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    *The Heirs of Israel Ludlow v. The Devisees of Daniel C. Cooper.
    Where C. holds- an entry for land, and agrees to sell half his interest to L., who agrees to contribute one-half the purchase money due to the United States, and is to share equally the profits and proceeds of sales, his heirs, after the lapse of thirty-eight years, can not claim specific performance, without showing recognition of the contract, or steps taken by them or their ancestor, toward its execution, during the interval.
    Where an equity to land depends upon an account which, from lapse of time, can not be justly taken, the equity is lost.
    This is a bill in chancery, reserved from Montgomery county.
    The facts in the case sufficiently appear from the statement in -the opinion of the court.
    Charles Fox, for complainants :
    ■ The main proposition relied upon by defendants is, that the claim ■set up is barred by the statute of limitations; or, if not, at least the lapse of time is so great that the chancellor ought not to interfere.
    As to the statute of limitations, the act of 1810 provides a bar 40 a recovery, in an action of ejectment, in twenty-one years.
    If the act of 1810 is to be applied, the statute had not barred any of these complainants, because James C. Ludlow, the oldest child, ■ did not arrive at age until September 10, 1818, and he has, by that ■.statute, twenty-one years in which to prosecute his claim after that period, which would not elapse until September 10, 1839. This bill was filed June 7,'1839, more than three months before the statute could have barred a legal claim. Again, if this had •'been a legal estate, it was a case of tenancy in common, and while that relation subsisted, the statute could be no bar at law; at *least it is very clear the statute could only operate from the time of a plain, palpable, open, and notorious assertion of •Cooper that he claimed adversely to the claim of Ludlow’s heirs. Now, the important question is as to the time when that adverse possession commenced ; and here it must be remembered that this is a defense set up by the defendants as a bar to our acknowledged right, and they must show the commencement of that adverse pos.session, more particularly in a case of this kind. “ The doctrine of adverse possession is to be taken strictly, and not to be made out 'by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true ■owner.” 9 Johns, 167. Now, there can be no pretense that there was any adverse possession claimed by Cooper before he took out •the patents.
    The fact of possession merely can not be relied upon as a bar, 'because the possession was consistent with the claim of Ludlow’s heirs. Cooper was living on the land, and it was expected he would make sales for the benefit of both parties. He was a tenant in common, and his possession is deemed to be held for himself and for his co-tenant. Angell on Lim. 91; Cruise, 337; 2 Serg. & Rawle, 462; 9 Cow. 241. And he can not be permitted to turn this legal possession into an illegal or adverse possession, without making known that he is claiming contrary to the relation originally subsisting. Neither a tenant in common nor a tenant for years can claim to hold adversely until such intention is made known to the co-tenant in the one ease, orto the landlord in the other. The possession of the one is the possession of the other. 4 Wheat. 213; Angell on Lim. 91, 133; 2 Meriv. 360; Adams’ Eject. 55; 11 Ohio, 457.
    . A tenant at sufferance can never claim to hold adversely. He •can not be permitted to convert his tenancy into an adverse occupancy. 20 Johns. 306.
    The rule is founded upon the same principle that applies at law to tenants in common, where the statute does not run but from actual ouster. Angell, 136; 5 Burr. 2607; 7 Johns. Ch. 124.
    ' *That one tenant in common may oust his co-tenant and hold in severalty is not to be questioned; but a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an adverse possession. 5 Wheat. 608; 4 Ib. 213; 4 Pet. 440.

      Where there was no circumstance to induce a supposition of an. actual ouster, but a bare perception of the profits by one tenant in common for twenty-six years, the possession was not held to be-adverse. 5 Burr. 2604; 5 Mass. 351; 5 Wheat. 124; Angell, 93.
    The question then, as between tenants in common, is as to the intention of the one to hold adversely, and the knowledge and acquiescence of the other party, which are matters of evidence. Angelí, 99.
    It is not pretended that any notice was ever given by Cooper of bis intention to hold adversely. All the statements of the witnesses who testify that they always supposed Cooper was claiming the land as his own, and that they never heard of any other person being interested with him, can avail nothing, because the very object of Ludlow and Cooper was to have the business done in Cooper’s name as a mere matter of convenience; and, because it was so done, by agreement, forbids the court from concluding-that the possession and claim was intended to be adverse. 11 Ohio, 457.
    But, before the statute can begin to run, the defendants must, show, as before remarked, that an actual ouster had taken place, or a state of evidence from which such ouster can be presumed.
    Now the tenancy in common being established by the written agreement of the parties, the actual possession of Cooper, in contemplation and presumption of law, was the actual possession of Ludlow in his life, and was, by law, transferred to his heirs on his. death, and there it remains as between the parties until put an end to as above stated. When was there any positive act done by Cooper, or his representatives, showing a disclaimer on his ¡Dart to hold as tenant in common, a knowledge *of which was brought home to Ludlow’s heirs? For it is only from that time that the statute can run. I say the first evidence of such disclaimer is in 1825, and we have twenty-one years from that time at law to bring the action.
    But we contend that this property was held in trust by Cooper for Ludlow’s heirs, and that, while that trust existed, the statute of limitations could not be urged to bar our rights either at law or in equity. 11 Ohio, 455.
    I presume it will be admitted that a trustee, so long as the relation exists, can not set up the statute of limitations, or lapse of timo, as a bar., The authorities are uniform on this subject. Lewin on Trusts, 610; 2 Sch. & Lef. 633; Willis on Trusts, 119, 223; Beame’s Pleas, 173; Blanch. on Lim. 71; 2 P. Wms. 114; 17 Ves. Jr. 97; 1 Jac. & W. 57; 4 Serg. & Rawle, 570; 5 Johns. Ch. 533; 3 Pet. 52; 11 Ohio, 457; 6 Wheat. 481; 10 Pet. 223.
    That the written agreement between Ludlow and.Cooper con.stitnted a direct and express trust is equally clear. Stidger and wife v. Reynolds, 10 Ohio, 351; 2 Story, 452; 11 Ohio, 456; 2 Sch. & Lef. 633.
    It being a trust relation, then, the statute can never bar the rights of the cestui que trust-while that relation exists, and it becomes tho duty of the defendants to show that the relation has ceased to exist twenty-one years before this suit was brought, and •disability removed. This can be done in several ways. '
    1. By the universal consent of all the parties to the trust, pro-vided they were all capable of making a binding contract.
    2. By an application to, and decree of, a court of equity. Lewin on Trust, 464.
    In either of these ways, I would admit, a trust could be put an ■end to, and I am willing to admit further, that the trustee may effect the same thing, in the course of time, by disclaiming to hold .as trustee and defying his cestuis que trust in an open, bold, and manly manner for the period prescribed in the *statute of limitations. 3 Pet. 52; 7 Johns. Ch. 106.
    Let us inquire, then, if there has been any consent to put an ■end to this trust? There is no pretense that there is any evidence to prove an express agreement to put an end to the trust.
    But it will be claimed that, if Cooper disclaimed holding in ■trust, and the complainants have neglected to assert their claim, their assent to putting an end to the trust may be inferred, and the defendants also insist that the complainants must be presumed to have abandoned their claim.
    In answer to this I would suggest that an assent to the dissolution of the trust implies that those who are said to have so assented are capable, in law, of making such assent. But in this case the parties were all minors until after Cooper, the trustee, died; and we know that so long as infancy, coverture, or any ■other disability exists, there can be no legal consent given. Lewin •on Trusts, 464, 465; 13 Ves. Jr. 601.
    Again, it is well settled that, even where the cestui que trust is ■of age, befcre the concurrence of the latter can be relied upon as sanctioning a departure from the trust, it must be shown by the-trustee that the cestui que trust had been made fully acquainted -with all the facts calculated to have a bearing upon his mind when that assent was obtained. Lewin on Trusts, 643; 1 Russ. 299.
    Now it is in evidence, on the part of these complainants, asolear as it is possible to make out such a negative, that they did not know of the existence of this agreement until a very short time beforo the suit was brought. The circumstances under-which it was found, the fact that the guardians never saw or-heard of it, all go to show that these complainants at least were-ignorant of its existence, and, of course, ignorant of their rights.
    The executors do not, in their answer, oven say that Garrardj when he was up at Dayton, in 1835, had the original agreement. They say he had a copy. But that was not sufficient to sustain a suit upon.
    *But even this evidence shows that he had not then intended to put an end to the trust.
    In the case in 1 Russell, 299, the trustees had sold the stock in 1809, and afterward, in the same year, the cestui que trust came of age, and from that time, was in the habit of calling upon the person, R. Bingham, who had the money received for the stock sold' for funds, until he failed in 1822, when the bill was filed. It was held that the complainant was not affected by receiving dividends, and portions of her principal from R. Bingham, during that period, because she had no knowledge that there had been any stock, or that it was sold. So in Bowes v. East London Water Works et al., 3 Maddock’s Ch. 198, whore an imperfect lease had been made by the trustee, and the cestui que trust had reefeived rents nine years after coming of age, it was held he was not bound1 by the receipt of rent, because it was not shown that he- had knowledge of the defect in the lease.
    The last way, and only way, then, in which this trust can be claimed'to have been put an end to is by presumptions arising-from lapse of time. And, I suppose, if it can be shown that the-complainants have laid by twenty-one years after their disabilitylias been removed, knowing during the whole of that time that Cooper, or his representatives, were claiming adversely to their rights, this fact may be relied upon as a bar to any relief.
    But I deny, in the first place, that any such adverse holding, has been proven for the time stated.

