author: Birchard, J.

text:
    William D. Bell and wife v. John Duncan, Daniel Dean, et al.
    Where a patent for land, issued by the United States, recites assignments by persons competent to convey, there is no presumptive notice, to one who derives title under such patent, of latent defects in the assignments. The defense of bona fide purchaser is available to one deriving title under such patent. It is otherwise, if the patent recites assignments by persons not competent to convey title.
    This is a bill in chancery, from the county of G-reene.
    The complainants filed their bill to obtain the legal title to a part of sundry tracts of land granted by the United States, *in satisfaction of Virginia military land warrant No. 3,286, for 2,666f acres of land, issued to John McAdams, for services as a lieutenant in the war of the revolution. McAdams, by his will, made his sister Charlotte his residuary legatee, under whom both parties to this suit claim title.
    These patents were issued, in 1819, to Thomas Watson, and also to Nancy, William, James, and Sarah Ann Payne, heirs of Sarah Ann Taylor, one of the daughters of.the legatee, and contain a recital that the right of McAdams “ has been assigned, in-part, unto-the said Thomas Watson, by Thomas Taylor and Martha Conway Taylor, his wife and also by Robert Nutt and Charlotte M: Niitt, his wife, formerly Charlotte McAdams Taylor, which said Martha Conway Taylor and Charlotte M. Nutt, together with the aforesaid Sarah Ann Payne, formerly Sarah Ann Taylor, are the only children and heirs of Charlotte Taylor, deceased (formerly Charlotte McAdams), the sister and legatee-of the said John McAdams, deceased.”
    It appears, by a certified copy from the office of the commissioner of the general land office, that the assignment of Martha-C. Taylor and her husband, and of Charlotte M. Nutt and her husband, were executed in Virginia, in 1819, under seal, and acknowledged before a magistrate in this form:
    “ Robert Nuttand Charlotte M.Nutt, this day personally appeared before me, C. W., 0a justice of the peace,” etc., “ and acknowledged the above instrument of writing to be their act and deed; given,” etc.
    There was no separate examination of Martha C. Taylor and. Charlotte M. Nutt apart from their husbands. Before these assignments were executed, the warrant had been located and surveyed, and the land embraced in the patent thereby appropriated.
    The defense set up by the defendants, who claim title advérsete complainant, is, that they are bona fide purchasers of the legal-title, for valuable consideration, without notice of any defeet.. The lands have been occupied and improved by them, and those-under whom they claim, since the year 1816.
    *A. Harlan and William Ellsberrt, for complainants. Odlin & Schenok, for defendants.
    The points made, and the eases cited and reviewed by the counsel, are noticed in the opinion of the court. The arguments are, therefore, omitted.
   Birchard, J.

There is nothing in the proof to create a suspicion, that the sum paid by Watson, in 1816, amounting to about $2,000, was not, at the time, a fair consideration, for the interests of Mrs. Taylor and Mrs. Nutt; and we may suppose it was honestly and fairly intended that the sale should be made effectual by the assignment then executed.

The proof does not charge the respondents with notice of any defect in the legal title. Unless the recitals of the deed are, in law, presumptive notice, they had none.

In the opinion of my brethren, the case is with the complainants, and they are entitled to a decree, if notice to the defendants can be established.

In behalf of complainants, it is urged, that the recitals of the patent are sufficient to charge the defendants with notice. It is alleged that the rule is well settled. The nature of the question, and the very important bearing it must have upon, perhaps, twenty millions of property within this state, the titles to which have been granted on assigned entries, certificates, aDd warrants, require, at our hands, a careful examination, whether or not the rule contended for is as inflexible as is supposed. The case of Brush’s Adm’rs v. Ware, 1 McLean, 535, was a case betwern the heirs at law of one Hackaday, entitled to a Yirginia military warrant, and the assignee of the warrant. It is relied on by complainants as conclusive. Judge McLean remarks: “This is not a controversy between a claimant under Hackaday and a stranger to the claim. It might well be doubted, whether a person claiming adversely to Hackaday’s assignee, could go into the validity *of the'assignments, either before or after the issuing of the warrants. As between such parties, the entry and patent might he conclusive."

