text:
    Seth Grosvenor & Co. v. Administrators of S. Austin and C. Austin.
    Creditor may maintain a bill in chancery for distribution of decedent’s assets, against executor or administrator, before obtaining judgment.
    The separate individual creditors of one deceased member of a firm can not claim a preference in the decedent’s individual estate, against the creditors of the firm.
    This was a bill in chancery, reserved for decision here in the county of Geauga. The facts, in brief, were these: Seymour Austin and Calvin Austin had transacted business in partnership, as merchants. Both were deceased, and both deceased insolvent. There were no funds of the firm, but Seymour Austin left individual separate property. The complainants, ^creditors of the firm, [104 filed a bill in chancery, against Seymour Austin’s administrator, for a distinct share of his individual effects. The individual and separate creditors of Seymour Austin interposed a claim to be preferred, and first paid; and this was the point brought up for consideration.
    Hitchcock, for the complainants:
    The only question now before the court for consideration is, •whether the partnership creditors of the late firm, of Calvin Austin & Co. shall be permitted to claim a pro rata dividend of the estate-of Seymour Austin, one of the firm, who is now deceased.
    On examination of the master’s report, it will be seen that long before the death of either of the partners, the partnership was dissolved ; that the partnership funds are entirely exhausted; that both the partners are now dead; that their estates are insolvent; and unless the creditors of the firm can come upon the separate estate, they are entirely without remedy. It will be further seen that the estate of Seymour has been increased by the amount which he received for his share of the stock in trade at the dissolution of the partnership. Under these circumstances, we are persuaded that the court will not refuse us relief, unless driven to it by some positive rule of law in equity. That no such rule exists, I hope to be able to satisfy the court.
    It is urged by defendants’ counsel, that the question was determined previous to the order of reference, and this is inferred from the terms of that order. Nothing, however, could be further from the truth. The court directed the particular mode of inquiry, so that, upon the coming in of the report, a final decree could be made upon any hypothesis which the court should think proper to assume. The question is still open, and is one of no little importance, as it relates to the settlement of decedent estates.
    It is well established that partnership effects shall be first applied to the payment of partnership debts. This, I apprehend, is rather a rule of equity than of law. But the converse of the proposition will not hold true; otherwise we run into this absurdity,, that he who has given credit, upon the joint and several responsibility of two or more, has in fact less security than he who has-given credit upon the responsibility of one alone of the number.
    In maintaining the proposition, that a partnership creditor can 105] claim his ratable proportion of the insolvent estate of one *of the deceased partners, especially whore there are no partnership effects, and where the other partners are insolvent, we assume the principle that partnership debts are, in equity, joint and several; and in law, so far joint and several, that when a judgment is once recovered, the money may be made of the joint stock of both, or of the separate property of both or either. What, then, would have been the situation of the parties in this case were Calvin and Seymour Austin still living ? Grosvenor, the complainant, might haveTecovered a judgment against the two, and have enforced that judgment against either. Had there been a sufficient fund to satisfy this judgment, belonging to the firm, and at the same time separate judgment creditors, a court of equity would probably, upon the principle of marshaling assets, have compelled the partnership creditor to resort to the partnership fund; but in the absence of such fund, a court of equity would not interfere.
    The correctness of this principle is not controverted by the defendants’ counsel, as applicable to courts of law, but it is denied as a correct principle in chancery. To us, it seems that they are mistaken. In the case of Hammersly v. Lambert, 2 Johns. Ch. 508, Chancellor Kent says expressly, “it is in equity a joint and several debt.” And in Gow on Partnership, 460, it is said, “at law, a partnership contract is joint only, but equity adopting the law merchant to its full extent, holds it to be both joint and several.” If, therefore, there be a survivor, and the proceeding be at law, that survivor must be sued. But if he can not respond the amount of the judgment, a court of equity will charge whatever remain due upon the estate of the deceased partner. Or if the survivor be insolvent, the creditor may in equity proceed against the property of the deeendent in the hands of his representatives, without any suit against the survivor. 2 Johns. Ch. 508; 5 Ohio, 355; Gow on Part. 461.
    The authorities cited by the defendants’ counsel do not sustain them in the position that the principle or rule of law is more favorable to the partnership creditor than that of equity. If there be any difference it is the other way. But this may be said in ' truth, that both in law and equity, as well as in common parlance, the individual partners are considered as debtors to the partnership creditor. And so long as the partners or either of them live, the collection of this debt may be enforced through the medium of a court of law; although, in case of the ^insolvency of a [106 survivor, it will be necessary to resort to chancery to charge the estate of a decedent.
    If, then, such be the effect of the partnership, as to the claims of its creditors upon it, and upon its several members, for their respective dues while the partners are living, shall the creditor lose any of his rights by the death of one of the partners. To enforce those rights, it is admitted that a different form of remedy must be resorted to. But is the right extinguished; or, in other words, is the individual any less the creditor of the estate of the deceased partner than he was of that partner himself when living ?
    Upon principle, it would seem to me that his relative rights are the same. It must be recollected that we have no bankrupt lawv so that, during the life of all the partners, there is no possible way in this country of preventing the creditor from enforcing his claim against the individuals of the firm, except by a resort to chancery Y and chancery will interfere no further than to compel the exhaustion, in the first instance, of the partnership effects. When-these are gone, the creditor will be permitted to proceed against separate property. If there are no partnership effects, chancery will not interfere. -During the life of the several parties, then, there can, in this country, be no such thing as appropriating partnership effects to the exclusive payment of partnership debts, and separate effects to the exclusive payment of separate debts. If the debtors be insolvent, all creditors may come in for a pro rata distribution.
    It has, ever since the first organization of our state government, been an invariable rule in the settlement of estates, whether testate or intestate, that in case of insolvency the estate should be divided pro rata among the creditors. No preference is given to-one description of debts over another, any further than is necessary to secure to the individual care and attention during his last sickness, and a decent burial after his death.
    But adopt the proposition contended for by the defendants’ counsel, and this principle of equity is destroyed, unless the court are prepared to say that a partnership creditor is not, to a certain, extent, a separate creditor ; or, in other words, that a partnership-creditor can not, under any circumstances, enforce his claim against separate estate. It seems to be admitted by the defendants’ counsel, that if there be a sufficiency of asssets, both separate and partnership debts shall be paid. But they claim a preference 107] for separate debts. This is an ^interpolation upon the statute. That _ provides that all debts, of whatever description, shall be paid ratably. Counsel made a provision, excluding a certain description of debts, unless all can be paid.
    Suppose, for a moment, we adopt their principle. How would' it operate in practice? Take the case under consideration with a small variation. Here are partnership and separate creditors and a separate fund. Suppose that fund was sufficient to pay the separate creditors and leave a surplus, but not sufficient to pay the partnership creditors — what would be done with this surplus? Counsel will say, divide it ratably among those partnership creditors. But why? Upon what principle? Is it because they are creditors to the estate ? If they are creditors to the estate, then the statute secures to them an equality, and by adopting the rule contended for by defendants’ counsel, both the letter and spirit of this statute would be violated. This will not be done by the court, unless, as before observed, there is some precedent to require it. I apprehend that all the doubt, which can by possibility arise upon this subject, will be found to have originated in certain English decisions under their bankrupt law — decisions which ought not and can not have any influence here, because made under certain statutes which are unknown, as of any binding efficacy, in this country, and intended for a people whose laws for the settlement of estates are dissimilar to our own.
    Our law for the settlement of estates is founded in the principles of abstract justice, and the principle for which I contend is equally founded in justice. Grosvenor, the complainant, gave credit to both Seymour and Calvin Austin ; he now asks for nothing more than to be placed upon an equality with those who gave credit to but one of these individuals.
    Whether, then, we look to the principles of equity and justice, or whether we look to our own positive law for the settlement of estates, it would seem to me that the case upon the question submitted to the court is with the complainant.
    How is it upon authority? The counsel for defendant have cited a variety of authorities, both English and American, to prove that partnership effects must first be applied to the payment of partnership debts, and separate effects to the payment of separate debts. Of the American cases, but one gives color to this position, while all the others are against it. Of the English cases, unless I am much" mistaken, there is but one that *did not arise under [108 their bankrupt laws, and that is the case reported in 9 Tesey, 118, and in this case tho chancellor says, while speaking of the distribution of bankrupt estates, at page 124, “it is extremely difficult to say upon what the rule in bankruptcy is founded.” Of the truth of this assertion, any one will be satisfied who will examine the authorities, and, it seems to me, will he led to doubt whether in fact there is any certain rule upon the subject. It is curious to see the various courses which have been pursued by the different chancellors, according to their different views of justice, and all striving to maintain their positions by precedent.
    In the time of Lord Hardwicke, it was allowed to joint creditors to prove under a separate commission against one partner, but they could come in for a dividend only of the surplus after separate creditors were satisfied. Gow on Partnership, 379, supposes this rule continued until the time of Lord Thurlow, who held that the contrary course was best, and allowed joint creditors to take dividends under a separate commission. Gow, 380. And he likened the proceedings in bankruptcy to an execution. Thus it continued until the year 1796, when, in the case of Ex parte Elton, 3 Vesey, 237, the other rule seems to have been restored.
    But it will be observed by the court, that all these cases go upon the supposition that there are two funds; and the inference is clear, that if there be no partnership fund, then the partnership creditors may go upion the separate fund. Gow, 381, 382. And the rule as now established in England, if any one can be established, is, that “if there is a joint fund, or there are solvent partners, a joint creditor is not entitled to prove his debt under a separate commission, for the purpose of receiving a dividend, without the chancellor’s order.” Gow, 382. But if there be no joint fund, then I apprehend the proof may be made, and a dividend claimed. Gow, 382, 383. Upon the principles then established under the bankrupt laws ot England, we should have a right to prove our debt, and receive a dividend from the separate estate, it appearing clearly from the master’s report that there is no joint fund.
    Under the bankrupt law, as it once existed in the United States, the same would have been the case. The case of Tucker v. Oxley, 5 Cranch, 34, is cited by defendants’ counsel; for what purpose I can not conceive; for it is an authority, if I can understand it, 109] directly against them. The court are referred *to the opinion of Chief Justice Marshall, commencing at page 39, as conclusive upon the whole subject.
    But suppose we should admit that under the English bankrupt law, the complainant could not prove his debt against, and receive a dividend from the separate estate of S. Austin, until separate debts were paid — does it follow that the same rule is to be applied in the settlement of estates, and especially in Ohio, where the statute has so carefully provided that all creditors shall be paid in proportion to their respective demands.
    It was not formerly so considered in England. For even there a joint creditor, of equal degree, might come in pari passu with a separate creditor. Glow, 437. And so it seems to have been holden until 1803, when the lord chancellor varied the rule, upon the supposed analogy between the ease of death and bankruptcy. 9 Ves. 118.
    But two American cases are cited upon this subject by the defendants’ counsel, which are properly applicable in the point of view in which I am now considering it, and I have not been able to find any others directly in point.
    The first is reported in 3 Dessausure, 203, and the other in 5 Serg. & Rawle, 78.
    In the first of these cases, it is said by the chancellor to have been settled in South Carolina by repeated decisions, “that the private property is primarily liable to the private creditors, and the copartnership effects to copartnership creditors.” Upon what principles these decisions are founded it is not stated, but we know that in South Carolina there is the same rule as to priority of debts as in England.
    In Pennsylvania, however, the rule is different. Their statute is substantially like ours; and the court, in the case cited from 5 Serg. & Rawle, decide, that partnership creditors may come in for a share of the separate estate, being careful, however, that there shall be a pro rata distribution of all the effects, both partnership and separate. This case, if considered as authority, is decisive of the present question in favor of the complainant. These, as I before observed, are the only two cases directly in point, but, as being relative to the subject, I will refer the court to 5 Ohio, 355; 2 Johns. Ch. 508.
    Upon the whole, it will be seen that the question, so far as respects this state, is a new one. That it involves, measurably, the construction of one of our most important statute laws; that there is no precedent which can be considered as obligatory. *And [110 I trust the court will make such a decision as will not only do justice in the present ease, but in all others of a similar nature which may arise.