      The evidence shows that in April, 1813, Cooper obtained patents in his own name. This was, however, consistent with the written agreement, and is no evidence of itself of an intention to hold adversely. 11 Ohio, 457. The other evidence on this subject is the evidence of what took place when Garrard was up inquiring about this matter in 1835, and this is all the evidence on the subject.
    Now, it is well settled, the trustee can not denude himself of his character of trustee. But, if he insists he has put an end to the relation, he must show, before he,can rely upon the statute, *tbat his cestuis que trust had knowledge of his disclaimer. This knowledge must be brought home to the cestui que trust before the statute can begin to run. 2 Sch. & Lef. 624, 625; 2 Pet. 52; 7 Johns, Ch. 123.
    There must be an adverse holding, “of which, I should presume, those who are interested should have notice.” 14 Serg. & Rawle, 396; 4 Harris & Johns. 430; Lewin on Trusts, 643.
    So long as a trust subsists, the right of the cestui que trust can not be barred by tho length of time during which the trustee has occupied, because the possession of the trustee is the possession of the cestui que trust. Angell on Lim. 133; 4 Wheat. 213.
    If a trustee be in possession, but does not execute the trust, his possession still is that of the cestui que trust, and if non-performance of the trust be the only circumstance in his favor, such possession will operate nothing as a bar, because it is agreeable with the equitable owner’s title. Angell, 134; 2 Sch. & Lef. 333; 7 Johns. Ch. 121.
    It is from tho time of known disavowal the possession becomes adverse. 3 Pet. 52.
    In cases of disclaimer by tenants, trustees, cestuis que trust, etc., it is the fact that the landlord, cestui que trust, etc., has knowledge of the diselaimer which gives the statute effect. The character of the possession can not be changed by the mere act of tho trustee or tenant, but that act must be made known. 3 Pet. 48, 49, 53; 10 Pet. 293; 7 Johns. Ch. 122.
    The law requires, in this case, the defendants to show a clear and palpable disclaimer of this trust, a knowledge of such disclaimer brought home to tho cestui que trust for a period of more than twenty-one years, and then this court might permit the statute to be used as a bar; but as no sixeh disclaimer is proved, and certainly never was brought home to the knowledge of the complainants, I claim it can be of no avail, even if the disclaimer was made.
    *The time must have elapsed, so that, if it was.a claim at law, it would have been barred after the disclaimer was made known. 11 Ohio, 457.
    As this disclaimer was not, in fact, made, and, if made, was not made known to complainants more than twenty-one years prior to filing the bill, the statutory time had not elapsed, and, therefore, time is not in the way of recovery.
    It may be contended that the lapse of time is so great that the court will refuse relief, notwithstanding the time required by the statute has not elapsed; that, from long acquiescence on the part of the complainants, the court may presume a release or an abandonment.
    But, I contended, this court, neither at law or in equity, will recognize any period less than the statutory one as sufficient of itself to bar a party’s right.
    In Stark’s Lessee v. Smith, 5 Ohio, 456, this court decide “the statute of limitation is designed to make all the provision which the law deems necessary to quiet the possession of corporeal subjects, but no length of enjoyment ol incorporeal hereditaments which do not lie in seizin or possession is protected by the direct operation of the statuto, etc. To superadd (in ease of corporeal rights) the doctrine of presumption, is to imply these provisions, or, rather, to make a new statute. If, by a rule of presumption professedly adopted in analogy with the statute, a possession is to be quieted in other cases within its purview, and not within its savings, it is plain that persons and rights not intended by the legislature to bo affected will be subjected to its operation. In all ■cases in which the statute operates, the only bar arising from length ot possession is that prescribed by its provisions.”
    This is in conformity with all the decisions. Mere lapse of time, where no statute has barred the same claim at law, and there is no ground to presume a release, is no bar in equity to the assertion of the claim. Lewin, 623; 2 Ves. Jr. 582, 583; 1 Ves. & B. 23.
    Mere lapse of time, then, can not be set up as a bar in and of ilseli; but from lapse of time courts of equity sometimes will •^presume satisfaction or a release, which is very different from an absolute bar. 2 Ves. Jr. 583,
    But such presumptions can not be raised, as between trustee and cestui que trust, merely from lapse of time.
    In the case of Pickering v. Stamford, 2 Ves. Jr. 283, 582, the •court did not considera period of thirty-five years, after disability removed, as sufficient on which to raise a presumption, as between trustee and cestui que trust, although the chancellor regretted the law was so.
    So in Chalmers v. Bradley, 1 Jac. & W. 67, a case of a cestui que ■trust coming in at a period of forty-four years, it was held that, .as it was a case of trust, the statute did not bar, and the lapse of time merely did not authorize the presumption of a release. In ■order to raise a presumption of the cestui que trust having acquiesced in a violation of the trust, or of having released his right, the chancellor must be sure the plaintiff was not ignorant of his rights. “ It is because there is not before me any direct and positive evidence, that totally excludes all doubt, that I direct these inquiries to obtain some light on the circumstances under which the undisputed enjoyment of this property has gone on till 1815.”
    The same doctrine is in 6 Ves. Jr. 224; 8 lb. 131. “The length •of time during which the trustee has omitted to discharge his trust is not a bar to its performance.” 1 Jac. & W. 67.
    Again, no release can be presumed, no acquiescence or abandonment take place, while the parties are infants, nor can such presumptions be made while the parties are kept in ignorance of-their rights or the extent of the right. Lewin on Trusts, 619, 620, 464, 465, 639, 640; 5 Simon’s Oh. 555; 5 Ves. 678; 2 Mer. 361; 13 Ves. 601.
    And, so far from presuming anything against infants, the court will rather continue its protection after the infants shall have arrived at age, until they have acquired all proper information. Lewin, 643.
    “ To fix acquiescence upon a party it should unequivocally appear that he knew the fact upon which the supposed acquiescence *is founded, and to which it refers.” 10 Ves. Jr. 427. Where “ all the circumstances show the parties did not know their rights,” no presumption can arise. 2 Ves. 585.
    The plaintiffs state that they were ignorant of the facts, and that they did not know that Joseph Bradley was a trustee for them. It is possible that might be so; but was there not anything which might lead them to the knowledge ? The inquiry must, therefore, be whether they had any notice of these circumstances, implied or otherwise. 1 Jac. & W. 68.
    The case, then, as I understand it, shows clearly that, by the terms of tho contract entered into between Ludlow and Cooper, on December 13, 1803, Ludlow became the owner of the one-half of the land in controversy ; that Cooper was to attend to the selling of the property for the mutual benefit of Cooper and Ludlow; that Cooper, before and after Ludlow’s death, undertook to sell lots, and that, by virtue of the agreement, Cooper was the trustee for the heirs, and, as such trustee, he sold nearly three times as-much of the property as would pay the original purchase money and interest, belore he paid any of the purchase money, except the first payment, and that he owed more than one-half of this-first payment to Ludlow; so that, in fact, Cooper has never advanced, on account of this purchase, for Ludlow, one cent, while, on the other hand, Cooper has money belonging to the trust fund which he ought to account for, so that, on the real merits of tho case, there can be no controversy. The attempt to keep these-complainants out of one-half of this property is a sheer attempt to commit a gross and palpable fraud. The right is as cleai’ly with the complainants as it is possible to prove the existence of aright; and if it was of only a few years’ standing no one would be found to resist it. That Cooper managed to keep these heirs-ignorant of their rights, shows that he was skillful in his management, but does not add to his right either in law or morals. If, then, the defendant can resist the claim of the plaintiffs, it must be because of the technical defense of the statute of limitations, and not on the ground of *right and justice. I think I have shown that the statute can not be relied upon as a bar to the-plaintiff’s right.
