text:
    Sylvester P. Babcock v. Thomas P. May and others.
    Parol evidence is not admissible to provea contract to freight different from that expressed in the bill of lading.
    This was an action of assumpsit, brought against the defendants, as owners of the schooner America, to recover the value of two hundred and five barrels of salt, shipped on board the America, at Buffalo, in the State of New York, tobe delivered at Cleveland, in the State of Ohio, and which was lost upon Lake Erie.
    Upon the trial, before the Supreme Court, in the county of Cuyahoga, the plaintiff offered in evidence the following bill of lading:
    “ No. 197. Shipped in good order, and well conditioned, by S. Thompson & Co., on board the schooner called the America, whereof is master, for this present voyage, Z. Brown, now lying in the port of Buffalo, and bound for Cleveland, Ohio. *To say :
    . “For Merwin Giddings & Co., 113 barrels, containingi120 50-280 barrels salt by weight; S. P. Babcock, 192 barrels, containing 205. barrels salt by weight. Shipping charges, $8.20. Charged M. G. & Co.; S. S. & Co., per Taylor. .Being marked and numbered as in the margin, and are to be delivered in the like good order,.and well-conditioned, at the aforesaid port of Cleveland, the danger of the lakes and rivers only excepted, unto Merwin Giddings & Co., they paying freight for the said salt at two-eighths per barrel, when delivered at their warehouses. In witness whereof the master of the said vessel hath affirmed to one bill of lading, all of this tenor and date, the one of which bills being accomplished, the other to stand void. Dated in Buffalo, October 21, 1827.
    “ Zadoo Brown.”
    It also appeared that the America, being heavily laded, deviated from the usual and direct course from Buffalo to Cleveland, for the purpose of going to the port of Otter Creek, in Upper Canada, and during the voyage the salt was unavoidably lost, on the Canadian coast, in a storm.
    The defendants then offered in evidence the manifest, duly proved by the collector of the port at Buffalo, by which it appeared that the America was authorized to proceed to Cleveland, via, Otter Creek; and also the depositions of certain persons, by which it appeared that John L. Kimberly, of tho firm of S. Thompson & Co., who acted asshipping and forwarding merchant for the plaintiff, in the shipment of the salt, verbally agreed that the master of the schooner might go to Cleveland by the way of Otter creek, and that the master refused to take the salt on board the schooner upon any other terms. To this testimony the plaintiff objected, and the 336] court sustained the objection. A verdict was found for ^the plaintiff, and a motion for a new trial was made by tho defendants, which motion was reserved for the decision-of this court.
    Case,
    in favor of the motion:
    The defendant contends that the court erred in rejecting the defendants’ depositions, offerod to prove the understanding and agreement of the shipper, that the vessel should touch at Otter creek.
    A bill of lading is in its nature a mere receipt (is so called, 2 Starkie Ev. 331), and no i*eason is perceived why a receipt, acknowledging the receipt of goods or salt should be distinguished from other receipts. A receipt may be explained, surperseded, and even contradicted, by parol evidence. It is only prima facie evidence. 3 Starkie, 1272, 1276, and cases cited; 3 Esp. 214; 2 Johns. 378; 3 Johns. 319; 5 Johns. 68; 2 Term, 866, etc.
    Considering the bill of lading as the contract in writing, the defendants’ evidence, offered and rejected, does neither vary, contradict, nor impeach it, and ought to have been received. The writing on the bill is to carry from Buffalo to Cleveland; nothing is said therein whether the carrying is to be by way of Otter creek, Erie, or straight through the lake. If it be presumed the carrying shall be straight through the lake — it is admitted such maybe the prima facie presumption — but that presumption may be rebutted. One way in which the court, in this case, permitted the presumption to be rebutted was, by showing that it was usual and customary to deviate and stop at intermediate ports. Such evidence could only have been admitted upon the principle that the contract in the bill of lading was not, and is not conclusive, so as to govern the course of the carrying. Then why may not the presumption of a straight course as well be rebutted by express evidence of the agreement of the party, or his agent, that a particular course shall be pursued in carrying, as by showing custom to deviate and stop at intermediate ports. Such evidence, in either case, no way interferes with the agreement for carrying from Buffalo to Cleveland; it is only regulating an indifferent matter, whether *the carrying shall be done by way of A. or B., both leading to the contracted point. 3 Sfcarkie, 1234, and onward, 1241, 1037, 1040.
    The bill of lading, in this case, is not made as is usual. Compare it with Abbott on Ship. 217. The regular bill of lading, on its face, purports to be a contract between the shipper, the real owner of the property, and the carrier, and to deliver to the consignee. And the action is, in such case, in the name of the shipper or consignee, whichever is owner, against the carrier. In the present case, S. T. & Co. are the shippers, Merwin, Geddings & Co. consignees. The action is not in the name of either — it is not founded on the written contract. That bill contains-property owned by two distinct sots of persons. No action can ever be sustained by Babcock upon it, or by means of it, otherwise than by introducing parol evidence to explain it. The contract appears to be between S. Thompson & Co., and the carrier, by Brown, the master ; and it was alone by introducing parol evidence to show Babcock an owner of the salt that he could sustain the action. The contract in the bill was incidental evidence, I admit, to prove the agreement to carry, upon the principle that the bill was only incidental and prima facie evidence, to be controlled or explained by other testimony. But if the bill is conclusive, and not to be questioned, explained, added to, nor diminished, the court ought now to grant a new trial for having suffered other evidence of ownership to go to the jury.
    As the suit is brought, it is not between those who, strictly speaking, are parties to the contract in the bill. The bill can not estop either party from producing other evidence relative to the subject matter. Upon the whole, it appears to me that the bills of lading on the lake are considered as mere memorandums of property received and to be carried, to what place, and to whom to be delivered; and are every day explained in practice. No action in this case can be sustained by Babcock without parol evidence to prove his ownership. It has been admitted for him. Parol evidence has also been admitted to show that vessels, by custom, may, and do deviate from a straight course. And without which every carrier on the lake would be liable if a loss happened.

      *If, under all these circumstances, evidence of an express agreement, by the shipper, to touch at a particular point in the-route can not be given, it is at least a particular case, and circumstanced a little extraordinary. 3 Starkie, Parol Evidence, 3, 1034, and onward.
    Willex and Stirling, contra:
    1. Is it competent for the defendant to contradict the bill of lading by parol; if so, to what extent ?
    2. Are the declarations made by forwarding merchants, having no interest in, nor authority over the property, except to forward it, admissible and conclusive upon the owner, the plaintiff?
    1. It is a well settled principle, that parol evidence can not be admitted to contradict, vary, alter, or explain a written contract, that all conversations before and at the time of making the written contract are merged.

    Is a bill of lading, or a written memorandum to transport from one given place to another, upon certain conditions, and for a certain compensation, certain articles of property, as in said memorandum expressed, then a contract?

    A contract is defined by the common law to be “an agreement upon sufficient consideration to do, or not to do, a particular thing.” 2 Bl. Com. 442. Here, then, is an agreement by defendant to deliver the articles acknowledged to have been received (or shipped by plaintiff) upon consideration of plaintiff paying a specified compensation, and this in writing.
    Lord Loughborough says, “ a bill of ladings the written evidence of a contract for the carriage and delivery of goods sent by sea for a certain freight.” 1 H. Bla. Ch. 359.
    A bill of lading is negotiable; and in the hands of an assignee, the acknowledgment of the receipt of freight is conclusive upon tha party. 5 Term, 683; 6 Mass. 425.
    It is expressly treated as a contract by all the authorities. Abbott, 132-246, top paging.
    If, then, a contract, why should parol evidence be admitted to contradict, etc., its terms ? Is a written contract to build a house, to labor, to convey, and to do any other act, of a more solemn or 339] important nature than one to transport property upon *the water? If not, why should á different principle be applied to the one from' which is applied to the other?

      But it is said to resemble a receipt, and can therefore be contradicted. It is not denied but that -¿.receipt formoney may be explained, or that it is not conclusive upon the party. So says 3 Starkie, 1044— and so is the law. But this no more proves that a bill of lading may be contradicted, than that a deed, or any other instrument or contract in writing, in which there is an acknowledgment of a receipt of money, can be, by parol. And if a receipt for money may be explained, no reason can be urged why a receipt of goods can not be; that is, so far as relates to the receipt or receiving of the goods, only that no adjudged case is to be found warranting it. But what is meant by “a receipt of money may be explained?” It is. that this fact may be controverted by parol; and the doctrine applies equally to deeds and instruments of the most solemn nature.
    Thus, “ upon failure of an annuity deed — upon an action brought by the plaintiff against the two grantors, to recover the consideration paid — one of the defendants, who was a surety only, was permitted to show, notwithstanding his having signed a receipt for the money, jointly with the other defendant, the principal, that he had never in fact received the money.” Stratton v. Rastall and others, 2 Term, 356. But vide 2 Taunton, 141, Com.
    But it will not be claimed that the terms, covenants, and conditions of such a deed can be explained or contradicted by parol; but why not, upon the principle contended for by the defendant? A deed is as mucha receipt, as a bill of lading. It is the receipt of the money, in a deed, which forms the consideration for the covenants, etc. So the receipt of property in a bill of lading, and the freight to be paid on account of that property, which forms the consideration of the promises, etc., of the master or ship owner — and perhaps in analogy to the foregoing caso from Term Reports, the defendant, in this case, might introduce parol.evidence to show that actuallyreo salt was ever received; and thereby contradict the receipt. But no adjudged case to be found, warrants such a procedure. And in McKinny v. Pearsall, 3 Johns. 318, the court admit parol evidence in relation to a receipt of property, solely upon the ^ground that it was consistent with it, and not contradictory. Spencer, J., in delivering the opinion of the court, says: “If the receipt had been in terms more explicit than it is, it would be open to explanation. I mean that kind of explanation not directly contradictory to, but consistent with it."

