to permit them to carry on controversies in our courts, without giving an appeal bond. The same question has been twice decided on the circuit, the present season, and all the members of this court now present have united in this opinion. The motion to dismiss the appeal is sustained.


text:
    Benner’s Lessee v. Platter and others.
    A call in a survey, for a stream not navigable, is a call for the main branch of such stream, and the boundary is the middle of the stream.
    This cause was adjourned from Ross county. It came before the court upon a motion for a new trial. The material facts of the case are as follows.
    On the trial the plaintiff gave in evidence:
    505] *1. A survey made for Miles King, on November 3,1793, for one thousand acres, beginning on the upper side of Paint creek, at two elms and two sycamores on the bank of the creek, thence up the oreek (several corners and distances), passing the mouth of Buckskin, to a corner.
    2. A survey made for Richard Taylor, on November 10,1793, for one thousand acres, beginning at a sycamore on the upper side of the mouth of a branch where Todd’s trace crosses, thence up the creek and binding thereon, crossing Todd’s trace (several southwesterly corners), to the lower end of an island, and thence (several southwesterly corners) to a hackberry, Spanish oak, and red bud, thence from the creek, etc.
    The figure of these surveys, as represented in the returned plat made at the time, bounds Taylor northwardly by the creek, and King southwardly by the creek. Neither represents any island. The survey of Taylor extends upon the creek, about one-half the length of King’s line on the creek. A line run according to the •corners and distances called for in Taylor’s survey next the creek; would run pretty near the creek, and pass what is now described to be an island, near the intersection of the channel, making the island on to the island; crosses it with two corners, leaving about two-thirds of the island between the line and the main channel of the creek, then crosses on to the main-land, and runs thence into the fields away from the creek, and the acknowledged line of the survey.
    The plaintiff’s patent was dated in 1815, and predicated upon a fireside survey, made in 1814, having for object the island as it is called, and the bed of the creek between King’s and Taylor’s survey. The only line actually run in this survey was across the creek, from King’s upper corner to a spot near the lower point of the •island. The patent covers whatever vacant land there was between King’s and Taylor’s survey. Paint creek is not navigable. At low water little, and at some times there is not any water flowingin the bayou or channel around what is called the island. In a middle stage of water, nine-tenths of it flows in the other or main channel. The jury found for the defendants, subject to the opinion of the court on the law reserved, as to the true construction of the boundary of Taylor’s survey upon the creek, and if, in the opinion of the court, the plaintiff’s patent covers any portion *of tho [508 land in controversy, then the verdict is to be set aside and a new trial granted, otherwise judgment is to be entered on the verdict.
    B. G. Leonard and T. Scott, for the plaintiffs, contended:
    1. Taylor’s survey calls for the lower side of Paint creek, and was made in 1793. The evidence to show ’' -i existence of an island reaches no further back than 1797. At mat time the water flowed through the channel around the island, next to Taylor’s land, except in very low stages of the water; and the island now contains fifty or sixty acres. This shows that it was an island in 1793-It belongs to the court to determine what an island is, when tho facts relating to it are established. It is for the court to construe the survey as other written instruments, when the matters in pais connected with it are found. The question then is, whether within the true construction of Taylor’s survey, bounding on the creek, an island, surrounded by the creek, is included within it. Tho survey describes land on the lower side oí the creek, and calls for the lower end of an island, on one of the lines along the creek. Can it be extended to embrace the island in the survey? It will be an extravagant solecism to assert that a call for the lower side of a stream includes an island within the stream. An island must lie within the stream; it can not lie on either of its sides. It would be inadmissible to give proprietors of one of the shores of the Maumee or Sandusky rivers an island of five hundred or one thousand acres within their beds. A call for a creek, and down the creek with the meanders binding thereon, conveys no right to the channel or bed of the creek, nor makes the creek the boundary. Hughes, 55; 1 Bibb, 56, 58, 72, 95-97, 101; 2 Bibb, 356, 626; 3 Bibb, 144, 145, 205, 415; Angel, on Tide Waters, 18-23, 58; Harg. Tracts, 5; Holt, 499; Hardin, 258; 4 Pick. 269; 17 Mass. 289; 5 Wheat. 374.
    The survey and patent to Taylor only covers lands on the lower (!side of the creek, and is bounded by the courses and distances called for.
    2. King’s survey is bounded, on the upper side of Paint creek,, by tho courses and distances called for.
    3. The land lying between these surveys was unappropriated 507] ^except by the survey and patent to the plaintiff’s lessor, and is vested in him.
    4. The act of Virginia of 1779, “for establishing a land office, and ascertaining the manner of granting waste and unappropriated' lands,” made the beds and banks of streams subject to grant to individuals as other lands, and remains in force to this day as it regards western lands.
    5. If the act of Congress-of 1796 (2 Sto. U. S. L. 425), declaring the beds and streams of unnavigable rivers to belong to the owners of the opposite banks in common, has application to the case before the court; it establishes the plaintiff’s right to recover under King’s survey, because the defendant claims the exclusive use, and has ejected the plaintiff of his use of the moiety.
    W. S. Murphy and R. Douglas, for the defendants,
    insisted that the calls of Taylor’s entry and survey are for the creek, which ■forms the northwestern boundary of his land, and includes the island.