    The only remaining question is as to the right to the account. We suppose the law is well settled that, where the relation of trustee and cestui que trust exists, if the court decide tho latter has a right to relief as to the j>ropert-y of the trust, the right to an account follows as a matter of course, and plaintiffs are not tobo limited to a period of six years, as in actions at law. 1 Mer. Ch. 497; Lewin on Trust, 629, and note; 3 Ridg. P. C. 66; Willis on Trust, 222, 223.
    The statute being no bar to the principal relief sought, can not be ui’ged as such to the account. The one is incident to and fob lows the other. I claim, therefore, that the account shall be taken as in ordinary cases, without regard to the time which has elapsed,, and that we shall have a decree for half the land, and also for one-half of the money received on the sales.
    Corwin, Crane & Odlin, for defendants:
    We contend that the proofs in this case establish the following facts:
    I. That there were no accounts existing between Cooper and Ludlow, in December, 1803, which can properly be considered as-payment to Cooper of any portion of Ludlow’s moiety of the purchase, money for the lands in controversy; and that, as nothing is said in the contract touching such accounts, or such mode-of payment, the inference is irresistible that no such mode was-contemplated by the parties.
    II. That if unsettled accounts did exist between the parties, as the administrators of Ludlow were notified, in 1804, that the contract was abandoned, it was their duty to adjust and settle such accounts with Cooper; and, being their duty, the court, after a lapse-of near forty years, will presume it was done, and refuse to apply any such accounts as payments on this contract.
    *111. That the proceeds of sales, from T80.3 to 1808, after allowing Cooper a reasonable compensation for his expenses and services, are not equal to the sums due on the contract, in December, 1803,1804, and 1805; and as complainants are bound to show, by clear and explicit testimony, not merely sales made, but money to an amount equal to the payments required,'received by Cooper,, they have wholly failed to show any legal or equitable performance of the contract on their part.
    IY. That the contract was abandoned, in 1804, by the express-notice of Cooper to Ludlow’s administrators, and by the neglect of administrators, guardians, and heirs to fulfill or enforce it at that time.
    Having arrived at these conclusions, as to the facts, we proceed to consider the law as applicable to this case.
    1. We insist that, from the nature of this contract, the time of payment was of its essence. The sale to Ludlow was on the sole-condition that he should pay one-half of the purchase money; the object of the vendor was to enable him to make the payments to the United States as they became due, and convert his inchoate claim into a legal title. As, therefore, a failure of payment, in this vital particular as to time, defeated the whole aim and motive of the vendor, and as, in the nature of things, it became impossible for the vendees to perform the condition, or render to the vendor .a satisfaction, upon every principle of equity applicable to such ■cases, they have forfeited their right to the contract, and released the vendor from the obligation of' his covenant. To establish this proposition, we refer to the following authorities. Wingfield v. Whaley, 2 Brown’s P. C. 447; Gill v. Fleming, 1 Ridgw. P. C. 420, cited 1 Chitty’s Eq. Dig. 54, 649; Harrington v. Wheeler, 4 Ves. 686; Loyd v. Collett, cited 4 Ves. 688; Crofton v. Ormsby, 2 Sch. & Lef. 603; Taylor v. Longworth, 14 Pet. 172; Benedict v. Lynch, 1 Johns. Ch. 370; Hutchinson v. McNutt, 1 Ohio, 14; Scott v. Field, 7 Ib. 90, pt. 2; Remington v. Kelley, 7 Ib. 97; Brewer v. Connecticut, 9 Ib. 189; Ballard v. Walker, 3 Johns. Ch. Cas. 60. *To avoid the consequences of their neglect as to payment in time, or as to any payments whatever by Ludlow or his representatives, complainants laborío convert this contract of sale into •a deed of trust. Although, in our view of the case, it is not import-ant to consider whether a trust arises out of this contract or not, since, at most, it can only be viewed as an implied or constructive trust, yet we insist that no trust can be implied by the court, ■except upon a consideration actually paid. Thompson v. Branch, Meigs (Tenn.), 390; Stere v. Stere, 5 Johns. Ch. 19.
    It is not shown than any money was paid by Ludlow at the date of the contract, and it is shown that Cooper had paid one installment; and by the law then in force, the second became due •on December 31, 1803, a fow days after the date of the contract. The parties were to bo equal in all payments; of course, at that time, one of the two installments, being $995 each, was due from Ludlow to Cooper. No credit appears on the contract — no receipt for money paid offered in proof — and it is not, in the argument, averred or pretended that Ludlow made any direct payment to Cooper on the contract. If we are right in rejecting the pretended accounts as payment, it follows that none whatever has been made, and no trust can bo implied. Complainants’ counsel contend that ■Cooper, soon after the contract, made sales of the joint estate, and received money thereon, one-half of which equity will regard as held in trust for Ludlow. Admitting, for the present, that sales to some amount were made, and that with regard to such sales Cooper is chargeable with a constructive 'trust, yet, if the court are satisfied that, in June, 1804, the contract was put an end to,, it follows, of course, that this point is not necessary to a decision of the ease. But, if it is assumed .that the contract still subsisted,, notwithstanding Cooper’s conclusion, in 1804, that it was abandoned, and the acquiescence of Ludlow’s representatives in such conclusion, and therefore that an implied trust is to be raised as to the sales made by Cooper, then we insist that the complainants-have lost whatever rights they had, by lapse of time, and their laches in asserting them. ^Though time will not bar a direct trust, as between cestui que trust and trustee, yet in all cases of constructive trusts, relief in equity will be denied after long acquiescence. Townsend v. Townsend, 1 Cox, 67; Bonney v. Ridgard, Ib. 145; Beckford v. Wade, 17 Ves. 97; Moore v. Blake, 1 Ball & Beatty, 69; Brashier v. Gratz, 6 Wheat. 528; Prevost v. Gratz, Ib. 481; Piatt v. Vattier, 9 Pet. 405, 16, 17; Dechouche v. Savatier, 3 Johns. Ch. 216; Shaver v. Radley, 4 Ib. 316; Bowman’s Devisees v. Wathen, 2 McLean, 376.
    The foregoing cases, and many others which might be cited, establish the generally well-understood doctrine of a court of 'equity,, respecting the influence which laches and lapse of time exert upon rights which, in all other respects, would command and receive-the favor of the chancellor. In Beckford v. Wade, 17 Ves. 97, relief was denied in a case of constructive trust, on account of lapse-of time, though the true state of facts might have been easily ascertained; and the ground of original relief was clear, and even arising out of fraud. This case was adjudged as late as 1810, by Sir William Grant, then master of the rolls.
    The law is thus clearly and emphatically stated by him: “ It is certainly true, that no time bars a direct trust, as between cestui que trust and trustee; but if it is meant to be asserted that a court of equity allows a man to make out a case of constructive trust, at any distance of time after the facts and circumstances happened out of which it arises, I am not aware that there is any ground for a doctrine so fatal to the security of property as that would be;so far from it, that not only in circumstances where the length of time would render it extremely difficult to ascertain the true state-•of the fact, but where the true state of the fact is easily ascertained, and where it is perfectly clear that relief would originally have been given, upon the ground of constructive trust, it is refused to the party who, after long acquiescence, comes into a court of equity to seek that relief.” The law thus laid down by one so justly celebrated as Sir William Grant, must be regarded as settling, the rule of decision in. this case. If Cooper, in 1808, *had received from sales a sum amply sufficient to pay the ■whole purchase money, and to compensate him for his expenses, -services, etc., and that fact was fully proved, it would not avail the •complainants, after such a lapse of time, in asserting their claim: Any other doctrine, aj>plied to the facts and circumstances of this •case, would, in the emphatic language of the master of the rolls, be fatal to the security of property.
    The next point of consideration is, whether the infancy of complainants furnishes any valid answer to the argument, from delay and lapse of time.