      Whittlesey and Newton, for administrators of S. Austin:
    The court, at a previous term, having considered the law and equity to be with the complainant, but being unadvised of the separate and partnership property of Seymour Austin and Calvin Austin, due from them separately, or as partners, ordered that it be referred to the master commissioner, to hear and take proof of the separate- and partnership property of said Calvin and Seymour, and that-he take an account of the debts due from each separately and as-partners.
    It appears, from the phraseology of this interlocutory decree, that the court recognized the doctrine that where there were different sets of creditors,- each estate should be applied exclusively, in the first instance, to the payment of its own creditors; the joint estate to the joint creditors, and the separate estate to the separate creditors; for, otherwise, it is not perceived why the particular matters contained in the orders were referred at all. The master, at this term, has reported on the several subjects referred to him,, and the report is resisted by the complainant, not because the-master has mistaken the facts, or committed any error in reporting them; but he resists the report because he. contends he ought to be permitted, when he has a debt against a firm, to take the separate property of one of the partners, without regarding the separate debts ; or, in other words, he contends, the court should retrace its steps, and, in effect, abrogate its order, overthrow old and well-established principles and adopt new ones. Henry Phelps, one of the defendants, wishes the court to establish the report, and carry out the principle recognized in the interlocutory decree. The rule at law is as contended for by the complainant, and a judgment creditor has the right to go upon either estate; but this complainant is not a judgment creditor, and he has come into a court of chancery to collect his debt, without having attempted to enforce it at law; and being here, he is subjected to the rules and principles established by courts of chancery.
    It has long since been established as a ruis oí that court that where there are different sets of creditors, each estate shall be applied exclusively, in the first instance, to the payment of its own 111] creditors, the joint estate to the joint creditors, and the *separate to the separate. Watson on Partnership, 195, top page, and in 265 on the margin.
    A creditor is not only confined to the particular estate, the more effectually to protect the rights of other creditors who may have-debts to be enforced against a different estate, but he is confined to the separate estate of one partner to collect an individual debt, and can not take the partnership estate until the other partner is-satisfied for his debt against the partnership.
    Therefore a judgment and execution against one partner, for his-separate debt, does not put the other in a worse condition, for he must have all allowances made to him before the judgment creditor can have the share of the other applied to him. Mad. 76.
    As between one partner and the separate creditors of the others,, the separate creditors can not effect the stock any further than that partner could, whose creditors they are; and if they proceed against the partnership property, the partners may file a bill to be-quieted in the possession of the partnership effects, and pray for an account of what is due to the partner so giving a security, and for an injunction in the meantime. 1 Mad. 77.
    Debtor by bond to the separate estate of a deceased partner,, not allowed in equity to set off his bond debt, in respect of acceptances for which he had become liable to the partnership estate, and which were proved by him under a joint commission. 2 Meriv. Ch. 115. In the case of bankruptcy, the usual directions-are to apply the funds respectively; the joint to the joint debts, the separate to the separate debts, the surplus of each to the creditors remaining on the other. Ex parte Elton, 3 Ves. Jr. 238.
    The same principle is admitted by the Supreme Court of the-United States to govern courts of equity, but not those of law. 5 Cranch, 34; 2 Peters’ Cond. 182.
    The rule established in the English courts in case of bankruptcy was fully recognized by Chancellor Kent in the case of. Murray v. Murray, 5 Johns. Ch. 60.
    It was well established, in the time of Lord Hardwicke, that joint creditors, under a separate commission of bankruptcy, were not allowed to prove their debts for the purpose of receiving dividends with the separate creditors. But the principle was that joint creditors had a preferable claim upon the joint effects, and the separate creditors upon the separate estate, and therefore the joint creditors could not come in upon the ^separate estate [112. ■until all the separate creditors were -pai d. And this was upon the-plain rule of equity, that he who has two funds to resort to shall not satisfy his debt out of that one of them,- to which another creditor can resort, until he has exhausted the other fund. Per Chancellor Kent in Murray v. Murray, 5 Johns. Ch. 72.
    The copartnership creditors are entitled to nothing from the estate of the deceased partner until all his separate debts are paid. Gow on Partnership, 386; see also cases referred to in note 9 to Ves. 118; 5 Serg. & Rawle, 78; 1 Des. Ch. 203; 2 McCord Ch. 302.
    The doctrine of set-off might be investigated to elucidate the point in controversy; but the counsel for the defendant, Phelps, think the court will not hesitate to sanction the report, and will not permit the joint creditors to participate in the separate property of Seymour Austin until his separate debts are paid.
   Judge Lane

delivered the opinion of the court:

The court have heretofore decided, in this ease, that a bill in chancery may be sustained, at the instance of a creditor, before judgment, to compel the distribution of the estate of a decedent, because it is a trust; and that such a bill may be filed against a deceased partner’s administrator for such a purpose. An account has been taken, and the report of the master shows that there are creditors of Seymour Austin separately, and of Seymour Austin and Calvin Austin jointly; also, that the estate of Calvin Austin is insolvent.

It is now insisted, on behalf of the separate creditors of Seymour Austin, that as any property of the firm of C. & S. Austin, if found in the hands of the administrator or executor, must be first exclusively applied to the payment of the partnership debts; therefore, the separate property of Seymour Astin shall be first applied to the discharge of his separate individual debts, which, in respect to the creditors of C. & S. Austin, have a preference. In support of this proposition the following cases are cited: Gow’s Part. 386; 10 Ves. 118; 5 Serg. & Rawle, 18; 2 Des. (S. C.) 203; 2 Mad. Ch. 302.

This court are of opinion that if any such rule exists it must have been of frequent application, and thus have become familiar to the profession. Yet no case is found in the books except the one in 10 Yesey and the South Carolina case. That 113] ^'touches such a doctrine, unless cases founded on the statutes of bankruptcy. A claim so novel, in a case necessarily ■of such common occurrence, must be listened to with caution amounting to jealousy. Its unavoidable tendency is to disturb and overthrow the settled policy of our law for the disposition of decedent’s assets, which seeks to make equal distribution of them to every creditor.

A creditor of two debtors, not partners, is at liberty to enforce satisfaction from either. If either die, the claim becomes a separate debt, to be satisfied on terms of equality with the decedent’s other debts. But if the debtors were partners, holding a joint fund, the creditor is permitted a specific preference to subject that joint fund to the payment of his joint claim or debt; and this, not because the creditor’s rights are enlarged by the existence of a joint fund, but because the interests of the partners are so connected with its distribution, that it is necessary to adopt this rule,, to secure the rights of the debtors between themselves. Hence the doctrine has been introduced, that the partnership property should be first applied in satisfaction of the partnership debts; not for the creditor’s sake, but because there is a fund which both parties have reciprocally a right to apply for the benefit of a third party.