      The patent upon that survey conveys the land to the center of the creek and includes the island. They cited the following cases r 20 Johns. 90; 17 Johns. 195; 2 Caine, 319; 3 Kent’s Com. 344, 345, 353; 2 Conn. 481; 7 Mass. 496; 4 Pick. 268; 2 Bin. 475; 3 Rand. 33.
    G. Swan, on the same side.
   Judge Wright

delivered the opinion of the court:

If, in legal contemplation, the main branch of Paint creek to its center or channel is the boundary of Taylor’s survey, the plaintiff has no title; but if the creek described was the ravine, or the inner side of what is called the island, 'then the plaintiff has a legal title to the island.

As we understand Taylor’s survey, the creek is its boundary, It begins on the upper side of the mouth of' a branch, thence up the creek bounding thereon. It is difficult for us to understand how any one can dispute the proposition that such description makes the creek the boundary. We entertain no doubt it is the legal boundary in this case. A boundary on a stream like Paint creek, not navigable, is a call for the channel or middle of the creek. A call for Paint creek is a call for the main stream, not a mere branch of the creek. Whether the *tract claimed as [508 an island be one, that is, land permanently surrounded by water, or a peninsula, sometimes insulated by water flowing through a ravine, or into a bayou, makes no difference. The boundary being-the main channel or center of the creek, islands, properly so called, will belong to the proprietor of- that side of the channel where the island is found. This disembarrasses the case of the inquiry, whether the creek is an island or not. The main branch of Paint creek is between the ground called an island and King’s survey, not between the island and the main land of Taylor’s survey.

King’s survey covered the land on the upper side of the creek to its channel. Taylor took the other aide to the same channel. As the same line bounded the opposite proprietors, there could be no unappropriated land which Benner .had a right to survey and appropriate to himself; therefore the survey and patent to-him convey nothing.

The case of McCulloch’s Lessee v. Aten, 2 Ohio, 309, has been examined. In that ease, the court were called upon to establish for the defendant a boundary on the bank of a creek not navigable. The boundary described in the deed, as the court state it, was down the creek, with the several meanders thereof. The court say, we understand it to be a settled rule, whenever the stream is made the boundary, it is the water, and not the center of its channel that is referred to. So far is very well. The court then commented upon the case in 5 Wheat. 374, involving the southern boundary of the state, the Ohio river, as sustaining their opinion. That decision established low-water mark as the boundary, not the bank. The Ohio is a navigable river; it is moreover the boundary of state jurisdiction and sovereignty, and could only be a proper boundary for such purpose, while each state was limited to its own side of the water, because the jurisdiction of each in its very nature is exclusive of all others. Virginia, being the original proprietor of both banks of the Ohio, granted' to the United States all lands lying northwest of that river. This was held to convey only to low-water mark. If Virginia had not been the original proprietor of both banks of the river, and it was the common boundary, the line would be the center, and the islands go with the adjoining main-land on that side of the channel where they lie. The opinion of the court, in the first case, goes on to de509] clare the meanders of the creek (a *stream not navigable) to mean the water’s edge at low water. It seems to us this expression was used inadvertently, without regard to the difference between a navigable river and a stream not navigable. Establishing the water’s edge as the boundary, instead of the channel, gave to the plaintiff, in the case before the court, all he sought for in that ease, a salt well. The land lying between the edge of the water and the channel was not in contest. We do not think the court intended to decide that a boundary upon an unnavigable stream called only to the edge of low water.

We are strengthened in this bolief by a later case decided in bank, Gavit v. Chambers and Coates, 3 Ohio, 496, where the rights •of a grantee bounded on the Sandusky river, a stream by the court regarded as navigable, were settled. The opinion of the eourt in that case examined the doctrine of boundaries upon such streams. The court holds all grants by the United States upon such waters to be subject to the rule pf the common law, which, in such cases, is the plain rule of common sense. It is, say the court, that “ he who owns the land upon both banks owns the entire river, subject to the easement of navigation; and he who owns the land upon one bank only owns to the middle of the river, subject to the same easement.” This is the rule recognized not only in England but in our sister states. 20 Johns. 90; 17 Johns; 195 ; 3 Caine, 319 ; 3 Kent C. 344, 345; 7 Mass. 496; 4 Pick. 268 ; 2 Bin. 475; 4 Pick. 268; 2 Conn. 481. At common law the beds of all rivers, not subject to the ebb and flow of the tides, are held the property of the owners of the adjoining banks.