    If we analyze the grounds on which the courts have adjudged lapse of time to be a bar to relief, it will be found that a different rule would render titles uncertain, and property insecure; and, in executory contracts, would operate most injuriously and unjustly ■on the other party. In such cases the rule is sustained by considerations of the most obvious justice. A vendor contracts to convey on the performance of certain conditions; for instance, the ■payment of a stipulated sum of money at a specified time. The vendee dies, leaving the money unpaid. His heirs are minors. By whom and how shall the contract be performed? It'then becomes the duty of the executors or administrators of the deceased to execute the contract, by paying the money out of his estate. This duty is as binding on them, with the single exception of personal liability, as it was upon the deceased vendee. The heirs and their guardians, especially in cases of written contracts, are bound to know and assert their rights, and courts of equity will aid them in the performance of real contracts, by compelling the executors or administrators to discharge the contract out of the personal ■estate. Champion v. Brown, 6 Johns. Ch. 402. Where the time of payment is essential, as we think we have shown it to be In this case, and where the duty of making it is assumed by the contract, as such payment is the consideration which makes the contract •obligatory on the other party, the failure to make it at the time stipulated, whether from accident, ignorance, death, or willful refusal or inability, or any other cause, is equally prejudicial to the *other contracting party, and releases him from performanee on his part. Such failure destroys all mutuality in the contract. It is not enough, therefore, for complainants to allege their ignorance of, or their inability to perform the contract of their ancestor, or that they were infants; their estate was represented by administrators, and their respective interests by guardians, upon each of whom the law devolved every obligation of their deceased ancestor. This doctrine is fully and very explicitly laid down in Smith’s Heirs v. Christmas, 7 Verg. 565, cited 2 Wheeler’s Amer. Ch. Dig. 621. “ Where a contract has been made by the ancestor, who died before the execution of it, the infant’s heirs must always act by their friends or guardians, and their rights, in such case, will be saved or lost by their activity.” So, in Griffin v. Griffin, 1 Sch. & Lef. 352: “An infant can not avail himself of his infancy to excuse the non-assertion of his right under an executory agreement made with his ancestor, where the immediate performance of his part of the contract is essential to the interests of the other contracting party.” See also Hovenden v. Lord Annesly, 2 Sch. & Lef. 639, and Bowman’s Devisees v. Wathen, 2 McLean, 402.
    The complainants insist that no laches can be imputed to them until they respectively arrive at full age, and not even then, as the original contract was mislaid, and not found until shortly before the commencement of this suit. The original was in possession of Ludlow, and his representatives, from the time it was made until established as a document in this cause. In 1819 or 1820, Findlay gives a copy to Cooper’s executors; in 1820 or 1821, James C. Ludlow gives a copy to William Worthington, with instructions to compromise; in 1825, J. G. Garrard presents the original, or a copy, to Cooper’s executors, and proposes a compromise. G. Yeatman, the guardian, in 1804, of Israel Ludlow, Jr., swears that he always understood, and it was generally understood, that Cooper and Ludlow were in partnership, in the town of Dayton, though he did not know of the written contract.- In June, 1804, Cooper informs Findlay that he considers the contract abandoned ; this letter, *though addressed to only one of the administrators, was doubtless communicated to the others. The other two administrators were nearly related to complainants, and had every motive to look carefully to their interests. From* all these facts, it is impossible to resist the belief, that the claim under this contract was known to all Ludlow’s representatives from 1804, and to the heirs, individually, as soon as persons of their years would be likely to know facts of that nature.
    The complainants have failed to prove the loss and finding of the original paper. That fact is alleged in the bill and denied in the answers, and it has been proved only by the declarations of Israel Ludlow, Jr., one of • he complainants. This alleged finding is got up with some dramatic effect. The Sabbath reveries of the conscientious non-juror, Mr. Wattles, are disturbed by the joyous Eureka of Israel Ludlow, Jr., on the discovery of the long-lost document, which would give to him and the other heirs, without money, labor, or risk, a property worth five hundrod thousand-dollars.
    There was more pertinency in the advice of the sober-minded Mr. Wattles, that the heirs should be content with what they then possessed, and not grasp after more, than Ludlow, in his then elation of mind, supposed. Wealth, thus easily acquired, is of a fugitive nature:
    11 Spreads its light wings, and in a moment flies.”
    But waiving all objections to Ludlow’s declaration as evidence, and admitting that the paper was mislaid and found, as alleged, what will it avail the complainants? The claim founded on theeont-ract was known to them; the obligation imposed on them, and the performance required from them were the same, whether their knowledge was derived from the original contract or a copy. Their failure to perform can not be excused, oven if the original, which had always been in their possession, had been accidentally mislaid. The probability is, that the paper in question, after Garrard’s abortive attempt to got something by way of compromise, was considered valueless, thrown among the old papers of the estate and forgotten, and only ^remembered when the changes in the condition of Layton, and the greatly enhanced value of property there, since 1825, tempted complainants to ferret out this stale and dormant claim. Are the complainants in a better condition to demand the relief prayed for, on the supposition that time is to be counted against them, only from their respective arrivals at full age? The four children of Ludlow arrived at majority, the oldest in 1818, and the youngest in 1825. About the year 1825, the heirs of Ludlow, then living, and of full age, and some five years after James C. Ludlow’s-instructions to Worthington to make a compromise, J. D. Garrard, the husband of Sarah Bella Lu'dlow, acting, as is proved by Yan Cleve, for all the heirs, exhibits the contract, examines the records, and attempts to compromise with Cooper’s executors. The latter reject his proposition, deny the validity of his claim, and dis-: tinctly apprise him that, to enforce it, he must obtain the judgment of the proper tribunal. No further steps are taken. No-suit is brought until 1839, fourteen years after all the heirs were-of age, and had a full and perfect knowledge of whatever claim they then had, or now have. No satisfactory reason is assigned’ why they did not, as they were challenged to do by the executors of Cooper, resort to a court of equity, in 1825, to enforce their claim. Garrard was a shrewd, energetic lawyer; he had recovered a large property, in Cincinnati, for the heirs, and as he did not prosecute this claim, under these circumstances, the unavoidable inference is, that he was satisfied that he ought not, or could not, succeed. After this contract had rested for twenty-two’ years, and the rights of Cooper, during all that period, remained unquestioned, was it not time, in 1825, if ever, to bring it to a-judicial test ?
    . But the complainants lie by fourteen year’s longer, and, in tho-meantime, nothing is said or done by them which could excite-the remotest suspicion that they ever intended to question Cooper’s title, or assert their claim in a court of justice. ■ At the end of this last period, and nearly thirty-six years after this executory contract was made, they, for the first time, attempt the assertion of their claim in court. If this bo not a *stale claim, it is difficult to imagine a state of facts which would constitute one. Even if the complainants, by a timely assertion of their claim, could have enforced a specific performance of this contract, the court will refuse to make such decree, after their long acquiescence, and the change in the value of property, in Dayton, since the completion of the canal, in 1828. In Alley v. Deschamps, 13 Ves. 226, the agreement was made in 1797, and the bill for a specific performance was filed in 1802; yet, though possession was given upon the faith of the agreement, and £100 paid in part satislac■tion of the purchase money, relief was denied and the bill dismissed. “A bill for specific performance,” says the chancellor, •“will not be induced under such circumstances; nothing further 'having been done toward performance, when the purchaser 'became bankrupt, nor afterward, until these premises, by a subsequent event, proved to be much more valuable than they were at the time the contract took place. Where, then, as Lord Roslyn says, is the equity, placing him in the same situation as if he had, in due time, availed himself of the contract?” See also Crofton v. Ormsby, 2 Sch. & Lef. 603; Pratt v. Carroll, 8 Crunch, 471; Pratt v. Law and Campbell, 9 Ib. 456; Brashier v. Grata, 6 Wheat. 528; Hutchinson v. Heirs of McNutt, 1 Ohio, 22.