    The cases referred to by the defendants’ counsel, and all the cases in the books upon this point, establish the simple foot that parol evidence is admissible to show whether money, or no money, or what amount was received; but not that this species of evidence is admissible to explain, or contradict every other part of an instrument, in which may be contained a receipt of money or other property; and the same arguments that can be drawn from this source to contradict or explain, by parol, every part of a bill of lading, may be used to contradict or explain a deed, or any other written instrument whatever.
    A deed, or even a record, which is conclusive upon the parties, is not always conclusive upon all points. Thus, evidence is admissible to prove a deed, was executed, or a bill of exchange made, at a time different from the date. Hall v. Casenon, 4 East, 477.
    And records which are conclusive, as far as regards their substance, averments, and proofs, may be received to contradict them, as to time and place, and many other particulars. 1 Pick. 362; 5 Day, 160.
    A bill of lading is a contract of as high a nature, and of as much importance as any other species of contract whatever; and the interests of the community, and its safety and welfare, require that every guard should be thrown around them which is consistent with precedent, and that they should not be exposed to the avarice, cu-pidity, and dishonesty of a class of men who have always the means about them of defeating the most honest claims, provided their solemnity and stability are destroyed, by suffering them to be contradicted or explained by parol.

    Lord Ellenborough says.-“ I can recognize no property Saif that recognized by the bill of lading.” 2 Camp. 38.
    In Barber v. Bran, etc., this precise point is decided by the unanimous opinion of the court: and it is the only case to be found where the question is raised or decided in relation to *a bill of lading. The marginal note is: “ When the master of a vessel, receiving goods on board-for transportation, gave to the shippers, writing, acknowledging the receipt of the goods, and stating that they were to be transported to the place of destination at customary freight, dangers of the seas excepted; it was held, that a parol agreement between the shipper and master, before and at the time of giving the writing, as to the mode of stowing the goods, was inadmissible to show the terms of the shipment, as all such communications between the parties are to be considered as merged in the writing. The bill of lading was in these words:

      “ Received on board the sloop Mary eight hogsheads of gin, of Horace Barber, to be transported from Hartford to Boston, at customary freight, dangers of the seas excepted.
    “Nathaniel Hurlbdt.
    “ Hartford, November 27, 1816.”
    But it is said that the evidence offered does not contradict, vary, or impeach the written contract, but rebuts a presumption arising from it that the defendants were bound to proceed on the voyage by the Dearest and shortest course. It is the same question, in a different shape. It is an attempt to attach, by parol, a different meaning to language, and, consequently, make a different contract from the written one. Abbott on Shipping, 239, says: “The master must proceed to the port of destination without delay, and without stopping at intermediate ports, or deviating from the straightest and shortest course." And why? Because such is the contract in terms. The words in the bill of lading are, “ Now lying in the port of Buffalo, and bound for Cleveland.” Now a new contract must be made before Otter creek or the Canada shore is the place to which the vessel is bound, or to which she is permitted to go.
    The course to be pursued and the time of leaving are important incidents to the contract, which the law attaches, and which are as binding as if expressly stipulated in the contract, and can not be rebutted or impeached by parol in the one case more than in another.
    A note or bond in which no time is specified, when payable or due, the law declares them to be due presently, and parol *evidence is not admissible to contradict this fact or presumption. Thompsom v. Ketcham, 8 Johns. 148, top paging.
    Chief Justice Kent says: “ When the operation of a contract is clearly settled, by general principles of law, it is taken to be the true sense of the contracting parties, and it is against established rule to vary the operation of a writing by parol proof.”
    Now the course which the master should have pursued, in going to Cleveland, is as well “ settled by general principles of law ” as the time of payment of a note in which no time is specified, and parol proof is as admissible in the one ease as in the other. 1 Phil. Ev. 489, and see note.
    2. Are the declarations of S. Thompson & Co., the forwarding merchants, admissible, etc.?

      It appears that S. T. & Co. acted as the agents of the plaintiff in forwarding the property to Cleveland. Their agency consisted simply in forwarding; and.their powers, as agents, authorized them and required them to do this in the safest and most direct course, or at least in the ordinary and usual course; and they had no power or authority to send the property by Otter creek, or the Ganada shore or Green bay, or any other place, unless particularly authorized so to do, or unless that was the ordinary and usual course pursued.
    That Otter creek was the ordinary and usual course pursued by vessels in going from Buffalo to Cleveland is not contended, and therefore parol evidence is sought to be introduced to contradict the written contract made by the parties. But if admissible, does it help out the defendantf That S. Thompson & Go. had other than the ordinary powers of forwarding merchants is not contended. And what are those powers ?
    In Barber v. Bran, etc., this same question was raised. But Hosmer, C. J., in delivering the unanimous- opinion of the court, omits to express a decided opinion, upon the ground that the question is not presented by the motion, but refers to Fenn et al. v. Harrison et al., 3 Term, 757-760, as containing the law on the subject, the point established in which case is, “that a special agent, under a limited authority, could not bind his principal by any act beyond the scope of such limited authority.” The powers, then, of forwarding ^merchants are to forward property in the ordinary and usual course, in the ordinary and usual mode of conveyance, in vessels that are esteemed safe and seaworthy; and if they pursue a different line of conduct, the principal is not bound by their acts. And if S. Thompson & Co. could, as forwarding merchants, subject the plaintiff to the risk and hazard of passing from th'e American to the Canada shore,' they could, for the same reason, subject him to the risks and delays of a trip to hake Superior. In fact, there would be no limit to the powers of such agents. 3 Conn. 9.
    If the America had to pass over to Otter creek before she proceeded on her way to Cleveland, S. Thompson & Co. had no power nor authority to ship the salt of the plaintiff on board of her-— of course had no authority to consent to her going there, so as to bind the plaintiff; and, therefore, if parol proof were admissible in ordinary cases, it would not help or avail the defendant in this case; and, therefore, the exclusion of it furnishes no ground for a new trial. '■

    But it is contended by defendants’ counsel that as parol proof was offered-to show the rights of the plaintiff to bring this action, that, therefore, as it was introduced for one purpose, it ought to be for another. To this there are several conclusive answers.
    1. It is always permitted to show, by parol, in what capacity an individual acts, whether as principal or agent, whether in an official or private capacity. 3 Stark. Ev. 1047; 7 Taunt. 295; 5 Wheat. 326.
    2. The consideration of a deed, as expressed to have been received. The date, etc., may be explained or contradicted by parol. Still parol, etc., will not be admitted to contradict the terms, or covenants, etc. So that parol may be admitted for one purpose and not for another. 4 East, 477 ; 2 Term, 366; 14 Johns. 210.
    3. If parol was given to show the right of the plaintiff, it was entirely unnecessary and a work of supererogation ; for it clearly appears, from the bill of lading, that S. Thompson & Co. acted as agents for S. P. Babcock. “Shipped, etc., by S. Thompson & Co., etc., for S. P. Babcock ; ” the plaintiff’s name opposite the property which belonged to him; and no one, by reading the bill, could doubt but that S. ^Thompson & Co. acted as agents for the plaintiff; and the contract, therefore, was not made by S. Thompson & Co. as principals, with Brown, the master. But if it did so appear from the bill of lading, parol evidence is admissible, as above shown, to explain this.
    The bill of lading is according to the forms used in this country, and in all the essential and substantial parts like the one referred to by defendants’ counsel, in Abbott, 217 — not as religiously molded, nor as lengthy — but still, it is believed, as correct and as obligatory. 2 Conn. 389; 3 Conn. 9.
    Case,
    in reply':
    The defendants’ counsel are too well aware of the existence of tüe rule that parol evidence shall not be given to contradict or vary solemn written agreements, to entertain the least idea of disputing it. And as little did they suppose it necessary to cite Blackstone’s Commentaries, or any other book, to show what a contract was, to the Supreme Court of Ohio. All the authorities cited in plaintiff’s argument apply to sealed or other authentic and solemn instruments, but have very little, if any reference, to a ease like the one before the court. I shall, therefore, make no observations upon them. Those to the point, that parol evidence shall not be admitted to vary, etc., do not, I apprehend, apply to such a bill oí lading as the one under consideration. Suppose A. makes a deed to B., with covenants of warranty and seizin, will the court hear evidence that B. acted in the purchase as agent for C., in order to enable C. to bring and maintain action on the covenants of warranty and seizin. Such is the case here. S. Thompson & Co. is one party in this contract, if it is one, and the owners of the schooner the other. Now, if it is on the footing of the conclusive written instruments, the action could alone be brought by S. Thompson & Co.; but the action is brought by S. P. Babcock, the party in interest. He has shown his interest, and because other evidence than the bill maybe given, and has been given (and I admit properly), he has supported it, but could not upon the principle that the bill is exclusive and conclusive evidence between these parties. 345] And if the authority cited, 2 Camp. *38, proves anything to the case, it proves that the plaintiff ought to be nonsuit, because the bill of lading shows no property in Babcock. The words in the margin, “ for S. P. Babcock,” signify that such marks were on the barrels of salt, as the bill of lading explicitly states, in the clause immediately following, in the words “ marked as per margin.” Salt is marked with the initials, or name of the owner, at the works. Their owners change every day, but the marks remain, and are used in bills of lading in the same manner as the name ■ol a manufacturer and No. stamped on the lead appended to a piece of broadcloth, which passes through numerous ownerships and invoices before it is finally consumed, always, however, answering the purpose of marginal description.
    The authority, in Abbott, 239, produces the consequences mentioned in the opening argument, viz: that stopping at intermediate ports would render the carrier liable; and the court must permit parol evidence to control the ordinary bills of lading to rebut the presumption that a direct course of voyage was intended, or render liable the carrier in all oases of loss. There is no alternative. The universal practice, for thirty years past, plainly shows that the authority of Abbott, and other maritime and mercantile writers, either have no application on Lake Erie or must be received with great limitations.