But where the question is merely between the creditor and the surviving debtor, and no trust fund exists in which the other-debtor or his representative have an interest, the reason does not obtain, and the creditor stands in the relation of any other creditor, to be paid in the same proportion with them. This happens to be the position of the complainants in this case, who make no-claim to any such trust fund, for none such exists; but set up against the estate of Seymour Austin a joint and several debt with Calvin Austin. The question does not seem to avail in any ease, except where there are two funds for distribution, and two classes of creditors.

But, even if such a case were presented, we should long hesitate-before we should introduce an element into our system of jurisprudence so calculated to render more complex the equal distribution of decedents’ estates among creditors. The statute plainly endeavors to make that distribution equal, conformable to the dictates of the soundest equity. We can not resist the persuasion, that the distinguished chancellors, in the cases referred to, have unwarily adopted, as a general doctrine, one rather applicable to cases under a statute of bankruptcy. We ^consider that [114 its introduction here would lead to embarrassing consequences,, and therefore reject it.

The case is again referred to the master.


source: Caselaw Access Project

author: Judge Wood

license: Public Domain

text:
    Barbara Coonrod v. Henry Coonrod and others.
    Devise to “ my son, JH. G., all my estate, real and personal, subject to the following bequestsone of which is to B. 0., one thousand dollars, to he paid to her at the age of eighteen, “ in land at such place as my son Henry can buy," does not create a charge on the devisor’s real estate in the hands of purchasers from the devisee.
    In such case the purchaser is not hound to attend to the application of the purchase money.
    This cause was certified here for decision from the county of Pickaway. The facts are stated in the opinion of the court.
    Olds and Green, for complainant.
    H. Stanbery, for defendants.
   Judge Wood

delivered the opinion of the court:

The facts in this case, so far as they are necessary to be considered, are as follows: On February 15, 1814, Woollery Coonrod made his will, and soon after died. He devised all his estate, real and personal, to his son Henry; and, in the language of the will, “ subject to the following bequeststhe first of which is in these words : “ I will and bequeath unto my granddaughter, Barbara ■Coonrod, daughter of my son, Peter Coonrod, deceased, the sum of one thousand dollars, to be paid her at the age of eighteen years, in land, at such place as my son, Henry Coonrod, can buy for her, at its real value.’ ’

Henry was appointed sole executor, and qualified under the will. The complainant became of age in August, 1827.

The personal property was exhausted in the payment of the expenses of the last sickness and. the funeral, the expenses of the ■executorship, and the discharge of a legacy required by the will to be paid before the legacy in question became due. Before August, 1827, the executor became insolvent. Soon afterward, the .115] complainant demanded her legacy, which was not *paid, and there is no property, personal or real, from which payment can be compelled, unless the lands devised to Henry shall be held subject to its discharge.

The lands so devised were all sold in different parcels, and at ■different times; some by Henry to Corn and Huston, and others by the sheriff to Stage and Huston, the other defendants. The first of these conveyances wa's in 1817, and the last in March, 1827, several months before the complainant became of age.

The complainant claims that the defendants, Huston, Stage, and ■Corn, hold the lands subject to the payment of her legacy, and prays that Henry may be compelled to disclose other property, from which she may compel the payment; and, in default thereof, ■the defendants, Huston, Stage, and Corn, may be decreed to contribute, pro rata, to its payment, and the lands ordered to be sold for the discharge thereof.

The bill contains no charge of fraud. The lands must, therefore, be supposed to have passed from Henry to the defendants bona fide. In the hands of Henry, no doubt exists, but what the lands would be charged with the legacy in equity. They have, however, passed from him, and whether the purchasers have a good title must depend upon the nature of the estate conveyed by the will to Henry, and whether the purchasers were bound to look to the application of the purchase money.

It is said a fee conditional only passed by the devise. Is it so? The will disposes of the lands to Henry, subject to the following bequests. If we close our inquiries here, we shall find but little difficulty in coming to the conclusion, that the estate, under the will, is but a conditional fee. It is not, however, from a single ' clause in this will, but from the whole instrument, taken together, that we are to arrivfe at the intentions of the testator. The words which follow the clause, “subject to the following bequests,” are these: “I give and bequeath to my granddaughter, Barbara Coonrod, daughter of my son, Peter Coonrod, one thousand dollars, to be paid her when she shall arrive at the age of eighteen years, iri land, where my son Henry can buy it, at its real value.” Is not this language inconsistent with the construction contended for? Henry, by the requisition to pay this legacy, if he did not choose to keep it, or was unable to do so, was, from the very nature of the case, authorized to sell the land to pay the legacy. He was not limited *as to the time of the sale. He might therefore [116 have disposed of it any time after he came into possession in 1814, although he could not pay the legacy until 1827, when the complainant should become of age. The executor, then, had thirteen years for the exercise of an unlimited discretion in the sale of th© lands, and investment of the money, in lands, for the payment of the complainant. Can we suppose that during all this time, it was the intention of the testator to disable the plaintiff from conveying a good title to the lands, by the incumbrance of this legacy. We are rather disposed to look upon the will as conveying to Henry an estate in fee, and evidencing an intention to repose a special personal trust and confidence in him to discharge the duty which the will imposed. Who, then, should suffer by this misplaced confidence? Surely not the bona fide purchaser for a valuable consideration.

It may be said the two clauses of this will, the first devising tho lands, subject to the payment of this legacy, and the second vesting the devisee with a general power and discretion to sell and reinvest the purchase money, are inconsistent, and can not be reconciled with each other. To this it may be answered, and in favor of the construction, that the rule is, in such case, that the last clause in the will is to limit or control the former.

Was the purchaser bound to see the application of the purchase money? This is a question which has been much discussed in the books, and the result of our inquiries has been to establish, in our minds, the conviction, that when a trust is defined, payment to the trustee is sufficient, whenever the money is not merely to be paid over to third persons, but is to apply upon trusts, which require time and discretion, as where the trust is to lay out money in the purchase of an estate. Sug. Tend. 333.

In Wormly v. Wormly, Wheaton, 443, Mr. Justice Story remarks, there is much reason in the doctrine, that where the trust, is defined in its object, and the purchase money is to be reinvested upon trusts, which require time and discretion, as the act of sale and investment are manifestly contemplated to be at a distance from each other, the purchaser shall not be bound to look to the application of the purchase money.

In this case, the trust was defined, and the act of sale and investment were contemplated to be at a distance from each other; they required time and discretion, which were given by the 117] *will, and the purchasers were not bound to see to the application of the purchase money. This, in our opinion, is tha law of the case.


author: Judge Wright

text:
    Hugh Evans, for the use of D. S. Bell, v. Michael Instine.
    If the defendant in debt, upon judgment, would avail himself of the want of process or service, or of his non-appearance in the original suit, he must crave oyer of the record declared on, and set it out.
    Matters of that kind can only he proven hy the record.
    From Champaign county. The plaintiff counts in debt upon two judgments, recovered in Virginia, in 1802, in a suit commenced, by attachment, and makes proferí of the record. The defendant, without oyer, or setting forth the record, pleads in bar, that from a period long before the commencement of the suit, he resided in Canada, out of the commonwealth of Virginia, and that the said suit, upon which the judgment was recovered, was commenced only against his goods and chattels, wherein he was never served with process, and of which he never had notice. To this plea the plaintiff demurred specially, and assigns for cause: 1. That the plea does not deny the existence of the judgments declared on. 2. That it does not deny the defendant’s indebtedness. 3. That it does not allege that the defendant has any offset to the judgments or the notes on which they were rendered.
    D. S. Bell, for the plaintiff,
    cited Coxe’s Dig. 408, 4114 Ohio, 259-262.
    J. Hamilton, for the defendant,
    cited 9 Mass. 462; 15 Johns 121, 140; 1 Pet. 74; 5 Johns. 37, 41; 4 Conn. 119; 9 East, 192; 1 Dal. 261; 8 Johns. 90, 197; 13 Johns. 192.
   Judge Wright

delivered the opinion of the court:

Counsel have argued this demumsr, as if it raised the question, how far a judgment, rendered in a sister state, without service of ^process, or appearance by the defendant, was conclusive in [118-its character? But, in our opinion, that question is not before us. The two judgments upon which the plaintiff counts, he alleges remain in full force of record in Virgin^.

The defense impeaches the plaintiff’s right to recover, because-the process was not served upon him, and because he never appeared to, or had knowledge of the suit. This matter, if true, appears on the record, which, by the profert, is offered to the defendant’s inspection. It can only be brought to the view of the court, as a defense by oyer, and setting it out in the plea. All allegations, in pleading of matter of record, present an issue for the court, to be determined by inspection; but this record is not yet presented to our view. The pleader can not, as in this case, rely upon things of record, as if they were in pais. The rules of pleading ■do not permit such a course. The demurrer only admits what is well pleaded ; and as this defense is not well pleaded, it receives no aid from the technical admission. Taking the plea as upon a general demurrer, a majority of us think it insufficient. This opinion renders it unnecessary to examine the cause offered for demurrer. Judgment for plaintiff.