    The evidence is full and explicit, as to the change in the value of ‘the property in question. Folkorth swears that population and improvement, in Layton, advanced slowly until 1812, and that no .great rise in the value of property took place until the completion of the canal. In 1825 the canal was located to Middletown, but the history of the work shows that it was not completed to Lay-ton, till 1828. From that time property rose rapidly in value, .and has continued to advance ever since. Eleven years after, in 1839, the complainants file their bill, and claim a specific perform.ance of the contract of 1803.
    If an account of sales, profits, etc., is seriously asked, no one, under the circumstances, could imagine the possibility of carrying such account beyond the filing of the bill. Drummond *v. Luke of St. Albans, 5 Ves. 433; Pettiward v. Prescott, 7 Ib. 546; Dormer v. Fortescue, 3 Atk. 136; McKnight v. Taylor, 1 How. 161.
    We forbear to urge this point, as we can not anticipate a decision for any account whatever, or for any other relief sought by this bill.
    Wright, Walker, Chase, and P. P. Lowe, for complainants, in reply:
    Have the heirs forfeited their right to the property in question, -through the neglect of the administrators, their guardians, or themselves ?
    To make out the forfeiture the counsel • contend in the first place, “that, from the nature of the contract, the time of payment was of its essence.” And they say the object of Cooper in selling, was “ to enable him to make the payments to the United States as they became due, and convert his inchoate claim into a legal •title.” “ As, therefore, a failure of payment, in this vital particular as to time, defeated the whole aim and motive of the vendor, .and as, in the nature of things, it became impossible for the -vendees to perform the condition, or render to the vendor a satisfaction, upon every principle of equity applicable to such cases, they have forfeited their right to the contract, and released the vendor from the obligations of his covenant.”
    Often as time has been relied on, as the essence of the contract, to defeat a specific execution of it, it is believed never to have been •applied, even by counsel, to a contract like the present. If the relation of vendor and vendee, in the strictest sense, existed between the parties, still, time could not bo considered as of the essence of the contract. Mr. Sugden, in his work on Yendors, 312, says : “We ■may, therefore, perhaps venture to assort, that if it clearly appear to be the intention of the parties to an agreement that time shall be deemed of the essence of the contract, it must be so considered in equity.” And ho refers to the appendix, No. 6, for the form of a contract *in which time is made essential. In that form it is declared, that “ if the title should not be made at the day, etc.,' the agreement shall be utterly void, and the jurisdiction of equity •wholly barred,” etc.
    In Longworth v. Taylor, 1 McLean, 396, this doctrine was ■considered, and several English and American decisions are referred to; and in all of them it will be found, whei’e time was held to be of the essence of the contract, that a forfeiture was annexed as a condition or failure to make payment on the day, or there were some peculiar circumstances which showed that time was material. There is not an expression in this contract, nor a circumstance attending it, which shows an intention, by the parties, to make the payment of the consideration to the government of the essence of the contract. On the contrary, the obligation of the parties was mutual as to the payment, and Cooper himself did not pay until 1813. Now, if Ludlow had paid his part to the government before that time, it could have been of no advantage to Cooper, as the patent could not have been issued until full payment. As this point has been considered somewhat at large under a different head, it will be here dismissed, with the remark, that no fear is entertained that the court will consider time, undei the circumstances of this ease, as a material part of the contract.
    We agree with the defendants’ counsel, “ that there is no proof, whatever,” that the entries were made in Cooper’s name for the benefit of both parties. This disposes of that point, and it will be passed over without examination.
    It is insisted that the contract raises no trust in behaif of Ludlow, and if it did, it can only be an implied trust, which only lakes effect on a consideration paid; and the counsel deny that the payment of any consideration is shown by the evidence.
    We shall not refer again to the evidence to show that this assumption is without any foundation. Not only the payment of the first installment is shown, but all the other installments, in-the mode provided in the contract.
    *“ At most,” the counsel say, “ an implied or constructive-trust,” arises out of the transaction. An implied trust is the-creature of equity; an express one arises out of the contract of the parties. “ The instrument,” in the language of Judge Story, 1 Equity, 293, “ need not point out the very nature, character, and limitations” of an express trust, “in direct terms;” “for it is-sufficient if the intention to create it can be fairly collected upon the face of the instrument, from the terms used.” Now apply this definition to the deed under consideration.
    Cooper, being vested with the equitable title to the land in controversy, sold a moiety of the same to Ludlow, he agreeing to-pay half the purchase money, and the proceeds of the sales of town lots were to be divided equally between them. Is not this-a declaration of trust? The word “trust” is substituted for the more ancient term “ use.” Under this deed, had not Ludlow an-interest in the land? Was he not entitled to one-half the money arising from the sale of it? Cooper had not only the title and tne -possession, but he had sold soveral of the lots. Now, can any one be at a loss as to the intention of the parties ? Cooper, having the possession and the title, was to sell the property, and he did sell it, and was bound, under the express covenant, to account to Ludlow for his share of the money?
    If this, then, was an express trust, neither the statute nor lapse of time can operate against it. ' This is a settled principle of law,, to which there are as few exceptions as to any other general rule. But if this were a resulting trust, are the complainants barred by laches ?
    In about forty days after the contract was entered into, Ludlow diod, and since his heirs, the complainants, arrived at full age, the statute has not run. Now it may be admitted that, in executory -contracts, the minor heirs can not, generally, compel the vendor to wait for the completion of the contract until their majority. 'This must depend upon the nature of the contract.
    *In Griffin v. Griffin, 1 Sch. & Lef. 252, Lord Redesdale •said : “In executory contracts an infant can not take advantage of his infancy to excuse the non-assertion of his right under it, where an immediate assertion of his right and performance of his part of the contract is essential to the interest of the other party.” That was a contract of lion on one side, and a covenant to pay •out money on the other. Tho ancestor died, leaving an infant two years old. No mon.ey was expended — nothing done until the infant became of age, when he filed a bill to have the lien executed.
    But the contract under consideration, as regards the equitable ■title, was not executory. It was conveyed by clear and absolute terms. And, in addition to this consideration, there was nothing ■left undone by the heirs which it was important, under the contract, they should do. The installments were paid, as the law required them to be paid, so far as tho heirs were liable, out of their funds,, in the hands of Cooper. There is no answer to this fact. The essence of the contract was, that the purchase money should be paid as the government might require it. The prolongation of the time, by act of Congress, was as good to Ludlow’s [mirs as to Cooper. There was no obligation as to this payment, on Ludlow, which did not equally apply to Cooper. The parties were to be “equal in all payments toward the purchase money.” Now, if Cooper was not oblig'ed to pay until 1813, Ludlow was not. It is not doubted that, when the payment was made, Cooper had in his hands, of the partnership funds, the sum of $9,000. One-half of this belonged to Ludlow. With this money in his hands, could ■Oooper have recovered a dollar of the purchase money from Ludlow or his heirs? He could not. This is the true test of the principle. The heirs, by a bill, could have compelled Cooper to pay the purchase money, and account for the balance in his hands. Suppose Ludlow had paid all the purchase money, would that have entitled him to all the land? No one will venture so erroneous an assertion. The same rule applies to Cooper. But Cooper did not pay, of the purchase money, more than his moiety. After paying tho moiety *due by the heirs, there was still in his hands a large sum, which he was not bound to pay over to them.