      If the court shall be of opinion that the evidence rejected, as inadmissible to explain or aid the bill of lading, ought to have been admitted for the purposes offered, if the shipment had been made by Babcock and the bill of lading executed between him and Brown, the defendants’ counsel submit, that a new trial ought to be granted, as it was upon the ground of admissibility that the evidence was rejected at the trial, and not because the agents, Thompson & Co., had no authority to make the arrangement offered to be proved.
    The defendants’ counsel insist, that the mere possession of the property, by a forwarding and commission merchant, lawfully obtained, enables the holder to make such contract for its transportation as he pleases, and the owner is bound. 2 Starkie, 57. Should the court think differently, however, as the evidence was rejected on the other ground, the defendant *had no opportunity to prove the authority of Thompson & Co. to make the arrangement.
    The defendant can abundantly prove that S. Thompson & Co., and the various companies of which S. Thompson has been a co-partner, have, for the last twenty years, exercised general and unlimited authority over property in their possession. No lake captain ever inquires what right they have over property. Thompson & Co. could have made an absolute sale of this salt as soon as it was received, and Babcock could never have reclaimed it. These observations, however, are foreign. The evidence was rejected on other grounds, before the trial had progressed to the proper point for the defendant to prove the authority of Thompson & Co.
    In 2 Starkie Ev. 331, it is said, “If any receipt was given on the delivery of goods, it should be produced; and if any entry was made on the defendant’s books, notice should be given to produce it, and also the way bill, if the goods were sent by coach. It should also be proved what orders were given at the time, as to. the carriage of the goods and place of destination, and what were the written directions upon them.”
    This citation appears to me to contain almost any other doctrine than that the bill of lading or receipt is conclusive and final.
   By the Court :

That a receipt maybe explained by parol evidence is a principle too familiar to require authorities for its support. The bill of lading is a contract including a receipt. It is a contract admitting the reception of certain goods, with an agreement to carry them to the port of discharge; and the only doubt in the case is, whether the terms of this agreement, as reduced to writing, in the bill of lading, can be varied by parol. If the actual reception of the salt by the master, was the. point in controversy, a different question would be presented. Such a case might come within the general rule of law, applicable to all receipts. But, in this case, it is agreed by all parties, that the salt was actually received by

the defendants, or their agent; and the only ^question is, whether the agreement, for the transportation of the salt thus admitted to be received, can be changed by parol testimony.

The legal effect of this agreement, as reduced to writing, is, to carry the goods from Buffalo to Cleveland by the most direct route conveniently adapted to that purpose, dangers of the seas, etc., excepted. The defendants seek to avoid this legal effect and the consequences resulting from its violation, by showing that it was a part of the agreement that the schooner might touch at Otter Creek, a place out of the regular course, and where she could not go except by such agreement, and that the master refused to receive the salt upon any other terms. This evidence comes within the direct operation of the rule that you shall not engraft a parol condition upon a written contract. Serg. & R. 469; B. Mon. 535; 1 Starkie, n. v. 361.

We consider this point of the base settled in 2 Conn. 9. “ Where the master of a vessel, receiving goods for transportation, gave the shipper a writing, acknowledging the receipt of goods, and stating that they were to be transported to the place of destination as customary freight,, dangers of the seas excepted, it was held that a parol agreement between the shipper and master, before and at the time of giving the writing, as to the mode of stowing the goods, was inadmissible to show the terms of shipment, as all such communications between the parties are to be considered as merged in the writing.”

But it is said that the court, in this case, admitted parol evidence of the custom of navigating Lake Erie. Evidence of this chaiae- . ter is admissible, not to vary the contract, but for the purpose of carrying it into execution, • as understood by the parties. This principle is laid down with great precision and force in 9 Wheat. 587. There is no rule of law better settled, or more salutary in its application to contracts than that which precludes the admission of parol evidence to contradict or substantially vary the legal import of a written agreement. Evidence of usage or custom is, however, never considered of this character, but is received for the purpose of ascertaining the sense and understanding of parties by their contracts, which are made with reference *to such usage or custom; for the custom then becomes a part of the contract, and may not improperly be considered the law of the contract; and it rests upon the same principles as the doctrine of the lex loci. All contracts are to be governed by the law of the place where they are to be performed; and this law may be, and usually is, proved as matter of fact. See Doug. 511; 4 Mass. 155; 3 Day, 146; 1 Caine, 43; 18 Johns. 220; 5 Cranch, 492.

The evidence of the collector of the port, to show that the vessel was at liberty to visit the Canada shore, without incurring a forfeiture, can have no effect as between these parties, and is also liable to the same objections as the other testimony rejected.

Motion overruled.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Ebenezer Hooker v. State of Ohio.
    Persons on trial entitled to peremptory challenge of jurors, may challenge for cause, and reserve his peremptory challenge.
    Error to the court of common pleas of Ross county. Hooker was indicted for horse stealing. On the trial, two bills of exceptions were taken.
    The first stated that after the prisoner had pleaded to the indictment, and the jurors called and impaneled, the prisoner moved the court to discharge one of the jurors for cause; but the court refused the motion until the prisoner should have made all his peremptory challenges.

    The second bill of exceptions stated, that upon the trial, it was proved to the jury that the animal stolen by the prisoner was a .gray gelding, and not a gray horse, as charged in the indictment; and thereupon the counsel for the prisoner moved the court-to instruct the jury, that the prisoner could not be found,guilty if the jury were satisfied that the animal stolen was a gray gelding, which instructions the court refused.

      *The prisoner was found guilty and sentenced. The writ of error was taken to reverse this judgment.
    Murphy, for the plaintiff in error :
    1. No authority or dictum has been found in support of the opinion of the court below. On the contrary, the principle seems to be well settled, that if a juryman be challenged for cause, and be pronounced impartial, he may afterward bo challenged peremptorily ; for otherwise the very challenge might create a prejudice in his mind against the party challenging. 4 Black. Com. 363; 1 Chitty C. L. 545; 4 Harg. St. Trials, 738-740, 750; Wms. Jus. 189 ; Bac. Ab., Jurors, E. 11; Burns’ Jus. 4; 2 Hawk. P. C. 2, ch. 43, sec. 10 ; 3 Coke Lit. 158.
    2. The operative words of the act, on which the indictment rests, are, “if any person shall steal any horse, mare, foal, gelding, filly, ass, or mule, etc.” The court, to support an indictment, can not arbitrarily give to its words and phrases a meaning with which the use, habit, or understanding of mankind would disagree. Chitty C. L. 196. Much less can they give a meaning repugnant to the express act oí the legislature.
    It may be urged that the term “ horse” is a generic term, and therefore includes a gelding. If this reasoning be correct, the generic term “ horse” will include mare, ioal, filly, and, perhaps, ass or mule. For Johnson defines a horse to be “ a neighing quadruped, used in war, draught, and cai'riage.”
    This conviction could not be pleaded in bar to an indictment for stealing a gray gelding. 2 Leach,- 503. An indictment for stealing clothes, or wearing apparel, or for stealing twenty ewes and lambs, or twenty ewes and wethers, is bad for uncertainty. So evidence of stealing shoes will not support an indictment for stealing boots. Archbold C. L. 22.
    So 15 Geo. II., ch. 34, and 14 Geo. II., ch. 6, make it felony to steal any cow, heifer, ox, etc. If an indictment, under this statute, charges the prisoner with stealing a cow, and the evidence shows it to bo a heifer, the variance is fatal. 2 East P. C. 617; Leach 123; 1 Camp. 212.
    *The same principle is recognized’in Archbold C. L. 63; 1 Hale, 513; 2 East P. C. &14; Leach, 286 ; 3 Camp. 264; 1 Holt 595.
    There was no argument on the other side.
   By the Court :

1. In the administration of criminal justice, it is of the first importance to secure an impartial tribunal. For this reason, the'law gives to the party accused the right of challenge. This right may be exercised indefinitely, upon cause shown, and to a limited extent without cause, or peremptorily. The question is, whether this right of peremptory challenge may not be reserved, by the party accused, until after he has made all his challenges for cause. Prejudices often exist, for which no cause can be assigned. The personal appearance of an individual often creates the most unaccountable prejudices. The mere challenge for cause may provoke resentment, if the reason assigned prove insufficient to set aside the juror. The trial of a juror, challenged for cause, may excite a prejudice, which does not amount to a legal disqualification, but to the influence of which, the party accused ought not to be compelled to submit. For these reasons, the law has wisely provided, that the right ot the peremptory challenge ought to be held open, for the latest possible period, to wit up to the actual swearing of the jury. 4 Black. Com. 366; 4 Har. St. Tr. 738-740, 750; Bac. Ab., Jury, E. U. Done, Sig. 329.