author: Judge Lane

text:
    S. Armstrong and others v. S. R. Miller and others.
    Land inherited by an infant from his father, sold by guardian and converted into money under an order of court; the infant dies in his minority; his half-brothers and sisters, children of his mother by a second marriage, are his heirs.
    In such case chancery has jurisdiction.
    ■Guardian bound to employ money of an infant in his hands so as to make interest if practicable, and is chargeable with interest if he fail to do so.
    This cause was adjourned fpr decision from Hamilton county. It was a bill in' chancery, for an account. The complainants claimed, as heirs at law of Francis Innis, deceased, certain moneys received by the respondent, as guardian of F. Innis, upon a sale of lands made by order of court, in the lifetime of Innis, who died ,a minor. The ease was this: F. Innis inherited lands from his father. The defendant was appointed his guardian, and applied and obtained an order of court to sell a portion of these lands for 119] the support and education of his ward. *The moneys in his hands arose from this sale. F. Innis died a minor, in the year 1818, in Indiana. The complainants, children of F. Innis’ mother, by a second husband, claim as brothers and sisters •of the half blood. Brothers and sisters of the father of F. Innis, and t’neir descendants, who are made defendants, had also set up a claim, in consequence of which, the respondent declined making -payment to either, without suit or indemnity.
    V. Worthington and Gazlay, for complainants:
    By the act regulating the course of descents and distribution of personal estate, in force at the death of Francis Innis (14 Ohio Stat. 36), an estate acquired by descent fell upon the blood of the ancestor from whom the estate came. Secs. 1, 12, of that act. But an estate acquired by purchase descended to the children, etc., ■of the intestate; and for want of children, etc., to the brothers and sisters of the whole blood, and for the want of such brothers and sisters, then to the brothers and sisters of the half blood. Secs. 2-4, 12. Then, if the estate held by Francis Innis, at his death in 1818, was acquired by purchase, ho having no children, •or brothers and sisters of the whole blood, it devolves or falls upon his brothers and sisters of the half blood. But if the estate came by descent, then it follows the blood of the ancestor from whom it came. The question, then, is as to the particular estate held by Innis at his death; whether it be by descent or by purchase. It seems to us there can not be much doubt or debate upon this proposition.
    Innis held lands by descent. They were sold. That which is obtained for the lands is a new acquisition, not by descent, but by purchase. The lands came by descent, but the money, on their ■sale, by purchase.
    Suppose we reverse the proposition. Say he had acquired money by descent, and with it he acquired lands. Are the lands thus acquired an acquisition by descent or purchase? The estate he has in the lands came by an act in pais, and not by operation of law. It represents, or is the interest he has in; the thing obtained, not by force of law upon a given state of facts, but by contract.
    If lands obtained by money descended, be an acquisition by purchase and not by descent, why is not money acquired by the sale of lands descended also an acquisition by purchase? In both cases the legal conclusion must be the same. The ^present [120 seems to us to be purely a question of identity. Is the money in Miller’s hands, and of which his ward was the owner at his death, the very estate cast upon him by operation of law at the death of his father, or is it an estate proceeding from a conversion of that which descended? Hid this money come by descent or purchase-to Innis? If it be that which descended, its identity is established,, and it goes to the one set of claimants; but if it be not the identical thing that was held by descent, but something else that has been substituted, then it is not by descent, but by purchase, and goes to the other set of claimants. If one change of the subject-matter be not sufficient to make the new object acquired for the-old a purchase, and the estate therein an interest acquired by purchase, pray how many are ?
    The old rule is that property can be acquired in two ways — by operation of law and by purchase, or by descent and by purchase. Of course, that which the one concludes, the other excludes, and vice versa. If the conversion of the estate, held by descent in this case, into cash be not a purchase, how many changes will have to-take place before the last acquisition shall be considered as a purchase?
    Suppose, with the cash acquired in this case, a lot of flour had been purchased, and the flour exchanged at New Orleans for coffee, and the coffee at Cincinnati for pork, and the pork at Boston for thrice the original acquisition in cash — how are we to consider these various transfers and the estate acquired thereby in each article?
    The common sense of the case would be that they were acquisitions by purchase, and that a purchase is as complete by the one single transfer as a dozen or a hundred ; and if one hundred turns of the fund will constitute a purchase, one will. We therefore consider the money in Miller’s hands, as the guardian of Francis Innis, as an acquisition by purchase, and not by descent, devise, or gift, and, of course, there being neither children, nor brothers and sisters of the whole blood, it belongs to the complainants, who-are half-bloods. The statute operates upon the particular estate or thing as it finds it. If the thing of which the intestate dies-possessed was by purchase, then it goes one way; if by descent, devise, or deed of gift, then it goes another way.
    If, in this, we are correct, we are entitled to the proceeds of the sale, or the money he returned as having in his hands, with LSI] ^interest from June 1, 1817. That a guardian is compelled to pay interest is fully sustained by Chancellor Kent, in 1 Johns.. •Ch. 508, 527, 620; 6 Johns. 452; and even compound interest, -where he has used the money in trade. 4 Johns. Ch. 305.
    Storer and Fox, for defendants:
    We contend that the comp'ainants are not the heirs at law of Francis Innis, jr., deceased, and therefore not entitled to the fund in dispute.
    The fund in the hands of the defendant is the proceeds of a sale of real estate, made by him as guardian of Francis Innis, deceased, under an order of court in 1815. After a portion of the proceeds of sale had been expended in the education and support of F. Innis, he died in 1818.
    The land sold came to Francis Innis, jr., by descent, on the death of his father in 1800. At the time of the death of Innis the elder, he left a brother and sister living, who, or their heirs, are still living. The complainants are half-blood brothers and sisters of Francis Innis, jr., by the mother’s side, but are not of the blood •of the ancestor from whom the estate came (F. Innis, the elder). They have no blood of the elder Innis running in their veins.
    If, therefore, the real estate had never been sold by Miller, but had remained undisposed of, it would never have vested in the complainants, because they could not connect themselves by blood with the elder Innis, and because the statute gave the estate to the brothers and sisters of “ the ancestor from whom the estate •came.” 14 Ohio L. 36.
    What effect, then, had the sale of the estate, and turning of it into money, upon the rights of the complainants and the brother and sister of the elder Innis, deceased?
    This question depends upon the character in which the younger Innis held the proceeds of sale. If he held the proceeds of sale as ■a purchaser, the statute appropriates the funds to the brothers and sisters of the half blood. If he merely held the proceeds of sale in the place of the estate by descent, then the complainants have no right to the fund. This is the only construction that can be put upon our statute, and it is the same as that of most other states. As to the proceeds of sale being a, purchase, we can not consider it in that light. The statute has endeavored to preserve all the estate of the infant until he arrives at a disposing age, and it expressly provides, “ that no sale *of real estate shall be [122 made, under the provisions of this act, 14 Ohio L. 159, unless the court shall be satisfied that such sale is necessary for the support- and education of such ward or wards, nor shall any sale in such-case extend further than may be required for the purpose aforesaid.”
    The permission' given to the court to order the lands of an infant to be sold, is only for the particular purposes mentioned; the character of the property can not be changed; the estate can not be-diverted out of the infant only for the purpose of supporting him. But it frequently happens that it is impossible to dispose of a part of a tract of land without injury to the balance of the tract.. Hence, as in this case, more land, in value, than is sufficient for the purposes of support and education, is sold. This circumstance-ought not to induce the court to consider the ward to be a -purchaser of the fund, which is substituted for the land, because this-would be contrary to the spirit and intention of the statute referred to. The statute prevents the transaction being considered in the-light of a purchase, because to turn it into a purchase is enabling guardians to do that indirectly which they could not do directly,, viz: to change the succession or course of descents.
    Again, can an individual be considered as a purchaser, in a legal point of view, of that over which he has no power of saying whether he will have the property, said to be purchased, or not?

      We can not imagine a case in which an individual can be a purchaser without having the right to refuse the purchase. He who takes a devise, a deed, or parol agreement, is said to take by purchase, but in all these cases the devisee, grantee, etc., may refuse to accept the benefit intended. He who claims by purchase claims-by “ his deed or agreement.” 2 Coke Lit., Thos. ed. 184, and note-to 187. To constitute a title by purchase, “ the act or agreement-of the party is necessary.” We know of no case in which a man can claim as a purchaser where he could not have refused the purchase. The deed must be accepted; the agreement must be satisfactory to both parties. A man can not be compelled to foregothe pleasure of being hanged; he must accept the pardon. 7 Pet. 161.
    Directly the reverse is the situation of him who claims title by descent. He claims because he can not help it; the law has cast 123] the estate upon him. He has no will of his own whether *he will have it or not. It falls upon him, and there it remains until he, by his own effort, casts the title from him.

      Keeping this distinction in view, we think we can not err in coming to a conclusion. The minor could not change his title in the present case. The law took his land from him; the law, without his will or assent, forced the substitute upon him. He remained as passive in this transmutation as he was at the death of his father, when the law placed his father’s title upon him. The law never compels a man to be a purchaser; so far from it, that it always, where the devisor in a will gives the same estate which without the devise, would have been cast upon the devisee, as heir by the general law, declares the devisee to be in by descent, and not by purchase. 2 Coke Lit., Thos. ed., note to 185; 5 Ohio, 464,
    It does appear clear, therefore, that these complainants can not claim this fund upon the grounds above stated.
    Should the court be of a different opinion on this question, we present another. Has the court of chancery any jurisdiction of this suit? As we view the case, it is a suit in chancery to recover a simple money demand. "Why come into a court of chancery? If the complainants had commenced their action at law, what would have prevented a recovery ? If they had been without evidence, a bill of discovery might have been filed to have obtained the necessary evidence to support the action. Unless the court lay it down as a general proposition that in all cases, and under all circumstances, the court of chancery has jurisdiction to settle testamentary and guardian matters, we see no foundation to this bill.
    Should the court sustain the bill, we ask the cause to be referred to a master to take an account.
   Judge Lane

delivered the opinion of the court:

The statute that regulates the distribution of this estate is found in 16 Ohio L. 36. It provides that if the title to an estate shall have come to the intestate by descent, devise, or deed of gift from an ancestor it shall descend:

1. To his children.

2. To the brothers and sisters of the intestate who may be of the blood of the ancestor from whom the estate came.

3. To the ancestor, if living.

4. To the brothers and sisters of that ancestor.

*But if the estate came not by descent, devise, or deed of [124; gift from an ancestor, but was acquired by purchase by the intestate, it shall descend:

1. To the children.

2. To the brothers and sisters of the whole blood;

3. To the brothers and sisters of the half blood.

If the estate or money in controversy came by descent from the father of James to him, the complainants are not entitled to it. The decision of this question settles the main point in the ease.