The case showed that Brush, the patentee, was connected with the claim before the patent issued; and, before patent, he, of course, had but an equity, which could not deteat a,n equal equity of prior date. The case was taken to the Supreme Court of the United States, and the decision affirmed. 13 Pet. 93. This decision is also cited as conclusive. We have carefully examined the case, and the reasons given by the court. So far from its being decisive of the merits of this question, it is certain that the point here made by the respondents did not arise in that cause, and was not before the court. On page 108, the case is put upon this ground: “Until the patents were obtained, this warrant, through assigned and entered, in part, on the land in controversy,, conveyed only an equitable interest.” All the remarks ot the judge, in pronouncing the opinion of the court, should be considered in reference to the ease then on trial. It was a case where lands had been entered, in the name of George Hoffman, in 1809,, and patented in 1818, to “ Brush, assignee of John Hoffman, who was assignee of Joseph Hoffman, and others, assignees of George Hoffman, who was assignee of J. Ladd, assignee of R. S. Ware, executor of Hackaday.” The difficulty was, that Brush, being an assignee before the patent issued, had but an equitable right to demand a legal title; and the paper evidence of his equitable (not legal) right to the land, showed that a deed from Ware, an executor, who had no control over such property, and whose conveyance was void, was one link in his chain of title. The recital showed no authority, on the part of the executor, to make such a transfer. The law being clear that an executor could not convey real property, and every one being bound to know the law, it was rightfully presumed that Brush had notice that an executor’s deed did not divest the heir. Can it be contended (say the court), that the defendant, who purchased an inchoate title, a mere equity, was not bound to look into the origin of that equity ? To us, *it seems that these cases, rightly understood, make for the respondents. The case of Reeder et al. v. Barr et al., in 4 Ohio, 496, also relied upon, seems to be clearly distinguishable from the present. In that case, the patent was issued to Newell, as assignee of the administrator of Hanson Reeder;” the court held that the recitals in the patent were notice to a subsequent purchaser, sufficient to put him on inquiry, because an administrator had no right to sell the land. “ If,” say the court, “the assignment of an administrator, per se, conyeyed the equitable rights of the intestate, the purchaser might stand in a different situation.” The cases in 9 Crunch, 98, and 5 Wheat. 304, deciding that the existence of a grant is presumptive evidence, that every prerequisite has been performed, are cited with approval, and the decision is placed upon the distinct ground, that the patent shows, upon its face, that the heirs of Reeder were owners of the estate, after his death. These patents show no such defect. The assignments recited, were those of persons who had an interest, and who could convey. The next case relied on by complainants is that of Bonner v. Ware, 10 Ohio, 465. It presented to this court, for consideration, the same patent referred to in 15 Pet. 93. The complainant, Bonner, sought, by his bill, to quiet the equity of the heirs, by setting up that he had an equal equity, though junior, coupled with the legal title acquired, bona fide, for a valuable consideration, and without notice of the elder equity of the heir. The bill was dismissed, not on the ground that the doctrine of bona fide purchasers is a weapon of defense, and not of attack, but upon the authority of the cases in 4 Ohio, 446; 1 McLean, 535, and 15 Pet. 93; which decisions were concurred in, and, beyond the principles, as therein held, it was not, as I am informed by the judge who pronounced the opinion, intendod to go. It is, however, said, in that opinion, that the case of Reeder v. Barr et al., 4 Ohio, held “that the rule of notice applied to patents, as to private deeds.” The rule spoken of, was the rule which I have above explained. That every purchaser is ^presumed to have notice of any defect of title, apparent upon the face of his patent; not that he is required to look for a latent defect in the chain of assignments recited in the patent, where such assignments purport to have been made by the proper persons. This would defeat the law, recognized in the case of Reeder v. Barr, 4 Ohio, as correctly settled in 9 Cranch, 98, and 5 Wheat. 304. It would, in effect,'be to set up a presumptive notice, against the legal presumption, that, in executing the grant, the president of the United States performed his official duty; a presumption which the patent, issued by him, if regular on its face, raises in favor of the patentee, and upon which it is safe for subsequent purchasers to rely. A contrary rule would work immense injury to the holders of real estate derived from the general government, and to the public. The amount of mischief it would produce in the Yirginia military district can hardly be imagined. Bill dismissed.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    Darius Talmadge v. The Zanesville and Maysville Road Company.
    Where passengers, injured by the upsetting of a coach, have recovered against the proprietors, the damages assessed in such action can not be recovered, by the coach proprietors, from the road company, for failing to keep the road in repair, which, in some degree, occasioned the accident; but a recovery may be had for the injury done to the coach.
    This is a writ of error to the Suprerr e Court of the county of Fairfield.
    Talmadge brought his action against, the road company, alleging that he was the proprietor of a coach for passengers, which was upset by reason of an insufficient road made by the *company, and whereby his coach was injured, and a passenger, by the name of Maury, hurt, who recovered of him a judgment for $2,300, which, with the other damages, Talmadge now claimed to recover from the company in this action.
    On the trial, in the common pleas, Talmadge offered to the jury the record of the recovery against him by Maury, the passenger. The declaration, in that case, counts against Talmadge for his negligence, in overloading his coach, driving in the night without lights, etc.
    The road company objected to the admission of this record, but the court overruled the objection, and admitted the evidence.
    A verdict was had in favor of Talmadge, and judgment for $2,300. On error to the Supreme Court, the judgment of the court of common pleas was reversed, and this writ is now brought to reverse the judgment of the Supreme Court.
    H. H. HujíIter, for plaintiff in error:
    The ground assigned by the court on the circuit, for the reversal, was exclusively upon the admissibility of the record of Maury v. Talmadge in evidence to the jury, the court holding it to be incompetent.
    The reason assigned against its competency, we understand to be, that the gist of the action of Maury v. Talmadge was the negligence of Talmadge. Hence, if Talmadge be now permitted to recover over, against the road company, the damages which Maury recovered against him, he will, in effect, be allowed to recover damageB against the road company for his own neglect. And this, we understood the court to say, could not, on principle, be allowed in any case.
    It is in holding these propositions, we suppose the court to have erred; and we do not now propose to discuss any other questions which might arise upon the record. For, although we would claim that, taking the whole record, or the whole charge of the court together, there is no error of which the ^opposite party can avail himself, if the one above referred to be not such! yet, surely, any others which may exist would only result in remanding the case. But, if the error above named be really an error in the case, it takes away the cause of action, and is final.
    In order to be clearly understood in what we have to say upon the question for consideration, we wish, in. the first place, to draw the attention of the court to the different degrees of negligence, by reason of which a carrier of passengers and one who'obstructs a highway, are, in law, holden liable in damages to others, who suffer an injury from their want of care.
    The carrier'of passengers is holden to the observance of the-utmost degree of care, and is liable to those for whom he undertakes, for injuries resulting from the slightest negligence. Story on Bailments, 879, where the authorities are collected. McKinney v. Neil, 1 McLean, 552.
    On the other hand, one who obstructs a highway is not liable in damages to one injured by the obstruction, unless it appears that the party injured, in passing the obstruction, himself, used ordinary care. The negligence of the party, in placing the obstruction, may be gross. He may even place it by design, as an obstruction^ yet, if a passer by will, heedlessly, and without ordinary care, run upon it, and be thereby injured, he has no right to complain, and can not make him who transgressed in placing the obstruction, respond in damages. Smith v. Smith, 2 Pick. 621.
    But if, in passing such obstruction, one, in passing, shall use ordinary care, and receive an injury by reason of the obstruction, he is clearly entitled to his action against the party placing the obstruction. Co. Lit. 56, a; Buller’s N. P. 78.
    These propositions are indisputable, and we think it necessarily flows from them, as a logical consequence, that a carrier may be liable to his passenger for an injury happening under-slight negligence on the part of the carrier, but chiefly depending upon an obstruction to the highway, placed by a third party. And that, if the carrier, in passing the ^obstruction, had used ordinary care, the party placing the obstruction will be liable over to the carrier.
    If we remember accurately, it was said by the court, in deciding the case upon the circuit, that the liability of Talmadge, the carrier, to Maury, his passenger, was founded upon the neglect of Talmadge, and that Talmadge could not, in law, have been liable to Maury, if it had appeared that the obstruction in the road gave rise to the injury. That in that state of the case, the remedy of Maury would have been against the road company, who caused the obstruction, and not against Talmadge. The idea was also advanced, we believe, that such evidence as would fix a liability .in favor of Maury, against the road company, would be a defense in behalf of Talmadge against the claim of Maury.
    We may not have gathered the exact expression or idea intended to have been conveyed, but believe it was, essentially', as above stated.
    The views thus attributed to the court are, obviously, at variance with the positions wo have expressed above, and which, we think, are sustained by authority and reason.
    We think it is very clear that such a state of facts might readily exist, as would entitle Maury to his action against either Talmadge or the road company.
    For instance, if Talmadge, in passing the obstruction, did not use the highest degree of care, and, in consequence of the want of such care, the accident happened, Talmadge would be liable to Maury. So, if Talmadge, passing with Maury in his coach, used ordinary care, and, in so passing, the accident happened, in consequence of the obstruction, the road company would be liable to Maury. It is very certain, at all events, that, under such circumstances, the road company would be liable to Talmadge for any injury he might sustain to his person or property. And, if so, it is difficult to perceive upon what principle Maury, passing in the eoach, and receiving injury, should be excluded from having redress against the road company, upon the same footing that Talmadge would. Although in the coach, as a passenger, yet he would bear with *him his personal rights. And if the vehicle by which he was conveyed was, at the time, managed with ordinary care, it must be admitted that he, passing in that vehicle, would be passing with ordinary care. Yet, because Maury would thus have his right of action against the road company, under these circumstances, it by no means follows that he would be deprived of his right of action against Talmadge, for not exerting the highest degree of care, which it was Maury’s right to exact of him.
    This view brings us close up to the main point relied upon against what we claim, to wit, that Talmadge was bound to Maury, to exert the highest degree of care, and if he did not do so, and has responded to Maury for the consequences, he has only responded for his own negligence, according to the legal nature of the engagement he was under to Maury; and, hence, that he ought not to be permitted to recover back, from the road company, the damages’ he has had to pay for his own neglect.
    There is, we admit, in this mode of stating the proposition, a good degree of plausibility. Yet it is not we think, a very difficult matter to show, that it is unsound, and wholly untenable.
    Talmadge, it is true, incurs the liability on the ground of negligence. But that degree of negligence by which he was liable-was, or might have been, a purely legal, technical negligence; not negligence in fact, but negligence merely because it was possible, by the exertion of the utmost prudence and care, to have avoided the difficulty.
    The highway is obstructed; and, in consequence of the obstruction, more vigilance and care is necessary to pass it safely than would otherwise have been necessary. As between the carrier and his passengers, the carrier is bound to apply all the care necessary under the existing circumstances to insure safety. But the obstruction has been wrongfully placed there by a third party. .It may be passed with extreme care, but can not, with reasonable and ordinary care, in safety. A party attempts to pass it — must, in the progress of his necessary and ^lawful businses, pass it. He uses ordinary, and reasonable care, but suffers an injury. Now, in common sense, reason, and justice, what has been the real and true cause of the injury, and upon whom in fact, and truth, does the blame rest? It would seem almost'impossible not to seethe subject in its proper light.
    In morals, upon whom, of the parties in fault, should the ultimate burden rest? One is chargeable with no moral neglect of duty; the other has done an act which all must pronounce an outrage upon the public. Shall he who has committed the real wrong,, and is, in truth, the only one to whom guilt attaches, be suffered to shield himself from liability, by the pretext that is here set up, that the party who seeks to hold him accountable is, himself, chargeable with negligence-with a violation of his legal duty to another ?
    This idea, or the idea of his defense, is out of place in such a case. It may, properly enough, be applied in cases between wrong-doers who have acted -in concert, or between doers of positive wrong, whether acting in concert, or independently. In such cases, or between such parties, the defense would be in place.
    The breach of duty, on the part of Talmadge, as between himself and Maury, was more in the nature of a breach of contract than a wrong. It arose out of contract, and an action upon the contract might have been sustained for the same damages.
    It may, therefore, with all propriety, we think, be said that the wrongful act of the road company has wrought upon the defendant a breach of his contract, thereby causing him a special damage and injury, which, otherwise, would not have happened to him .and, therefore, the burden of whicü they should sustain.
    Cases may readily be supposed, involving the same principle, but, perhaps, better adapted to illustrate the principle than the one before the court.
    A common carrier of goods is liable, on legal principles, to his employer, for loss or injury to the .goods, although the loss ^happen without his fault, and through the wrongful act of a third party. A cargo,,of goods is received by a carrier, on his canal-boat, to be carried. They are stolen by a thief-destroyed by an incendiary-or, if they are to be carried upon a canal owned by an incorporated company whose duty it is to keep the canal in navigable order, they may be wet and damaged, by reason of the canal not being in proper repair. The owner brings his .action on the case against the carrier, and declares against him, in the usual form, that the loss or injury happened by “ Ms mere carelessness and negligence.” The owner recovers, of course. Has the carrier no redress against the wrong-doer? The gist of the action, in contemplation of law, is negligence. In the action of the carrier, against the real wrong-doer, may he not, as a measure of homages, give the record of the recovery against himself in evidence? Surely we think he may. All other questions of fact are open. The record, offered as a rule of damages, leaves undisturbed the question, whether the supposed wrong-doer be in fault or not; and the averment, in the declaration, against the carrier, of negligence, although legally true, can form no just excuse to the wrong doer.
    We can not perceive a shade of difference, in principle, between such a case and the one at bar. But we are not without authority in analogous cases.
    A sheriff is charged with the custody of a debtor upon execution. If he voluntarily suffer the prisoner to escape, he is liable to the plaintiff in damages. In such case the escape being voluntary, the sheriff has no recourse upon the debtor. But if the sheriff suffer the prisoner to escape by negligence, the sheriff may recover over against the debtor who escaped, and may show the record of the recovery against himself as a measure of damages. 10 Mass. 59. Yet in the action against the sheriff, negligence is the gravamen. The substance of the thing is that the debtor who escaped, is the real wrongdoer.
    In the ease of the Commissioners of Brown County v. Butt, Sheriff, 2 Ohio, 355, the sheriff was held liable for a negligent *escape, which happened in consequence of the want of a sufficient jail. He was allowed to recover over against the commissioners of the county, whose duty it was to provide a sufficient jail; and the record of the recovery against the sheriff was the measure of damages.
    Here, again, the real thing is duly regarded.
    It will, of course, be remembered that all the benefit we claimed from the introduction of the record was, to use it as the measure of damages. This could obviously be done without any prejudice to the rights of the parties, upon the question of fact as to the cause of the injury. As to this, it could have no legal tendency one way or another. But if it had, it would be against the party offering it. The plaintiff would be bound, in order to entitle himself to recover, to satisfy the jury by proof that the obstruction produced in the road was the cause of the injury; and the defendant, on the other hand, would be at liberty to show that it arose from the want of ordinary care on the part of the plaintiff.
    In conclusion, we submit that the record was properly received in evidence, and that although the court may have erred in charging the jury 'that they might apportion the damages, yet the whole charge, taken together, placed the law properly before the jury.
    At most, if the charge was erroneous in respect to apportioning the damages, a reversal for that cause alone leaves us entitled to have the cause remanded for further trial.
    H. Stanbery, for defendant in error:
    A carrier of passengers is not an insurer. The law for the protection of his passengers imposes upon him the duty of using the the greatest degree of care. McKinney v. Neil, 1 McLean, 550.
    Where a passenger is hurt, he can only recover of the proprietor by proof of the want of that degree of care which the law requires. The recovery in Maury v. Talmadge must have proceeded upon such proof. If Talmadge had shown *that the upset was caused by an insufficient road, without fault on his part, there could have been no verdict against him.
    The verdict and judgment in that case, therefore, establish his negligence-his tortious omission of that degree of care, in the transport of his passengers, which the law demanded.
    If the road company failed in their duty by not providing a safe road, does that excuse Talmadge for failing in his duty to use extreme care in driving his passengers over it? Shall the company, though equally in fault, indemnify Talmadge from the damages which a jury awarded against him for his own negligence ?
    If that be so, there is an end to the safety of the passenger. The coach proprietor, when he approaches a bad road, at the very time when the extreme care, required of him by the law, is most necessary, may very safely omit that degree of care, with the certain assurance that, if he use but ordinary care, every cent which the injured passenger recovers from him he can recover, back from the supervisor or road company; It would be against the policy of the law, and tend to encourage negligence in the performance of a duty iii which the lives and safety of passengers are-concerned.
    Where a passenger is injured by careless driving over a bad road, he has an election which to sue, the road company or the coach proprietor. Both are guilty of negligence, and the passenger, being wholly without fault, may look to either; but the road company can not have recourse over upon the coach proprietor, nor the coach proprietor upon the road company, either for full indemnity or contribution. The law will assist neither, as-both have been in fault.
    It is a well-settled principle that one tort feasor shall have no contribution against another.
    Again, where an injury happens from negligence of two or more, no one of thorn, who has been at all in fault, or guilty of any negligence, can look to the other, although that other is the primary cause of the injury. 22 Eng. C. Iv. 280.
    *It is said, in behalf of Talmadge, that the law requires from the person passing over a highway only ordinary care, and if, with such care, an injury is sustained by reason of an unsafe road, he may recover against the person whose duty it is to keep up the road.