Section 9 of the act of Congress for the disposition of the United States lands in the Northwest territory is pressed upon our consideration as settling the question in this case, and making the bed of the river common to proprietors bounding on the river. In the case of Gavit v. Chambers and Coates, the court held that provision “ confined to reserving the use of navigable rivers, and to declaring the existence of the common law doctrine in respect to streams not navigable,” making the right to the soil in unnavigable rivers individual property to the middle of the stream, and the use of the stream common to them. But the act is not supposed to bear upon the case before the court, because by its express terms its provisions are limited to lands to be disposed of by the act. The lands lying between the Scioto and Little Miami rivers are not disposed of by *the law, but were reserved [510 before its passage to satisfy Virginia military warrants.

I have examined with some care a number of authorities pressed upon the court by the counsel for the defendant with unusual earnestness and pertinacity. I am unable to elicit from the decisions any principle at all conflicting with any point decided by this court at the trial or maintained now. There are many things connected with the adjustment of settlement, rights, and entries, connected with the improvements of the locator, the figure, the surveys, and the general convenience of the country that have no application, except to countries and rights similarly situated. There, as here, however, where there are several' calls in the deed or survey which conflict with each other, that one yields to the others which is least essentially to affect the general object of the survey, the certain description of a tract of land. Upon that principle it was decided, in 3 Bibb, 205, that when it is apparent that the description binding on the creek forms no part of the boundary, as particularly described in the deed, and can not be conformed to by complying with the express calls of boundary, it seems pretty clear that it should be considered as yielding to the more special specification of boundary, and under such circumstances a line binding on the creek might leave its meanders, and be run straight, in order to give effect to a survey and grant. In the case before us we think the creek is clearly the boundary of the survey, and there is no necessity in the case pressing it to yield to anything more or less certain.

The law on the point reserved is with the defendant, and the Verdict and judgment will be entered accordingly


text:
    Reddish’s Executors v. Watson, Holcomb, and others.
    Joint note stipulating that it may he continued from time to time, upon payment of interest, hinds all parties, though part were securities, and the continuance had without consultation with them.
    Contract to pay five hundred dollars, with fifteen dollars interest in advance every thirty days is valid, and the interest paid on the contract, in advance, can not he held as part payment of the principal. The failure to pay such interest in advance puts an end to the contract, from which time six per cent, only is recoverable.
    This cause was adjourned from the county of Hamilton. It was assumpsit on a note in the following words:
    511] ■ *“ Cincinnati, December 22, 1828.
    “ Thirty days after date, we, or either of us, promise to pay Thomas Reddish, or order, five hundred dollars for value received. Also, we, or either of us, promise to pay the said Thomas Reddish, ■or order, fifteen dollars each and every thirty days, for the use or interest of the above sum of five hundred dollars, the said interest to be paid each thirty days in advance, until this note is paid.
    “Yalue received. ' Thomas Watson,
    P. J. Holcomb,
    C. B. & H. L. Holcomb.”
    On the back of this note was indorsed: “ Received, January 24, of P. J. Holcomb, one hundred and four dollars, on account of principal, which pays the same to February 21, 1829. Balance due three hundred and ninety-six dollars. T. Reddish.”
    The writ was returned served upon the Holcombs, but as to Watson, not found. Two issues were joined with the defendants served with process: 1. On non assumpsit. 2. The second issue presents two propositions by the defendants: 1. That Watson signed the note as principal, and the Holcombs as securities. 2. That Reddish, after the note fell due, by agreement with Watson, and without the knowledge or consent of the Holcombs, gave him further time to pay the note, for thirty days beyond February 21, 1829. On trial, the note was given in evidence to the jury, with the indorsement and the following receipt:
    “ Received of P. J. Holcomb one hundred and sixteen dollars twenty-four cents, on account of Thomas Watson’s note, and interest due the 22d inst. T. Reddish.