2. The objection raised by the second bill of exceptions seems too insignificant to demand a serious consideration. The term horse being a generic name, ought to include every variety of the animal, as diversified by age, sex, occupation, or modification.

The English authorities, however, and which have been recognized in several states of the Union as sound law, are too strong to be resisted and too pointed to be evaded. It is the duty of the court not to make, but to declare the law. Ita lex scripta est, precludes all inquiry into the reasonableness or propriety of the objection.

Judgment reversed.


author: By the Court:

text:
    *The State of Ohio, on the Relation of Quintus F. Atkins, v. George Todd and others, Judges of the Court of Common Pleas of the County of Ashtabula.
    Buie of the court of common pleas to show caúse why a mandamus should not issue to sign a particular hill of exceptions, discharged upon cause being shown that the bill of exceptions in question did not correctly state the facts of the case.
    At the August term of the Supreme Court in Ashtabula county, in the year 1826, Atkins obtained a rule upon the defendants, to show cause, at the next term, why'a mandamus should not issue, commanding them to sign a certain bill of exceptions, tendered on a trial, in the court of common plea. At the August term, 1827, the rule was extended to the next term. At the August term, 1828, the defendants having failed to show cause, the rule was made absolute, and a peremptory mandamus awarded. At the August term, 1829, the defendants, Todd and Kellogg, appeared, and having satisfied the court that they had omitted to show cause against the rule, under a misapprehension of the course of proceedings, in cases of the sort, and that no intentional contempt was committed, the rule for a peremptory mandamus was vacated, and cause permitted to be shown. Hays, one of the associate judges, had complied with the peremptory mandamus, and signed the bill of exceptions. Keller, another of the associates, was dead. The defendants, Todd and Kellogg, showed for cause, that to the best of their recolíection and belief, the bill of exceptions did not contain a true statement of the facts, and that they believed such statement untrue and colored, and therefore they refused to sign it, etc. The case was thus continued to August term, 1830, when it was reserved for decision in this court.
    Giddings, for the plaintiff.
    There was no argument on the other side.
   By the Court:

The authority to issue a manclamus, in a case like the present, can not be doubted. The power is incident to supervising courts, and there are instances of its exercise, both in England and in our own country.

*But this power is to be exercised in such a manner as best to promote the advancement of justice, and the only legitimate object of its exercise, in cases of this sort, is to compel the court below to place upon the record a true statement of the facts as they existed.

The bill of exceptions is in practice, and by law, to be signed and sealed only, not to be prepared by judges; the only obligation upon the judges is to sign and seal a true bill of exceptions.

But the object of the relator is not to compel the judges to sign a correct bill of exceptions, but to sign the bill offered. The motion in 1827 is fora mandamus to sign “the bill” presented, or show cause, etc. The cause shown is that the bill presented did not contain a true statement of the facts. It does not appear that the judges refused to sign any and every bill of exceptions; but they refused to sign the bill presented, because it was not true. The power of determining whether a bill of exceptions is true, or not, is vested in the judges, to whom it is presented for signature. In this case, that power has been exercised, and the return of the judges shows that the bill, as tendered, was not true. In this matter, thus presented, we may adopt the language of the chief justice of the United States, in a case that bears a very close resemblance to the present. 4 Pet. 106. “ If the court had granted a rule to sign a bill of exceptions, the judge could have returned that he had performed that duty. But the object of the rule is to oblige the judge to sign a particular bill of exceptions, which had b.een offered to him. The court granted the rule to show cause, and the judge has shown cause, by saying that he has done all that can be required of him, and that the bill is not such a one as he can sign. Nothing is more manifest than that the court can not order him to sign such a bill of exceptions.”

If the return be false, or if there be a refusal to sign any bill of exceptions, we need not indicate a remedy.

The rule for a mandamus is discharged, and the case remitted that the relator may apply for a mandamus to sign a bill of exceptions, or show cause, etc.


author: *By the Court:

text:
    *Polly Gray v. The State of Ohio.
    A negro is not an admissible witness, against a quarteroon, on trial charged with a crime.
    Error to the court of common pleas of Hamilton county. Polly Gray was indicted for robbery. On the trial, at November term, 1829, the prosecuting attorney called to the stand a negro, as a witness in behalf of the state. The counsel for the prisoner objected to his admission, on the ground of ineompetency, under the statute regulating black and mulatto persons. The prisoner appeared, upon inspection, and of such opinion was the court, to be of a shade of color between the mulatto and white. The court overruled the objection, and the witness was admitted. To this opinion of the court, the counsel for the prisoner excepted; and the verdict and judgment being against her, she brought her writ of error.
    Van Matre, for plaintiff in error:
    A mulatto is a person begotten between a white and a black. 7 Mass. 68. The prisoner, then, not being a mulatto, would be competent as a witness where a white person was a party. She thus being upon a level with whites, the same privileges ought to be extended to her.
    Wade, contra:
    The record shows that the prisoner was not a white person. The statute extends only to cases where the party to the suit is white; and being highly penal, should receive a strict construction. Quarteroons may testify against white persons, not because they are white, but because the prohibition of the statute does not extend to them. The statute does not prohibit a black or mulatto from being a witness against an Indian. It is silent, as it regards persons of the prisoner’s color, being neither black, white, nor mulatto. The common law rules must therefore apply.
   *By the Court:

Ttie witness was improperly admitted. The statute compels .courts of justice to reject black and mulatto witnesses, where a white person is a party. The statute is one which a courtis called upon to execute with reluctance, yet where a case is presented, the court has no alternative but to yield to the expression of the legislative will. Three descriptions of persons are designated, by name, in the statute — white, black, and mulatto; and these three are well known, by the same terms, in common life; but we doubt whether we can refine upon these obvious distinctions, or whether good policy, or good sense, requires us to raise the necessity for further discrimination. We are unable to set out any other plain and obvious line or mark between the different races. Color alone is sufficient. We believe a man, of a race nearer white than a mulatto, is admissible as a witness, and should partake in the privileges of whites.

We are of opinion that a party of such a blood entitled to the privileges of whites, partly because we are unwilling to extend the disabilities of the statute further than its letter requires, and partly from the difficulty of defining and of ascertaining the degree of duskiness which renders a person liable to such disabilities.

Judgment reversed.


author: Judge Collet:

text:
    Thomas Colvin v. Elijah Carter.
    When A. obtains credit from B., upon an agreement to pay and take up certain notes made by B. and indorsed by 0., as they become due, and fails to do so, B. may recover the amount due, and A. can not set up his liability as an offset.
    Carter brought an action of assumpsit, in the court below, against Colvin, and declared upon the common counts, for goods sold and delivered, and upon a special contract. Colvin pleaded the general issue, with notice of offset.
    On the trial, Carter produced and proved a written agreement, dated June 16, 1828, signed by Colvin, in which Colvin, in consideration of a bill of merchandise, .that day ^purchased of Car- [855 ter, amounting to one thousand seven hundred and thirty-two dollars and ninety-eight cents, agreed to pay for Carter certain notes of hand, to the amount of one thousand seven hundred and five dollars and fifteen cents, signed .by Carter, and payable to and indorsed by Colvin, as they might severally fall due, and also to release Carter from all liability on said notes; which notes were then held by several individuals, and had all become due before the commencement of the present suit.
    The plaintiff also proved an account for other goods, to the amount of' ninety dollars and eighty-five cents, and there rested his case, without proving that he had paid any part of the notes mentioned in said agreement.
    The defendant then proved that he had paid a part of the notes, amounting to four hundred and fifty-five dollars and fifteen cents; and that another part had been sued, and judgments rendered both against Carter and Colvin, and upon which both were liable ; and that the residue of the notes were unpaid, and upon which both Carter and Colvin were liable.
    The defendant also proved that previous to the execution of said agreement, he had paid to several persons the sum of two hundred and fifty dollars, in satisfaction of debts due by Carter, and for the payment of which Colvin was liable, as security.
    Upon this state of facts, the defendant moved the court to instruct the jury that Carter was entitled only to nominal damages, under the agreement, unless he proved that he had paid the notes, or that Colvin was released from all liability thereon; but the court refused this instruction, and charged the jury that Carter was entitled to recover the full amount of the consideration of said agreement, deducting the amount of the notes paid by Colvin, notwithstanding Colvin might be liable upon the notes unpaid.
    The court also instructed the jury, at the request of Carter, that the agreement in relation to the notes was presumptive evidence of a settlement of all previous accounts between the parties, but was not conclusive, and the jury must judge, from all the circumstances attending the transaction, whether the two hundred and fifty dollars paid by Colvin previous to the agreement had been refunded by Carter.
    *To these opinions of the court, the defendant, Colvin, excepted. The jury returned a verdict of one thousand four hundred and nine dollars and eighty-nine cents in favor of Carter, and judgment having been rendered thereon, Colvin prosecuted his writ of error.
    Storer and Fox, for plaintiff in error.
    Caswell and Star, contra.
   Opinion of the court, by

Judge Collet:

It is contended for Colvin that the opinions of the court of common pleas, contained in the bill of exceptions, are erroneous. It is the opinion of this court that the court of common pleas did not err, when it refused to instruct the jury that Carter was entitled to nominal damages only. The goods were sold by Carter to Colvin, on a limited credit, limited to the time that the notes of Carter became due, which Colvin had agreed to pay. The. clause in the agreement, that Colvin should release Carter from all liability on the notes, does not extend the time of payment beyond the times when the notes became due, or authorize Colvin to-retain the money, the price of the goods, after the notes became due.