      We admit such to be the rule, and, so far as the immediate damages are concerned (that is, the breaking of the coach, etc.), Talmadge may recover of the company, although he only used ordinary care. Avery different question arises upon this transcript.
    The damages recovered in that are consequential. They are given against Talmadge, not because of an unsafe road, but that, in conducting his coach over such a road he was guilty of negligence, and omitted the degree of care which the law imposes upon the carrier of passengers.
    If the traveler uses no more than ordinary care he is in no fault; and if injured, the law will, therefore, relieve him; but if the carrier of passengers uses only ordinary care he is in fault, and the law will not assist him.
    Again, how does it appear that the verdict in Maury v. Talmadge proceeded upon the ground, or proof, that ordinary care was observed by Talmadge, making him answer only for the want of that greater degree of care which the law requires? Nothing but the transcript of the record was produced, and that shows a case of carelessness of the most culpable sort, overloading, want of lights, etc. No proof was added to show on what sort of carelessness the jury, in that case, proceeded ; only it did appear afterward that there was proof of carelessness, on the part of Talmadge, in the case of Maury v. Talmadge, which was not before the jury in the case of Talmadge v. The Road Co. Talmadge undertook to prove to the jury, in his ease against the road company, that he used ordinary care. Admit that he succeeded in establishing that fact in this case, does it follow that he is entitled’ to recover the damages which were assessed by another jury upon other proof? How could this jury determine upon what ground these damages were assessed, not having before *them the proof of carelessness which was made to that other jury? How do we know the degree to which the damages were aggravated by the proof then made of Talmadge’s negligence?
    All we know about that case is, that the declaration alleged culpable negligence; that it was sustained by proof of which this jury had no knowledge. The verdict of that jury was given on one state of facts; the verdict of this jury on another; and yet, it is claimed that this jury shall respond to those damages.
    It may be that the verdict in Maury v. Talmadge was wrong, against the weight of evidence, or founded upon the testimony of perjured witnesses. If so, it'is Talmadge’s misfortune, not the road company’s. He had an opportunity of being heard — they had nob; and the verdict, right or wrong, was against him, not them.
    Mr. Hunter admits the record in Maury v. Talmadge establishes negligence in fact against Talmadge. He attempts to find cases in which the party, against whom negligence is so established, may recover over against some third person, and use the record to ascertain the quantum of damages.
    First is his case of a common carrier. Now the clear distinction between that case and this is, that the recovery against the carrier does not establish the fact of actual fault or negligence in the carrier. Ho is an insurer.
    Next is the case of escape. I am indebted to the counsel for the suggestion of this case, as it furnishes an illustration of the difference between an actual fault and mere legal carelessness.
    If the escape is voluntary — that is, if the sheriff is actually in fault, he can not recover over against the debtor. If it is involuntary, he can.
    But, suppose there were actual negligence in the involuntary escape, why should not the sheriff recover over against the debtor?
    That right stands upon a different ground from the right to recover in the case at bar. The sheriff is made liable to the *creditor for the debt, and if he recovers over against the debtor, he recovers no more than the debt. No one pretends that ,tho debtor paid or discharged his debt, by running away or breaking jail.
    Why was the sheriff allowed to recover over against the county, in the case of the Commissioners of Brown v. Butt, 2 Ohio, 355? Sinrply on the ground that there was no fault in the sheriff. He, like the common carrier, is made liable in any event. Whether he can recover over, depends on the question whether he had been actually in fault. For if his act has contributed, even in a slight degree, to the tort, he can have no contribution from another who is even more in fault than himself. 22 Eng. Com. Law, 280.
    T. Ewing, for Talmadge, in reply:
    There seems to be an impression that this is a case of a wrongdoer attempting to recover over against another wrong-doer, damages to which he has been subjected, partly, at least, by his own unlawful act; but nothing can be further from the truth of the case. The action of Maury v. Talmadge was not founded on tort, but contract. It was a contract, which Talmadge can show, entirely consistent with that recovery, he took the ordinary means, and used ordinary care and diligence to comply with, and which he would have complied with but for the obstruction placed in the road by the plaintiffs in error. They, by their wrongful act prevented its performance and subjected him to damages for its breach. The injury was consequent upon the wrongful act of the road company. The damages flowed directly and immediately from the injury.
    The undertaking of Talmadge was analogous to that of a common carrier, and the declaration contains like allegations of negligence. Yet no one doubts that the carrier, after a recovery against him, might recover over against one who had caused injury to the goods which he was transporting, precisely as he could recover for his own goods, and upon the *same state of facts. The owner, it is true, may, if he choose, have his action against the wrong-door, but he is not compelled to resort to him. He may recover against the carrier, and the carrier may recover over. And neither in the case against the stage proprietor, nor the common carrier, is negligence the gist of action. It need not even be proved. The overturning of the stage and the personal injury in the one case, and the loss or damage to the goods in the other, is sufficient. The defendant is thereby shown to have failed in the performance of his contract, and must show an excuse; in the case of the carrier, that the loss was sustained by the act of God, or the public enemy ; in the case of the stage contractor, that the utmost possible diligence and caro to effect.a performance, and that the breach of contract was occasioned by some casualty which that extreme care and diligence could not prevent.
    This is the law of the two cases, as laid down in the books. I can see no distinction between them as to the right to a recoveiy over, except in the degree of proof, nor any incongruity in allowing a recovery in either one or the other of the cases.
    The law recognizes a distinction as to the degree of care required from individuals in different situations, the want of which will render them liable to others for injuries, or disable therm from recovering for injuries occurring to themselves. It is not for us now to say whether there is anything sound or rational in the distinction. The laws of all civilized countries have recognized it, and it is perfectly well marked and defined in our own legal system. In some cases no more than ordinary care is necessary; in others, the .utmost care and vigilance. For example, if Talmadge, passing with his coach, had given a seat, as a mere favor, to any person, he is not free from all obligation to such voluntary passenger; but if he become liable to him for an injury happening, it must be upon the ground of negligence merely, not of contract, and that negligence must be gross, and it must be expressly proved. In that case the stage-owner would be bound to use ordinary *eare, such as a man of common prudence would use under like circumstances; and if he be guilty of gross negligence, and an injury happen, he will be liable; for, though he may risk his own neck as recklessly as he pleases, he has no right wantonly to expose his voluntary passenger to danger and injury.
    But in the case of Maury, Talmadge had bound himself, by contract, to carry him safely, for which Maury paid a valuable consideration. If he did not carry him safely, he had failed in the performance of his contract, and was liable to all the damages which Maury sustained by reason of the breach, unless he could show, by way of excuse, that he was well provided with the means to carry his contract into effect; that he made all reasonable exertions to that end, and that at the moment the injury happened he used the utmost care to prevent it.
    These cases are separated from each other by a broad margin, perfectly well defined in the law, analogous to that which separates the deposit of goods for compensation from the deposit for the mere accommodation of the depositary.
    Now, there is a distinction similar to this, and equally well defined, in the degree of care which will enable an individual to recover against a person obstructing a highway, and the care that will excuse him from damages on' his contract with his passenger.
    This proposition does not seem to be controverted by the counsel for the road company. If it be correct, then Talmadge, on the very same evidence on which Maury has rightfully recovered against him, could also recover against the road company, for the injury done to Ms own person, if he had suffered such injury. This does not seem to be denied by counsel. Then the only matter in controversy is, whether, upon these conceded propositions, Talmadge, being able to recover for an injury done to his own person, he may not, in some supposable state of the evidence, also recover for an injury done to him in the person of another. If his wife or servant, a passenger in his stage, were wounded, and he incurred a surgeon’s bill, for setting a joint or amputating a limb, could *not he recover damages to the amount of that bill, upon evidence on which Maury, his passenger, might also recover against him? I think it very clear that he might. The degree of care to exonerate him, in the one case, and in the other, to charge the road company, is very different. If he used ordinary care, he might charge the road company; but he must have used the utmost care in order to exonerate himself against his passenger. If he may recover for such expense necessarily incurred by him, because of an injury done to his wife or servant, may he not also recover for a like expense, necessarily incurred by reason of an injury done his passenger; that is, if the injury be the direct and immediate, and not the remote and contingent, consequence of the wrong done him ? The verdict and judgment might not be evidence for Talmadge against the company, if the value of Maury’s knee could be exactly fixed and shown as the measure of damages, but that is not the case. The contract of Talmadge with Maury was broken by reason of the unlawful act of the road company. That was the injury which Talmadge sustained, and it was a direct and immediate injury, produced and consummated at the moment. Is he less entitled to recover for it than if it had been a wound upon his own person ? Suppose a mail contractor, liable to a penalty for failing to make his time, some one unlawfully places an obstruction in the road which prevents him, and he thereby incurs the penalty. This injury is more rem'ote than the one of which we complain, but it seems to me that ho may recover to that extent. It is the damage which be has suffered by reason of the unlawful obstruction, and not more remote than the surgeon’s fee for setting a limb, broken by the fall of a horse.
