text:
    Elbert Marsh v. William Stephenson.
    Where lots adjoining each other on the east and west sides were sold at the same time to different purchasers, the sales being made by numbers and by reference to a recorded plat; the division lines not being fixed by stakes, or otherwise actually marked; and where the deed of the one- grantee fixed the location of his lots by reference to a known and fixed monument on the west, whilst that of the other grantee fixes the location of his lots by reference to another fixed monument on the east, and each of the deeds described the respective lots as being of the width indicated by the plat, more or less; but *upon actual admeasurement of the ground, the width thus assigned to the lots severally will not make them meet, while the plat shows that they were intended to meet, and that the grantor intended to sell the whole premises; the surplus ground ascertained to exist will be divided between the grantees in proportion to the lengths of their respective lines, as shown by the plat and stated in their deeds.
    ■In error to the district court of Hamilton county.
    The controversy in this case relates to a question of boundary between lots owned by the parties respectively.

      Under an order of sale, made in a proceeding in chancery, the sheriff of Hamilton county, acting as a special master commissioner, made a subdivision of several squares of ground in Cincinnati, belonging to the estate of Samuel Betts, which subdivisions he platted and placed upon record. One of these squares, known as No. 8, is shown by the plat to be bounded on the north by Everett street, on the east by John street, on the south by Clinton street, and on the west by Cutter street. This square was subdivided into sixteen lots, lying in two tiers of eight lots each; the northern tier fronting ■on Everett street on the north, and the southern tier upon Clinton street on the south. The lots were numbered progressively from west to east. The northern tier embraces Nos. 1 to 8 inclusive; and the southern tier Nos. 9 to 16, inclusive; so that Nos. 1 and 9 are bounded by Cutter street on the west, and Nos. 8 and 16 by Jobn street on the east. All the lots in the northern tier are represented by the plat as having each a front of fifty feet on Everett street, except No. 8, to which a front of twenty-five feet is assigned. Those in the southern tier are represented as having each a front of fifty feet upon Clinton street, except No. 16, which has a front of seventy-nine feet eight inches. The oblique direction of John street makes the square wider on the south than on the north, and gives a trapezoidal form to lots 8 and 16, while the other lots are rectangular parallelograms. The sheriff had these lots appraised, and sold them at public auction, in March, 1838. ' At this sale Marsh bought lots 8,15, and 16, and Stephenson purchased all the other lots in the square; and deeds were made by the sheriff *to the respeptive parties, agreeably to the order of the court made u]Don the confirmation of the proceedings.
    May 21, 1838, the sheriff made his deed to Stephenson, for-lots 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, and 14, “the lots being platted” [says the deed] “ and numbered by said sheriff, as per plat on file in said cause, and on record in the recorder’s office of Hamilton county; said lots measure fifty feet more or less in front, and those fronting on Everett street are one hundred feet deep, and those fronting on Clinton street are ninety-nine feet deep.”
    May 29, 1838, the sheriff made a deed to Marsh. “ The lots,” says that instrument, “ being platted and numbered by said sheriff, as per plat on file in said cause, and on record in the recorder’s office of Hamilton county; said lot, No. 8, measuring twenty-five feet, more or less, front on Everett street, and one hundred feet deep; and lot No. 15 being fifty feet, more, or less, front on Clinton street, and ninety-nine feet deep; and lot No. 16 being seventy-nine feet eight inches, more or less, front on Clinton street, and ninety-nine feet deep.”
    In making this subdivision of square No. 8, the division lines between the lots were not staked out, and they were sold by their numbers, and by reference to the plat. Step>henson’s six lots, Nos. 9,10, 11, 12, 13, and 14, according to the plat, have an aggregate front upon Clinton street of three hundred feet; while, by the same plat, Marsh’s two lots, 15 and 16, have a front of one hundred and twenty-nine feet eight inches upon the same street; thus making the whole southern boundary line of the square, from Cutter street on the west to John street on the east, four hundred and twenty-nine feet eight inches. But this line is found to be in fact about ten feet longer than the plat indicates.
    This produces a surplus of land which has brought into question the location of the line dividing their respective premises, that is to say, the division line between lots 14 and 15. Stephenson not being aware of this surplus, seems to have taken possession of but three hundred feet front upon Clinton street, but upon learning the facts, he brought an action of ejectment in *Oetober, 1846,-for all the lots conveyed to him by the sheriff, simply following the description in his deed. Marsh, though served with notice, did not enter into the consent rule, and judgment was rendered against the casual ejector.
    A writ of habere facias possessionem was thereupon issued, and Stephenson, claiming to have been thereby put in possession of the premises up to a line three hundred and seven feet three inches east of Cutter street, moved the line fence, which had been previously erected by the plaintiff, eastward to that place, still leaving Marsh in possession of one hundred and thirty-two feet nine inches front; whereupon, Marsh brought an action of trespass, quare clausum, fregit, against Stephenson. Upon the. trial'of this cause, the court of common pleas held that Marsh’s deed invested him with title to all the property described in said subdivision east of a line three hundred feet east of Cutter street, and rendered judgment thereupon for the plaintiff. This ruling and judgment of the common pleas was, upon error, reversed by the district court. The present petition in error seeks to reverse the judgment of the district court.

      Caldwell & Paddock, and B. B. Warden, for plaintiff in error,,
    cited Pierce v. Faunce, 37 Maine, 63, and cases cited, and Brown v. Gray, 3 Greenl. 126, to show that the words “ more or less ” in the-deeds, do not affect the description as taken 'from the plat.

      Fox & French, for defendant in error,
    cited Lincoln v. Edgeconrt, 28 Maine, 279, and Brown v. Gray, 3 Greenl. 129, to show that the surplus must be divided between the parties; and Wyatt v. Savage, 11 Maine, 431, to show that if quantity falls short, it must be borne by each owner; and Wolf v. Scarborough, 2 Ohio St. 363, as sustaining each of these propositions.
   Scott, J.

If Marsh, the plaintiff, is entitled to hold all the surplus ground in square number 8, then the district court erred in reversing the judgment of the common pleas; but, if he *is not entitled to any of it, or only to a pro rata share of it, then the judgment of the district court must be affirmed; for it is not claimed that Stephenson, by the alleged act of trespass, appropriated more than a pro ruta share of the surplus. The testimony shows that Stephenson has only occupied to a line three hundred and seven feet three inches east of Cutter street, and that between-this line and John street, Marsh has in his possession one hundred and thirty-two feet nine inches. Is he entitled to more ? We have-no doubt either as to the law or equity of this case. Neither of the parties acquired a right superior to that of the other in respect to-this surplus, by their deeds, by the recorded plat referred to in their deeds, or by the description accompanying the return of theappraisement of the several lots, made by the sheriff and freeholders, prior to the sale.

In all these evidences of title they stand on an equal footing. The description in the appraisement gives to each of Stephenson’slots 9, 10, 11, 12, 13, and 14, a front of fifty feet on the north side of Clinton street, making in all a front of three hundred feet; and-also gives a definite location to these lots by a reference to a fixed monument, to wit, the northeast corner of Clinton and Cutter-streets.

The same description gives to Marsh’s lot number 15, a front of fifty feet, and to number 16 a front of seventy-nine feet eight inches on the north side of Clinton street, making an aggregate front of one hundred and twenty-nine feet eight inches, and gives to the premises a definite location by bounding them on the east by John street, an equally fixed monument. The plat gives to each of Stephenson’s lots a width of fifty feet; and to Marsh’s lot 15, the same width of fifty feet; and to 16 a width of seventy-nine feet eight inches. The lots were all sold by numbers, at the same time, by inference to the plat; and, as would seem from the evidence of the sheriff, were each sold as being of the width indicated by the plat, more or less. The deeds, executed by the sheriff to the parties, are similar; they each describe the lots by numbers, and by reference to the same plat; they each assign to the several lots the width or front indicated by the plat, with the addition of the words “more or less.”

*The plat includes all the ground between Cutter and John streets, and there can be no doubt that it was all intended to be sold.

There were no stakes fixing the division lines of the lots, and the words “more or less ” in the deeds, together with the face of the plat, render it certain that the whole was intended to pass by the sale and conveyance. Under these circumstances, it would seem equitable that the surplus should be ratably apportioned between the grantees. And tó this effect are the authorities. Lincoln v. Edgecourt, 28 Maine, 279; Brown v. Cray, 3 Greenl. 129. If the quantity falls short, each grantee must sustain his portion of the loss. Wyatt v. Savage, 11 Maine, 431. The same principle has been, settled in Wolf v. Scarborough, 2 Ohio St. 363. And the manifest equity of the rule must command approbation.

But were it otherwise; if Stevenson takes nothing by his deed but the three hundred feet represented on the plat, the same rule must limit the plaintiff Marsh to one hundred and twenty-nine feet ■eight inches, for he stands on the same ground, and must be governed by the same plat. This would give the surplus to Betts, and would be equally fatal to the plaintiff’s claim.

We are unable to see, either in the trapezoidal form of lots 8 and 16, or in the numbering of the lots from west to east, any substantial reason for changing the equitable rule. The same rule of construction must be applied to the deeds of each party.

It is unnecessary, therefore, to inquire how far the claim of Stephenson was strengthened by the proceeding in ejectment.

Judgment of the district court affirmed.