When an indorser pays to the holder the amount due from the maker of a promissory note, the maker is still liable on the notes; to the indorsor. This was the reason of this agreement of Colvin to release Carter. It was an agreement that as he paid and took back the notes of Carter, that he would cancel them. It did not extend the times of the payments before fixed, but was limited by those times.

Colvin, by the contract, was authorized to retain the price of the goods until the notes of Carter, which he had indorsed, became due, and then to pay for the goods by discharging the notes, and thereby to prevent himself from being made liable, as indorser, but he was not authorized to retain the price oí the goods for so long a period.

The indorsor of a note due and unpaid can not offset the amount due on the note against a claim of the maker, or ^successfully urge it as a defense against a suit brought by the maker.

The violation of this contract left in the hands of various persons several notes of Carter, due and unpaid, by which his credit would be injured, and he would be liable to several suits. As Carter had reason, more than in ordinary cases, to be desirous that Colvin should punctually perform his contract, so he had greater reason than in ordinary cases, to rely on Colvin’s punctuality in the performance of it, as when he paid his debt to Carter, according to his contract, he would at the same time have discharged his own liability to the holders of Carter’s notes. It would seem that Carter was entitled to increased, rather than nominal damages. As to the opinion of the court of common pleas, as expressed in their charge to the jury, in relation to the offset of Colvin, the charge must all be taken together, and in the sense in which the jury would understand it. It would then apply only to the two hundred and fifty dollars, this being the only claim offered in evidence as having existed prior in date to the written contract. When so taken, it is that the agreement was presumptive evidence, but not conclusive of the settlement of the two hundred and fifty dollars; and that the jury, in determining whether Carter had paid the hundred and fifty dollars to Colvin, would take the making of the agreement, and all the circumstances attending the transaction, into consideration.

When Carter was selling to Colvin, on credit, more than one thousand seven hundred dollars worth of goods, and authorizing him to pay nearly the whole of the price of the goods, in discharge of the notes of Carter which were not then due, and on which Colvin was indorser, it does seem reasonable to conclude that Colvin would have remembered and mentioned to Carter, that Carter then owed him two hundred and fifty dollars for payments he had before made, on the notes of Carter, which he had indorsed, and that it would then have been paid by Carter, Why should it not have been done ? It would have been better for Colvin, at once, to have had the credit, and as well for Carter. Carter’s obligation to pay as soon as he knew of it was great. His friend had had to advance his money for him. The presumption *of payment is not as great as that the first quarter’s rent is paid, from the landlord’s receipt for the second quarter’s rent; but it is such as would have weight with any sensible man who had to determine whether the two hundred and fifty dollars had, or had not been paid, and ought therefore to go to the jury as presumptive evidence.

The court do not presume there is error in this charge. The judgment must, therefore, be affirmed with costs.


author: Judge Brush:

text:
    John Bigelow and Maria, his wife, v. William Barr and others.
    The acquiesence of a female devisee in the construction of the will, given by her brother-in-law, upon the death of her husband and child, does not conclude her, if it he an incorrect construction unfavorable to herself, and predicated upon no new and valuable consideration.
    This was a bill in chancery, to establish an equitable life estate in the complainant, Maria Bigelow; and was reserved from the county of Hamilton.
    William Barr, Sen., died in May, 1816, having made his last will, devising one hundred and sixty acres of land near Cincinnati, to the defendants, William Barr, James Keys, and John B. Ennes, his executors, upon the following trusts: “First. For the use of my son, John M. Barr, during his natural life, but nevertheless to permit and suffer my son, John M. Barr, to hold, use, occupy, possess, and enjoy the same, and to receive and take the rents and profits thereof, during his natural life. And in case my saidson, John M. Barr, should die, leaving a legitimate child, or children, then also in trust, for Maria Barr, wife of the said John M. Barr, in case she survive him during her natural life, for the purpose of maintaining herself, and her child, or children, and educating the said children ; but nevertheless to permit and suffer the said Maria Barr to hold, use, occupy, and enjoy the said farm, and to receive the profits during her natural life. And upon the decease of the said Maria Barr, wife of the said John M. Barr, in case he survive, if not, then upon the decease of John M. Barr, I do further give and devise the remainder of my estate, in said farm, to him or her, or his or *her heirs forever. But if he have two or more children, then I give and devise the said farm unto such children, and their heirs, to be equally divided between them. But should my son, John M. Barr, die without having any issue of his body, then, and in that case, I give and devise the remainder of my estate in said farm, unto my said sons-in-law, William Ban*, James Keys, and John B. Ennes and their heirs forever. And if the present wife of my son, J ohn M. Barr, should survive him, dying without bearing any legitimate issue, then I. direct my said sons-in-law, their executors and administrators, to pay, or cause to be paid, unto her yearly, and every year, during her widowhood, the sum of two hundred dollars. And if, during her widowhood, she should again be .lawfully married, then I further direct my said sons-in-law oto pay her the sum of one thousand dollars,” etc.
    John M. Barr died in August, 1820, leaving his wife Maria, and one child. In November, 1821, the child died, leaving the said Maria, wife of John M. Barr, who intermarried with the complainant, John Bigelow, in October, 1821. In the lifetime of John M. Barr, the defendant, William Barr, at his request, leased the premises for several years. The tenant, in possession, in the year 1827, attorned to the complainants. The defendants prosecuted a suit of forcible detainer, and recovered judgment, which is still pending on error. The bill charged that the defendant, William Barr, claims the premises, by virtue of some pretended agreement, to accept the two hundred dollars annuity, instead of the life estate of the complainant, Maria Bigelow; that she never made such agreement, and prays for an injunction, account, etc.
    The defendant, William Barr, admitted in his answer the material facts charged in the bill, but set up a verbal agreement made on the death of the child of John M. Barr, between the complainant Maria, then unmarried, and the defendant, by which she agreed to l’eceive the annuity of two hundred dollars per annum, during her widowhood, and one thousand dollars upon her remarriage, in satisfaction of her claims under the will.. That under this agreement he, in his own behalf and in behalf of the other executors, took possession of the premises, as their own property, in the latter *part of the year 1821, with the consent and approbation of the complai nant Maria. That the defendant Keys, boing in failing circumstances, on December 28, 1821, gave the said Maria a mortgage upon the premises to secure the payment of his third of the annuity, and of the one thousand dollars upon her remarriage ; that she accepted this mortgage, and in 1826 the complainants prosecuted this mortgage and recovered a judgment thereon. That the annuity of two hundred dollars was paid during the widowhood of the complainant Maria, and also since her intermarriage, principally in rents which were received by the complainants, under the said agreement, until 1826. The defendants, Keys and Ennes, are embarrassed; but he, William Barr, is-willing, and offers to pay up the thousand dollars, upon a proper release being made by the complainants. That he has kept no accurate account of the rents or moneys paid to the complainants, as the tenants often paid the rents directly to the complainants; but alleges that the complainants were fully paid to the amount of the annuity until the year 1826 or 1827. That in 1827 th.e complainants, by collusion, procured the tenants in possession to attorn to them, etc.
    The testimony taken in the case showed that the child of John M. Barr and of the complainant Maria, died in November, 1821, and did not establish an independent parol agreement as alleged in the answer. It only made out an acquiescence of the complainant Maria, in the construction put upon the will by her three brothers-in-law.
    Hammond, for complainant,
    maintained that the will created:
    1. A trust for John M. Barr during life.
    2. In case John M. Barr die, leaving a child and his wife, then a trust for Mrs. Barr during her life, to maintain herself and child.
    3. If John M. Barr leave issue, then upon the death of himself and wife, to such issue.