    I can see no objection to the fight of Talmadge to recover, unless it arise from the doubt whether Maury would elect to bring his action against him, or against the road company, for the injury to him. But he has elected to take his remedy against Talmadge; and the record, rejected by the court, shows that fact. We suppose that his recovery against Talmadge could be well pleaded in bar to an action by him against the *road company, for the same injury, the judgment being satisfied.
    There are many cases, some even in tort, in which a recovery between third persons can be given in evidence, for the purpose of showing the amount of damages to which a plaintiff is entitled.
    If A. convert the goods of B., and C. take them from A., as a trespasser, B. may have his action against A. or C., and recover the value of his goods; and A. may have an action against C. for the trespass, but may not recover the value of the goods, becauso they are the property of B. But, if B. bring trover against A., and recover, the property of the goods is thereby transferred to A., and A. may thereupon recover the value of the goods against C.; and he may give in evidence the record of the case of B. against him, on the trial with C., to show that ho is so entitled.
    In the present case, Talmadge offers the record to show the amount of damages he sustained, by reason of the wrongful act of the defendants, and for no other purpose. The wrongful act of the defendants, and that the damages recovered by Maury are the result of that wrongful act, are facts to be proved, of course, by other evidence.
    It is admitted, by defendants’ counsel, that there is a difference in the degree of care and skill which is necessary to exonerate a carrier of persons from damages for an injury done to hie passengers by the upsetting of the coach, and the care and skitl which is necessary to entitle the person passing upon a road to recover for an injury done him by an obstruction wrongfully piaced in the road. The distinction is strong and marked. In case of a person passing the road, he may recover damages for an injury sustained by reason of an obstruction, if he use ordinary care. In the case of the carrier of passengers, he must use the utmost possible care, and he must also according to the language of Lord Ellen borough, in Jackson v. Tottell, 2 Stark. 37, “ have used the best and soundest judgment under the circumstances.” 5 Pet. 56, and cases there abstracted. Thus, even an error of judgment, on the part of *the driver, at the moment of the emergency, though he be skillful and experienced, renders the owners liable.
    The action which is brought for the injury against the carrier is not an action of tort, or sounding in tort; it is an abuse of legal terms so to designate it. It is an action upon contract, and one of the most strict contracts known to the law. A breach of it is no
      tort; not nearly so much as the breach of a contract to pay money. For the party entering into it may have made every prudent and effective arrangement to comply with it; he may have the best coach, the best harness, and the best driver that can be procured; and the driver, even at the moment of the accident, may be attentive and vigilant, “ but if he fail to use the best and soundest judgment under the circumstances,” and an injury happens, the owner is liable. What, then, have we to do with tort feasors, or the law relating to them, in this case?
    The counsel for the defendants admits the rule as we have laid it down, and that, “ so far as the immediate damages are concerned, that is, the breaking of the coach, etc., Talmadge may recover of the company, although he used only ordinary care;” but, he adds, “ a very different question arises under the transcript.” Now I am wholly unable to perceive the difference.
    Talmadgo may recover against the road company if he used ordinary diligence; but what is he to recover? If ho may recover at all, he must recover to the full amount of the injury done him, actually and immediately, by the wrong of the defendants. Though the injury be done at once, and on the instant, the amount of damages may not be ascertained immediately. For instance — his coach is broken; for that, say counsel, he may recover. He is personally injured; for that, also, I suppose, they will admit he may recover. So, if his wife or his child be injured. But the amount of those damages can not be ascertained until he has paid the surgeon’s bill for attending them, and dressing their wounds, etc. And if he thinks the surgeon’s charges too high, and he contests his bill in a suit, the amount of the recovery against him, by the surgeon, would ^settle this item of damages, done at the moment of the upset, but not ascertained till verdict and judgment.
    But here was a passenger in the coach of Talmadge, for whose safely he is responsible; and whether he is his insurer at all events, or his insurer against the- particular wrong of the defendant, in manner and effect, as it produced the injury, is, I humbly conceive, a matter of no importance whatsoever. The injmry of the passenger formed part of the damage done to Talmadge by the upset, as absolutely and immediately as the damage done to his own person, or to his own wife or child. This damage was done instantly, but the extent of it was not ascertained until the recovery in the suit of Maury v. Talmadge.
    But it is said, that as the record in the case of Maury v. Talmadge shows that Talmadge Was guilty of negligence, he therefore shall not recover as to that matter against the road company. Hot us not be misled by words. The counsel has admitted, that, in the very transaction in which this charge of negligence would be sustained, as between Maury and Talmadge, the requisite care and diligence may have been used by Talmadge to enable him to recover against the road company, for what he calls an immediate injury to himself. Therefore, what was negligence as between Maury and Talmadge, is not negligence when the question arises between Talmadge and the road company.
    What, then, I ask, has the charge of negligence, in the declaration in the case of Maury v. Talmadge, to do with the case now pending? It does not affect the question in any form whatever. The negligence then charged may, or it may not, have been that kind of negligence which would exonerate the company; but as it does not, necessarily, exonerate them, the record of the recovery may be admitted in evidence precisely in the same manner, with the sapue effect, as if no charge of negligence were contained in it. The record proves nothing but an item of damages sustained by Talmadge; it does not prove, or tend to prove, that the defendants are, or are not, liable for those damages. The evidence on that trial *could be used no farther than merely to show that this particular injury was the ground of the action, and the cause of the recovery.
    But what,.in effect, is the charge of negligence in the declaration, in the case of Maury v. Talmadge? Surely with reference to the contract and the law which governs the contract. Suppose the effect which the law attaches to it had been set forth in terms in the declaration, and the breach in like terms; that is, in substance, thus: “Yet the said defendant, not regarding his promises and undertakings, did not use the utmost possible care to carry and convey the said plaintiff safely and securely on the said coach, on his said journey, but wholly failed so to do; and, on the contrary thereof, used no more than ordinary care and diligence, etc.” Could it be contended that here would be such a charge of negligence that the very declaration, in the case in which the damages sustained by Talmadge was shown, would, in terms, exclude him from giving the record in evidence? And yet, the general word negligence, in this declaration, means, in legal contemplation, nothing more than a want of the utmost possible care and the utmost human foresight; and the want of skill charged in the driver is only a want of talent or ability to exercise “ the best and soundest judgment under the circumstances.” As referable to the road company, this is not negligence and want of skill. These words, in the declaration in Maury’s case, have no such meaning as applicable to the road company, and it would be merely sticking in the bark to consider them transferable from the one case to the other-give the words in the one case the sense which they legally bear only in the other.
    It is admitted, by counsel, that if Talmadge ,bad been a common carrier, and had in his vehicle the goods of a third person, which were damaged by the upset, and the injured person had recovered against Talmadge the value of the goods, the verdict and judgment against Talmadge could be given in evidence by him in this suit; and he admits, in another part of his brief, that Talmadge could recover, too, against these defendants, even in a case where Maury might have recovered against *him. And why? Because, he says, the common carrier is liable at all events. Now, I do not see the force of this distinction. Talmadge was liable to Maury under circumstances in which the defendants are liable to him, and what matters it whether his liability, over to others, is or is not unlimited? What has the defendant to do with that? The admitted case of the common carrier entirely disposes of the objection that these damages are remote, not immediate. They are just as much the instantaneous result of the injury in the case of the broken bone as of the broken crate. The amount of damages is alike determined by verdict and judgment.
    But the learned counsel contends that it is against public policy to suffer the carrier of persons to recover over against an individual who has placed obstructions in the road, the damages which his passenger has sustained, and which he has been compelled to pay, by reason of the obstruction. And he urges, if such recovery over be allowed, that such carriers will take small care of the safety of their passengers. Now, I do not perceive the danger of such effect following from allowing the recovery, any more than there is from allowing the carrier to recover when his wagon is upset by a like cause and the goods damaged j but to deny the recovery will result in gross injustice. It is no matter whether the obstruction be placed in the road carelessly or maliciously; and let the law be as counsel contend, and one man, by obstructing a highway, either through negligence or malice, may ruin another, and, at the same time, render himself in no wise liable; and that, too, in a case where the injured person has used the ordinai’y care which a prudent man would use to avoid the obstruction.
    The allegation that this is a wrong on the part of Talmadge, which thus renders him liable to Maury, that it was his own fault, his own negligence, is, again let me observe, as between these parties, wholly without foundation in the case. The action was not upon a wrong, but a contract. Talmadge agreed to use more than common diligence, and, if he did not do so, to be *liable to Maury ; but he made no such agreement with the defendants, and they have no right to claim its performance of him. It is a tort on the part of the road company as to Talmadge — a failure to perform a contract as between Talmadge and Maury.
    The last charge complained of by defendants, namely, that if Talmadge and the road company were equally in fault, the jury might apportion the damages, is, I think, against law; and it is, also, clearly against the rights of Talmadge. If he were entitled to a recovery, it was of the whole and not half the damages, and the defendants are not injured by that part of the charge.
   Read, J.