Bartley, C. J., and Swan, Brinkerhoee, and Sutlife, JJ., concurred.


source: Caselaw Access Project

author: Sutliff, J.

license: Public Domain

text:
    *William D. Nott and Clifford Belden v. Edmund Johnson.
    A promise by A to pay B five dollars per hour, or so much more as B might deem reasonable, for the use of B’s steam-tug during the night, should A need the same, A agreeing to employ, and employing, two scows in his service during the night, at his own risk, and B promising to keep up steam on his tug during the night, and assist A with the steam-tug, if required by A, is a contract which may be enforced by A, and is not an agreement without consideration.
    The consideration of a promise, mutual promises, and allegations relating to precedent conditions, etc., however informally or defectively averred or stated in the petition, can not be made the ground of arrest of judgment, if the petition disclose a cause of action. Every reasonable presumption and fair constructive intendment will be made to sustain the pleading after verdict.
    In error to the district court of Cuyahoga county.
    In July, 1854, Johnson filed a petition in the court of common pleas of Cuyahoga county, against the plaintiffs in error and one Horace Nott, in which he says “that the scow Mary Ann, of which he was the owner, on the 7th day of April, 1854, was ashore on the west side of the west pier at the harbor of Cleveland, and on that day the plaintiff hired of their owners the scows Helen and Eddy to go out of the harbor of Cleveland and light off the said Mary Ann, and at the same time employed the defendants with their steam-tug, called the ‘ Cliff Belden,’ to haul off the said Mary Ann when she should be raised by said scows. And plaintiff says that on said day he labored with said scows, assisted by said defendants with said steam-tug, until about sundown, in endeavoring to get the said Mary Ann afloat, and failed to do so; and said owners of said scows being unwilling to risk their said vessels outside during the night, were about to return to the harbor with said steam-tug, and thereupon plaintiff entered into a contract with defendants, by which the plaintiff promised and agreed to pay the defendants five dollars per hour, or so much more as the defendants might deem just and reasonable, for *the use of their said steam-tug during the night, should the plaintiff need the same; and the defendants' then and there, in consideration of this promise of the plaintiff, promised and agreed, if the plaintiff would remain out with said scows Helen and Eddy, and continue to labor at said Mary Ann, that they, the defendants, would return to the harbor with said steam-tug, and would there remain with her and keep up the steam on said tug during the night; and if at any time during the night the wind should change so as to endanger said scows Helen and Eddy, they, the defendants, would, if called on by plaintiff, comoout of the harbor with said tug and tow said scows, as well as the said Mary Ann (should she be afloat), into the harbor.
    “And plaintiff says, that upon the faith of the agreement so made with defendants, he contracted with the owners of said scows for their several scows to remain outside, and not to return to the harbor with the said tug; and the plaintiff agreed to pay all damages-which might happen to each of their said vessels by so remaining out of the harbor. And plaintiff says that said scows did upon this-arrangement remain outside, and during the night of said 7th day of April he succeeded, with the aid of said scows, in getting the said Mary Ann afloat, but soon after the wind changed and blew on shore, thereby endangering the said scows and the said Mary Ann; and plaintiff thereupon proceeded immediately to said steam-tug, lying in the harbor of Cleveland; but plaintiff says that defendants had permitted the steam to go down on said tug, and had gone on shore, and were nowhere to be found by the plaintiff; and the plaintiff says that he requested the engineer in charge of said steam-tug, and then on board of her, to get up steam and run out and tow in said scows and said Mary Ann; and said engineer refused to do so. And plaintiff says, that by reason of defendants’ neglecting to keep up the steam on said tug, and by refusing to go out and tow in said vessels as aforesaid, the said Helen and Eddy and the said Mary Ann were driven on shore by the wind; and by reason of this, the said Helen and Eddy were damaged; for which damage, together with the expenses of getting the said Helen and Eddy off shore, the plaintiff was compelled and obliged to pay the sum of seven * hundred and fifty dollars. And plaintiff says that by the aforesaid default he also sustained damage by the said Mary Ann a second time going on shore, in the sum of two thousand dollars. Thereupon the plaintiff demands judgment,” etc.
    To this petition the plaintiffs in error filed an answer, in which, after denying that Horace Nott ever had any interest in the steam-tug, or that Johnson had employed them with it to haul off the scow Maiw Ann when she should be raised by the scows Helen and Eddy, they say, that on or about the-7th day of April, 1854, “the said plaintiff did enter into a contract with them, by which they ■agreed to go with their said tug, during the hours of daylight and while it would be safe and prudent for said tug to go, and the weather would permit, and tow the said scow Mary Ann into the harbor of Cleveland when she should be raised by the scows Helen and Eddy, the said plaintiff giving them notice when the said scow should be raised as aforesaid. And the said plaintiff agreed to pay 'them for such service the sum of five dollars per hour while said tug was employed in said service. That in pursuance of said agreement, they went out several times during the day with said tug to ■said Mary Ann, and lay there waiting for said Mary Ann to be ■raised so that she could be towed into the harbor; . . . that the said William D. Nott and Clifford Belden run out from said tug to ■said scow all the lines they had on board said tug, and attached them to said scow, and attempted to haul her off from the ground on which she was then lying, and tow her into harbor; that they parted all their lines, and could not haul off said scow; . . . that on the parting of said lines, the men on board said Mary Ann and Helen and Eddy left said scows and'went ashore, and the said tug returned into said harbor, the wind then blowing a gale, the said tug having remained out as long as it was safe or prudent for her to do, and as long as she was bound to do.”
    The answer denies specifically all that part of the contract set forth in the petition in relation to keeping up steam on the tug ■during the night, and to going out during the night upon notice and -request to render assistance; and avers that the wind was so strong and the lake so rough that the tug could not have *gone out during the night with safety to herself or the lives of the seamen; and concludes with a denial of all damage, etc.
    At the February term, 1855, of the common pleas, Johnson recovered a verdict and judgment against William D. Nott and Clifford Belden, for $1,800; and they appealed to the district court. At the October term, 1855, of the district court, the cause was again tried to a jury, who returned a verdict for $500 against the same defendants, who thereupon filed their motion to have judgment entered in their favor, notwithstanding the verdict, “ for tho reason that upon the statements contained in the pleadings in said action, the said defendants were entitled by law to a judgment in their favor.” This motion was heard and overruled, and judgment entered on the verdict.
    , To reverse this judgment, is the object of the proceedings in this court.

      Prentiss, Prentiss & Newton, for plaintiffs in error :
    The petition in this case does not disclose any cause of action.
    The pretended contract therein set up is void :
    1. For want of consideration. 2 Kent’s Com. (8 ed.) 594; Parsons on Contr. 374; Tucker v. Woods, 12 Johns. 190; Keep & Hale v. Goodrich, Ib. 397; Lester v. Jewett, 12 Barb. 502; Sykes v, Dixon, 1 Per. & Dav. 463; Chit, on Contr. 542; Whiting v. Sullivan. 7 Mass. 107; Dorsey v. Packwood, 12 How. 126; Mactier v. Frith, 6 Wend. 103; Thorne v. Deas, 4 Johns. 84.
    2. For want of certainty. Chit, on Contr. (6 Am. ed.) 72; Guthing v. Lynn, 2 Barn. & Adolph. 232; Cave v. Coleman, 3 Man. & Ry. 2; Nelson v. Von Bonnhorst, Am. Law Reg. vol. 6, Nos. 2 and 3.

      Paine & Wade, contra
   Sutliff, J.

The plaintiffs in error present for our consideration the single question: Ought the judgment of the district court, upon their motion in arrest of judgment, to have been entered in their favor ?

*The answer to this question depends, as suggested by counsel for plaintiffs in error, upon the question, whether the petition discloses any cause of action. If it does not, the motion should have been sustained. If it does, the motion was properly refused.

A cause of action may be so inartificially or defectively stated as to be insufficient, when objected to by demurrer, to authorize a judgment; and at the same time, if not so objected to, the defects may be so far cured in certain cases, by verdict, as to authorize a judgment upon the verdict. And whenever the defects are so cured by verdict, it is the duty of the court to enter the judgment accordingly. The general rule is, that while a defective title is never cured by verdict, a good title defectively stated may be. A legal cause of action substantially set forth, although so inartificially stated as to be bad, if specially objected to by demurrer, is sufficient after verdict, and a judgment rendered thereon is good. Tidd’s Prac. 928; 2 Mass. 521; 3 Ib. 160; 23 Vt. 656.

The plaintiffs in error, defendants below, not only did not object by demurrer to the sufficiency of the statement of the contract set up in the petition, but filed an answer, instead of a demurrer, to the petition, and in that answer set forth a contract in many respects similar in its terms to the one stated in the petition. They also admit that they entered upon the performance of the contract, and were to receive five dollars per hour for the service through the day, while rendering service. They however deny that they agreed to continue to render services as wanted through the night, as stated in the petition.

Indeed, there seems to have been no denial, on the part of the plaintiffs in error, that a contract was made by the parties, until after final verdict in the district court. But this can not supersede the necessity that the petition should disclose a cause of action.

The question presented to us is not whether a cause of action is .properly set forth in the petition, but simply whether it discloses substantially the existence of a cause of action.

The general rule that “ a verdict will aid a good title defectively *set out, but not a defective title,” requires all reasonable presumptions in favor and support of the verdict.

Under the application of this common-law rule of practice the courts have long held that where the pleadings disclose a cause of action substantially stated, defects, imperfections, and omissions in pleading, either in substance or form, which might have been fatal on demurrer, are usually cured by verdict. “ Such defect is not any jeofail after verdict.” 1 Sand. 228, note 1; Tidd’s Pr. 918, 919; Sell. Pr.; Maxfield v. Johnson, 2 Ohio. 204.

Indeed it has been well remarked that there are but few errors that can be taken advantage of by motion in arrest of judgment y as, in order to sustain such a motion, it must appear from the declaration or petition that .the plaintiff has no cause of action stated and not merely that his cause of action is defectively stated.

The principal objection urged by plaintiffs in error against the sufficiency of the cause of action disclosed by the petition, is the want of a proper statement of the consideration. As already remarked, such a defect, if it really existed in the statement of a cause of action substantially set forth, could not be taken advantage of by motion, in arrest of judgment after verdict. It should have been met by demurrer.

But is it true that a sufficient consideration is not well stated in the petition ?

A consideration may be a valuable one — that is, one that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made ; or it may consist in a mutual concurrent promise. And a promise made on such a consideration can not be regarded as nudum pactum, and void for want of consideration. 1 Parsons on Contr. 373, and cases there cited.