      “January 24, 1829.”
    Other evidence was given to the jury, as to the fact of the relation of the principal and security between the signers of the note. The judge trying the cause, in charging the jury as to the construction of the note, said:
    “As we understand the import of the note, it contains on its face an agreement by all the parties, that the payee may postpone the day of payment from time to time, for periods of *thirty days each, on receiving the interest for such ex- [512 tended time in advance. This is the legal construction of the instrument, and it authorized such time to be given, at least, until notice by the parties that no further time should be given. Therefore, if you have no evidence of such notice (and I have heard none), you must find the second issue for the plaintiffs; but if you have such evidence, you wiJJ. regard it and find accordingly.”
    The jury under the advice of the court, and by agreement of counsel. returned a special verdict, finding the issues for the plaintiffs, re-' ferring the law fixing the rate of interest to the court, assessing the plaintiff’s damages at eleven hundred and thirty-six dollars and fifty-two cents, if by law the plaintiffs can recover interest at the rate of fifteen dollars for each and every thirty days; or at five hundred and nineteen dollars and forty-two cents, if they were only entitled to interest at six per cent, per annum. The defendants move for a new trial, on the ground that the court misdirected the jury as to the construction of the note. The plaintiffs resist this motion, and move for a judgment for the highest damages assessed by the jury. Two cases at law, of Lodge v. Wood and Hodgson, on notes drawing interest at twelve percent, per annum, payable monthly, and a bill in equity, Bacon v. Ben-ham, upon a mortgage to secure the payment of a loan at twelve per cent, per annum, were argued upon the construction of the statute fixing the rate of interest, and considered with the case of Reddish v. Watson et al.
    N. Wright, for the plaintiffs.
    V. Worthington, for Benham.
    C. Fox, for the defendants.
    S. Fales, for the plaintiffs.
    W. M. Corrv, for Lodge.
   Judge Wright

delivered the opinion of the court:

We are unanimous in the opinion there is no error in the construction of the contract as to the giving time to pay, which the court gave to the jury. All the parties to the note, whether principal or securities, stipulate in it, that it may be continued from time to time, thirty days at a time, by paying the interest for such 513] time in advance. Without proof that this stipulation *Was put an end to, it continued to operate, and was the written consent of all for extending the time for paying the note. The motion for a new trial is therefore overruled.

It is conceded in the argument by the counsel for the defendants, that the right of interest results from statute regulation entirely. Such we understand to be the law. 7 Bac. Abr. 188; 6 Johns. 284. Independent of the statute, any person has the same right to contract for ten per cent, interest that he has the principal sum. 1 Ohio, 239. In Brockway v. Clark, 6 Ohio, 50, this court had the act. of 1824, fixing the rate of interest Under consideration, and, I thought, then settled this construction. I'do not now see how that case, which met the approbation of the whole ¡court, could have been decided as it was, without a construction of the act of 1824, although there is not the same unanimity among us now that there was then. In that case it is said, that until the year 1824, we had a statute fixing the r.ate of interest at six per cent, per annum, and providing punishment for usury. The general assembly, in 1824, repealed the law against usury, and enacted in its stead the present law, fixing the rate of interest upon all moneys, after the same shall besóme due, at the rate of six per cent, per annum, and no more. 29 Ohio L. 151. It is contended for the complainant, that the only change effected in the interest law by this last act is one of phraseology, the substantial enactments of each being the same. We do not think so. The two acts differ in very essential particulars. In the former, any person demanding or receiving more than six per cent, per annum, on any contract, debt, or demand whatever, forfeited the whole amount of debt on which such illegal interest was charged or received, one-half to the county, and the other to the person prosecuting. See act of 1804, 1 Chase’s Ohio L. 484.

The act of 1824 contains no provision for forfeiting the debt, nor any penalty on contracting for, or receiving any rate of interest. The first was entitled “ an act fixing the rate of interest, and for preventing usury,” the last simply an act fixing the rate of interest. These differences clearly indicate that the assembly, in the two enactments, had not the same object in view. The language of the act of 1824 is, “ all creditoi’s shall be entitled to receive interest on all money after the same shall become due, either on bond, bill, promissory note, or other instrument of writing, or contract for money or property; all balances due on settlement between parties thereto, or money withheld by ^unreasonable [514 delay of date; and on all decrees obtained in the court of chancery for the payment of money, from the day specified in said decree for the payment thereof, or if no day be specified, then from, the-day of entering thereof, until such debt, money, or property is paid, at the rate of six per cent, per annum, and no more. It is-urged, in behalf of the defendants, that this is an exact copy of part of the first section of the act of 1804, and must receive the same construction as did that act in Smith v. Parsons, 1 Ohio, 236. The-case referred to was one arising under the insolvent law of Maryland, and involved the validity of a discharge in that state, to-exonerate the insolvent from the liabilities, when afterward domiciliated in Ohio. Neither the construction of our interest law,, nor that of any other state, was embraced in the inquiry. The highly respectable judge, who drew up the opinions in that case, in his hypothetical reasonings in support oí the constitutional right of a state to discharge insolvent debtors from liability upon contracts, notwithstanding- the prohibitions against them impairing the obligation of contracts, says, page 239, “ The state may, for instance, pass laws preventing usury, and fixing the interest of money. Should such a law enact, that a lender may receive from the borrower six per cent, interest or more, and should an after contract contain an express promise to pay ten per cent., such a contract, although voluntarily made for the payment of a specific sum; would be void in part, and in many of the states the obligation would be entirely destroyed, and the obligor released from the payment of both principal and interest. Independent of the statute law, every person has the same right to contract for ten per cent, interest, that he has for the principal sum,” etc. The judge in this course of reasoning had no idea himself that he was expressing his own, or the construction of the court upon the interest laws of 1804. If it be admitted that the opinion quoted expressed the received construction of the act in question, taking the whole of that law into consideration as one enactment, it would be difficult to maintain the proposition that the construction of the section under consideration, when forming a part only of a law, would furnish a rule for construing another law, in which that formed the sole provision. The construction of a law would hardly be tolerated which selected one part, and judged of it without reference to the other parts. It is a well-known rule in construing statutes, that you must look to the whole law, in order 515] *tbat the intention of the law-giver may be carried into effect, if it can be done without a palpable Violation of the import of the.language used. If you strike out of the clause of the act under examination the clauses inapplicable to notes, it would read as follows: “ Creditors shall be entitled to receive interest on moneys due by promissory notes, after the same shall become due, at the rate- of six per cent, per annum, and no more.” It is contended that this provision prohibits the receipt of more than six per cent, per annum for money, before the time stipulated for the payment has expired, and before it has become due. The act does not purport to prescribe the rate of interest for money before the same shall fall due. It speaks only of interest to be allowed after the same shall become due. As to all other questions about interest the law is silent. “ Independent of the statute law (says the judge in the case of Smith v. Parsons, 1 Ohio, 239, cited by defendants), every person has the same right to contract for ten per cent, interest that he has for the payment of the principal sum.” The counsel for the defendants admit it to be well settled that there is no such thing known to the common law as a right to interest.