The record shows that Talmadge was the proprietor of a line of stages running upon the road of said company, and that, in consequence of the negligence of the company in not keeping their road in proper repair, one of his coaches was upse^ to the great damage of a passenger in said coach. That the passenger, Matthew F. Maury, sued Talmadge for carelessly and negligently upsetting him, and obtained, in the circuit court of the United States, a verdict for $2,300, which amount, together with $130.51, the costs, Talmadge has paid. Talmadge, thereupon, brings this suit to recover back the sum so recovered against him, or, at least, a part of it, upon the ground that the wrongful act of the road company was the cause of the upsetting of his coach, and that the upsetting of the coach occasioned the injury to the passenger for which he was amerced in damages.

The court below admitted the transcript of the recovery of Maury against Talmadge as an item of evidence to show the amount of damages which he should recover from the road company. The court below admitted the transcript as evidence in the case, and charged, that if they found the Zanesville and Maysvillo Road Company had not kept their road in good repair, but had been guilty of negligence, the jury would be authorized to apportion the damages which Maury had sustained *by the

negligence of Talmadge, and should return a verdict for such amount, so found and apportioned, against the road company.

The jury, under this charge, returned a verdict against the road company for §2,300, and for §130.51 costs.

The road company prosecuted a writ of error,-and the judgment below, for the amount of this verdict, was reversed in the Supreme Court. To reverse this latter judgment this writ of error is prosecuted.

The whole question is simply this : whether among wrong-doers, where damages have been recovered against one, an apportionment may be had among the several wrong-doers, and each be compelled to contribute?

A carrier of passengers, for hire, is bound to exercise the highest possible degree of care; and if, by the slightest negligence on his part, an injury is sustained by a passenger, he can recover the amount of damage sustained.

No damage, however, could be recovered against Talmadge unless there had been negligence, or some wrongful act on his part, which occasioned the injury. This negligence was proven in the circuit court, and there was evidence to the same effect on the trial of this case.

Talmadge now says to the road company, if you had not been negligent in not keeping your road in repair my coach would not have been overturned, and no damage would have been recovered against me. The road company may say, with equal truth, to Talmadge, unless your coach had been negligently driven it would not have overturned. Both were more wrong-doers. The passenger selected Talmadge, with whom he had contracted for his safe transportation, and recovered against him. .

Now, there is no principle of law upon which Talmadge can compel the road company to respond, in damages, for his wrongful act. The injury which Talmadge sustained, directly, by the negligent act of the road company, may be recovered.

*This is the law. And if the court should permit carriers to recover the damages from the owners of bad roads, for injuries consequent upon the negligence of such carriers, there would be very little safety for passengers.