The petition contains the averment that the “ plaintiff entered into a contract with the defendants, by which the plaintiff promised and agreed to pay the defendants five dollars per hour, etc., for the use of their said steam-tug during the night, should the plaintiff need the same, and the defendants, in consideration of this promise *of the plaintiff, promised and agreed, if the plaintiff would remain out'with said scows Helen and Eddy, and continue to labor at said Mary Ann, that they, the defendants, would return to the harbor with said steam-tug, and would there remain with her and beep up the steam on said tug during the night; and if ■ the wind should change so as to'endanger said scows Helen and Eddy, they, the defendants, would, if called on by plaintiff, come out of the harbor with said tug and tow said scows, as well as the said Mary Ann (should she be afloat), into the harbor; and that upon the faith of said agreement, ■ ... he contracted with the owners of said scows for said scows to remain outside, and not to return to the harbor, and the plaintiff agreed to pay all damages which might happen said vessels by so remaining out of harbor.”

The petition does then aver that, in consideration of the remuneration to be made by the plaintiff, the defendants promised, upon plaintiff remaining out of harbor with said scows Helen and Eddy, and continue to labor to get the Mary Anm afloat, that they would return into harbor with their tug; would there remain and beep up steam during the night; and if at any time during the night the wind should change, they, on notice, would come out of harbor and tow in the two scows, and the other, if afloat. Here, then, a mutual concurrent promise, which we have seen is a good consideration for a promise, is clearly set forth in the petition, as a consider.ation for the promise which the defendants are charged with having .made and disregarded.

The petition also sets forth a further consideration, and one which falls, obviously, under the definition of a valuable consideration. It is charged that, in consideration of the promise of remuneration so made them by plaintiff, the defendants “ promised and agreed ” if the plaintiff would remain out with said scows and continue to labor -at said Mary Ann, that they, the defendants, would return into harbor, and keep themselves in readiness, whenever requested during the night, to render the requisite assistance with their steam-tug to rescue said scows from the danger consequent upon their being so kept out of harbor by the plaintiff in order to increase the defend■ants’ chances to receive *their proposed remuneration; and the petition distinctly avers that upon the faith of the agreement so made with defendants, he contracted with the owners of said scows for them to remain out, and agreed to pay all damages which might happen to them in so remaining out. Here, then, is the averment of a valuable consideration to support the promise of defendants, to keep themselves in readiness to run out of the harboi* with the tug and tow in the scows. The petition sets forth a prejudice to the party to whom the promise of defendants .was made; that the plaintiff, at their request, and for their advantage, in order to increase the chances of getting the Mary Ann afloat, and thereby insuring defendants their remuneration, did hire the scows to remain out of harbor at his risk. And this risk of damage so assumed by plaintiff at request of defendants, and as part of the condition and consideration of their promise to keep their steam-tug in readiness to afford immediate relief, doubtless would not 'have been assumed by the plaintiff had he not relied with confidence upon the promise of defendants.

The petition also states the full performance, on the part of plaintiff, and the actual occurrence of all the conditions to make the promise of defendants, to go out of the harbor and tow in the scows, absolute and obligatory. The petition states the remaining out of the scows, the fact of their succeeding in getting the Mary Ann afloat, the change of wind endangering the scows, and that the plaintiff called upon the engineer on board the steam-tug, and gave the requisite notice and request for the promised assistance of defendants.

By fulfilling their promise, and rendering the assistance which they had contracted to do, according to the statements of the petition, the defendants would not only have secured to themselves the liberal remuneration stipulated for in their contract, but would doubtless have saved the plaintiff from the damage which he complains of having sustained by reason of their delinquency.

But whatever may be said as to the sufficiency or insufficiency of the form of stating the cause of action, if the same had been met by a special demurrer, there can be no doubt that the petition *discloses a good cause of action, substantially set forth, and that the motion in arrest of judgment was properly overruled.

Judgment affirmed.

Bartley, C. J., and Swan, Brinkerhofe, and Scott, JJ., concurred.


author: Brinkerhoff, J.

text:
    The Ohio and Indiana Railroad Company v. The Commissioners of Wyandot County.
    The court will not, by mandamus, compel a party to do what, by a subsisting decree or injunction, lie is prohibited from doing, although the party seeking the remedy by mandamus is not a party to the decree of injunction.
    Motion for a peremptory mandamus.

      U. Stanbery and J. D. Sears, for the motion.
    P. JB. Wilcox, contra.
   Brinkerhoff, J.

By the terms of the fourth section of the act of March 20, 1850, “ to incorporate the Ohio and Indiana Railroad Company,” it is provided, “that the county commissioners of any county through which said railroad may be located, by and with the consent of a majority of the legal voters of such county, to be expressed as hereinafter provided, be and they are hereby authorized and required to subscribe, in the name and for the benefit of such county, to the capital stock of said company, any sum not exceeding one hundi’ed thousand dollars.” 48 Ohio L. L. 297. The twelfth section of the act prescribes the manner in which a vote on the question of “ railroad subscription,” or “ no railroad subscription,” shall be taken.

An alternative writ has been issued in this case, setting forth, in behalf of the said railroad company, that at the fall election of 1850, a vote of the electors of "Wyandot county was regularly *taken, in pursuance of the twelfth section of said act, on the proposition to subscribe fifty thousand dollars to the stock of said company; that a majority of the legal voters of said county voted in favor of such subscription; that the plaintiff is interested in having such subscription made, and has, through its authorized agent, requested the commissioners of said county to make such subscription, but that they have neglected and refused so to do; and commanding them to make such subscription, or to show cause why, etc.

The county commissioners, in their return and answer to the alternative writ, allege, in substance:

1. That said company has no such interest in the subject-matter as entitles them to enforce such subscription.

2. That at the time the vote was taken, said company had not located its road.

3. That said company had procured said vote by fraudulent practices and devices.

4. Because, on the 4th day of November, 1850, John Carey and fifteen other citizens, residents, land-owners and tax-payers of said county, filed a bill in chancery, in the common pleas of said county, against the commissioners thereof, charging, among other things, fraud in obtaining votes on said .subscription; that said commissioners answered said bill, and that such proceedings were thereupon had, that, at the December term of the Supreme Court, 1853, a final decree was rendered, whereby the commissioners of said county were absolutely and perpetually enjoined from making such subscription to the capital stock of said company; and that said decree remains in full force.

The relator now moves the court for a peremptory mandamus. By a reference to our own records, we find this fourth cause alleged to be true in point of fact. Such injunction exists, and is in full force. If the existence of this injunction be a sufficient cause in law why a peremptory mandamus should not issue, the motion must be overruled; and we therefore pass over the first, second and third causes alleged in the answer, without expressing any opinion in respect to them.

*We are of opinion that the fourth cause alleged in the answer is sufficient in law.

It is true, the Ohio and Indiana Railroad Company was not a party to the proceeding in chancery in which the decree of injunction was rendered, and that decree does not, therefore, bind or conclude the company by any of its findings; but it does nevertheless have the effect, while it exists in full force, to preclude the company from having the peculiar remedy which it now here seeks. If we were to award the peremptory writ of mandamus, we should command the commissioners of Wyandot county to do the very act which, by our decree of injunction in full force, they are forbidden to do. The idea of such inconsistency is wholly inadmissible. If the peremptory writ of mandamus were to issue, and the defendants failed to obey it, they would be liable to process for contempt; while, on the other hand, if they obeyed it, they would be equally in contempt for disobedience to the decree of injunction. Even where the order or decree of injunction is made by a court of competent jurisdiction other than that in which the mandamus is sought, the latter will not thus place a party between two fires, by subjecting him to contradictory orders. Ex parte Fleming, 4 Hill, 581. Whether there be any way in which the Ohio and Indiana Railroad Company can get rid of the decree of injunction, is a question not before us. As to that, it is at liberty to proceed as it may be advised; but we are clear that it can not be done collaterally in this proceeding.

Motion overruled.

Swan and Sutliee, J. J., concurred.

Bartley, C. J., and Scott, J., having been of counsel in matters connected with the case, did not sit in its hearing.


author: J. R. Swan, J.

text:
    *Henry Miser v. John Trovinger’s Executors.
    The drawer of a bill, who has no assets in the hands of the drawee, and has ne reason to expect that the drawee will be provided with funds to pay the bill, or will pay it, is a fraudulent drawer, and is not entitled to notice of nonpayment,

      Accommodation drawers, who unite as drawers with the person for whose accommodation they draw, are entitled to notice of non-payment if they had reason to expect their principal would provide funds to meet the bill.
    Notice of non-payment, or what is tantamount to notice, to one joint drawer, is not to be deemed notice to the other drawers, unless all are partners.
    Assumpsit. Demurrer to plea.
    Reserved in the district court of Perry county.
    The declaration is on a bill of exchange for $3,150, drawn at Thornville, Ohio, December 28, 1849, by Trovinger (defendants’ testator), Culbertson, Eisher, and Good, on Babcock & Co., New York city, payable to the order of Culbertson, five months after date, acceptance waived, and indorsed by Culbertson to Smith, and by him to plaintiff. The averments are of demand and non-payment at maturity, and that the drawers had not, either jointly or severally, at any time before or at the time the bill became due and was presented for payment, any effects in the hands of the drawee; and that there was no consideration for drawing the bill, or for accepting or paying it, or any part of it, by the drawee ; and that neither have the defendants, as executors, nor their testator, sustained any damage by reason of not having notice of the nonpayment of the bill by the drawee.
    Plea — That the bill declared on was an accommodation bill, made for the exclusive accommodation of Culbertson ; that all the drawers, other than Culbertson, were his sureties and accommodation drawers; that at the time of their so drawing, he agreed with them to look after the bill and take it up at maturity; that Smith discounted the bill with notice of these facts; that Culbertson, at the maturity of the bill, informed them that it had been taken up; that Culbertson was solvent until long after the maturity *of the bill; that they supposed it had been paid, until on or about December 1,1851, when Culbertson became, and has ever since remained, insolvent; and that Smith was the holder of the bill until long after its maturity, when it was indorsed to plaintiff.
    To this plea there is a general demurrer.