If, then, without statutory prohibition, parties may as lawfully contract for ten per cent, interest as for the payment of the principal ; if there is no prohibition in the act against recovering more than six per cent, before the money becomes due, and the defendants’ arguments admit that the law does not prohibit the contracting for a higher interest than six per cent, per annum, nor make it illegal to receive a higher rate — the authority of a court of law to set aside the rule of damages settled and agreed on by the parties themselves and to substitute another, must be denied. There is in the act before us neither prohibition to the agreement, nor forfeiture, nor penalty. The contract sued on is valid at common law, and not prohibited by statute. It furnishes a rule of damages for witholding the payment of the plaintiffs’ money, lawfully adjusted by themselves; yet we are asked to reject it, and say to the borrowers, “ It was lawful for you so to contract, if you please, and to pay according to contract if you please. There is no law against the contract, or against your complying with it; but if, when you have got the money on the contract, and received all the advantages you were to have by its terms, you will refuse to pay as you agreed, and submit to bo sued, you shall only be required to pay a part of what *you agreed, [516 the rest shall be given you as a premium for violating your solemn agreement.” It seems to me a new species of legal morality to award premiums to induce the violation of legal contracts. The injunction is no longer to hold good to settle with your adversary, whilst you are in the way with him, least he hand you to the judge. It is to be, refuse to settle, forbear to do what you have agreed, and you ahall be rewarded. I should hesitate long before I would sanction such a rule. A statute prohibiting agreements for interest higher than the prescribed rate upon contracts made under it, would act upon the contract. It is an admitted principle that contracts made in violation of law are void. If our laws prohibited agreement for more than six per cent, interest, a note for more would be void.

It could not on that account be enforced in a court of justice. That is not the case at bar. On the contrary, a law like ours, prescribing a rate of interest where money due is withheld, and the parties have omitted to fix the rate in their contract furnishes no rule for the contract, it merely supplies the rule of compensation in cases where the parties have omitted to agree upon one, as a punishment for the unreasonable and vexatious delay of payment. Interest is the creature of statutes. None was known to the common law; unless there was a special agreement, no damages could be recovered of a man for withholding the payment of money after it was due. Lord Mansfield, in Robinson v. Bland, 2 Burr. 1086, holds a suit to recover money and interest “really and effectually brought for a specific performance of a contract.” As in law you can not decree that performance specifically, damages are assessed in amount equal to the sum withheld. If this be correct, and a majority of the court think it is, the rule should be applied to the case before us. We think the legislature had some object in view, in changing the law of 1804, as we said in Brockway v. Clark, 6 Ohio, 50. Indeed, it would be difficult to escape that conclusion. The omission in the act of 1824, of all the penalties and prohibitions of the law repealed, and the change of title to make it conform to the altered law, evince some design. What the design was, is- the question. A majority of the court is of the opinion the design was to leave parties free to contract for the hire or interest of money, as for the hire or use of anything else, and 517] the contracts themselves *to be enforced in the courts of justice on common law principles. Supplying a legal rule of damage for the use of money for all periods not provided for by the contract of the parties, and for cases of implied liabilities for money or property withheld, whore the common received principles are wrong, the legislature now in session can readily supply the defects of the present law by another enactment, expressed in language so clear and explicit as to admit of but one construction*