Judgment affirmed.


author: Lane, O. J.

text:
    John Betts v. James Wise et al.
    A woman, under the ordinance of 1787, was dowable of all lands of which her husband was seized during coverture.
    This is a bill in chancery, from the county of Hamilton, for the foreclosure and sale of mortgaged premises.
    The mortgage was given to secure the payment of two notes, one of which has been paid. To the second note was attached a condition, that it is not to become due, unless Mrs. Dayton’s dower interest, in a certain square in Cincinnati, shall be released. The bill avers, that Mrs. Dayton had no dower in the premises, and, the condition being void, the note is due.
    The land was originally purchased from the government by Symmes; and by him, on March 2, 1798, conveyed to Dayton. On April 29, 1803, Dayton conveyed to Williams, but Mrs. Dayton was not a party to the deed. Upon these facts, the question arises whether, before the statute of 1804, lands in Ohio, claimed by a husband, were liable to dower.
    Charles Fox, for plaintiff:
    I maintain that, by the terms of the ordinance, the widow was only dowable of the lands descended from her husband. *She is not dowable, under the ordinance, of lands which ho hold and deeded away during the coverture. The act of July 14, 1795 (1 Chase, 187), is taken from Massachusetts; and its only object is to provide a, mode of assigning the dower.
    The act of January 19, 1804 (1 Chase, 395), is the first act passed by the Ohio legislature on the subject of dower. By section 1 of this act-it is provided that the widow shall be entitled, during her life, to the use of one-third part of all the real property that her husband was seized of during coverture, unless she shall have joined with her husband in the conveyance.
    If the conveyance from Dayton had been made after the passage of the act of 1804,1 have no doubt Mrs. Dayton would have been entitled to dower ; but, as the conveyance was made before that time, the act could not affect the property described in the deed. There being no dower-right in the way, there was none to release, and therefore the condition attached to th-e note is inoperative.
    Samuel M. Hart, for defendant:
    The provision in the ordinance of 1787, upon the construction of which this question depends, is as follows: “That the estates of resident and non-resident proprietors, in said territory, dying intestate, shall descend,” etc. [here follows the course of descents], “saving, in all cases, to the widow of the intestate, her third part of the real estate for life,” etc.; “and this law, relative to descents and dower, shall remain in full force until altered by the legislature of the district.” This clause in relation to dower, I claim, did not limit dower to cases where the husband died intestate, but merely recognized the right or estate of dower, as it existed at common law. The construction for which Mr. Fox contends would have enabled a husband to deprive his widow of dower in his lands, by making a will. The intention of the framers of this ordinance was, as I conceive, in this clause, to create the estate of dower, leaving to the common law to define of what that estate ^should consist. They determined that the widow’s right of dower should be saved; but the extent and manner of assigning it (until the act of 1795, adopted from Massachusetts), was to be determined by the common law. This notion of restricting dower to lands of which the husband died seized, could not have been very prevalent in 1787, for the common law, for centuries prior to 1787, as far back as Magna Charta, endowed the widow of all lands of which the husband was seized during coverture. Littleton, sec. 36; Park on Dower, 5. “ It has continued unchanged,” says Kent, 4 Kent’s Com. 35, “in the English law to the present time, and with some modifications, it has been everywhere adopted as part of the municipal law of the United States.” The modifications to which the chancellor here refers, I suppose, relate to the question whether the lands were wild. This is the modern doctrine in Massachusetts, 15 Mass. 164; New Hampshire, 2 N. H. 56 ; and probably in one or two more states.
    The first law adopted by the legislature of Ohio, that of 1804, embodied the idea of dower which prevailed in the territory at that time, and in every other country, where the common law obtained, so far as I have been able to ascertain.
   Lane, O. J.

The statute of 1804 (Chase’s L. 395) expressly confers the estate of dower in all lands, and puts at rest all questions of this kind since its passage.

The only statute in force before, was one from Pennsylvania, adopted by the governor and judges, in 1795. Chase’s L. 187. It neither creates nor defines rights, but merely points out the mode in which dower may be assigned.

The ordinance for the government of the Northwest territory provides a rule of descents for the estates of decedents, in the course of which it employs the following language : “ Saving, in all cases, to the widow of the intestate, one-third of the real estate for life, and one-third of the personal estate; and this law, relative to descents and dower, shall remain in full force until altered by the legislature of the district.” Swan’s Stat. 42.

*The plaintiff insists that before the statute of 1804, no right of dower subsisted, except such as was created by these words ; and, as they are used in no other connection, than in respect to lands descended, it is inferred that no right of dower subsisted, except in the lands of which the intestate died seized.

If the estate of dower had no existence, except by virtue of the ordinance, it would be difficult to escape this conclusion. But there are certain institutions and rights which seem to have their foundation in the very constitution of the human race. No nation has been found so rude or uncivilized as not to have provided for itself rules which regulate the relation of marriage, those between parent and child, and the succession of decedents’ estates. And men could not subsist, either in society or in the family, unless these matters, at least, are controlled by some rule which possesses the force of law.

In all the nations of the Teutonic stock, some right of dower has been found to exist from the earliest antiquity. This right has received vai’ious modifications at different times and in different countries; but before the concessions of the great charter, it assumed in England the modern form, by which it attached to all lands of which the husband had seizin during coverture. This continues to be the law of England, and is the law in most states of the Union.

Such is the common law of dower; an institution existing wherever the common law obtained; a rule which each people has the power to change, but a conception which none could shake off without substituting some other provision in its stead. It was to a people, under the dominion of this idea, that the ordinance was addressed, and, far from assuming to prescribe a different rule, or conferring a new right, it does no more than recognize an existing institution, and takes care that it receive no prejudice by the operation of the law of descents. We can regard it as no less than an authentic acknowledgment of the estate in dower at common law, to which law we must recur to learn the signification of the term, and the extent of the dowress’ interest.

^Influenced by these views, we are readily lead to embrace the opinion that, during all periods since the organization of government in the territory, a wife was dowable of all lands within it, of which the husband was seized at any time during coverture. It follows, then, that, in this case, the condition has not occurred by which the note was to become due; and this bill, to obtain its payment by a sale of the tenements morgaged, is dismissed, with costs. Bill dismissed.


author: *Wood, J.

text:
    Daniel McNaughten et al. v. Harper Partridge, Reuben Partridge, et al.
    One member of a firm can not bind his copartner by a bond under seal.
    Where a bond is executed by one member of a firm, all the members intending the instrument should bind them, the obligee has no remedy against the firm at law; but on the ground of mistake, may charge them in equity.
    If the obligee, after discovery of the mistake, pursues the individual maker of the bond, it is a ratification of the instrument, and relief against the copartners will not be afforded in equity.
    Semble, a mistake of law may be corrected in equity.
    This is a bill in chancery, from the county of Stark.