Had the property remained in the shape of land,- as it was transmitted to the intestate from his father, it would plainly have passed, upon the intestate’s death, to his uncles and aunts, or their descendants, on the part of the father, and not to his half-brothers and sisters, on the part of the mother, by a subsequent marriage. It is claimed against the complainants that the same inheritable quality attaches to the proceeds of the sale, in the hands of the guardian of the intestate, that would operate upon it if it remained land, either because it was produced by the sale of the land or was not, in fact, the acquisition of the intestate by any effort of his own.

We can not accede to the correctness of these positions. The land became transmuted to money, to personal property, by an act of law. As such, it remained in the hands of the guardian. He was debtor for the proceeds of sale, as for so much money received by him for the intestate. What the intestate inherited had been passed away, and what it produced assumed a new character. In this new character the law must regard it as an acquisition of the intestate. Consequently, it comes under the latter provision of the statute of descents, and passes to the complainants.

It is objected that chancery can not entertain jurisdiction, since the demand is merely one for money, which may be enforced at law. We consider it fully within the cases in which chancery takes jurisdiction over persons receiving funds in fiduciary relations, from whom an account may be demanded, and often is necessary. The management of this property was indisputably a trust.

The defendant, Miller, insists that, under the circumstances, he is not chargeable with interest on the money in his hands. The object for which a guardian is appointed is to keep his ward’s 125] funds safely, and to render them productive. If he *fail to invest them productively, when he could do so, he is chargeable with, interest. Interest is, therefore, to be charged against him from the time he received them, unless it can be shown he could not safely invest them productively by law. The cause is remanded that an account may be taken.


text:
    C. Richardson’s Adm’rs v. M. Richardson’s Adm’rs.
    The terms “beyond sea,” in the statute of limitations of 1804, are equivalent to “ without the limits of the state."

    Debt, from Hamilton. The plaintiff commenced his action in November, 1831. He declares upon a sealed bill, dated January 16, 1807, payable on demand. Plea, that the cause of action did not accrue within fifteen years next before suit brought. Replication, that when the note declared on was made, the plaintiff’s intestate resided out of the State of Ohio, in Pennsylvania, and continued to reside there until June 1, 1823, when he moved into Ohio, which was within fifteen years next before the commencement of the suit. To this replication the defendant demurs generally.
    Tan Matre, for the demurrant,
    cited 3 Ohio L. 355; 14 Ohio L. reprinted, 374; 22 Ohio L. 325 ; 24 Ohio L. 60; 28 Ohio L. 34; 29 Ohio L. 214; 2 Bibb, 207 ; 3 Bibb, 510; 2 Stark. Ev. 901, n. 2.
    Strait and Fades, contra,
    cited 2 Ohio L. 60; 1 Wm. Blk. 286; 2 Dall. 217; 9 Serg. & Rawle, 288; 1 Yeates, 329; Ballantine on Dim. 179; Kirby, 299; 3 Wheat. 541.
   Judge Wright

delivered the opinion of the court:

It is conceded by the parties in this case, that the statute of limitations of January, 1804, 1 Chase’s Ohio L. 392, was in force when this action accrued. That act limits the bringing debt upon “ specialty under hand and seal,” to fifteen years after such cause of action; but it provides that if any person entitled to such action ^sh'.ill be “ beyond sea” at the time such action accrues, he [126 shall have a right to bring his action within the time limited by the act, after such disability shall be removed.

The only question presented on this demurrer is, do the words, “beyond sea,” in legal acceptation, describe persons without the jurisdiction of the state, though no sea intervene? The Supreme-Court, many years ago on the circuit, and frequently since that time, decided that persons without the jurisdiction of the state, were “beyond sea,” within the meaning of this act. The terms, “ beyond sea,” are borrowed from the act, 21 James I, which, in England, have been adjudged to have a meaning synonymous, with beyond or out of the realm. Like expressions have been held by the Supreme Court of the United States to be equivalent to without the limits of the state. 3 Cranch, 174; 3 Wheat. 545; 8 Wheat. 366. Similar decisions have been made in other states. 1 Har. & McH. 89; 1 Har. & Johns. 350; 2 McCord, 331; 3 Mass. 271; 1 Pick. 263. With these constructions we are satisfied. The plaintiff, then, being within the exception of the statute, and the disability continuing until he removed into this state in 1823, less than nine years of the statute had run when the suit was brought,, and the replication avoids the plea.

Leave was asked and obtained to amend the plea, on paying all the costs since they were filed.


author: * Judge Lane

text:
    State of Ohio v. David Collins.
    State can sustain an action on promise in writing to commissioners of the-canal fund.
    Where the stipulation is to pay money or land, “ on condition the canal passes through Chillicothe,” the money within three years, or the land six months-after location, final location of the canal fixes the rights of the parties.
    Hot necessary to prove the organization of a board of canal commissioners in a suit connected with the official action of that board.
    Hot necessary to prove the construction of the canal, where defendant has made a contract dependent on that event.
    Written agreement to pay money, “ on condition that the canal passes through the town of Chillicothe,” is not affected by proof that defendant understood it should pass on a particular line, without allegation of fraud in. obtaining the agreement.
    This was a motion for a new trial, reserved for decision from the county of Ross.

      *The suit was assumpsit upon the following writing: “We, [127' the subscribers, agree to pay or convey to the commissioners of the canal fund, for the use of the canal fund, the sums of money or real estate attached to our respective names, on condition that-the canal passes through the town of Chillicothe. The sums of money subscribed, are to be paid at the convenience of the purchasers, at any time within three years from this date; the conveyances of real estate are to be made within six months after the-line of the canal, passing through the town is put under contract.Chillicothe, December 1, 1825.
    (Signed,) “ David Collins, two hundred dollars in land at cash-value, or cash.”
    The case was tried by a jury; a verdict was found for plaintiffe. The following reasons are assigned to support this motion for a new trial:
    1. That the subscription paper does not show any contract; or' if any, it is variant from the declaration.
    2. The evidence does not show the contingency happened by which the money fell due.
    3. No evidence was offered to show the existence of any board of canal commissioners.
    4. No proof of notice to defendant of the completion of the canal;-
    5. The rejection of the defendant’s testimony.
    James Worthington, in support of the motion for a new trial :•
    1. The defendant insists that this supposed, contract is void, because one of the parties named therein (the fund commissioners) had no power, either from the express terms of the statute, or from the nature of their duties, to make such a contract. The-state, whose agent they assumed to be, would not have been bound by any stipulations made by them, either individually or as a. board, in relation to the subject matter of the contract. They had no power, as agents of the state, to perform the condition on which depended the obligation of the defendant to pay them money or convey land, viz : the passing the canal through Chillicothe ; nor was it their duty to solicit or receive subscriptions-on behalf of the state; but, on the contrary, all these powers and duties were, by express statutory provision, conferred upon an entirely different board, the board of canal ^commissioners. [128 See 5 Ohio, 62, 63; 23 Ohio Stat. 57.