      Hunter & Daugherty, for plaintiff,
    made the following points :
    1 Drawers of bills of exchange, whether inland or foreign, who have no effects in the hands of the drawee at the time of the drawing, or between that and the maturity of the bill; and who have no other reason for supposing that the bill will be honored, are not entitled to notice of non-aceeptance or non-payment, because they are fraudulent drawers. Brickerdike v. Bollman, 1 Term, 405; Rogers v. Stephens, 2 Ib. 713; Legge v. Thorpe, 12 East, 171; Walwyn v. St. Juintin, 1 Boss & Pull. 652; French’s Ex’rs v. Bank of Columbia, 4 Cranch, 141; Dickens v. Beal, 10 Pet. 571.
    2. The contract of two or more drawers of a bill of exchange is joint. This is so, although some of the drawers may be principals and others their sureties, or accommodation parties. And the rule, that want of effects in the hands of the drawee dispenses with notice to the drawers of non-payment, can not be restricted by any relation of priDcipal and surety among them, they being but one party to the bill, as to all other parties to it, and the injury of which the drawers can properly complain resulting from want of notice, being only that which is the necessary legal consequence of the position of the parties on the paper, and not growing out of other facts not apparent on its face. French’s Ex’rs v. Bank of Columbia, 4 Cranch, 141.
    3. If notice of non-payment is not fully dispensed with upon the facts admitted in the pleadings, we then contend that, as Culbertson, one of the joint drawers, was “ to look after and take up the bill at maturity,” and did not do it, and, of course, had notice of his own .default, and is in law, upon the facts of the case, charge, able as drawer, all the other drawers are, by reason of the joint character of their contract, likewise bound.
    “ Where the parties are jointly liable on the bill, notice to one *is sufficient.” Byles on Bills, 356, and cases there cited. In the case of partners, notice to one is notice to all. This is because they are jointly, and not severally liable. The same consequences result in cases of other contractors wh.o bind themselves jointly, and not jointly and severally.
    4. The averments of the plea, that Smith knew that the bill was drawn for the accommodation of Culbertson, and that he had agreed with his co-drawers to look after the bill and take it up at maturity, do not change the case.
    The drawers engaged jointly to pay the bill at maturity. Culbertson’s co-drawers knew that they had no funds in the'hands of the drawee. But if it were legally competent to treat the drawers as several and not joint contractors, and if Culbertson’s co-drawers might have reasonably expected that he would, in pursuance of his agreement with them, take up the bill at maturity, this would not entitle them to notice of its dishonor, because the payee is not, in law, bound to take notice of such agreements and expectations. And moreover, Culbertson’s agreement with his co-drawers “to look after the bill and take it up at maturity,” was tantamount to notice to them from the beginning that the bill would be dishonored by the drawee.

      L. Oase for defendants, insisted:
    1. That where all the drawers are mere accommodation parties, whether for the accommodation of a drawee, indorser, indorsee, holder,'or acceptor, where such drawers have a right or reason to expect that such person for whose use and benefit they became parties, will provide for the bill at maturity, or in default of such party doing so, that the drawers have a right so to do for their own protection, and then to sue such defaulting party for indemnity ; then, in such case, he who is holder at maturity, is bound to make due demand and give due notice to all the drawers, or they are discharged.
    2. That in the case of joint indorsers, all being accommodation indorsers, whether for the accommodation of any other party to the bill, or a mere outside holder, if they have reason or a right to expect the person for whose use they became parties to *the bill, will provide for it at maturity, and in default thereof, that they have the right to do so, and then sue such defaulting party for indemnity, he who is holder at maturity, must make demand and give due notice to all such indoi'sers, or they are discharged.
    3. That in case where all the drawers, or all the indorsers, are parties to the bill for their own accommodation, and have no right to expect any other person, on the bill or outside of it, to provide for it at maturity, and where they have no interests or rights whatever which may be prejudiced by not having notice of demand and non-payment, in such case the drawing and leaving the bill unpaid is a fraud, and notice is .unnecessary, because it can do no good, and the law does not require an unnecessary act.
    4. But where the party for whose accommodation the bill is eithet’ drawn or indorsed, is himself either a joint drawer or a joint indorser with his accommodation -drawers or indorsers, he is not in the reason of the rule requiring notice, but the others are within the reason of it, and he need not, but they must have notice.
    The following authorities are cited in connection with the foregoing propositions: Story on Bills, sec. 377; 17 Wend. 101; 3 Kent’s Com. (7 ed.) 105, 110; Lafitto v. Slatter, 6 Bing. 623; 2 Smith’s Lead. Cas. (4 Am. ed.) 54, 56, 57; 4 Cranch, 155, 156; Chit. on Bills (10 Am. ed.), 435, 436, 438, citing Brown v. Muffey, 15 East, 214; 3 B. & Al. 619; 8 B. & C. 610.
    “ When there are several persons, who are' joint drawers or indorsers, entitled to notice, who are not partners, each is entitled to notice. Where they are partners', notice to either of the partners will suffice.” Story on Bills, sec. 299; Story on Prom. Notes, see. 329; Bailey on Bills, 285; State Bank v. Slaughter, 7 Blackf. 133; Shepard v. Hawley, 1 Conn. 368; Willis v. Green, 5 Hill (N. Y.), 232; Union Bank v. Willis, 8 Met. 504; Sayre v. Frick, 7 Watts & Serg. 283; 3 Kent’s Com. (8 ed.) 135, note b and 3; 4 Smedes & Marsh. 749; 1 Harrison (N. J.), 429.
    The case of Harris v. Clark, 10 Ohio, 5, does not stand in the way of this doctrine. This decision is an innovation upon the law merchant, standing unsupported by any authority, but *in the face of high authority. Vide Shepard v. Hawley, 1 Conn. 368, and Union Bank v. Willis, 8 Met. 504.
    As to partners, notice to one is notice to all, because each is the agent of all, and notice to an agent is notice to the principal. But as to joint contractors not partners, one is not the agent of the ethers, and therefore the rule, that notice to one is notice to all, does not apply, but each has several rights.
    The fact that Smith knew at the time of acquiring the bill that Culbertson was principal, and that the other drawers were his sureties, does affect Smith as to his rights against the drawers. Griffith et al. v. Reed and Dixon, 21 Wend. 502; Suydam et al. v. Westfall, 4 Hill, 211; 2 Smith’s Lead. Cas. in Eq., (pt. 2) 385; 2 Am. Lead. Cas. 304; 6 Ohio, 17. The bad faith of Culbertson, which excuses notice to him, does not dispense with notice to the other drawers who drew in good faith. Fraud affects only the party to it. 2 Smith’s Lead. Cas. 58; Cory v. Scott, 3 B. & Al. 619; 21 Wend. 507. Accommodation drawers must have notice of non-payment, although they know the drawee will not pay the bill, provided they expect another person to pay it. 6 Bing. 623; 2 Smith’s Lead. Cas., (4 Am. ed.), 54; 4 Cranch, 155, 156; Chit, on Bills (10 Am. ed.), 438, and cases there cited.
   J. R. Swan, J.

The contract of a drawer is, that he will pay the hill, provided it be duly presented and payment duly demanded of ’ the drawee, and in the event of non-payment, he be duly notified thereof. These are, in general, conditions precedent to the liability of the drawer.

This general rule is not denied; but the plaintiff claims that the drawers in the case at bar were placed beyond the operation of this rule, and were not entitled to notice of non-payment of the bill.

It is conceded on both sides, that there were no funds in the hands of the drawee. 'The fact of drawing without funds, in the absence of .other proof to explain it, is a fraud; for the bill is negotiated under the faith that the drawer has or will place effects in the hands of the drawee to meet the bill; and if he had *no

effects in the hands of the drawee, and knew that none would be placed there, and that the drawee would not meet the bill, the whole transaction is deemed fraudulent on the part of the drawer. Another, but subordinate reason is given for this exception, that the drawer can not, in such case, be in any way injured for want of notice of non-payment. But it is the fraud in drawing and delivering such a bill,-upon which the exception substantially rests; for bankruptcy or notorious insolvency of the drawee, or proof that in fact no injury resulted from, want of notice, will not excuse the holder from giving the drawer notice. Notice, therefore, under this exception, is to be dispensed with in those cases where the drawer had no reason to expect, when he drew the bill, that it would be-paid. Thus, in the case of Rucker v. Hiller, 16 East, 43, it was laid; down, that the drawer is entitled to notice, if he have reasonable ground to expect the bill will be paid, although he have no assets in the acceptor’s hands. So, in the case of Lafitte v. Slatter (6 Bing. 623), 19 Eng. C. L. 180, in which the defendant drew a bill on one Tebbs, under the expectation that a third person, not a party to the bill, who owed him, would provide funds for its payment, but neglected to do so, it was held that the defendant was entitled to notice of non-payment. Indeed, the rule is too well settled both by English and American cases to admit of question, that if the drawer has reasonable grounds to expect that the drawee will receive, through the transactions of the drawer, or from some one else, funds to meet the bill, although the drawer had no assets in the hands of the drawee, the drawer is, notwithstanding, entitled to notice of non-payment. 2 Smith’s Lead. Cas., Wallace & Hare’s notes, 55.

The bill in the case at bar, was an accommodation bill, made for the exclusive accommodation of Culbertson, and all the drawers other than Culbertson were his accommodation drawers; and they expected Culbertson to provide funds to meet the bill.

Now, unless there be something in the fact that the drawers were joint drawers with Culbertson, we can perceive no difference in principle between their situation than any other drawers who in good faith draw a bill, under the expectation and belief *that the same will be met by some third person, as in the case of Lafitte v. Slatter, above cited. There is no fraud; and whether Culbertson had made himself a party to the bill or not, if it was in fact drawn for his accommodation, they had a right to look to him as the person who would see that funds were placed in the hands of the drawee to meet the bill at maturity; and if not met, they were entitled to notice so as to have had an opportunity immediately to take up the bill and proceed against Culbertson.