      The bill states that, in the years 1836 and 1837, the complainants, with one Gregory Powers, since deceased, were merchants in business, under the firm name and description of McNaughten, Powers & Co., and, during their continuance in business, sold and delivered large quantities of merchandise to the respondents, who were likewise merchants in company, under the name and firm of H. & R. Partridge & Co., which said merchandise was charged in account to the respondents, and used by them in their copartnership business.
    *That on September 25, 1837, there was a settlement of all accounts and dealings between the firms of the complainants and respondents, and there was found due to complainants $411.92, for which sum a bond, or judgment note, was executed, and made payable on the 1st day of November, then next ensuing, and by which S. L. Hand, or any attorney, etc., was authorized to enter an amicable suit on said bond, and to suffer judgment thereon by confession, default, or otherwise, in any court of record, for the amount due thereon ; which bond, or judgment note, was signed H. & R. Partridge, [l. s.] by fm. W. Hale. [l. s.]
    The bill further states that, at the time of the execution of the bond, it was not their intention to release or discharge any of the individual members of the firm of H. & R. Partridge'& Co. from the amount of said bond, nor had they, nor either of them, any expectation or wish to be released or discharged therefrom.
    Both complainants and respondents supposed that ono member of a firm could bind the firm in any contract or bond in the name and for the benefit of the firm, whether the same was under seal or not; and the complainants were not aware of their mistake until they applied to their attorney for the purpose of having the bond collected, and, to their surprise, were then informed it was so made as to bind the individual party only, who signed and sealed it, and who was then insolvent.
    The complainants further represent that, at the February term of the court of common pleas of Portage county, in 1838, they caused a judgment to be entered on said bond, in favor of complainants, Daniel McNaughten, Gregory Powers, Titus Chapman, and another, against William W. Hale alone, for the sum of $411.92 debt, and $12.35 damages, and $8.11 costs of suit, and that said judgment remains unsatisfied and unreversed; that an execution was afterward issued on the judgment, and returned, no goods, chattels, lands, *or tenements found whereon to levy. The bill further states that said Hale has no property subject to execution, but is totally insolvent, and has gone to parts unknown; that the complainants have no remedy against the other members of the firm of H. & R. Partridge, except in a court of equity, and pray that the said H. & R. Partridge may be decreed to pay to complainants the amount of their judgment, with costs and interest.
    To this bill the respondents demurred.
    Alvah Hand, in support of demurrer:
    It seems to be a well-established rule of law, that the giving of a bond satisfies and extinguishes a simple contract debt. 1 Bay’s S. C. 495; 1 Hall, 292.
    The defendants, H. & R. Partridge, claim that the taking of the bond, by the complainants, satisfied the debt so far as they were concerned, and that the complainants have no further remedy, either at law, or in equity, except as against Hale, the maker of the bond.
    The complainants, if they recover at all, in this ease, must succeed on the ground of mistake; but it can not be fora mistake of facts, as no such is charged in their bill; besides, they had as good an opportunity to be acquainted with all the facts of their dealings as the defendants had.
    They can not recover on the ground of a mistake in law, as every man is presumed to know all the law that relates to his conr tracts, as well as to his civil duties.
    It is a well-known maxim that ignorantia legis neminem excusat, and one which the student learns when he first enters upon the study of municipal law; 4 Black. Com. 23; Archbold’s Ed; Plowd. 343; and this rule was early adopted into English jurisprudence-from the civil law,.and is equally respected by courts of equity, as-by courts of law.
    But suppose that ignorance of the law was an excuse for a man’» •mistakes, these defendants claim that the complainants have ratified the arrangement by subsequently entering judgment *on the bond against Hale, and ought to be estopped from pursuing fthem, either at law or in equity.
    , The complainants once had a legal right of action against H. & R. Partridge, and W. W. Hale, but, by a mistake of law, they have lost it, as against H. & R. Partridge, but it still exists against Hale. They have tried their remedy at law against him, but without effect. They now ask this court to restore them to the right which they had lost by their own act.
    H. & R. Partridge would be holden on this bond if the complainants could show that they had adopted it either before, at the time, 'or after it was executed. The court, however, can not presume they have adopted it without proof, and the complainants do not claim such in their bill to be the fact. If adopted by the Partridges, the complainants’ remedy would have been at law, and not in equity.
    S. L. Hand, for complainants:
    The question presented for the decision of the court in this case is, whether a creditor of a partnership, who has taken for his debt ■a bond signed and sealed by one partner for and in the name of the firm, can, if such partner prove insolvent, enforce collection of the debt against the firm, in a court of equity.
    This question was once presented to the Supreme Court of this state in the case of James v. Bostwick, Wright, 142, and decided in the affirmative. Upon that authority and the manifest equity of the case, this suit is predicated.
    The question arose as follows: James sued Bostwick on a contract, signed “ Richmond & Bostwick,” and sealed; but Bostwick having, in fact, executed the contract, the action was brought against him alone. In the course of the trial Bostwick called Richmond, his copartner, as a witness, and executed to him a release; but he was still objected to by the counsel for the plaintiff. *“ By the court. This contract is a partnership contract in equity, though, at law, so executed as to subject one of the partners only upon the covenant, as but one sealed it. There can bo little doubt but that, if a recovery is had, and the defendant prove insolvent, the witness might be subjected, in equity, to the debt. He is called, then, in favor of his own interest, and the release of his copartner can not affect his liability to the other party to the covenant. He must be rejected.”
    It is insisted, on the part of the complainants, that their property has been appropriated to the use of the firm, and has increased the partnership effects to the amount of their claim, and that all have had a benefit from the property sold; that the obligation to pay exists independently of any instrument by which the debt may have been secured, unless it was clearly the intention to release the firm from all further liability; but, from the manner of the filling up and executing of this bond, it is clear that such was not the intention.
    From a close examination of the equity of the case, I have been unable to discover any good reason why the mere affixing of a seal to a contract, by an individual partner, when transacting the business of the firm, should, in equity, change the nature of that contract, and that, too, contrary to the intention and understanding of the contracting parties. It is contended that one partner can not bind the firm by contract under seal. This may be the law, but equity would seem to suggest a different rule. The right of each individual partner to bind the firm should be coextensive with the business of the firm; and as partnerships are founded in mutual confidence, that confidence should not be limited to any particular manner of transacting the partnership business; neither should these defendants complain if complainants have placed the same unlimited confidence in their integrity that they have reposed in the integrity of each other.
    The right of the individual partner to settle the account is not denied, nor is it contended that there was not due from the firm, to complainants, the amount mentioned in the bond. *The sole defense is, that a seal was affixed to the bond; and, therefore, they are not, in equity, bound to pay a debt by them admitted to be justly due from the firm to the complainants. A defense of this kind might, and probably would, prevail in a court of law; but that a court of justice, acting upon the principles of equity, would refuse relief to a party, under circumstances so trifling, is hardly to be conceived.
    That this bond was taken by complainants, through mistake or ignorance of the law, there can be no doubt; and that the partner who executed it must have been equally mistaken or ignorant, is equally clear. In the case of. Edwards v. Morris, 1 Ohio, 531, the court say, that “ it is the peculiar province of chancery to relieve against fraud, mistake, or accident. But how far parol testimony can be admitted, to prove mistake in a written instrument, has been matter of much altercation and doubt. Mistakes in matter of fact, it seems, may be rectified. And the opinion of the court, in the case of Hunt v. Rousmanier’s Adm’rs, 8 Wheat. 174, goes far to establish the doctrine, that where the parties, through a mistake and ignorance of the law, execute a writing which does not carpy into effect their contract and intention, that, the true contract and intention may be enforced in chancery.” See also Young v. Miller, 10 Ohio, 89.
    It is said that if ignorance of the law was an excuse for a man’s mistake, complainants have ratified the arrangement by subsequently entering judgment on the bond against Hale, and ought to be estopped from pursuing them, either at law or equity. Had this suit been instituted before pursuing Hale to insolvency, defendants might, with propriety, have contended that complainants had a legal remedy against him, and must first pui’sue that remedy before a court of equity could interpose; for, had that remedy been effectual, there would have been no necessity for-the interposition of a court of equity.
    The defendants seem to attach the utmost importance to the seal of this instrument, as though it was a matter of such magnitude that no court of justice could overlook it, or a barrier, beyond which a court of equity could not pass. It is said *that seals were first introduced because men were unable to write their names, and were used instead of a signature. If such is the fact, the reason of using them having ceased, the seal itself should no-longer be used.
    A. Hand, in reply:
    -To sustain this bill, the complainants’ solicitor relies upon the case of James v. Bostwick, Wright, 142, as an authority. That was an action of covenant, on a contract, to finish and put up a. steam boiler, etc., etc., for which the plaintiff was to pay $1,000 The contract between the parties was under seal, and signed “ Richmond and Bostwick.” On the trial, Bostwick released his copartner from all liability, and offered to use him as a witness (he not being party to the record). It was objected that he was. still interested, and the court decided that he was not competent on account of his interest.
    There is this difference between the case cited and the one now-in hearing: Partridge & Co., while in company, had contracted a running account, or debt, with the complainants; and, to settle it, Hale gave a bond, signed with the name of the firm by himself Here was the adjustment and extinguishment of a simple contract debt, by the giving of- an obligation under seal. It was intended by the complainants, at the time, that the bond should extinguish the account.

      In the ease in Wright, the property was delivered and put up under the agreement upon which the suit was brought, and there could, therefore, be no obligation of a higher nature. This question could not then arise in that suit. There the parties were exactly where they had originally placed themselves; here that relation has been changed.
    In the case of James v. Bostwick, the court say: “ This is a .partnership contract in equity, though in law so executed as to subject one of the parties only upon the covenant, as but one sealed it.” This language of the court seems not a little mysterious ; and we should be at a loss to know what the *court meant by it, were we not helped out (if help it may be called) by the last clause of the sentence, “as but one sealed it.” We suppose, by this, that Richmond had never acquiesced in the sealing of the contract by Bostwick in the partnership name. If he had .so acquiesced, the plaintiff had not been able to prove that fact. It is a well-established principle of law that covenant could have been brought upon that contract against Richmond & Bostwick, if the plaintiff could make the necessary proof of knowledge and recognition, of the mode of executing the contract. In 1 Hall, 292, Chief Justice Jones holds the following language: “If the co-partnership took a store upon lease, to transact their business, and both are named as lessees,* but one of them only seals the counterpart, and the other agrees to it, and they occupy and enjoy the store conjointly under the lease, it is seen that covenant will lie against both for the rent.” This is a full and perfect recognition of the doctrine that the seal of one binds the firm, when the partnership name is affixed, if the other partner recognize the transaction, and that covenant may be sustained on the contract against both. This decision was made in December, 1828, and nearly four years before the one in Wright. If the court do say, in the case just referred to, that covenant would not lie in such a «ase, they must have overlooked or entirely misapprehended the force of the authorities on this subject, or else Chief Justice Jones must have been mistaken.
    If the court erred in saying that no action could be sustained at law against Richmond & Bostwick upon that contract (and we humbly conceive the court did so err), we shall also contend, and try to prove, that its conclusion in regard to the jurisdiction of a court of equity was equally erroneous and unfounded.