      If, therefore, this paper be a contract, it is a contract with the individual commissioners of the canal fund alone, for it would be. must unjust and unequal for a principal to claim the benefit of a contract made by an agent, whose power to act for him in the subject matter he disavows, and by whose acts in relation thereto he could not himself be bound. Again, this is not the ■contract declared on by the plaintiff. The declaration charges the defendant with having undertaken, etc., to pay to the State of Ohio, etc.
    Such, indeed, is the contract which section 10 of the statute above referred to, 23 Ohio Stat. 57, directs the canal commissioners to enter into with the proprietors of lands near or through which the canal may, or may be proposed to pass; but the terms of the paper offered in evidence, and purporting to be a contract with “ the commissioners of the canal fund, for the use of the canal fund,” as above recited, are totally variant both from the plaintiff’s declaration and the statutory direction.
    If the defendant is to be held to the written terms of his obligation, it is but fair that for both parties the writing should be •its own interpreter. The fund commissioners are the only obligees named in the subscription paper, and, therefore, with them alone must the contract be presumed to be made. And even if the fund commissioners were duly authorized to make such a contract on behalf of the state, as the subscription purports to be a promise to pay “ to the commissioners of the canal fund, for the use of the canal fund,” belonging to the state, we submit, with great deference and without argument, the following authorities, to show that the action ought to have been brought in the names of the persons with whom the contract was made, and not by the cestui que use 1 Chit. Pl. 3, 4; 1 Liv. 235 ; 13 Johns. 88.
    2. Even if it be admitted that the board of fund commissioners, which was in existence at the date of the subscription paper, was duly authorized to solicit and receive subscriptions, payable ,to themselves, for the use of the canal fund, there was no evidence offered by the plaintiff to prove that they (the fund commissioners), or any other authorized agents of this state, were the individuals with whom the contract was made. Why was this? Was it from the fear that too much might be proved, that the contract 129] was made with persons not authorized to act *on behalf of the state ? This court can not infer that a contract, such as is authorized by law, was made with the agents of the State of Ohio, from a paper which nowhere contains a reference to the State of Ohio; nor can they infer that those agents were duly authorized to act in the premises.
    3. The contract is avoided, even if originally valid, by the neglect or omission of the plaintiff to perform within the stipulated time the precedent condition. In order to simplify the argument on this point, I will suppose that the defendant left himself no option, but subscribed, as did most of the subscribers to the same paper, “ on condition the canal passes through the town of Chillieothe, to pay, etc., within three years from the date of the subscription-paper.” By the testimony of Mr. Price, (engineer), adduced by the plaintiff’s counsel, it appeared that the canal did not pass through • the town of Chillieothe until 1832, or more than six years there- ■ after, although a considerable portion was excavated two years before. Time is an essential ingredient in every contract. Could the plaintiff recover the amount of the subscription before the canal “passed through” Chillieothe? I think it will not be contended-that he could so recover.
    Can the amount, then, be recovered, after more than double the time has elapsed, by a party who thus tardily performs the stipulation which he claims to be the sole consideration of the contract?' The inducement and consideration of the subscription might be an interest for a term of years, in a property which it was expected by the tenant would be benefited by the performance of the condition, or many other cases occur, in which the consideration would. be entirely destroyed by the neglect or delay, for so long a time, of the other party to perform the precedent condition. It is therefore submitted, whether the fair construction of the paper be not that the stipulation as to time is mutual between the parties, and the contract can not be enforced by the party who delays performance for more than twice the time thus fixed.
    It is obvious that in this respect the option of the defendant to pay in land or money, can not alter the mutual obligations of the parties; but,
    4. As the defendant, by his subscription, reserved the right to • pay in land or money, it would seem but fair that he should be notified of the completion of the canal through Chillieothe, and that a demand should be made of him to make his election *as to [130 ■ -the mode of payment, before a right of action could accrue. 1 Ld. Raym. 279; Doug. 14.
    Any other course would deprive him of his reserved right of ■option, and transfer that option to the other party.
    No evidence, however, was adduced by the plaintiff that the defendant was so notified, or that such a demand was made of him; and from the showing of the plaintiff’s witness (Mr. Price), the action was in fact commenced before the completion of the canal, ■or passage of the water through Chillicothe.
    The above grounds of defense are partly technical, and it would not have been necessary to urge them to this court, had the defendant been allowed to prove, as he offered to prove:
    5. What was the principal consideration of the subscription, and -that this consideration was a mistaken consideration, an error of both parties, but an error arising from the misrepresentations of the agents of the party now claiming the benefit of this contract, .and also that the remaining consideration of the subscription was taken away by the act of the agents of the state, who changed the line of the canal from the route contemplated by both parties at the time of the subscription, after a considerable portion had been .actually excavated, in reference, not to considerations of public advantage, but for the benefit of the individuals interested in the change of location, and who paid a consideration therefor. A brief outline of the evidence thus offered by the defendant to explain this ■document, signed, not with the caution and deliberation of ordinary business transactions, but hastily, and under erroneous impressions, produced by the statements of the agents of the plaintiff in this suit, will close,this argument on the part of the defendant.
    Testimony was offered by defendant, and rejected as inadmissible by the court, to prove, that shortly before the date of the subscription paper, two routes of canal had been run and staked by the state engineers from Cireleville to the mouth of the Scioto, one -on the east, and the other on the west side of the river — the latter passing through the town of Chillicothe, and through a valuable out-lot belonging to the defendant; and that these were the only two routes contemplated by the defendant at the time of his subscription. That from the reports of the engineers, it was believed at that time by the canal commissioners, and by them stated to the ■defendant and other subscribers to the paper offered in evidence 131] by plaintiff, at a ^public meeting, that the route on the east •side of the river was the most eligible and least expensive, and consequently the canal would be there located, unless the citizens •of Chillicothe should by subscription raise a sum sufficient to in•demnify the state for the additional risk and expense of location ■on the west side. That under this impression, and in order to make up this deficiency, the defendant, together with other citizens ■of Chillicothe and vicinity, owning property along the route on the west side as then located, entered into a contract to pay the canal fund commissioners, as expressed in the paper upon which this .action is brought.
    That Shortly after the date of the subscription paper, from more accurate estimates and examinations of the two routes, the western, •or Chillicothe route was found to be preferable “ as to relative cost and advantage,” and was so reported by the canal commissioners to the legislature; and, therefore, that the principal consideration of the defendant being to make up a deficiency, which did not exist, was a mistaken consideration, founded upon error as to the subject matter of contract, and the contract was consequently void. 1 Pothier on Obligations, 12.
    That the defendant being at that time unacquainted with the location of canals, supposed, in common with other subscribers to the paper, that the route was permanently fixed by the engineers, and if located on the west side of the river, it would certainly pass along the line already located through his property, and the amount of his subscription was predicated on the expected enhancement by the canal of the value of his property. A large portion of this line was not only put under contract, but actually excavated, within the limits of the town; when, at the instance -of other citizens of Chillicothe, the line of canal passing through the town was changed so as not to touch or come near his property, •leaving it much less valuable than if the route contemplated by him had been persevered in.
    Under these circumstances, we contend, for the defendant, that he ought to have been permitted to show a failure of consideration, and a change of the route of the canal after subscription made and excavation commenced, by private contract with other individuals. The reply was, that there is no ambiguity on the face of the contract, and that parol evidence could not be admitted to vary or alter its legal effect. A line of canal had been located through Chillicothe when the subscription was made. The parol 132] evidence offered was to point the ^application of that term to that line, as being the line contemplated by both parties. Both lines pass through Chillicothe. The legal effect of the contract is not altered, unless the consideration has failed. If the passage of the canal through the lands of A., lying in Chillicothe, is the consideration of his subscription, on the ground of individual benefit, his subscription is a bonus for that benefit. If the canal is removed to the land of B., also lying in Chillicothe, for a bonus which B. pays, may not A. show that the consideration for his bonus has failed. If the canal is made through the lands of A. and B., on the’ grounds of public justice and policy, while A. and B. are induced by the agents of the state to subscribe for the purpose of bringing the canal to the route most advantageous to them, it is evident that the location of the canal is independent of and uninfluenced by any promise or bonus. The advantage is derived from the act of the government, on grounds independent of private interests, and the bonus ought not to be demanded. The line located through the property of the defendant, and contemplated by him at the time of his subscription, was put under contract and excavations commenced. This was shown by plaintiff.
    By private contract, the canal commissioners changed the route entirely from this line to one which did not come near the property of the defendant — to a line which was considered by the commissioners themselves as less safe, more expensive, and interfering more with private rights. The difference of risk and expense was made up to the -state by private citizens and to subserve private interests. -The authority in 18 Johns. 397, is in point. If the canal commissioners, then, without strong motives of state policy, abandoned a line under contract and partly excavated, for the advantage of other individuals, the state not being benefited, we think the defendant might insist on this matter of defense, and show the understanding of the subscriber at the time of subscription — that but one line or route was contemplated by him, and that the change in the route was made contrary to his consent, and swept away the consideration upon which his subscription was made. Starkie on Evidence, 1000-1026; Chitty on Contracts, 24, 25; Phillips on Evidence, 513, 566.
    Leonard and Swan, for plaintiff:
    The first objection taken to the verdict, namely, that the corn-missioners had no power to enter into such a contract, and that the same is void, was argued *and determined in the case of [133 the Commissioners of the Canal Fund v. Perry, 5 Ohio, 56. According to the. decision of that case, this contract was made with the state. “ This contract was entered into entirely on the part of the government, by a person authorized to make it, and its obligation is on the government only.” Id. 65. In the same case it was held, that the canal fund commissioners were neither a corporation, nor had they power to solicit donations. The commissioners of the canal fund have, in their public capacity, had no participation in this contract.- They have merely lent a private hand in transmitting the instrument.from the promisor to the promisee. Nor can it be material to its validity in what manner or by whom it was transmitted. If voluntarily entered into on the part of the defendant, and the plaintiff has performed its condition, this is such evidence of the assent of both parties that neither can deny its obligation.
    This court, in the case above referred to, determined that this identical contract was founded upon a sufficient consideration to bind the parties. If one without authority makes a contract on behalf of another, and the contract is ratified, either expressly or tacitly, by the performance of its stipulations, it becomes binding upon all. If authorities should be wanted to this plain principle, they may be seen. 13 Mass. 178, op. 182; 1 Caine, 526. While the contract remained executory, perhaps the defendant, and certainly the plaintiff, might set up the want of authority in tho agent to enter into it; but after it has been executed by the principal, which is undoubtedly the highest evidence of assent to its terms, it is too late to question its obligation. We flatter ourselves we have answered the points reserved in the first and third specifications.
    2. The second exception to the verdict appears to be a mistake, in fact, which will be seen by the terms of the instrument upon which the suit is predicated. The instrument does not prescribe the time when the canal shall pass through Chillicothe. No time being specified, the law would imply that it should pass in a reasonable time. There was no complaint that the canal, in its passage through Chillicothe, was unreasonably or unnecessarily delayed. By recurring to the instrument it will be discovered that no time was stipulated for the completion of the canal, either in express terms or by reasonable implication.
    4. Two distinct objections áre taken : 1 That the defendant had 134] no notice of the completion of the canal. 2. That no *demand was made before the commencement of the action. The ¡first ot these objections, we are quite sure, was not made on the trial. We are, however, willing to meet both.
    It was in proof that the defendant’s residence was near Chillicothe, within the hearing of the feu de joie at its completion. It is matter of public history that- all the public journals in the Union noticed from time to time t-he progress of this mighty work. Its completion was almost simultaneously announced in all quarters of the United States. The patriotic citizens of Chillicothe celebrated the event with civic and military processions, and one of her distinguished men .pronounced an oration on the occasion.
    From all these circumstances, as well as the very nature, ot the undertaking, it would be absurd not to infer the defendant’s knowledge of this notorious event. But the law does not require notice. It was neither necessary to make such averment nor prove it. 5 Com. Dig. Pleader, 369, oh. 75,; 1 Day, 183; 2 Ohio, 204. The •averment, however, was made in the declaration, and this court-must be satisfied that the defendant had notice, and that the jury had a right so to infer from the circumstances. 2. The nature of -the defendant’s undertaking did not require a demand befo e the commencement of the suit. The defendant undertook to pay two hundred dollars in land, at cash value, or cash. The effect of the •contract is, that they may have the privilege of discharging it by .a deed of conveyance of land, of the value of two hundred dollars, at any time within six months after the canal should be put under contract; but if he did not elect to pay in land, at the time specified, he would pay in cash, at his convenience, within three years from date. It is urged there was no,officer of state who had authority to receive a deed, and consequently the defendant was ■excused from tendering one. This is a mistake. The commissioners are expressly empowered “to take, in the name of the state, such grants and conveyances as may be proper and competent to vest in the state a good title to the same.” Canal Doc. -52; Law of January 27, 1823. The same provision is contained in the act of February 4, 1825, section 10. No difference in principle is perceived between a contract to pay a sum of money in land or specific articles. If a person contracts to deliver specific articles he will be discharged if ho is ready to deliver them. 4 Mass. 474. A note was given to pay forty pounds in land, and this note was admitted under the money counts. 2 Johns. 125. *On a contract to pay ten pounds five shillings in good [235 trade by the 15th of October, no proof of a demand is necessary. 1 Bibb, 263, 328. This case is almost exactly like that of Morris v. Edwards, 1 Ohio, 189, in which this court held that no act was necessary to be done by the plaintiff; but if the defendant elected to pay, as he had the privilege of doing, “in bank notes, current in Cincinnati,” he should have made the tender; failing to do so, .the note became absolute for the specified sum of money.
    The duty in this case lay upon the defendant to deliver, or offer to deliver, a deed for the land, if he elected that mode of discharging his contract, not upon the plaintiff to demand his choice.
    It is not admitted, as suggested by the defendant’s counsel, that this action was commenced “ before the canal ¿ad passed through Chillieothe.” If this were the case, it would be fatal to the action. The proof, however, was, that the canal was completed through that place early in the spring; as early as the month of May, 1832. The summons bears date, June 28, 1832.
    No objection was made on the trial, that the suit was commenced before the plaintiff had a right of action, and none could be made, for the evidence on that point, being uncontradicted, was conclusive.
    5. The last objection is, that evidence was offered, in bar of the action, that some individuals of the board of commissioners, for the purpose of obtaining subscriptions, had held out inducements to the citizens of Chillieothe, which had not been realized, and which were founded in mistake; and further, that the canal line was changed subsequent to the date of the instrument, and does not now pass through the land of the defendant, as he supposed it would. The defendant insists, that evidence of this character was improperly rejected, because it would show a failure of consideration, and consequently, that this action could not be maintained.
    It would be impossible for this court to ascertain the advantages which have resulted and must result to the citizens of Chillieothe, from the completion of this splendid undertaking; and perhaps those, of all in the state, have the least cause to murmur at the, policy or the result. But for the steady adherence of the corn-missioners to that just and liberal policy which led to the protection of fixed property in every instance where it could be done, 136] without very great sacrifice *cm the Par^ of the state, the canal would have passed on the eastern side of the Scioto, and that now flourishing town would have been, at this moment, a mass of deserted ruins.
    The effect of the testimony, if admitted, would have been, to vary, by parol, a written contract, in which there is no pretense to claim there is anything like ambiguity. This can not be done. 6 Mass. 430; 3 Stark. Ev. 1002; 1 Ohio, 178.
    The defendant also appears to suppose, that the consideration, which would give validity to this instrument must be a direct and certain benefit to himself. By resorting to such'grounds, the defendant is doing not only great injustice to his own disinterestedness and patriotic liberality, but entirely misapprehends the binding operation of an instrument of this kind. The. consideration for the promise is not that the canal should pass through the land of the defendant, or that his property should be enhanced in value by its completion, but that “ the canal should pass through the town of Chillicothe.” The contract, for its consideration, has in contemplation a public benefit; and this is a sufficient one, to give validity, in that respect, to the contract. 20 Johns. 89; 5 Ohio, 56, and the authorities there cited.
    If the defendant really intended to make his donation depend upon other conditions than that specified in the contract, it was. competent for him to do so, and the plaintiff would have been bound to their performance, before the right of action would have accrued. Such is not the case. The contract, in very clear and explicit terms, requires the canal to pass through Chillicothe ; and the defendant has undertaken to pay upon the performance of that, single condition. The condition has been performed to the letter by the plaintiff, and the defendant must perform his part.
    It would be strange, indeed, to make the binding obligation of a contract depend upon the question, whether either party has realized his expectations under it, and to pronounce the disappointment of either, in this respect, a failure of consideration. This is, in substance, what the defendant claims should annul the contract, and be a legal bar to the action !
    The application of the case of Griffin v. House, 18 Johns. 397, to the point under consideration, is not distinctly perceived. It iq indeed, intimated by tbe court, that a discretionary power once executed, is at an end. It is not necessary to examine the correctness of this doctrine. The second section *of the act of [137 February 4,1825, vests the power in the commissioners of making :& canal; and vests the power in them to make it at discretion, •except three special points, to wit: Lake Erie, Licking Summit, .and the mouth of the Scioto. It is very clear, the power vested was not executed until the canal was finally completed between those points.. The power of changing lines, at intermediate points, was necessarily incidental to the general power. But the defendant is certainly not intrusted with the supervision of the .agents of the state. If they have transcended their authority, it has not been in violation of his contract. Whether the agents of >the state have acted indiscreetly and faithlessly, or not, the state has performed her contract with the defendant. She has taken the •canal through Chillicotho. It seems, then, notwithstanding the indiscretion and want of fidelity, and violations oí law, on the part of the government agents, the state has, by good fortune, been enabled to fulfill, to the very letter, its engagements with the •defendant.
    Willey, in reply, upon the first, third, and fifth causes for a •new trial:
    The case of the Canal Fund Commissioners v. Perry is cited by the plaintiff’s counsel as conclusive against the defendant upon the first .and third points made. That case, rightly understood, involved, necessarily, altogether a different question than those here to be •decided. The points here involved did not necessarily arise in that case ; they were not discussed in that case, or thought of by ■counsel on either side, for the reason that the suit was between different parties. The court, in delivering their opinion, however, .advanced sentiments indicative oí the construction which ought to be given to contracts of the nature declared upon in this case. That case, correctly apprehended, seems to establish the doctrine that contracts of this kind may be binding on the promisor, and when binding the state must sue in its own name; and that case seems to go no farther. Now, whether binding and obligatory or not, depends upon the structure and language of the contract. If the state is made, by the contract, a party to it, as the payee or obligor, and a consideration passes, or is to pass to the promisor,