It is true, that if Culbertson had been the sole drawer of this bill, without assets in hand or any expected, no notice to him would have, been necessary. And such seems to have been his position and relation to the holder of this bill, so that no notice was necessary to him, and he may be treated as having notice of the dishonor of this bill. Such being the situation of Culbertson, it is claimed, that inasmuch as Culbertson and his accommodation •drawers forms but one party to the bill, being joint drawers, no relation or rights between them, not growing out of the face of the paper, can be set up as ground for requiring notice of non-payment and all being but one party, notice to one is notice to all; and if notice is not necessary to one, it is not to the others.

But it is not true that the right to notice uniformly depends upon the fact whether the party is entitled to a remedy over on the bill itself, against another party to the bill. The drawer of a bill never has any remedy over on the bill itself, unless it has been actually accepted-; and if presented for payment at maturity, he is entitled to notice of its dishonor. An accommodation indorser is, in general, entitled to notice, although the bill was drawn without funds, and the party for whose accommodation he indorsed is a subsequent indorser, and consequently not liable to accommodation indorser on the face of the bill. Brown et al. v. Maffey, 15 East, 216.

Notice to Culbertson, the drawers not being partners, would not not be notice to the other joint drawers. 3 Kent Com. (8 ed.) 135, notes b and 3; 4 Smedes & Marsh. 749; Story on Bills, sec. 299. Notice to one partner is notice to all, because each is tbe agent of all; and notice to an agent is notice to the principal. *Mere joint drawers are not agents of each other in respect to notice.

But the fraud of Culbertson, in drawing without the expectation of meeting the bill, would not, we think, be tantamount to notice to his co-drawers, they drawing for his accommodation, under the belief that he would meet the bill.

In the case of Harris v. Clark, 10 Ohio, 5, it was held, that a demand upon one of two or more makers of a joint and several note was sufficient to charge an indorser. The presentation of a note for payment to two or more makers of a joint and several note, on the third day of grace, especially where the makers reside at a distance from each other, is attended with embarrassments which do not arise on the giving of notice of non-payment; and in holding that notice to one of two or more joint drawers or indorsers, not partners, can not be deemed notice to all, we do not touch the question decided in Harris v. Clark.

Demurrer overruled.

Bartley, C. J., and Brinkerhoee, Scott, and Sutliee, JJ., concurred.


text:
    Joseph S. Wood v. The Lessee of William Ferguson et al.
    A patent for land issuing from the government of the United States, in the name of a deceased person, is void, and the title to the land designated in the.patent remains in the government.
    Where an act of Congress is subsequently passed, providing that, in each case, the title to the land “ shall inure to and become vested in the heirs, devisees, or assignees of such deceased patentee, as if the patent had issued to the deceased person during his life,” the title does not by relation so vest in the heirs of the deceased patentee that the statute of limitations will run against such heirs prior to the time of the passage of the curative act.
    Where twenty-one years have not elapsed subsequently to the passage of the curative act, such heirs are within neither the letter nor the policy of the statute of limitations.
    Error to the district court of Guernsey county.
    *The ease is stated in the opinion of the court.

      IV". Evans, for plaintiff in error,
    cited Adams on Eject. 47; 18 Viner’s Abridg. 290; 1 Johns. Cas. 81; 3 Cowen, 75; 12 Johns. 140; 8 Ohio, 87; 11 Ohio, 235.

      B. 8. Cowen, for defendant in error,
    cited Price v. Johnston, 1 Ohio St. 390; Blanchard on Stat. Lim., 1 Law Lib. 209; 5 Am. Com. Law, 93, 89, note; Carver v. Jackson, Pet. 83; 1 Phil, on Ev. 322-324; 3 Ib. 1236.
   Brinkerhoff, J.

This was an action of ejectment, brought by

the defendants in error, against the plaintiff in error, in the common pleas of Guernsey county, and appealed from thence to the district court of that county, where the plaintiffs helow had a ver • diet and judgment, to reverse which this petition in error is prosecuted.

From the record, there appears the following state of facts:

Frederick Vernon, being entitled to land from the government of the United States for revolutionary services, died in 1795, or 1796. Six or seven years after his death — to wit, in 1802, a patent for the land in controversy was issued from the United States in his name. On the 20th of May, 1836, an act of Congress was-passed, providing that, “ in all cases where patents for public lands have been, or may hereafter be issued, in pursuance of any law of the United States, to a person who had died, or who shall hereafter die, before the date of such patent, the title to the land designated therein shall inure to and become vested in the heirs, devisees, or assignees of such deceased patentee, as if the patent had issued to the deceased person during his life.” U. S. Land Laws (part 1), 540.

In 1848, the heirs of Frederick Vernon, deceased, conveyed to-the lessors of the plaintiff below, and in 1849, they commenced the action below. It does not appear that Vernon or his heirs were ever in actual possession of the land in controversy. Such is the title of the plaintiffs below.

The defendant below gave in evidence, but solely for the purpose *of showing the nature and extent of his possession and claim, a tax deed executed in 1824, to one McCullough, under whom he claims, and proved a continuous actual possession of the land by himself and his grantors from thence until the commencement of the suit, being more than twenty-one years, and relies upon the «statute of limitations.

It is clear that the patent which, in 1802, issued in the name of Frederick Yernon, was a nullity. “To enable the government or any individual to grant any title or interest, either legal or equitable, the person designated in the conveyance must be in esse to fake. The one can not lose the title or interest until the other takes it; which is impossible where the grantee is dead.” Price v. Johnson, 1 Ohio St. 397. Until the act of Congress of May 20, 1836, gave vitality and operation to the patent, the title to the land in controversy remained in the government of the United States; and up to that date the heirs of Yernon had no actual possession, ■and no title on the basis of which they could obtain possession. And from that time until the commencement of the suit below, ■twenty-one years had not elapsed. The statute of limitations could not run against the government; nor could the land, while both the legal and equitable title remained in the government, be legally •subjected to taxation and sale for taxes. And the record does not show that any equitable title to this land ever passed from the government to Frederick Yernon, in his lifetime.

It is contended, on the part of the plaintiff in error, however, that by the provisions of the act of Congress referred to, and also by the principles of the common law applicable to like cases, the patent, having been vitalized by the act of Congress, must be held to relate back and take effect from the time of its date and issue, in such manner as to subject the land designated in it to the operation of the statute of limitations after the date of the patent, and before the passage of the act 'of Congress, as well as afterward.

We are unable to concur in this view of the case, for the following reasons:

1. Such could never have been the intention of Congress, in ^the passage of the act, and would be contrary to its policy. That policy was to benefit the heirs of persons to whom grants of land had been due, and to whom such grants had been attempted to be made, and not to mock them with an act pretending to legalize such attempted grants, while subjecting the lands granted to arbitrary forfeitures, which no degree of diligence on the part of the heirs could avert. Let us look for a moment at the consequences •of the doctrine contended for by the plaintiff in error. The patent was issued and dated in 1802. Suppose now that the plaintiff in error, or those under whom he claims, had taken possession of this land in 1803.' From that time until 1836, when the act of Congress giving vitality to the patent was passed, is thirty-three years and thus, if the doctrine for which the plaintiff in error contends is to prevail, it is apparent that the heirs of Yernon would have been barred by the statute of limitations twelve years before they had a title on which they could maintain an action for the recovery of this land.

2. The common-law doctrine of relation does not properly apply to this case. The doctrine itself is but a legal fiction, and, like other legal fictions, was invented to enable courts to arrive at conclusions which would-do justice, and at the same time preserve the semblance of logical consistency. They were invented for the advancement of justice, and will be applied for no other purpose. Case v. De Goes et al., 3 Caines, 262, 263; Jackson v. Bard, 4 Johns. 234. While, therefore, had the heirs of Yernon assigned their claim te this land prior to the passage of the act of 1836, the doctrine of relation might be applied, in favor of the assignee, to save his rights and do justice; yet it ought not to be so applied as to deprive those heirs of all benefit from the bounty or the justice of the government, when they have been guilty of no laches of which the law takes notice. We know of no exception to the rule, that where a legal fiction would work injustice, courts will refuse to recognize it. “In fictione juris semper aequitas existit.” Broom’s Legal Maxims, 90, et seq.

3. The defendant below did not make a case which comes within the letter of the statute of limitations. The tenor of that statute is to the effect, that actions of ejectment, etc., shall be ^brought within twenty-one years “ after the cause of such action shall have accrued.” Now, as no cause of action had accrued to the heirs of Yernon until after the act of Congress gave effect to the patent which was previously void, and as they commenced their action within twenty-one years thereafter, it is plain that the letter of the statute does not bar them. Nor,

4. Does its reason or policy. Statutes of limitations proceed on the presumption, from lapse of time, of a release of rights, or the presumption of their abandonment from laches; and hence they carefully except from their operation persons under disability. And neither the presumption of release nor abandonment can arise against persons who, for want of legal right, conld be guilty of no laches, and to whom no degree of vigilance or diligence could be of any avail.

Judgment affirmed.

Bartley, C. J., and Swan, Scott, and Sutlikf, JJ., concurred.


author: Scott, J.

text:
    The Fraternal Mutual Life Insurance Company v. Henrietta Applegate.
    Where A., acting as the agent of his wife, takes out in her name and for her sole use, a policy of insurance on his life, from a company whose charter makes such policy the exclusive property of the wife, and exempts its proceeds from liability for the husband’s debts, the wife is, as to such policy, to be regarded as a feme sole.