      Is there any hardship in this view of the case? Is it not the-contract? If no lots had been sold, Ludlow’s heirs would have-been bound for their share of the purchase money, though the land might not have been worth one hundred dollars. There is no-hardship in requiring a man to perform his bona fide contract.
    It is true a great change has taken place in the value of the property. This was the calculation of the parties when they entered into the partnership. The subject matter of the contract was a town, and the lots were expected to become valuable. The-authorities cited to show that where a great change has taken place in the value of the property, the court will not decree a specific execution of the contract, has no application. The principle is admitted t.hat when the vendee, without excuse, has delayed to make payment, chancery will not aid him, especially where the property has become more valuable. But this contract is a contract of partnership, in which each party was bound to contribute equally toward the capital stock. And they did contribute equally, within the terms of the contract, as has been shown. It follows, then, that the authorities cited on this head do not apply, There was no delay of payment beyond the terms of the contract.
    The defendants’ counsel say: “If an account of sales, profits, etc., is seriously asked, no one, under the cii’cumstances, could imagine the possibility of carrjnng such account beyond the filing of the bill.” And the cases ot Drummond v. Duke of St. Albans, 5 Ves. 433; Pettiward v. Prescott, 7 Ib. 546; Dormer v. Fortescue, 3 Atk. 136; McKnight v. Taylor, 1 How. 161, are referred to.
    In regard to the first case, the lord chancellor says: “The mortgagee can not call upon the duke for the bygone profits. But with regard to the account prayed against him by the plaintiff, the duke did not enter as a trustee, but upon the ground that the right was in him. I agree that he is a trustee, but he had no notice of the trust till the bill was filed.”
    *The case in Atkinson has been examined. The questions in that case arose on certain limitations in a deed, and no principle is perceived in the case which has any application to the one under consideration.
    The case of McKnight v. Taylor rested on peculiar circumstances. The only creditor who was before the court was an assignee of the claim; and the court say, “"When the assignment was made to him, ho knew it was a disputed claim in actual litigation at the time, which had been allowed to sleep for twenty years, and for which it does not appear that he paid any valuable consideration.”
    The court further say, “It is not merely on the presumption, or in analogy to the statute of limitations, that a court of chancery refuses to lend its aid to stale demands.” There must be conscience,, good faith, and reasonable diligence, to call into action the power of the court. In matters of account, where they are not bound by the statute of limitations, courts of'equity refuse to interfere, after a considerable lapse of time, from considerations of public policy,, and from the difficulty of doing entire justice when the original transactions have become obscure by time, and the evidence may be lost. And the case of Vattier v. Piatt, 9 Pet. 416, is referred to as sustaining this principle.
    Now the case of Yattier v. Piatt was decided “on a clear and adverse possession of thirty years, without the acknowledgment of any equity or trust in Bartlo; and no circumstances are stated in the bill, or shown in the evidence, which overcome the decisive influence of such an adverse possession.”
    Bartle, being a non-resident, it was argued that lapse of time could not operate against him. The court held otherwise; but thirty years, instead of twenty-one, had elapsed since the adverse possession commenced. It is believed that no court has correctly undertaken to bar a claim by lapse of time, for a less term than is fixed by the statute of limitations. And notwithstanding what the chief justice says, courts of equity do, in all cases where the statute of limitation would apply at law, apply it in equity, by analogy to the legal bar.
    *But the ease of MeKnight has no analogy to the one under examination. Ludlow and Cooper were tenants in common. The possession of Cooper was the possession of Ludlow; and the acts of ownership exercised by Cooper were consistent with the contract. There was no disavowal, and holding adversely by Cooper, which could cause the statute to run. This doctrine will be found in Willison v. Watkins, 3 Pet. 48. If the statute could operate, it could only begin to run from the time the administrators of Cooper refused to recognize the right of the heirs, on the application of Garrard. In any view, it could commence running only from the time the heirs arrived at full age.
    Why do the defendants’ counsel speak of lapse of time? They have not set up that as a bar, and the court can not look out of the. answers for a bar. Mrs. Cooper, and all the other defendants, with the exception of Davis and Grimes, set up the statute of limitations as a bar, but do not rely on lapse of time. They can not therefore insist upon lapse of time. Lapse of time is a distinct and substantive defense, and can not be taken advantage of under a plea of the statute of limitations. We suppose this principle will not be controverted. The defendants are bound by their answers. No rule of pleading is bettor established than this.
    Piatt v. Oliver et al., 2 McLean, 267. And, especially, we would refer to Dacker v. Somes, 2 Mylne & Keene, 665; 1 Sch. & Lof. 262; 2 Madd. Ch. Pr. 103.
    The court have the facts of the case before them. The original parties have gone to their account, but their acts must be scanned to do justice to the living parties. In 1803, the written contract was made; some years previously Ludlow and Cooper became intimately acquainted. Ludlow is proved to have been a man of capital ; Cooper was a young man without capital. Ludlow was his partner and friend, gave him employment as a surveyor, and, when opportunity afforded, domiciled him in his own house. They were engaged as partners in building mills, Ludlow paying for the materials and labor as became necessary, and Cooper superintcnding the *work. At length, in 1803, they reduced to writing a parol agreement, out of which the present controversy has arisen. They became equally, save the reseiwations named, the proprietors of Dayton. They were to contribute equally to the payment of the purchase money to the government, and to realize equally the profits from the sale of lots. The first installment had been paid by Cooper, and Ludlow’s proportion of that payment was accounted for. Cooper was again to be, as he had been in the construction of the mills, the active partner. He resided at Dayton.
    In about forty days after the contract was signed, Ludlow became the victim of disease and death. He was not only a man of capital, universally so considered, but among the pioneers of that day, in point of respectability and influence, he stood in the first rank. This is acknowledged by the defendants, who say •Cooper was desirous of enlisting his influence in building up the town of Dayton. The contract, however, sets out no such motive; and although it is alleged in the answers, it is not evidence. A fact set un in an answer, not responsive to the bill, can not be received as a fact influencing the contract, unless proved. But the fact alleged could not be proved as in the slightest degree affecting the conditions of the contract. The written contract must speak for itself.
    Ludlow had scarcely beeome cold in his grave before Cooper wrote to Findlay, one of his administrators, a singular lettex*. “ For certain reasons,” he says, “I woxxld thank you not to make known to Daytou that I have given Ludlow any writing respecting the town of Dayton.” At so early an hour did he meditate the fraud against the children of his benefactor and friend, which he afterward, and those who claim under him, attempted to carry ■out.
    Not long after Ludlow’s decease, Cooper called his widow and asked for the key of the desk which contained the valuable papers of the deceased. It was handed to him. And he remained so long at the desk as to excite unpleasant feelings in the widow. When he came out she observed his saddle bags were full, or nearly full, of papers. He left the house without ^apology or explanation. ■On being spoken to on this subject a short time afterward by Colonel Chambers, a man of the highest respectability, he appeared to be excited, and said he had taken no papers but his own. It •so happened that the book of accounts kept by Ludlow, in which his disbursements wore entei’ed, strangely disappeared at that ■time, and has never since been found. That it was taken by •Cooper, there can be little doubt; and the remark is again made, that a man who would take away papers, as he took them from the desk of Ludlow, without any explanation to his widow, would take, on the same principle, the book which was lost.
    The administrators of Ludlow, or rather General Findlay, had some knowledge of the above contract; but neither he nor Garrard, nor any one of the heirs, ever had possession of the original. They had copies ; but the manner in which this suit has been defended, shows how useless it would have been to institute proceedings on a copy. The want of the original prevented Garrard from commencing suit, as he threatened to do. The guardians of the heirs never heard of the contract until recently. The original ■conti'act was mislaid — indeed lost — until found a few years ago by Israel Ludlow, in the manner as stated by Mr. Wattles. Whether Mr. Wattles be a non-juror or not, it is very evident that he is quite too scrupulous for the purposes of defendants’ counsel. And it is believed that the counsel will excuse the “joyous Eureka of Israel Ludlow, Jr.,” when they find, as it is confidently believed they will find by the decree of court, that there was a substantial ground for rejoicing by that injured heir.
    Many years have elapsed since the contract. The circumstances of the- ease excuse the complainants for not using greater diligence. We rely confidently upon these circumstances. In fact the case stood, in 1813 — the consideration paid — fully paid ; since which time Cooper and his representatives have been selling the lots and realizing the receipts. Will equity sanction this, as against minor-heirs, not having a knowledge of their rights? If it does, the decision will constitute a new rule in the law of equity. But we have no fears *on this subject. Cooper’s exertions may bo compensated by the court, if, indeed, under the circumstances such compensation shall be considered just.
    Cooper, instead of aiding the children .of his benefactor and friend, explaining to them their rights, and pointing out to them the mode of securing them, undertook to defraud them. He possessed himself of their property; ho transmitted it to his children, but it was not permitted to remain in his family. It has passed into unlinoal and foreign hands. Its present possessor has oven renounced his name. Are there any circumstances here which can induce the court to add to the fortune of Mrs. Backus, derived from the Coopers — otherwise immense — that property which justly belongs to the complainants?
   Lane, C. J.