      the state may sue. If, however, the state is not a party, expressed to be such, that authority upon the first and third points in th© case proves nothing.
    In the present case, how does it appear that the State of Ohio 138] *was interested in the contract, or a party to it? The state is not named in it. There was no proof on the trial that the state was a party or had an interest. Express written contracts exclude all. implied ones upon the same subject matter. There was no promise shown as made to the state. That the state might have á collateral interest in its fulfillment makes no difference. The declaration avers that the defendant “ undertook and promised the State of Ohio to pay,” etc. Is this true? The contract does not say so, and all parol proof, the counsel for the plaintiff contend, must be excluded.
    With whom was this supposed contract made? Evidently with the fund commissioners. It is immaterial in this case to inquire whether they had power to make it on their own account or not. It is only necessary to ascertain whether they could make it on behalf of the state, as the agent of the state, and did they so make it? None of the statutes defining the powers and duties of th© fund commissioners give them the power. The case of the Fund Commissioners v. Perry expressly declares that “that contract is neither within the express powers conferred upon the fund commissioners nor within the general scope of their authority.” •There was no contracting party, then, on the part of the state, aud none is pretended or inserted in the contract itself on th© part of the state. The fund commissioners were not agents in. this matter. The state had never made them such. It is not pretended in the contract. In the supposed contract they did not. presume to act as agents. They took the promise, whether good or not, to themselves. How comes the state, then, seeking th© benefit of a promise which it had never authorized, but refused to have taken in its behalf, and which, in fact, never was made or taken in its behalf at all?
    The plaintiff’s counsel have some difficulty in this respect. The counsel for the’plaintiff say: “ The fund commissioners have had, in their public capacity, no participation in this contract.” In what capacity have they participated in it? In their individual capacity, it is presumed. The defendant is content with this position, and maintains it fully. Inasmuch as the fund commissioners bad no power as public agents, in a public capacity, to make such a contract, and inasmuch as they have not pretended to make such a contract, as public agents, on behalf of the state, or make use of the name of the state in any respect, it is clear that it should be regarded as an individual transaction only.
    *The counsel for the plaintiff do not appear to apprehend [139 the question presented. They say, “ if voluntarily entered into on the part of the defendant, and the plaintiff has performed its condition, neither can deny its obligation.” The question on ■ this point is not what its obligation is, or whether it has any ; but the question is, to whom or in whose favor the obligation was attempted to be incurred when the contract was made. The state can not, by any act it can perform, change or transfer'a promise or liability, or supposed promise or liability, to itself. If the state has performed the condition,'or an individual has performed the condition, it makes no difference. The state gains nothing by that in aid of maintaining a suit in its own name, unless a party to the contract at the time of its formation.
    . Again, the counsel say, “ if one without authority makes a contract on behalf of another, and the contract is ratified either expressly or tacitly by the performance of its stipulations, it becomes binding upon all,” and authorities are cited. The application of this principle of law, to this case, is not discovered. It has no application. The question before the court is not understood. The principle is advanced upon the supposition that that is conceded which is not conceded, but the very point in controversy. The plaintiff’s counsel have got to maintain, and consequently ought to have laid down, the following position : “ If one without authority makes a contract on behalf of himself, which he can not enforce, can a third person, not named in the contract, step in and fulfill its conditions, and enforce it in his own name by suit?” The fund commissioners did not,for, legally, they could not make the contract for and on behalf of another, the state. They had not the power, and there was no stipulation for the state to perform, for no one had undertaken that the state should perform any, and consequently none existed. Upon the doctrine of the plaintiff’s counsel, if Ohio had stopped the canal at Circleville, and a wealthy individual, or the State of Yirginia, had extended it through Chillicothe to the Ohio river, such individual, or the State of Yirginia, could maintain this action to recover the amount of the subscription. And why ? The stipulation, that is, the making of the canal, is fulfilled; the defendant has got what he subscribed to get. The contract was not framed to meet such an exigency. And yet it is difficult to draw the distinction, inasmuch as this court has said, in the case referred to, of the Fund Commission-140] ers v. *Perry, that “ the power of making such a contract can not be taken, by implication, as conferred upon the fund commissioners,” and inasmuch as the plaintiff’s counsel themselves disavow any participation on the part of the fund commissioners, in making the contract, as public agents of the State of Ohio.
    Contracts must be mutual and reciprocal in their obligation. Transpose the parties. Suppose the defendant, within the six months, had conveyed the land to the value of two hundred dollars to the fund commissioners, in the very terms of the stipulation and contract, and suppose the canal had passed on the east side of the river, and not through Chillicothe, would the defendant have had any remedy as against the state? The true language would then be applied to the defendant, that the state had nothing to do with any unauthorized dealings or stipulations of the fund commissioners.
    But, at all events, it is submitted that there is a variance between the contract declared on and the one offered in evidence. Contracts must be declared on according to their legal effect, or in the words in which they are framed. The declaration sets forth a promise to the State of Ohio. This is claimed to be the legal operation of the promise in the contract to the fund commissioners. Can this be so? It can not, if the views already taken are correct, that the fund commissioners had no right or power to act for the state. But suppose they had ; then the legal effect of the promise must be carried throughout the whole description of the contract, and the legal effect is, that the land is to be conveyed or money paid to the state, and not to the fund commissioners. In the case of Perry, already referred to, the court say, “ that the act expressly requires donations tq be received in behalf of the state, or to the state, that the effect of the promise was the same as to pay the state, and the expression in the contract, designating the fund commissioners, did not seem to be used to describe the obligee of the contracts,” etc., “ but barely the agent to receive the money.” A promise to the principal to pay the agent, or a promise to-tha plaintiff to pay another man when the principal or plaintiff is suing for his own money, and when the legal effect of the promise, if it has any, is to pay the principal or plaintiff, is a new mode of interpretation. The contract reads, “ we agree to pay or convey to the commissioners of the canal fund.” The declaration sets forth a promise to the state, and, by the statute and decisions, the payments must be described as following *such promise, by [141 legal intendment. If, as the plaintiff’s counsel claim, the contract was made with the state, a performance of it was stipulated to be made to the state, and must be so set forth, and the breach must correspond with such allegation. Would a deed of the land to the fund commissioners, not being a corporate body, or capable of receiving title, discharge the defendant, upon the grounds assumed in this case by the plaintiff, that the promise and the whole contract was made with the state, and that the fund commissioners had no participation or hand in it, “ except a private and neighborly hand to transmit the contract to the state.”
    If, however, the counsel for the defendant have mistaken the law upon the points discussed under the first, second, third, and fourth reasons assigned why the court should grant a new trial, they feel assured that under the fifth cause assigned the ground they have assumed is tenable, and that a new trial will be granted by the court.
    The counsel for the plaintiff have not answered the argument upon this point.
    They set out by saying that, “It would be impossible for the court to ascertain the advantages which have resulted and must result to the citizens of Chillicothe (the defendant, ha?) from the completion of this splendid work ” !I What can be said upon such a flourish as this? It is impossible for the court to know the advantages or disadvantages without hearing the evidence. At least we are bound to presume, in courts of justice, that neither the court nor the jury can ascertain satisfactorily the merits of a cause without hearing the testimony. There may have been one or two exceptions to impugn the universal prevalence of this presumption, within a few years past, in the administration of justice, but these exceptions still leave the old order of things unshaken as a rule of action and as a rule of law. That which is easily shown in court in respect to a supposed contract with a single individual, ought not to be called “ impossible.” The offer was to prove that the contracting parties (the agents of the state, if the counsel please, on the one side, and the defendant on the other), were mistaken in respect to the subject matter, and the supposed' existence of facts appertaining thereto, at the time of making the subscription — that the state gave nothing, and that the defendant received nothing and could receive nothing by the fulfillment of the contract or condition.
   * Judge Lane