    Where, in such a case, representations in regard to the condition of his health are made by the- husband, in his application for the policy, which, by the terms of the policy, are made part thereof, the subsequent declarations of the husband, made pending his unauthorized negotiations for the surrender of the policy, and tending to show the false or fraudulent character of the representations upon which the policy issued, are not competent evidence in a suit brought by the wife upon the policy after the husband’s death.
    In error to the Superior Court of Cincinnati.
    *This action was originally brought by the defendant in error upon a life-policy, dated June 7, 1851, procured by Henry S. Applegate, in the name, and for the sole use and benefit of, his wife, the said defendant in error, at the office of the plaintiff in error, for $2,000.'
    The application was signed “Henrietta Applegate, per H. S. Applegate,” and contained answers to numerous interrogatories, which, by the terms of the policy, were made part thereof. One of these answers, so made by H. S. Applegate, states that he “ had not since birth been afflicted with consumption, or any other disease of the lungs, spitting of blood, habitual cough,” etc., “or any other disease tending to shorten life.” The declaration contains two counts in covenant, in the ordinary form, making profert of the policy. The defendant set out, upon oyer, the policy, and the application containing the interrogatories and answers, and filed eight pleas. ‘ •
    The first plea was non est factum; the next four set up misrepresentation and false allegations in the application, as to the health of the said Henry S. Applegate, and as to the spitting of blood; and were traversed by replication.
    The sixth plea alleged that the deceased procured the policy in the name of his wife, and surrendered it afterward to the company, in consideration of the supposed misrepresentation, and the issuing of a new policy upon his life, dated June 21, 1852, for the benefit of his representatives, for five hundred dollars, without premium. To this plea the plaintiff below demurred, and the court sustained the demurrer.
    The seventh plea averred that H. S. Applegate, with the consent of the defendant in error, surrendered the policy sued on, an d took out a new one for $500, which she accepted.
    In the eighth plea this surrender of the policy, and the acceptance of another for $500 in lieu thereof, are stated as the acts of the defendant in error.
    These last two pleas were traversed by replication.
    The issues of fact thus made presented two grounds of defense : 1. That the application whereon the policy issued was untrue; 2.
    *That the policy was surrendered and a new one taken in lieu thereof by Mrs. Applegate.
    At the trial below the plaintiff in error offered in evidence certain statements of Henry S. Applegate, made more than a year after the date of the policy sued on, in regard to his having spit blood before he made the answer on that subject contained in the application for the policy. The court refused to permit evidence of these statements and admissions to be given for the purpose of establishing the condition of his health before the policy was issued, and the plaintiff in error excepted.
    The court below tried the case on submission, and found all the issues in favor of Mrs. Applegate. The plaintiff in error moved for a new trial. The motion was overruled, and judgment entered. This judgment was affirmed on error at the general term of the Superior Court. To reverse the judgment of affirmance is the object of the present petition in error.
    It is assigned for error that the court below sustained the demurrer to the sixth plea — rejected the evidence of Henry S. Applegate’s statements, mentioned above — found the issues in favor of the defendant in error, and refused a new trial.

      Taft & Perry, for plaintiff in error argued :
    I. That the original policy was surrendered for a valuable consideration, and that that surrender was binding on the parties. 2 Story’s Eq., secs. 1378, 1380, 1388, 1382, 1390, 1389, 1392, and subsequent sections to sec. 1402; 2 Roper H. & W. 182, chap. 19, sec. 2; 2 Ves. 75, 610, 612, 191; 11 Ves. 220, 221; 18 Ves. 435, 436; 17 Johns. 548; 1 Johns. Ch. 450, 350; 4 Barb. 407, 546.
    II. That the original policy was void for the reason that Henry S. Applegate had been afflicted with “ spitting of blood ’’ — a disease ■tending to shorten life — before the policy was issued, contrary to his statements and the statements contained in the application of his wife; and that his declarations upon that subject, which the ■court below ruled out, were competent, because:
    1. They were the declarations of the person who best knew the facts of the case, if he is not to he considered the only person who •*could absolutely know them. The declaration of a member of a family on a question of pedigree (1 Greenl. Ev. sec. 109-123), of a former owner of real estate, made while owner (7 Conn. 319; 4 Ind. 230; 3 Rawle, 437; 4 S. & R. 174; 6 Watts, 388), stand on reasons not so strong as the declarations of a party as to his own health.
    The statements of patients to their physicians are taken as competent evidence on the subject of their health, because they best know the facts. Aveson v. Lord Kinnaird, 6 East, 188; 1 Greenl. Ev., secs. 109, 123; Ang. F. & L. Ins., sec. 315.
    2. They are declarations of the man upon whose statements the policy was issued, and the falsehood of which was, by its express terms, to make void the policy. Aveson v. Lord Kinnaird, 6 East, 188.

      Kebler & Force, for defendant in error, insisted:
    1. That the policy which her husband attempted to surrender was her separate property beyond his or his creditors’ reach, and that the attempted surrender was void. Swan’s Rev. Stat. 480; 49 Ohio L. 220.
    2. The husband’s declarations, which the court rejected, were not competent for the purpose for which they were offered.

      The fact that he was dead could not make them competent. Lund v. Tyngsborough, 9 Cush. 36.
    They were not admissions against interest; for they concerned his wife’s separate property, in which'he had no interest whatever.
    They were not competent as declarations of an agent. Smith v. Bodfish, 39 Maine, 136; Burnham v. Ellis, Ib. 319; Franklin Bank v. Cooper, Ib. 542; Patton v. Meinsinger, 25 Penn. St. 393; Runk v. Ten Eyck, 4 Zabr. 756; Welch v. Johnson, 2 Sneed, 73; Cov. & Lex. R. R. v. Ingles, 15 B. Mon. 637; Balt. & Ohio R. R. v. Gallagher, 12 Gratt. 655.
    The admissions of a husband will not bind a feme covert as to her separate estate. Dawson v. Hall, 2 Gibson (Mich.), 390.
    They were not admissible on the ground of being declarations of a sick person; for declarations of a sick person are competent *only so far as they relate to his. condition at the time when the statements are made. Gardiner Peerage Case, note to Aveson v. Kinnaird, 6 East, 188; Lusk v. McDaniel, 13 Ired. 485; Eckles v. Bates, 26 Ala. 655; Allen v. Vancleave, 15 B. Mon. 236.
    The case of Aveson v. Kinnaird, 6 East, 188, is overruled in Stobart v. Dryden, 1 Mees. & W. 615.
   Scott, J.

The first question which arises in the case is: Did the court below err in sustaining the demurrer to the sixth plea ?

The general law in relation to life insurances taken for the benefit of wives, provides that “ it shall be lawful,for any married woman by herself, and in her own name,” etc., “ from her separate property, to cause to be insured for her sole use the life of her husband,” etc. Swan’s Stat. 480. By the eighth section of the act incorporating this company (49 Ohio L. 220), it is provided, “that policies of insurance may issue to any married woman in her name, or in the name of a third person, as trustee, to cause to be insured for her sole use the life of her husband; and in case of her surviving him, the amount shall be payable to her for her sole use and benefit, free from any claims of the creditors or representatives of her husband, provided the annual premium shall not exceed the sum of $150, unless paid from the private property of the wife.”

These provisions treat a married woman as a feme sole in respect to policies of insurance taken out in her name upon the life of her husband. Such policies become her separate property, and are placed beyond the reach of her husband or his creditors.

Henry S. Applegate had, therefore, no legal right to control.this policy, and the unauthorized surrender of it by him, as set up in the sixth plea, constituted no bar to the action; and the demurrer was, therefore, properly sustained.

It is shown by the record that the plaintiff in error, upon the trial in the court below, offered in evidence certain statements made by Henry S. Applegate to Doctor Yattier and several other witnesses, during the negotiation for the surrender of the policy, and the substitution of the $500 policy in its stead, which took *place more than a year after the issuing of the policy upon which suit was brought. This policy was issued June 7, 1851.

Mr. Applegate was taken with hemorrhage of the lungs in December following, from which he never fully recovered; and died of pulmonary consumption about the close of the year 1852. The statements offered in evidence consisted of admissions made by said Henry S. Applegate in relation to the condition of his health before the date of the policy sued upon; that he had spit blood before that time, and that his declaration upon that subject, contained in the application for the policy, was untrue.

Counsel for the defendant in error objected to the reception of these admissions by the court, “ for the purpose of establishing the condition of Henry Applegate’s health before the issuing of the policy; which said objection was sustained by the court, and thereupon the court refused to receive and consider the said declarations for the said purpose.” Was this ruling erroneous ?

There is no direct evidence in the case, that Applegate, in the surrender of his wife’s policy, or in the negotiations which preceded this arrangement, acted as the authorized agent of Mfs. Applegate. It is not shown that she had knowledge of the transaction at the time, or ratified it afterward. The surrender was made in writing by Henry S. Applegate, in his own name. He did not even profess, as in the taking out of the policy, to be acting as the agent of his wife. The transaction was manifestly against her interest, for the second policy was for but one-fourth the amount, of the former, and was for the benefit of other parties. Her assent can not, therefore, be presumed. The court below accordingly found, and as we think properly, in her favor, upon the issues presented by the seventh and eighth pleas.

The statements in question, then, are the declarations of a stranger, one who is neither a party to the suit, nor was, at the time of .making them, acting as the agent of a party. They are not the declarations of a sick person in relation to his condition at the time of making them; for they relate to transactions and a state of facts long past. They were not admissions against interest; for they could injuriously affect only his wife’s separate property. They were not the statements of one who had been a *witness on the trial, offered to impeach his credit; but were offered and excluded merely as proof of the facts claimed to have been thus stated. It may be true that these were the declarations of the person who best knew the facts of the case; but whatever weight this consideration might properly give to competent evidence, it can not remove the objection to its competency. Coming from the witnesses through whom it was offered, it was still mere hearsay. Nor do the declarations become competent because made by a person deceased, and who can not, therefore be produced as a witness upon the trial. This circumstance alone, however unfortunate for a party, will never convert hearsay into competent evidence.

And it can not be claimed, that from the mere relation of husband and wife, a feme covert is bound, in respect to her separate property, by the admissions or declarations of her husband. Indeed, I am not aware of any recognized rule in the law of evidence, under which such declarations can be held competent.

Counsel for plaintiff in error, rely mainly on the authority of Aveson v. Kinnaird, 6 East, 188.