      4. If John M. Barr die without issue, then, the remainder of the devised estate to William Barr, J. F. Keys, ^and J. B. En-
    nes, and if he die without issue, leaving his wife a devise of two hundred dollars per annum to the widow during her widowhood, and one thousand dollars upon her marriage.
    As the facts occurred, the complainants insist, that as John M. Barr died, leaving issue, the trust creating a life estate in the wife became vested and absolute. As cestui que trust for life, she is entitled to the possession and occupancy of the devised premises, by the very terms of the will. And this right is not affected by the subsequent death of the child.
    With'respect to the attempt to hold the estate, upon a contract with Maria Barr, there is no proof whatever sufficient to sustain it. It is without certainty, and without consideration, and never has been executed, or offered to be executed, b,y tho defendant.
    The mortgage from J. F. Keys conveys no title. Upon the death of John M. Ban-, the devise so took effect as to vest an estate for life in Maria Barr, the remainder in fee in the child. This was, in the child, a vested remainder, and under section 1 of our statute of descents, vol. xxii. 133, clause 4, passed to the brothers and sisters of the devisee, or donor.
    The claim of William Barr, the defendant, is unfounded, perverse, and vexatious. The judgment, in forcible detainer, being founded on the technical doctrine of landlord and tenant, ought not to be sustained. The plaintiff, in that judgment, had no right to the possession against Bigelow. He ought to be enjoined and compelled to pay costs. He ought, also, to account for the rents and profits, and for waste.
    N. Wright, for respondent:
    I contend that the facts show a construction given to this will, and settled between the parties, which the court will not now disturb.
    The point of doubt in the construction is this: the will gives the rents and profits to Maria Barr (in the case as it has happened), for the maintenance of herself and child, and the education of the child.
    *It is a rule in the construction of wills, that, if a bequest is made to one with a request or recommendation, that it be applied to this or that purpose, or for the benefit of this or that person, whore the subject and the object are pointed out, that it amounts to a trust for that object, and is limited to the purpose for which it is given; and when that object is accomplished, the residue goes to subsequent bequests, or results to the heir for want of them.
    In Robinson v. Taylor, Lord Thurlow says, “ when property is given for specific purposes in trust, nothing more is subject than those purposes require.” 1 Yes. jr. 44.
    So Lord Hardwicke, “ the general rule, that if bounds are devised for a particular purpose, what remains after that purpose is answered results has several exceptions.” Hill v. Bishop, 2 London, 1 Atk. 619.
    So Lord Eldon : “ It is not universally true, that the expression of a purpose for which even a devise of land is made, confines and limits the devise to the purpose so expressed. When the devise is something beneficial to the devisee, the presumption is stronger that the benefit specified, is the only benefit he is to derive.” Walton v. Walton, 14 Ves. jr. 322.
    Brown v. Lasaneajar seems to have been finally disposed of in part by consent; but it appears to have been understood, on all sides, that this language in a will, “ I give to H. S. seven thousand pounds, the better to enable him to provide for his younger children,” creates a trust for those younger children. 4 Ves. 498.
    So, “I give certain goods to nay wife, desiring her to provide for my daughter,” creates a trust for the daughter. Pushman v. Felliter, 3 Ves. 7.
    And there are many similar eases. 18 Ves. 41.
    To apply these principles to Barr’s will: the rents and profits are given to Maria, for a distinct and specific purpose, the support of herself and ehild, importing some benefit to herself, and thereby restricting it to the particular benefit specified, that is, the joint support of herself and child; when this object is accomplished, the bequest ends, unless by some implication it can be continued for her separate support. Is there any such implication in the will? I think not; but directly contrary. A separate provision is made for her *in money, clearly distinguishing between the joint support of herself and child, and the individual support of herself.
    It is plainly the intent of this will that the land in question shall remain in the family of the testator; it is given in various forms, for the benefit of J. M. and Maria Barr, and their children; and then to the executors, who are children, or represent children, of the testator. If this devise vested in the child, so as to pass to its heirs in the line of the testator, under our statute, it passes entirely out of the family of the testator; If, on the contrary, it did not vest till the death of the parents, then it goes to the executors by the will, they being chargeable with the annuity and marriage portion of Maria, which is clearly the spirit of the will. In this way the expectancy of the estate ceasing to which the intermediate rents and profits were naturally connected, those rents and profits would naturally cease, leaving her to the gross sums provided for her, and the fee to the executors, either hy the words of the will or the implication arising from the charge of the money. The residuary clause of the will is to the executors.
    Without going into the intricate law on the subject of executory devises and contingent remainders, connected with the latter of the foregoing suggestions, there is at least enough to show that the construction given by the parties is the most conformable to the manifest wishes and design of the testator.
    Independent of the conduct of the parties, I contend that the right to the use of the land, during the life of Maria, ended with the death of the child, for whose support it was given ; the child had clearly no interest in possession during the mother’s life, other than the trust interest in the use in conjunction with the mother, and this use is not for the survivor of them, or either of them severally.
    But whether I am right in this position or not, I contend that the parties have settled this matter among themselves, and it should not now be disturbed.
    This may be considered, in the light of an agreement, for which there is sufficient consideration, and on which the defendant acted for several years, Maria acquiescing therein, and receiving the consideration, which was the annuity.
    *Or it may be considered in the light of'a construction given to the will, by the parties, which ought not to be disturbed in equity.
    After the parties have made their arrangements, proceeded on their own notions of right, and the defendant has been suffered to proceed under that arrangement for five or six years, keeping, of course, no account of the rents, and unable to settle the account on any other ground than that of the arrangement, after securities have been taken for the money due on that arrangement, and judgment actually rendered on that security, which stands in full force and wifhin the power of the complainants to collect, at any time, will the parties be allowed, without a cause, to disturb such an arrangement? After receiving the benefit of it for that period, when it was most beneficial, will they be allowed to call on the party,treating it as a nullity?
    "When parties have given their own construction to an uncertain instrument, perhaps more in conformity with the real intention of the maker than the strict letter of the law could give, equity will leave them to their own construction. It is evident, from the reading oi this will, that the particular state of facts which has happened, was not in the contemplation of the testator. The construction, therefore, must be left to inference, and it is a case peculiarly suitable for adjustment among the parties themselves.
    On the question of account and costs, under the circumstances of this case, an account can never be claimed. Complainants have got more than the lands were worth, but it is their fault that we can not show them the items.

      The costs in the detainer ease arose from the default of the complainants, as is evident from looking into the record of that case. When we had been long in possession, under the arrangement acquiesced in even by Bigelow himself after marriage, the treachery of our own tenant is used to take from us that possession. The man who came in under our tenant owes us allegiance, and violates his contract and his faith, if ho does not restore to us the possession. Equity will never so far forget the respect due to good order and good faith as to countenance this sort of scrambling for possession. Let the man who claims possession against us claim it by law, *and not by corrupting our tenants. Salyards and Peterson, the defendants in the detainer suit, had no connection with Bigelow, so far as we had right to know, nor could they lawfully have, coming in under our tenant. The costs in that suit are for their own wrong, in refusing the possession to us, from whom they had received it. If Bigelow has become responsible for them, he stands merely as the indorser for a wrong-doer, and answerable for his torts. 3 Ohio, 527.
    In Barr v. Hatch, where this court gave relief against judgment, in ejectment, against a clear equity, they still charged the complainant with all the costs at law, and half of these in chancery.
   Opinion of the court, by

Judge Brush:

The object of the bill is to establish the right of the wife, Maria Bigelow, to the use and possession of a farm of one hundred and sixty acres of land, lying in Hamilton county, by virtue of the will of William Barr, Sen., deceased, for and during her natural life; and to enjoin further proceeding at law upon a judgment in forcible detainer obtained against the tenants of complainants. The clause in the will relied upon reads thus: “ And in case my said son, John M. Barr, should die, leaving a legitimate child or children, then also in trust for Maria Barr, wife of the said John M. Barr, in case she survive him, during her natural life, for the purpose of maintaining herself and the child or children, and educating the said children ; but nevertheless to permit and suffer the said Maria Barr, wife of the said John M. Barr, to hold, use, occupy, and enjoy the said farm, and to receive and take the rents and profits thereof during her natural life.” The said John M. Barr, former husband of complainant, Maria, died August, 1820, leaving said Maria and a daughter, the legitimate issue of both ; and thereupon, the estate, thus limited and declared in her favor, became and was absolutely vested in her, for and during her natural life. But it is said this estate, thus expressly devised to complainant Maria for life, was nevertheless subject to be defeated by the death of the child; as thereby the object and purpose of the devise fails oris accomplished. And as the child died in *Hovembor, 1821, about one year and three months after her father, the estate thereupon was defeated, and, by another clause in the will, passed to the defendants, J. Keys, J. B. Ennes, and W. Barr, as executors and residuary legatees. And this is argued by de - fendants’ counsel, not on the ground that the testator has expressed any such intention or wish in the will, but for the reason above suggested, that the purpose of the devise in favor of complainant Maria was accomplished when the child died ; in other words, that the purpose and object of the devise was the maintenance and education of said child. Although this is expressed to be one purpose, yet it is believed that the primary object and chief purpose was the maintenance and support of the mother, during her life, thereby to enable her to do her duty to her child or children. This was expected of her, and that of course she would X’aise and educate such and so many as her late husband left with her. It is true, according to the authorities cited by defendants’ counsel, and upon principle, that property given by will for certain purposes, results when those purposes are accomplished; or that nothing mox’e is subject than those purposes require.” But the application of the rule in this case is not so readily perceived. The testator has been explicit, and has directed, in the very next clause, that the remainder in fee, upon the decease of said Maria, shall go to said child or children and their heirs. Indeed, taking the two clauses together, he has so said expressly, and thus has left his intention unembai’rassed, and not perplexed with any doubts whatever in relation to this matter. But thei’e is another defense. Defendants sets up an agreement made, as he says, on the death of said child, between him, Ennes, and Keys, the other executors named in the will, of the one part, and complainant (of the other part meaning), in substance, that the annuity mentioned in the will of two hundred dollars, should be paid her while unmarried, and the one thousand dollars in lieu on her marriage, as a satisfaction of all claim on her part under the will. It is not said that the above agreement was in writing, nor is it stated to be a purchase by them or a sale by her of her life estate in said farm. But we understand defendant that it was an agreement to give her precisely what she was entitled to under the will according to the construction, he *and they and she gave to the will at the time. They made a verbal agreement to give her what was her own, by the construction they put upon the will. Defendant says he did not advise her, as to the construction of the will, but left her to act for herself, and by the advice of her other friends. Her brother advised her. Defendant states unsubstantial and unsatisfactory apologies and excuses for not performing this agreement on their part. They were men dealing with a weeping widow, who, a little more than a year before, had lost her husband, and just then her only child ! But the agreement is denied by her, and is not proved. And unsuitable as the time was, yet, in this respect, if it were otherwise, and the agreement stated was proved, it would be no defense against the right now claimed; because the right was not considered as existing and was not therefore the subject matter of the agreement.