delivered the opinion of the court:

The point intended to be ¡^resented by the first objection isr whether the state can sustain an action, in its name, upon that’paper. We regard the affirmative settled in the suit of the Commissioners of the Canal Fund v. Perry, 5 Ohio, 55, and here have only to repeat our adherence to that opinion.

The second objection leads to a construction of the agreement as to the time of performance. The terms of the contract are not expressed with much precision, yet its meaning is not obscure. The defendant stipulates to pay two hundred dollars in three years, or land to that value in six months after the canal passing through the town be put under contract, on condition that it shall pass through the town. By the phrase “passing through the town” is meant, not the completion, but the final location and establishment of the line of canal. It is not a part of the contract that the canal shall be undertaken in three years, but all the conditions must happen before the defendant’s performance can be claimed. If the defendant intend to convey the land, he must do it in six months after the line of canal be established or put under contract through the town. If he do not convey the land, the money is due after three years, and the establishment and contracting for the line through the town. The evidence showed the jury these facts occurred in the spring of 1824.

The third objection, that no proof was offered of the existence of any canal commissioners, is answered by the general law organizing and creating them.

The fourth objection, that the defendant had no notice of the construction of the canal, was not taken at the trial. If it had been taken, the jury would have been instructed that they might presume, from his residence and from his property in Chillicothe» that he could not have been ignorant of an event so deeply affecting his and every man’s interests — so identified with our recent history, and occupying so large a space in the volumes of our legislation.

The defendant offered to prove the consideration had failed, by establishing the following facts: 1. That prior to the subscription, experimental lines had been run down both sides of the Sciotoriver, the western of which passed through the town of Chillieothe, and was estimated by the engineers to be the most expensive. That the commissioners represented to the defendant and to the other citizens of Chillicothe that the ^eastern [MS-line would be selected for the work, unless they subscribed sufficient to meet the increased expense; that under this belief, and for this purpose, this subscription was made; but it was afterward discovered that the eastern line was not the cheapest, so that the-commissioners and the subscribers were mistaken in the facts. 2. That the defendant was the owner of an out-lot of the town through which the experimental line was run, and that he was led to subscribe by the belief that the canal would be constructed on this line, and would enhance the value of this lot; that by a subsequent arrangement between the commissioners and certain citizens of Chillicothe, the route of the canal was so changed as to pass through the town in another direction, without touching the lot of the defendant, which is not so valuable as it would have-been had the experimental line been selected for the route.

It‘will be recollected that this case presents no fraud, for all imputation of fraud was explicitly disclaimed by the defendant’s counsel. The mistake, if any such existed, was one common to both parties, if the canal commissioners can, in any sense, be deemed parties to the agreement. But if both parties act under a common mistake, it does not avoid the agreement; the act done is valid between them, and binds both ; for work done under such a mistake, the operative is entitled to his price.

The defendant, in entering into this contract, might impose his own terms; but when defined and reduced to writing, the writing must be taken to embrace them all. The conditions shown by the writing must be complied with, and those not specified, in the absence of fraud or mistake, are deemed to have no existence. But the defendant seeks to multiply those conditions, and to make his liability depend on the greater cheapness of the eastern route- and the projection of the canal through the town in a particular line. These are no elements of the agreement, and they could not be shown by parol, if they were so. 1 Johns. Ch. 273, 339.

What are the terms of this contract ? ' Men are led into agreements by many causes, such as the hope of profit, the expectation Of acquiring what they could not otherwise obtain, the desire of avoiding a loss. Yet these inducements are not the consideration, and compose no part of the contract. The legal consideration from the other party, the consequences which follow the contract, its benefits or its disappointments, are matters beyond the convention, with which he has nothing to do. The whole present en-144] gagement was to pay to the agents of the Estate two hundred dollars, on condition that the state shall construct the canal through the town. If the benefits he expected do not arise, he is not permitted to cast his disappointment on the state.

The last clause of this evidence is exposed to the further objection that, taken in its largest effect, it shows a partial failure only. The lot is not so much enhanced in value as it would have been had the canal ran through it; but it can not with truth be asserted that it derives no additional value from the location of the canal through the town; so that, if the enhancement of the value of the lot were the consideration, its failure is not total, and constitutes no defense at law. 3 Ohio, 285.

Motion for a new trial overruled. Judgment on the verdict.