The admissibility of the evidence in that case was placed upon grounds which do not exist in the case before us. The declarations there, were regarded as a species of cross-examination, and as statements made by a sick person in relation to the condition of her health at the time of making them. Besides, the authority of that case has not been acquiesced in; and the contrary doctrine was since held in Stobart v. Dryden, 1 Mees. & W. 615, where the question was considered both on principle and authority.

We think that the evidence, viewed in connection with the purpose for which it was offered, docs not fall within any established exception to the general rule in regard to hearsay, and was therefore properly excluded.

Discarding these admissions of the deceased, we have no doubt that the finding of the court below, upon the issues made by the first five pleas, was fully warranted by the evidence.

Judgment affirmed.

Bartley, C. J., and Swan, Brinicerhoff, and Sutliff, JJ., concurred.


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    *Dolittle & Chamberlain v. Edward McCullough.
    A written assignment of personal property from A to B, as agent, authorizing B to sell the property to C & D, at a price therein named, to be paid by them to the workmen and creditors of A, obtained by threats of personal violence by the workmen, was voidable on the part of A for duress.
    If A chose to avoid said assignment, it was incumbent upon him to do so, by notice to B and to C & D, when released from duress.
    Where, previous to notice of avoidance of the assignment for duress, C & D had in good faith, in accordance with the terms of the assignment, and at the request of the agent, purchased the property, and paid the price to the workmen for A’s benefit; upon the avoidance of said assignment, and action of trover brought by A against C & D, the payment to them so made to the workmen for A’s benefit, is admissible in evidence on the trial, in mitigation of damages.
    Where such evidence has been improperly excluded, but, pending the petition in error, A shows to this court that he has remitted from his judgment the amount of such payment and interest, the judgment will not be reversed for such error.
    Petition in error to reverse the judgment of the district court of Hamilton county.
    In December, 1850, McCullough brought an action of trover against Doolittle & Chamberlain, in the Superior Court of Cincinnati, to recover damages for an alleged conversion of various items of personal property claimed by McCullough to be his.
    Doolittle & Chamberlain pleaded the general issue to the declaration.
    At the April term, 1852, the case was tried to a jury, and McCullough obtained a verdict and judgment for $710.89 ; and Doolittle & Chamberlain appealed.
    At the October term, 1855, of the district court, the case was again tried by jury upon the same issue, and McCullough obtained

      a verdict for $847.87 : upon which, after hearing and overruling a motion made on behalf Doolittle & Chamberlain for a new trial, .the court entered judgment.
    From the bill of exception taken in the district court by the plaintiffs in error, the following facts appear:
    *The property in question consisted of two shanties and their furniture, tools, lumber, and other property, situated along the line, on sec. No. 7, of the Cincinnati, Hamilton & Dayton Railroad. McCullough was a sub-contractor under Doolittle & Chamberlain, and previous to November 20, 1850,'held and was using the property, in the construction of the work upon that section, for the accommodation of the workmen employed by him. In the prosecution of his job, McCullough became embarrassed and unable to pay his hands. They in consequence became dissatisfied, and some of them stopped work. McCullough proposed to Bates, the foreman and agent of Doolittle & Chamberlain, that they should buy the property in question, and from the proceeds pay the hands. At McCullough’s request, Bates went and viewed the property, and while viewing it, said to some of the hands who had quit work, and were threatening to sell the property for their pay, that nothing was remaining due to McCullough from Doolittle & Chamberlain, but that if McCullough would sell the property to them he believed there would be enough, and they would pay the hands.
    But after having examined the property, Bates valued it at only two hundred and fifty dollars, whereas McCullough had estimated it to be worth seven hundred dollars. The hands seem to have become apprehensive that the price fixed upon the property by Bates would be insufficient to pay them, and notwithstanding his informing them, at McCullough’s request, that the price of the property, if bought by Doolittle & Chamberlain, would be paid to the workmen, they seemed dissatisfied, became excited, and threatened personal violence to Bates, who soon left them. It was, however, agreed that McCullough should meet a committee to be sent by the hands the next day, at a place called the “ Eleven-Mile House,” to try and make some satisfactory arrangement for the payment of the amount due them.
    According to agreement, the next day McCullough repaired to the “ Eleven-Mile House,” and so did the committee; only it seemed to be a committee of the whole. From fifty to one hundred hands came together, at the time and place named, armed, some with pistols, others with knives, or shillelahs, apparently *determined to enforce a more prompt and satisfactory settlement than they seemed willing to await, from a more select committee of limited numbers.
    Under such demonstrations, accompanied with threatened violence to his person and life, McCullough executed a written assignment of the tenor following:
    “ Springfield, Nov. 20th, ’50. It is hereby understood and mutually agreed that I have assigned to Michael Hickey, for the benefit of himself and all the hands named in schedule marked A, all the tools on that part of Cincinnati, Hamilton & Dayton Railroad on sec. No. 7, together with the two shanties, store-house, and office ; and he is authorized to give them only to Mr. Doolittle & Co., for the purpose of raising money to pay said hands, and any sale he makes I will be satisfied with. And it is further agreed that if there should be any defect in this agreement for want of form, it is hereby waived by me; and the above tools consist of about 25 shovels, 12 mattocks, 12 picks, 27 wheel-barrows, a lot of beds and bedding now in said shanties, 2 axes, 1 wood-saw, 1 road-plow, and a large lot of 2-inch pine plank, used for wheeling, etc., also one cooking-stove, etc.
    (Signed,) “ E. McCullough.
    “Attest, Jos. Cooper.”
    Upon the foregoing assignment is an indorsement of the tenor following:
    “ For a valuable consideration rec’d of Doolittle & Chamberlain, I hereby transfer, set ever to s’d D. & C., all the property in the within-named article. The sum paid for'it is two hundred and fifty dollars, which is to be paid to the laborers that worked for E. M’Cullough, on Sec. 7 of the Cincinnati, Hamilton and Dayton Railroad; which am’t is divided in proportion to each man’s due, as per a list of names and amounts hereafter attached to this agreement.
    (Signed,) “ Mío. Hickey.
    “ Michael Hickey.
    “ Cincinnati, Nov. 23d, 1850,
    “ Cor. 5th & Sicamore, 3d door on Sicamore.”
    Attached, is also written assignment to Doolittle & Ghamberlain, from the laborers of E. McCullough, of all their interest in McCul lough’s assignment and the property therein mentioned, for the recited consideration of $250 ; the amount paid each hand being annexed to his signature.
    Evidence was given by plaintiffs in error, on the trial, tending to prove that they paid a fair price for the property, and that MeOullough *was satisfied with their purchase. On the other hand, he gave evidence tending to show that, some time previous to these transactions, he had requested the plaintiffs in error to purchase the property, and from the proceeds pay off said hands; but asked seven hundred dollars for the property, and that it was in fact worth that sum, or more. McCullough gave evidence tending to show also that said representations, that nothing remained due to him from plaintiffs in error, and that an assignment by him to them would probably enable the hands to get their pay, so made by said Bates, the foréman of plaintiffs in error, were the probable cause of the hands so compelling McCullough to make the assignment. No proof, however, is shown to have been given that plaintiffs in error knew or approved of said representations of their foreman. On the trial, plaintiffs in error offered to prove the state of accounts between themselves and McCullough at the time of said assignment, but the proof was objected to by McCullough, and the objection sustained by the court.
    Plaintiffs in error requested the court to instruct the jury, that if they should find that the contract which McCullough signed at fhe Eleven-Mile House, was in fact obtained by duress, yet, if before the property was transferred to them, in pursuance of that contract, sufficient time elapsed for McCullough to have notified •them not to purchase the property, and he remained silent, such silence is evidence tending to show a ratification, by McCullough ¡of the contract.
    The court refused to give the charge as requested, but charged the jury, that if they should find that the contract was obtained from McCullough by duress, yet if satisfied that he afterward, with a full knowledge of the facts and of his rights, ratified the contract, he could not recover in the case.
    Plaintiffs in error then requested the court to charge, that if the contract was obtained from McCullough by duress, at the Eleven-Mile House, it was'his duty, as soon as he escaped from duress, to. «disaffirm the contract, by notice thereof to them; and that, if he .stood silently by and allowed them to purchase the property, he could not recover from them its value.

      This charge the court refused; but instructed the jury, that if *the contract at the Eleven-Mile House was obtained from McCullough by duress, and if he stood silently by and allowed plaintiffs in error to purchase the property, he could not recover the; value of it from them, in an action of trover, unless he was compelled to preserve silence by duress. The court was also requested by plaintiffs in error to charge, that if McCullough, subsequently to the transaction at the Eleven-Mile House, remained silent, and did not make known to them his repudiation of the contract until after they had purchased and paid for the property, knowing at the same time that the object of the transaction at the Eleven-Mile House was to enable Hickey to transfer the property to them; and if he afterward, in conversation with Shoemaker, admitted that he had made the sale to themp these are circumstances tending to prove a ratification of the contract at the Eleven-Mile House, which would prevent McCullough from recovering in the case. The court refused to give such charge; but instructed the jury, that if McCullough, subsequently to the transaction at the Eleven-Mile House, in conversation with Shoemaker, admitted that he had made the sale to Doolittle & Chamberlain, this is a circumstance which the jury may take into consideration in determining the question of a ratification of the contract.
    The court farther charged the jury, that it was necessary for McCullough, in order to recover, to show that he was the owner of the property when converted, and that Doolittle & Chamberlain converted the property to their use unlawfully, and contrary to his-will.
    The court further charged the jury, that an assignment made by a party while under the influence of force and overpowering violence, would not be legal and valid; that if not voluntary, it would be void, unless afterward ratified and confirmed; but that a contract executed under duress may be ratified, and if ratified and confirmed, it is as binding as though legally made. That if the assignment was invalid by reason of duress while in the hands of Hickey, the assignee, it would continue to be invalid in the hands of plaintiffs in error, who could derive advantage from it only by reason of its being a legal assignment when made.
    *In relation to the rule of damages, the court instructed the jury, that if they found for McCullough, their verdict should be for the full value of the property, as it then stood, with interest from. November, 1850, “without credit for the amount paid by defendants 4o the hands.”
    To all these refusals to charge as requested, and to the charges given by .the court, the plaintiffs in error excepted, and now insist that the court erred :
    1. In not permitting them to prove the state of accounts between themselves and McCullough at the time of the transaction.
    2. In refusing to instruct the jury as requested.
    3. In the instructions given.
    4. In overruling their motion for a new trial.