The afflicted widow did not know, or imgaine she was parting with an estate for her life, producing an income, if properly managed, of two or three hundred dollars a year, and likely to increase in value. It was not the understanding of the parties, as we learn from defendants’ answer; but their understanding was, that she was entitled only to the annuity and the composition thereof, on her marriage. It was that they were making some efforts to secure and pay to her, but have failed almost, if not altogether to do that, even according to his own showing. If the life estate had been distinctly the subject matter of the agreement, it could not be set up in this instance, without overstepping the statute of frauds. Such part performance is the foot and ground of the agreement (supposing it to have been for the life estate) as would take it out of the operation of the statute, is not stated and evidenced by proof. And besides now, after so long delay, and the rise of property, it would be unreasonable to enforce any such agreement. The evidence is not favorable to this defense; so far from showing that Mrs. Bigelow considered or understood she was parting with the estate in controversy, it strongly countenances the contrary belief. Her conversations given in evidence, were about her rights under the will, not about any agreement she had made to part with any of them. So far as the depositions

^relate conversations of the husband, John Bigelow, they are idle, as having no bearing upon the defense set up in the answer. They, however, prove nothing of importance in this case; and if they did, would be obnoxious to the objection, that they prove, if anything, a verbal conversation concerning the salo of real estate.

Decree for complainants.


text:
    Tom, a Colored Boy, v. Daily and Desha.
    Where a slave is purchased under a promise to emancipate, such promise may be specifically executed in equity, against the purchaser, and against subsequent purchasers, without notice.
    This was an injunction to restrain the defendants from interfering with the personal liberty of the complainant; and was reserved for decision by the Supreme Court in Hamilton county.
    The bill, which was filed in the court of common pleas January, 17, 1829, in the name of Tom, by his next friend, Orange Witt, charged that Kate Daily, the mother of' Tom, and sister of the defendant, Thomas Daily, was formerly a slave of Miss Baker, of Mason county, Kentucky, who intermarried with one Alexander Edwards. That Edwards died in 1823, and at a public sale made by his administrator, on the 8th of December of that year, Kate, being then privement ensciente with the complainant Tom, was sold to the defendant, Daily, brother of Kate, for the sum of one hundred and sixty-one dollars. At this sale, Daily made public proclamation, that his sole object in purchasing Kate was, to liberate her from slavery, and requested the bystanders to aid him in his benevolent purpose, by permitting him to purchase her without competition. In consequence of this public declaration, Daily purchased Kate without opposition, and immediately thereafter, pronounced her a free woman, and on January 12, 1824, duly emancipated her by deed. Soon after the sale, Kate removed to plantation of James Dummitt, of Mason county, Kentucky, where she has ever since resided and where the ^complainant, Tom, was born, soon after the» purchase and verbal emancipation of his mother, Kate, by the defendant, Daily. Tom always lived with his mother, until she placed him, a short time since, under the protection of his next friend, Orange Witt, in Cincinnati.
    Some time in April, 1828, the defendant, Daily, purchased a slave of the defendant, Joseph Desha, and to secure a part of the purchase money, gave Desha a bill of sale of the complainant. This bill of sale was to be void, if the purchase money should be paid by October 7, 1829. At the time this bill of sale was made, complainant was living with his mother, and he was not delivered to Desha. A short time before this bill was filed, Desha threatened to seize the complainant and reduce him to slavery, but his mother, hearing of these threats, sent him to Cincinnati, under the protection of Witt. Desha then made application to the mayor of Cincinnati, who issued his warrant, by virtue of which, the complainant has been taken into custody. The bill charges that Desha, when he took the bill of sale, knew that Daily never had possession of the complainant, and also knew that his mother Kate, on and before the birth of complainant, was equitably emancipated,, although no deed of emancipation had been actually executed.
    Prayer, that the defendants be enjoined from further interfering with the person of the complainant, and to restore him to freedom, etc.
    Desha answered and admitted the pedigree of the complainant, as set forth in the bill, and also the sale made by the administrator of Edwards, but denied all knowledge of the declarations made by Daily of his intention to emancipate Kate. He denied that Kate was emancipated until six months, or more, after complainant was born. He admits that Kate, shortly after she was purchased, moved to the farm of James Dummitt, and alleges that when he purchased complainant from Daily, he left complainant with Dummitt, where he was to remain until he called for him. He denies that he knew when he purchased complainant that Daily never had possession of complainant; but Daily at that time informed him that he never intended to emancipate complainant. After defendant had bought the complainant, *he agreed to let the com- [370 plainant remain with Dummitt for a certain length of time, and that, if within that time, Daily paid him one hundred and twenty dollars, the purchase was to be canceled, and defendant was to restore the possession of complainant to Daily.
    Daily also answered, admitting all the material allegations in the bill. He further stated that the complainant was not delivered. to Governor Desha, at the time the bill of sale was executed, and that it was agreed between himself and Governor Desha, that Kate ■should not be informed of the bill of sale upon Tom, and that Governor Desha requested Dummitt to keep the matter a secret from Kate.
    He neither denies nor admits the freedom of Tom, but alleges that he will pay Desha the hundred and twenty dollars when it becomes due.
    It was proved, on the part of the complainant, that the sale of Kate was made, as set forth in the bill, and that she was declared free by Daily, the purchaser.
    It was agreed between the parties, in writing, that Tom was born five months previous to the emancipation by deed, that ■neither Daily nor Desha had over had the possession of Tom, and that Daily verbally told Desha he delivered the boy into his’ possession.
    Robert Blanchard and John Rankin, on the part of the defendant, testified, that, in May, 1829, they heard the defendant, Daily, say that the sale of Tom to Desha was fair and bona fide, and the delivery was intended to be a delivery in fact of the possession.
    Simon Baker testified that he had heard Daily claim Tom as a ■slave, and once said he would give him to the daughter of witness.
    James Dummitt was present at the sale of Tom to Desha. The bill of sale was absolute, and was dated March or April, 1828-Daily delivered to Desha the possession of the boy, and at Daily’s request he was permitted to remain with his mother. Desha requested witness to take charge of Tom until he should call for him. Witness kept the boy till he was carried to Cincinnati by his mother. After the sale was made, Desha agreed that if Daily would pay him one hundred and twenty dollars in eighteen months, he would reconvey the boy Tom to *I)aily. This agreement was reduced to writing, but it formed no part of the original bill of sale.
    Hannah Paine was present at the sale of Edwards’. property. It was generally understood, by persons present, that the intention of Thomas Daily in purchasing Kate was to free her from slavery, .and in consequence of this understanding Kate was sold for less than balf value. After the sale, Daily declared that Kate was a free "woman and must provide for herself. James Dummitt was at the sale and purchased four of Kate’s children, and requested Kate to go and live with him and bring up the children, and he would build her a cabin and find her provisions. Kate complied, and Dummitt sent his wagon and took Kate and the children home.
    The court below dissolved the injunction and dismissed the bill, and the complainant appealed to this court.
    No arguments were presented bn either side.
   By the Court:

•This is a contest between the complainant, a colored, boy, who asserts his freedom, and the defendant, Joseph Desha, of the State of Kentucky, who claims the complainant, as a fugitive slave, under the act of Congress of 1793. The only serious question between the parties seems to be whether the acts and declarations of the defendant, Daily, before the birth of the complainant, constitute such an emancipation of the complainant’s mother as a court of equity will enforce.

It is a well-settled rule that no man shall take advantage of his own wrong. The conduct of Daily at the administrator’s sale was a fraud. By his declarations and promises he was enabled to purchase his sister at less than half value; and that, too, by imposing on the humanity of the by-standers. Will a court of equity now permit him to turn round and claim his sister and her offspring as slaves ? Where a widow stands by and hears her deceased husband’s estate proclaimed for sale, free from dower, at public vendue, and is *silent, she shall be forever estopped to assert her right of dower. 2 Ohio, 506. Where a grazier, driving a flock •of sheep to London, was encouraged, by an innkeeper to put his sheep into a pasture belonging to the inn ; the landlord seeing the sheep consents that they shall stay there one night, and then dis-trains them from rent. The plaintiff was compelled to roplevy, and at law the landlord had judgment; the plaintiff there filed his bill, and was relieved, upon the ground that the landlord should not take advantage of his own wrong. 2 Ves. 129.