This court, in Watkinsen v. Root, 4 Ohio, 373, had the act of 1824 under consideration. The contract in that case was to pay a certain sum in installments, with lawful interest, to be computed and paid annually. The suit was brought to recover the arrears of interest, and the only question was whether interest was allowable upon the successive annual charges of interest after they fell due. The court thought the contract prohibited by no statutory provisions, and saw no reason why it should not be enforced. Interest upon interest was there allowed by the court, and the plaintiff recovered accordingly more than at the rate of six per cent, per annum. This decision seems to regard the interest law as we do. The contract here is to forbear the collection of the five hundred dollars, the principal sum, from time to time, for thirty days each time, upon condition the borrower paid fifteen dollars on the first of each thirty days, as they should occur. Without the payment in advance, the contract to delay enforcing payment of the principal sum was at an end. The neglect to pay the interest signified the will of the defendants to put an end to the stipulation on their part. The parties have not contracted for any rate of interest, unless to be paid in advance. None other, therefore, can be recovered in this suit than the six per cent, per annum provided by law for moneys after the same are due. The plaintiff is entitled to judgment for the balance of the principal sum, with six per cent, per annum interest, from February 21, 1829.

Judge Lane dissented.


text:
    *Dows and Carey v. Harper and Paine.
    "Writ of error coram nobis allowed in a proper case, such, as death, of party before judgment.
    From Ashtabula. Application for a writ of error.
    Griswold and Sawtell, for the applicants,
    exhibited to the court the record of a judgment of the Supreme Court in Ashtabula county, at August term, 1833, in favor of Harper and Paine v. Dows and Carey, assigned for error the death of Paine before the judgment, and prayed for a writ of error coram nobis resident.

    They argued that “section 3 of the act organizing judicial courts, 29 Ohio L. 56, authorizes this court, on good cause shown, to issue writs of error, and all other writs not specially provided for by statute, which may be neceLsary to the due administration of right and justice throughout the state, and for the exercise of its jurisdiction agreeably to the usages and principles of law.”
    This statute is supposed to confer upon this court a plenary power to redress the party injured by error in a judicial proceeding, if the usages and principles of law furnish any remedy. No principle of law is better established, and no principle of right and justice is sooner admitted than that a defendant in an erroneous judgment is entitled to a reversal, except, perhaps, for error in law in the court of dernier resort. In cases not specially provided for by statute, the legislature points us to the common law, and if a remedy is there found, this court will adopt and administer it.
    In the matter of James Turner, 5 Ohio, 542, on motion for mandamus, this court, after reciting the above-recited statute, say that “the occasions upon which the writ is to issue are not pointed out, and it is necessary to recur to the princijdes of the common law to see in what cases it is properly applicable.”
    If, then, the writ of error coram nobis is in use for correction of error in fact in analogous courts of common law, this court will allow it.
    The writ of error coram nobis resident is familiar to and in ordinary use in the banco regis and in the common bench, and demandable in all cases ex debito justitice except treason and felony. 2 Salk. 504; 3 Salk. 147; 2 Salk. 144. Error in fact is not the 519] error of the judges, and therefore reversing it is *not reversing their own judgment. 1 Roll. Abr. 747 ; Cro. Eliz. 105.
    From the cases in the elementary books, the following principles appear to be fully established as the law of English courts
    1. That in the dernier resort error coram nobis will not lie — not for error in law, for it would be unseemly for the judges to sit for reversal of their own judgment once solemnly pronounced — not for errors in fact, for it is beneath the dignity of the house of peers to examine matters of fact.
    2. That in the king’s bench and in the common pleas coram nobis will lie for correction of errors of fact, for reversing error in fact by the judges is not reversing their own judgment; but for error in law it will not lie, as the judges will not reverse their own judgment, and there is a higher tribunal in which the subject may have his redress.
    If, then, this case is to be governed by the law recognized in English courts, upon what grounds shall the application be rer fused ?
    Shall it be said that this is the court of last resort to the citizens of this state, and that in the present case the writ can not issue, for the same reason that it would be denied in the dernier resort of the English court, to wit, the apprehension of a sacrifice of dig* nity ? Will this court be influenced by such a reason ? We apprehend not. Good reasons there may be against this court’s sit-' ting for correction of its own judgments for error in law.
    Though a court of the last resort, the Supreme Court of Ohio, in its powers and practice, has a much stronger affinity, and is more analogous to the court of king’s bench than to the house of peers.
    The same necessity exists for the action of this court in this and in like cases as in king’s bench — that it is the only means of redressing the wrong — and no code of law, it is contended, will be violated. The reasons which banish that writ from the house of peers do not exist here. Without the reasons assigned, that court must have entertained it; and in the absence of the same reason it is believed this court will allow it, for “ eessat ratio, eessat lex.”