Israel Ludlow, the ancestor of the complainants,, was a proprietor, and one of the earliest settlers of Cincinnati, and possessed a large-property in lands. About the year 1794, Daniel C. Cooper, a relative of Ludlow, and then young, came to Ohio- and received patronage from Ludlow, and, through his influence, in his occupation of surveying, and in other employments.

Before the year 1801, Wilkinson, Dayton, Ludlow, St. Clair, Denman, and others, separately and together, had made extensive purchases in the seventh range of the Symmes purchase, and laid out the town of Dayton. Cooper entered into the employment of these gentlemen; removed to the vicinity of tho new town ; acted as agent for the proprietors in the sale of lots, and was engaged in. erecting a mill for Ludlow and himself, near that point.

When Symmes failed in .making his payments, and the title of' his vendees was lost, the right of pre-emption was conceded by Congress to actual settlers ; and commissioners were appointed,, who held their sessions in Cincinnati, in the year 1801, to adjust controversies, and ascertain the persons properly entitled to certificates of entry. Cooper applied to this board, claiming the preemption of the land in controversy. His right *was admitted ; he entered the land, made the first payment, and received the inchoate title.

The following contract was made on December 23, 1803: “Whereas I, Daniel C. Cooper, of the town of Dayton, in the-county of Montgomery, have purchased of the United States certain lands in the seventh range of townships, near to, and including, the town of Dayton, in the Miami purchase, as may appear by the register’s and receiver’s office ; and have also procured of the commissioners certain certificates of rights of pre-emption in the seventh and eighth ranges, as aforesaid : Now know ye that I, Daniel C. Cooper, for the consideration hereafter named, hath granted, bargained, and sold, and by those presents do grant, bargain, and sell, to Israel Ludlow, of Hamilton county, one equal moiety, or half part of all said tracts, purchased as aforesaid, excepting certain tracts and town lots, including those lots which settlers are entitled to by virtue of their first settlement. The said I. Ludlow, for the consideration of the aforesaid grant, doth agree to pay one equal half part, or moiety, of the purchase money for the aforesaid tracts. The said parties are to bo equal in all payments toward the purchase money, and also the profits® or proceeds of sales of said lands, or any part of them. To which agreement we bind ourselves,” etc.