This question, however, seems to be settled, and the controversy between these parties put at rest, by the Court of Apqteals in Kentucky. 1 Bibb, 422. In that case it appears that one Thompson purchased a slave, named Will, from Ruth Wilmot, and expressly stipulated that he would manumit and emancipate Will in seven years. "Will served the term of seven years, and then instituted a suit at law to recover his freedom, but failed, because the agreement was held not to amount to an actual and formal emancipation under the laws of Kentucky.

Will then continued in the 'service of Thopsmon for several years, until Ruth Wilmot, in behalf of Will, filed a bill in chancery setting forth the above facts, and which were admitted by the answer. The circuit court decreed that Will should be emancipated, and that Thompson should pay to Wilmot, in trust for Will, six hundred and ninety-one dollars and twenty-five cents, the value of his services after the expiration of the seven years From this decree Thompson appealed, and Bibb, Chief Justice, in delivering the opinion of the court, affirming the decree, uses this language : “ That the answer of Thompson does not afford a colorable pretext for withholding a performance of his engagement,, solemnly made, under circumstances interesting to humanity and most obligatory upon a man oi good conscience and unparalleled faith. The contract in itself was not forbidden by any political institution, but is in unison with the dictates of natural right, and was a most becoming subject for the court of chancery to act upon specifically.”

We surely may be permitted to apply these doctrines to a case where a brother is seeking to reduce his sister and her *offspring to slavery, in direct violation of his repeated and most solemn engagements.

The mother, then, in equity, which considers that as done which was agreed to be done, was virtually, if not actually and formally, > free at the time of the birth of the complainant. It necessarily follows that the complainant was free. Partus sequitus ventri. 1 Littell, 319.

The complainant, therefore, being free born, is not the subject of property, and neither Daily nor Desha, who claim under him, have any rights as against the person of the complainant.


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    Robert Watkinson v. James Root.
    In an action for the recovery of interest upon money, the interest is considered principal and bears interest from the time it became due.
    This was an action of assumpsit to recover a sum of money, as interest, upon a special contract, and was reserved from Medina county.
    There was a contract between the parties, dated in April, 1826, by which the defendant agreed to pay the plaintiff four thousand five hundred and eighty-six dollars, in four equal annual payments, in the years 1830-31-32-33, with lawful interest, to be computed from July 1, 1825, and to be paid annually. This suit was brought in 1829, to recover the arrearages of interest which had accrued; and the only question was, whether interest was allowable upon the successive annual charges of interest, after they fell due.
    Cowles and Andrews for the plaintiff.
    There was no argument on the other side.
   By the Court:

An agreement, after interest is due, to turn it into principal, is valid. 4 Term, 612; 2 H. Bl. 144.

*It is, however, understood that in England, at least until recently, an agreement, at the time of an original contract, that if interest be not paid at the end of the year it shall be deemed principal, and carry interest, will not be enforced. 1 Johns. Ch., and cases cited. This is claimed to be a rule of policy, and it is supposed that a contrary rule would tend to oppression, hard dealing, and other evils. We deem it unnecessary to inquire into the correctness of this policy, although the current opinions of modern political economists render it at least doubtful.

Such a contract as the present is prohibited by no statutory provisions, and we see no reason why it should not be enforced. 'The decision of a respectable court is found (Adams, N. H. 179) where interest upon interest was allowed, in a case similar to the present, and we are willing to follow the precedent,

         An action will lie to recover interest. .2 Mass. 613; 3 Mass. 221 Where money is payable on demand, interest is not recoverable until demand made. 4 Bibb, 246; 2 Bibb, 471.


text:
    Eobert Cowden v. Joseph Hureord and others.
    Execution can not issue on a general judgment of restitution, without first issuing a sci. fa.

    Hureord and others recovered a judgment against Cowden in the court of common pleas of Jefferson county. Upon this judgment Cowden sued out a writ of error, and this court reversed the-judgment, and thereupon rendered a judgment for costs, upon the writ of error, and for a restitution in1 the usual form, with a mandate to the court of common pleas to carry the same into execution. When this mandate came down, Cowden moved the court of common pleas to award a writ of restitution, which motion was overruled. He then applied to this court for a peremptory mandamus to the court below, or to award a writ oí restitution returnable in this court. This application was reserved for ^decision- here by the Supreme Court. The record of the judgment of reversal was not produced, nor did it appear that, this court, in the judgment of reversal, had awarded the restitution of any certain sum of money; but upon the application .to the court of common pleas for a writ of restitution, Cowden exhibited evidence of certain payments made upon the judgment reversed».
    Tappan,
    in support of the application, cited 2 Salk. 588; 5 Com. Dig. 725.
    There was no argument on the other side.
   By the Court :

A judgment of restitution is strictly a judgment which the court have inherent power to execute. 12 Serg, & Rawle, 292. And the court, in the case cited, hold that where this judgment of restitution is rendered, assumpsit will not lie for the money.

But the court are now called upon to point out the manner of executing this judgment. If the judgment of reversal contain-evidence of the precise thing to be restored, the writ of restitution may be awarded. Cro. Car. 699. But where the matter to be restored is not specified in the judgment, but depends upon evidence dehors the record, it is inconsistent with the policy of the law to permit execution without an opportunity given to the other-party to make his defense.

The proper remedy in such ease is the writ of scire facias. Saund. 101, y; 2 Salk. 583.

         Por the form of a scire facias guare restitutionem non, see Bill. Ent. 641, 650; and for the form of a restitution, see Tidd’s Prao. Porms, 541, 542.


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    *Geoege W. Story v. Theodore Hammond and others.
    An action on the ease lies for a nuisance affecting the health of the plaintiff and his family,
    This was a motion for a new trial, reserved from the county of Cuyahoga.
    The plaintiff brought an action on the case, to recover special damages, sustained by himself'and family, in consequence of a mill-dam erected by the defendant across a branch of Yellow creek, in Cuyahoga county.
    The plaintiff, in his declaration, alleged that the dam, by overflowing the adjacent lands, rendered the atmosphere exceedingly impure and unhealthy; and thereby occasioned the sickness of himself and family; and that he was put to great costs and charges, in and about curing himself, and his wife and children, etc.; and that he and his family had sustained a great loss of time, etc.
    The jury rendered a verdict, in favor of the plaintiff, for one hundred and eighty-eight dollars and seventy-five cents; and the defendant moved for a new trial upon two grounds:

      First. That the court permitted the plaintiff to give evidence, not only of his own sickness, but of the sickness of his family and the different members thereof, and the loss of their services, as a foundation for the re'covery of damages.

      Second. Because the court charged the jury that this action was, by law, sustainable, although the neighborhood generally was afflicted with the same injury sustained-by the plaintiff and his family, and for which this action was brought. That if the jury were satisfied that the sickness of the plaintiff and his family was ■caused by the erection of the dam or nuisance, then the plaintiff had proved a damage done to himself and family sufficiently special to entitle him to recover, notwithstanding the neighborhood generally was proved to have sustained the same injury. 'That the defendant, having been indicted and plead guilty, under section 43 of the “act for the punishment of certain offenses therein named,” previous to the commencement of this suit, formed ■no bar to this action, and that the private remedy of the plaintiff was not thereby taken away.
    *It was proved on the trial, that Yellow creek was not a navigable stream, and that the dam was erected upon the lands of •the defendant, in the vicinity of the plaintiff’s residence.
    Humphrey & Kirkum, in favor of the motion.
    Willey & Olgott, contra.
   By the Court:

The declaration is somewhat loose and inartificial, but is sub•stantially good. No other evidence was admitted on the trial than to show the sickness of the plaintiff, and that of his wife and children whom he was bound to support.

It appeared, upon the trial, that not only the plaintiff and hia family, but the neighborhood, generally, suffered much sickness and disease, occasioned by the defendant’s mill-dam, and it is insisted that this general injury is a legal bar to the recovery of individual damages.

We consider it unnecessary to determine whether the injury complained of belongs to the class of public or private nuisances, as defined by the common law. Every member of society is bound by the principles of natural justice, so to use his own property as not to injure the rights of others. If an individual erects a mill-dam which creates disease and sickness, he must be responsible for the consequences.

The defense set up is entirely without foundation. If a man were to sally forth into the public streets of a town, and commit an assault and battery upon every person he met, it would hardly.be •competent for him, in a suit by an individual for special damages, to set up as a defense that he had not only beat the plaintiff, but had also beat the whole town. Or, if a man was to poison a reservoir of water, for the supply of a city, and thereby create a general sickness among the inhabitants, it would not be seriously contended that the magnitude of the offense was a bar to a private action; or, in other words, that the defendant might exculpate himself by proving that he had not only poisoned tbe plaintiff, but had poisoned all the inhabitants of the city.

*There is no foundation in the objection that the civil action was merged in the indictment. In England, actions of trespass or tort, in certain cases, were held to be merged in the felony. But this rule, it seems, did not operate after the offender was brought to justice. 1 Bac. Abr. 99 ; 4 Term, 333.

Motion overruled.

       The doctrine of merger by felony, of a civil action, has no foundation, in this country. 15 Mass. 338. In assumpsit for money received, proof that a lamb was driven to London and sold, is sufficient, unless it appear to be .stolen, when trover would be the only proper remedy. Bull. N. P. 331.