    The true dignity of this c urt is based upon its efficiency to administer right and justice, and to redress the wrongs of the citizens. It is ever conversant with matters of fact, and *though [520 by the constitution and law the highest judicial tribunal of the state, by its original and appellant jurisdiction, takes cognizance of by far the most important and numerous of litigated facts.
    No reported decision of this court is found directly settling the question of this application, yet we can not suppose it novel.
    In Stiver v. Stiver, 3 Ohio, 19, though the same point was not then in issue, the court intimate an opinion favorable to this application.
    Death of plaintiff or defendant before judgment is good assignment for error. 2 Saund. 101.
    By our statute, suit does not abate by death of joint plaintiff or defendant, but on suggestion of the death on the record the cause shall proceed.
    We contend that judgment after the death, without the suggestion on the record, is erroneous.
   Judge Wright

delivered the opiniou of the court:

The single question raised upon the application before us is, whether a writ of error will lie to examine into an error in fact, dehors the record in a judgment of the Supreme Court? No practice on the question is known to us, this being the first application within our knowledge, though tradition advises us that the writ has, in times past, been both allowed and refused.

In England, errors in fact are corrected in the common pleas during the judgment term, without writ. After the close of the term such errors are examined into upon writ of error in the king’s bench. 1 Burr. 410; 2 Saund. 101, a., n. 1, and 308. The writ of error coram nobis is not within the statute of 27 Eliz., allowing writs of error from the exchequer to the king’s bench ; and such writ is held not to lie to the house of lords, because it is inconsistent with the dignity of that court to take cognizance of facts. It has, after great argument, been decided that the king’s bench could reverse its own judgment on a writ of error. 3 Salk. 145; 2 Leon, 74; Cro. Eliz. 106 ; Yelv. 157. It is now held, that for errors in fact in the king’s bench, its judgments may be reversed in the same court by writ of error coram nobis resident, F. N. B. 21 (49); 1 Strange, 127; as otherwise the erroneous proceeding could not be reached.

*If the necessity for a writ of error to the king’s bench in

the state of things in England was a good reason for the use of the writ there, the same reason exists in this state. The Supreme Court being our highest judicial tribunal, no other court can examine its proceedings; and if the writ of error coram nobis resident is refused in our practice, wrongs resulting from the errors in fact of this court would remain without redress.

The Supreme Court in New York has adopted the like practice. 11 Johns. 460.

The writ is allowed, returnable to the next term.


author: Wood, J.,

text:
    William Headley, Plaintiff in Error, v. William Roby, Defendant in Error.
    Court may order special bail after action brought upon sufficient cause being shown.
    Debt, upon record of judgment for money, sustainable.
    Joinder to demurrer “in short” insufficient.
    It is error for the court to decide the facts of a cause, when no issue is made.
    Reserved, on the last circuit, in the county of Scioto, for decision in bank.
   Wood, J.,

stated the case and delivered the opinion of the court:

The facts are these: In 1832 the defendant sued out of the office of the clerk of the common pleas of Scioto county a summons against the plaintiff in an action of debt. At the return term of the writ, the sheriff having indorsed it “ served,”-the court ordered the plaintiff, on motion of the defendant, to put in special bail. The plaintiff, not complying with this order, was committed.

To obtain the order for special bail, the defendant exhibited to the said court the exemplification of the record of a judgment of the common pleas of Pike county in favor of the defendant, against the plaintiff for five hundred and seventy-two dollars, rendered on September 21, 1825, and no other evidence of indebtedness. The counsel for the plaintiff resisted the making of the order, on the ground that no affidavit of indebtedness was made by the defendant in error, and took á bill of exceptions to the opinion of the court in sustaining the motion for special bail, and which decision is assigned for error.

The defendant in error then filed his declaration in debt on the same judgment, and to which the plaintiff demurred specially, *and set down for cause of demurrer: 1. That the judg- [522 ment on which the action was brought was rendered in the county of Pike, and within the judicial circuit in which the action was commenced; and it did not appear, by the declaration, but that execution might well issue on th.e same. 2. Because it would be oppressive, and contrary to the policy of the law, to suffer the defendant in error to have one judgment on another in such case, creating unnecessary evils and litigation. 3. Because it is not averred, in said declaration, that said judgment, on which suit was brought, was dead in law, so that no execution could issue thereon.

To this demurrer the defendant in error filed his rejoinder in error in these words: “joinder in short” etc. The court of common pleas overruled the demurrer, which decision is also assigned for error.