      Fox & French, for plaintiffs in error, insisted:
    That the facts clearly proven, and about which there was no dispute, were fatal to the plaintiff’s case, and the court below should have granted a new trial. The facts did not make out a case of duress. As to what amounts to duress, see 10 N. H. 494-498; 23 Pick. 167; Shep. Touch. 61; 5 Dane Abr. 372; 1 Wils. 6; 2 Greenl. E.v. 302; 3 Caines, 168; 1 Fairf. 325; 1 Bailey, 84.
    The assignment made by McCullough, if even under duress, was not void absolutely, but only voidable. All merely voidable contracts in relation to personalty are valid until rescinded, and, being valid, pass the title to the grantee, so as to enable him to sell to •innocent purchasers. 1 Met. 557; 12 Barb. 641; 21 Vt. 129; 9 Barr, 16; 2 Parsons on Contr. 277; 16 Eng. L. & Eq. 408; 5 Eng. 379; 1 Sumner, 309; 15 Mees. & Wels. 216.
    The amount of debts paid by plaintiffs in error with the proceeds •of the property, was competent evidence in mitigation of damages. Forshay v. Furguson, 5 Hill, 154; 2 Phil. Ev. 125; 20 Conn. 207; 12 Ib. 484; 3 Dana, 49; 9 Wend. 36; 16 Ib. 607, 2 Kent Com. 253; 11 Paige, 107.

      *King, Anderson & Sage, for defendant in error, insisted:
    That the verdict was in accordance with the evidence.
    ■ That in the rulings and charge of the court there is no substantial error.
    That in trover the plaintiff has a right to a full compensation in •damages, which the defendant can neither mitigate in part nor defeat in whole, by any act of his own, without the plaintiff’s consent. Hanmer v. Willson, 17 Wend. 91.
   Sutliff, J.

This court can not revise the judgment of the district court in respect of the weight of evidence upon the trial being in favor of or against the verdict. An inspection of the record very obviously does not afford this court the same means possessed by the district court of determining the preponderance of evidence given upon the trial in respect of the issue. The court under whose observation the evidence upon the trial was given had an opportunity to judge of the manner and measure of the evidence for and against the affirmative of the issue, which this court does not possess. The decision of that court as to the weight of evidence being in favor of the verdict, by the exercise of their legal discretion in overruling the motion for a new trial upon that ground, this court can not call in question.

The district court excluded the proof, offered by plaintiffs in error, of the state of the accounts between the parties. In this we do not perceive any error. The object of the proof, when offered, was not stated. The court trying the case did. not, and we can not, perceive what relevancy the state of the accounts between the parties had to the issue — whether the plaintiffs in error had or had not wrongfully converted to their own use the goods and chattels of defendant in error, as charged. Inasmuch as there was no evidence tending to connect plaintiffs in error with the statement of Bates, that there was nothing due McCullough from them, we think the proof proposed was not improperly excluded.

Apart from the foregoing questions, the claim of plaintiffs in error, and upon which their counsel rested their defense .in the court below, was, that their purchase of the property was valid. *They held by an apparent valid contract in writing, executed by McCullough.

On the trial below, it was insisted, on behalf of plaintiffs in error, first, that McCullough was not in fact under duress at the time of executing this bill of sale or assignment; and, second, that even if under duress at the time of its execution, by his subsequent conduct he had recognized the validity of the transfer, and therefore could not, by bringing an action of trover, treat the assignment as a nullity.

The record shows clearly that the whole defense of plaintiffs in error against a recovery rested upon these two propositions. Any charge of the court tending to prevent their fully and fairly presénting their defense, would bo error. Does the record in this-respect disclose such error?

It is true, the court refused to charge the jury in the language-requested by counsel for plaintiffs in error; but the court did instruct the jury upon the points of the case requested, only in language somewhat different from, that which they were requested ta use. The language used by the court, in each particular upon, which the court was asked to give instructions to the jury, was perhaps a material qualification of the rule of law proposed and insisted upon by counsel for plaintiffs in error.

• If the instructions they requested to be given to the jury were-strictly correct and legal, relating, as they did, directly to the issue, it was their right to have the instructions so given, as proposed by them.

In regard to the first proposition on the part of the defense, that McCullough was not in fact under duress, counsel for plaintiffs in error seem rather to complain of the finding of the jury, as contrary to the evidence, than of any erroneous holding of the courbas to-any point of law. And we have already remarked upon the action of the court in overruling the motion for a new trial.

The instructions of the court to the jury, touching the nature of a duress and its effect upon a contract obtained thereby, we think correct; and we do not understand counsel as particularly excepting to the charge of the court in that regard.

*But upon the second proposition, that if the contract was obtained by duress, it was afterward ratified, the court was requested to instruct the jury that if they should find that sufficient time had elapsed after the contract was obtained from McCullough, pi-evious to the purchase by plaintiffs in error, for him to have notified them not to purchase, and he remained silent, such silence was evidence of a ratification. We think such instruction, without any qualification, would not have been strictly correct.

Upon this point of the ease, the court instructed the jury that'if they were satisfied that the plaintiff, with a full knowledge of the facts and of his rights, ratified the contract, he could not recover; that, if he stood silently by, after the contract or assignment had been so obtained from him, and after he was released from duress, and allowed the then defendants to purchase the property, he could not recover in that action. And we think the charge of the court in that respect unobieetionable.

From a careful examination of the record, we are unable to discover any substantial error going to affect the right of recovery on the part of defendant in error.

But in relation to the rule of damages, as to the amount to be recovered, we regard the instructions of the court to the jury as •exceptionable in one particular.

The record shows that previous to the avoidance of his assignment or contract on the part of McCullough, the plaintiffs in error had purchased the property, and paid the price specified by the contract according to its terms, to the hands and creditors of McCullough. His agent, Hickey, had sold the property- to the ■plaintiffs in error, with McCullough’s written authority and instructions in his hand, and according to the terms thereof, and received ■therefor the payment of the $250 to the workmen, the creditors of McCullough, and obtained their acquittance and receipts to McCullough. This was the manner of payment for the property proposed by McCullough to plaintiffs in error before the difficulty with his workmen; at which time he was requesting plaintiffs in error to purchase this property, and from the purchase money to pay his indebtedness to the hands.

*Under this state of facts, the court instructed the jury that they should regard the value of the property at the time of the conversion as the rule of damages, “ without credit for the amount paid by the defendants to the hands,” for plaintiff.

The value of the property, it is true, in an action of trover, is the general rule of damages. But under this general rule there ■are certain exceptions as well established as the rule itself. These ■exceptions rest upon the same equitable principle that the rule does. That principle requires that the plaintiff should recover a just compensation, and no more, for the damages which he has actually sustained by the conversion of his property. If the property has been retaken, or returned, after taken, in whole or in part, such fact is always regarded as an exception to the general rule, that the full value of the property should be regarded as the amount of damages to be recovered; and the facts are permitted ■to be given in evidence in mitigation of damages.

Resting upon the same principle, is the case where property has •been taken in the exercise of a supposed right, and sold, and the proceeds paid for the benefit of the owner, in discharge of his indebtedness, when it afterward turns out that the taking and sale were without authority. And we regard the facts in such a casa as constituting an exception to the general rule, that the plaintiff is entitled to recover the full value of the property as the amount of his damages.

If the proceeds of the sale of the property had been paid to the owner, wherein would it have differed from a return of the property, or part thereof to him ? And we are not able to perceive why a payment of the proceeds of the property for the owner, where he has unquestionably received the benefit of such payment, and the proceeding on the part of the defendant has been in good faith, should not also go in mitigation of damages.

This view of the subject, which, we regard as applicable to the case, seems to ns fully sustained by the decisions of other courts, among which see Price v. Benjamin, 14 Pick. 356; Baldwin v. Porter, 12 Conn. 437; Clark v. Whittaker, 19 Ib. 330; Curtiss v. War’d, 20 Ib. 204; Froshay v. Ferguson, 5 Hill, 154.

*TJnder this view of the case, we should feel constrained to reverse the judgment below, had the cause of reversal been permitted to remain. But during the pendency of this proceeding in error, the defendant in error, by counsel, on leave of the court, appear» and remits from the judgment of $847.87, rendered by the district court, as of the date thereof, the sum of $250, so paid for him from the proceeds of the sale of said property, with interest from the time of payment, amounting at the date' of judgment to $323; leaving due upon the judgment, at the rendition thereof, only $524.87.

' The judgment of the district court is therefore affirmed for that sum, and costs of that court, but at the costs of the defendant int error in this court.

Bartley, C. J., and Swan, Brinkerhóee, and Scott, JJ., concurred.


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    Salvator Schæffer and Thomas Smith v. Waldo, Barry & Co.
    Motion for leave to file petition in error.

      A. G-. Thurman, for the motion.
   J. R. Swan, J.

The plaintiffs were non-residents, and gave no-security for costs at the commencement of the suit; but after the return of summons, and before motion by the defendants, L., without order or leave of court, entered on the appearance docket, “ I am security for costs.” On motion to dismiss for want of security, L. appeared and consented to the order of the court, recognizing him as surety, and the court approved of Xi. as surety, and overruled,the motion to dismiss.

The defendants moved to quash the writ because it was served on the return day, and not returned by the sheriff until two days-*after the return day. Motion overruled, and defendants excepted, and afterward filed their answer.

Held: That Xi. became surety by appearing in court, and the approval of the court, etc., and that the defendants waived the objection to service on the return day, and return of the summons, by-filing their answer.

Motion overruled.

Bartley, C. J., and Brinkerhokf, Scott, and Sutlief, JJ., concurred.