      If the plaintiff in that suit had a remedy, olear and unembarrassed, at law, as he doubtless had, equity could not step in and take jurisdiction of the subject matter of the contract. And the court was equally without justification in saying that *the contract was a contract in equity, when it was clearly a contract at law.
    What we mean to say, then, is, that the case in Wright is not applicable here. If applicable, it is a violation of principle and contrary to adjudicated cases, and ought not to be sustained; and we trust the court in' reviewing the same will come to the same conclusion in the matter that we have.
    In regard to the mistake of law, we have to say that the case of Edwards v. Morris, 1 Ohio, 531, was a case of mistake of fact, and not of law. The parties had neglected to insert in their contract that part of their agreement whereby the defendant at law was to have the privilege of paying his note in the “ notes of the Miami Exporting Company.” It was a mere omission of a part of the agreement, and all other things being equal, the court could have afforded the proper relief. And why the court should have gone into the question of mistake in matter of law, we can not well imagine. The facts in the case did not necessarily lead to it. All thatis there said is merely arguendo, and not entitled to the weight o.f an authority. We have not been able to examine the case of Hunt v. Rousmanier, 8 Wheat. 212, fully, but can say that if the case decides that a court of equity will relieve against mistakes of law, that it is an exception to the authorities generally.
    Judge Story says, 1 Story’s Eq. Com. 121, “It is a well-known maxim that ‘ignorance of law will not furnish an excuse for any person, either for a breach or for an omission of duty; ’ ” and he then refers to the authorities, one of which is the very case of Hunt v. Rousmanier, in 8 Wheat., the very case which the court cites in Edwards v. Morris, 1 Ohio, 531, to sustain the position that courts of equity will relieve against mistakes of law. Whether the court here wiLl establish a new rule in this case upon the authority of Edwards v. Morris, and Hunt v. Rousmanier, we can never believe till, we are furnished with the proof.
   *Wood, J.

The rule in simple contracts appears to be settled, that to give a note or other security for a prior engagement is no discharge of the original agreement, unless the latter be paid or performed, or, unless it was the understanding of the parties that the latter should extinguish the former. It has accordingly been held that the merchant who disposes of his wares and receives a note or bill at any number of days, if the note or bill is not paid at maturity, may set up the original consideration and recover iuindebitatus assumpsit, on the common count for his goods. Numerous are the decisions in New York and Pennsylvania to this effect.

But when a bond or sealed instrument is taken for a simple contract debt, the former is of a higher nature than the latter, and the simple contract is merged, lost, and discharged by the bond. 1 Bay S. C. 495; 1 Hall, 292. The presumption is, that such was intended by the parties where a security of a higher nature is received, and that, too, whether it be the bond of the debtor or a third person. Such, then, being the situation of these parties, the complainants having the bond of Hale, one of the respondents, for the debt of all, it is clear the complainants have no remedy at law. It is equally clear they are remediless in equity, unless upon the ground averred in the bill, and admitted by the demurrer, that both the parties were under a mistake as to the legal effect of the execution of the bond, and its operation to discharge all but the individual partner who sealed it. Upon this last ground, if there was no other point to be considered, the court are unanimous in their opinion the complainants would be entitled to relief. This is one of the original grounds of equity jurisdiction. Though it is beyond the reach oí a court of law, in ordinary cases in equity mistake may be molded nto any shape to meet the intentions of the parties when it occurred. The counsel for respondents claim, however, that upon this ground the complainants’ bill can not be sustained, because if a mistake has occurred, it is a mistake of law, and a court of equity will not attempt to correct mistakes in that which every, man is presumed to know. Rules of policy are, sometimes, it *is true, adhered to with great tenacity, and the common good of a whole community requires, oftentimes, that they should not be relaxed. There are, however, other cases where the proof has been so clear as to overthrow this presumption, and whore individual hardship was so great that they have, occasionally at least, been permitted to stand as exceptions to, if not to form general rules under which to grant relief. I do not know that I am authorized by a majority of my brethren to say a mere mistake of law may be corrected, but I am authorized to say that relief might be granted in the ease at bar if it depended on the case of mistake made in the bill. The inquiry then is, what is the mistake as averred in the bill and admitted by the demurrer ? Is it of law or fact? The bond given by Hale was precisely such as was agreed to be given. It was executed in the manner it was agreed to be executed. It contained every stipulation the parties supposed it contained, but they were mistaken in its legal effect. Its operation was to discharge H. & R. Partridge, and charge only Hale, who was insolvent, with the debt. This neither the complainants nor the respondents designed. Is it not then manifest that it was a sheer mistake of law, and may not such in certain cases afford ground for relief in equity ?

By two of the judges of this court, relief was granted in a case by no means dissimilar, on the circuit in Cuyahoga county, at the last term. I cite from memory only, as I have with me no note of that case. Cushing had been negotiating with Clark, Hilliard, and Clark, for the purchase of two lots of ground. He concluded, not to complete the contract. The parties had proceeded so far that two blank contracts had been filled up, but not signed by Cushing. In this situation Hall applied to purchase the two lots, and, to avoid trouble and expense, it was agreed Cushing should sign the contracts and assign them over to Hall, one of the vendors, saying that Cushing would not be liable upon it for the purchase money, and Cushing being advised to the same import by others.

Hall failed to make payment, and the vendors, threatening to enforce the collection of Cushing, the contracts were *decreed to be canceled as against him. In Muskingum county, at the last term, a bill was pending to enforce the collection of interest upon a mortgage, and a mistake of law was set up by way of defense; that it was understood between the parties, by the terms employed, that if the mortgager paid the principal punctually, the interest was not, in law, demandable, and the court refused a decree to the complainant, the principal having been punctually paid. The case of Hunt’s Adm’r v. Rousmanier, 8 Wheat. 212 has been the subject of much comment. It is cited by both the parties in this ease to show that equity will and will not relieve against a mistake of law merely. I have not had time to apply the investigation of it anew, but it is certain that the bill was brought to correct the instrument executed between the parties, because the legal effect was not such as the parties •supposed it to be, from the terms employed by the draughtsman, though as to the actual language used there was no mistake. In this case Chief Justice Marshall delivered the opinion of the court. He observed, we aré called upon to say, whether a mistake may be corrected, and that mistake is clearly at law. For the instrument is such as the parties supposed it was; the terms used are such, .and there is no mistake of fact. He then reviews all the authorities, and comes to the conclusion that there is no one of them where the point was necessary to be decided, and where it had been expressly held that such mistake could not be corrected, and lays it down as a general rule that when, from the terms used in an instrument, it fails to carry out the clear and manifest intention •of the parties, it will be reformed in equity to meet that intention and decreed accordingly. And yet this very case is cited by Judge Story,- in his treatise upon equity, to show that a court of -equity will not relieve for a breach or omission of duty arising from a mistake of law. 1 Story’s Com. on Eq. 121.

But unfortunately for the complainants, there is another point in this case which destroys all right to the relief prayed, on the principle of mistake, whether such mistake be of fact or of law. It is averred by the complainants that when they *applied to their attorney to collect the bond, they were surprised to learn that Hale only, who sealed it, was bound by it; that afterward they caused a judgment to be entered, and execution to be issued against Hale. These proceedings were after the mistake had come to their knowledge. The complainants, notwithstanding, per•severed, and tried their remedy at law against Hale, without effect. By thus proceeding, after the mistake was known, they ratified and confirmed the'arrangement, as it then stood; and it is, after this, too late for them to reform it. As .well might the •defendants have claimed not to be bound had they confirmed the •act of Hale, in the execution of the bond, in which case, it is well settled the complainants would have had a remedy at law against .all the partners. Bill dismissed, with costs.