On overruling the demurrer, the court gave the plaintiff in error leave to plead. The plaintiff in error then filed a plea of payment to the declaration and a notice of set-off.

The cause was afterward submitted to the court by counsel, and judgment without any replication to the plea of payment was rendered for the defendant in error, and without passing on the plea of payment, which decision and. proceedings of the court in rendering the said judgment is assigned for error.

We will take up the several points made, in their order:

1. Had the court of common pleas the power to order special bail to be filed by the plaintiff in error, on -the production of the record of the judgment, without the affidavit of the defendant in error ?

This depends entirely on section 6 of the act regulating the practice of the judicial courts, which provides “ that the plaintiff shall be entitled to have special bail, in all actions brought on any covenant, bond, sealed bill, promissory note, due bill, bill of exchange, or article of agreement for the payment of any sum of money certain; and in all actions brought on other contracts, by which the sum due or damages sustained shall appear to be uncertain, but which the plaintiff or his agent shall swear, by affidavit to be filed in the cause, are, not less than one hundred dollars; and the plaintiff shall have special bail in all other cases in which the court in term time, or any judge thereof in vacation, shall, from the particular circumstances, order such bail to be given. If special bail be allowable, as a matter of course, on the several in-523] struments *above specified, and we were to reason from analogy, it would not require any very great latitude of construction to extend the statute to a judgment, as an obligation or contract, on which the party would be entitled to special bail without order or affidavit.

It is, however, probably not within its meaning; for, although it is a contract of the highest nature, by which the rights of the parties are definitely settled, and no longer open to litigation, it is not of the description of contracts pointed out in this section of the statute, but was left out unquestionably by unintentional omission. A judgment is not within that description of contracts enumerated, when the plaintiff will be entitled to special bail by making an affidavit, because there neither the debt nor damages are uncertain. It is, however, embraced in this provision : “And in all other cases in which the court in term time, or a judge in vacation, shall, from the particular circumstances of the case, order such bail to be given.” Here the case is embraced. Is there any law requiring an affidavit to be presented to the judge, before he can order bail. The conscience of the court must be informed. The court may have personal knowledge of the circumstances; they may be convinced,' from the examination of the evidence of the plaintiff’s claim, from the statements of counsel, or otherwise, and exercise their discretion in an order for bail. Such is, doubtless, the meaning of the broad provisions of this section of the statute, and has been the practice of the common pleas and the Supreme Court for many years. The common pleas, then, did not err in making the order for bail upon the evidence which the record furnished of indebtedness. On motion for bail the plaintiff may disclose the circumstances by affidavit or otherwise. Wilcox, Forms, 12.

We then come to the demurrer to the declaration, and the causes assigned, and they may all be disposed of at the same time. It is one of the first principles we learn in relation to the action of debt, that it may be sustained on a record of a judgment, and when the judgment is obtained, and the record made up, the right of action is complete. It may be brought, not only on the judgments of our own courts, but those of our sister states. The right to .issue execution on a judgment is a remedy cumulatory only; and I know of no law which would deny to the party a right of action on a judgment, if he chose that remedy, because he could issue an execution.

*This opinion reaches all the points made by the demur- [524 rer. The court did not err in overruling it.

The joinder to this demurrer is'“m short,” and shows that the practice of prairie pleading is more extensive than may have been imagined. It an objection had been taken to this joinder, "in short,” under the authority of a case which was disposed of by a late distinguished judge of this court, it would have been stricken from the files, in short,” at the costs of the plaintiff helow. It would require but a moment more time, and a few more words, to have placed a formal joinder on the record, and we intend to censure, at least, a practice so loose, and which must, if permitted, render the records of our courts a source of ridicule. It was once said by a learned judge that infinite mischief accrued by the facility of courts in overlooking errors of form; that it encouraged carelessness, and placed ignorance too much on a footing with knowledge, among those who practiced the drawing of pleadings. Precedent is safe, and should not be departed from without sufficient cause by those who practice the science of the law. This joinder, in short, is assigned for error, but it is unnecessary further to notice it, as the remaining point is decisive of the case. 2 Ohio, 253.

The cause was submitted to the court, in the place of the jury, to pass upon the issues made up, or which should, more properly speaking, have been made up between the-parties. The court found the debt in the record, declared on for the plaintiff, but omitted to take any notice of the special plea of payment. If the court below considered an issue made up on the plea, they have not responded to it, whieh omission is error. If they did not consider the issue made, it was error to dispose of the case while the plea remained on record as a part of the case, although without a replication. In either case it is error. 5 Ohio, 277, in part.

The want of a replication is carrying still farther, we suppose, the “prairie practice,” It is a replication in short, so short that, in short, there is nothing of it.

Judgment reversed — remanded—to be reinstated and proceeded in, in common pleas, as that court may be advised.