Ludlow died on January 21, 1804, leaving four children, the eldest of whom became of age in September, 1818, and the youngest in May, 1825. Administration of his estate was granted to James Eindlay and John Ludlow, his relatives and friends. Davis and Yeatman became guardians for the children.

The first payment on the land had been made by Cooper, in 1801, before the date of the contract; the other payments were due on the successive last days of December, 1803, 1804, and 1805, but were not made until 1813, to which time credits had been extended by successive acts of Congress.

Cooper continued to reside on the property in Dayton, treating it as his own, after the death of Ludlow. Some intercourse occurred between him. and the administrators of Ludlow, toward *lhe settlement of his accounts with the estate, which will be noticed hereafter; but no claim of ownership appears to have been made by them, nor was any money advanced by them toward the performance of the contract, and the guardians prove they •did not know of its existence. By 1808, Cooper appeal’s to have made sales, amounting nearly to $4,000; and by 1813, his sales seem to have been not less than $10,000 or $12,000. I do not find it sufficiently proved that this whole amount had then been realized in cash. Cooper received his patents in 1813, and retained the land until his death, in 1818. The defendants hold now by a title derived through his devise.

Upon these facts the complainants, heirs of Ludlow, prefer this ■bill, claiming half the unsold lands and half the profits of the sales. They rely upon the following propositions : That the contract of 1803 was but the execution of some previous arrangement, by which Ludlow and Cooper had long before held equal interests in the lands; that the first payment had been partly made, either with Ludlow’s money, or by money which Cooper owed to Ludlow ; that Cooper thenceforth held the lands to sell and manage on their joint account; that no subsequent payments were made, ■except with money derived from the sales, and belonging, in part, to the representatives of Ludlow ; that the title thus acquired was for their mutual benefit; that this bill is filed within the savings of the statute of limitations; and that the presumptions against th<?m, from lapse of time, are sufficiently repelled by the circumstances of their infancy, ignorance of their rights, the accidental loss of the evidence of their claim, and its very recent recovery.

The contract of December 23,1803, shows that Ludlow acquired an interest in the land. If it showed payment of purchase money by Ludlow, possession by Cooper, and no claim by him against Ludlow lor further acts of performance to complete the title of the latter, then Cooper’s possession would have been that of a naked trustee, and the complainants, protected by the savings of the statute of limitations, would have made a plain ease for relief, even at this late period.

*But the contract was not such evidence of right absolute in Ludlow. It created equal interests, but it imposed equal duties, and leit much to be done by both. Connected with attendant ■circumstances, it. showed a partnership in land, of which sales were contemplated, and profits expected. It probably was intended between them that Cooper should continue in the management of the property, yet the writing specifies no exclusive services; but it requires, in terms, from Ludlow, the payment of equal shares of the purchase money, and the law exacts from him equal efforts toward the success of the scheme. The complainants, therefore, do not establish their right to relief without showing a substantial performance of their ancestor’s stipulation, or a sufficient reason for the omission.

“Viewed as an executory contract for the purchase of land at a. price to bo paid by Ludlow, it would bo difficult to maintain that anything had been done by him, whilst living, which deserves this name. Cooper had paid the first installment, and owed three others, one of which would become due in seven days from the-time of contracting. The assumption that Ludlow advanced money toward the first installment, is unsustained by proof. The-surmise of Cooper’s want of ability at that time amounts to a. doubt only, especially when we remember that his father was in easy circumstances, and that he himself had spent several years in the country, partly in the office, partly engaged in surveying,, and that he held a claim, in 1801, against the company he served,, exceeding $1,000, .which he accepted in pre-emption certificates.. The transactions between Ludlow and himself show extensive-accounts, but nowhere show balances. The imputation of purloining papers rests only on suspicion, and is proved only by hearsay. The insinuation of abstracting the account book is too-serious a charge to be made, on no other ground except that he was in the place where he might have committed the crime.

Then followed the death of Ludlow, leaving Cooper to bear, alone, the burden of the remaining debt, amid the hardships and ^difficulties incident to the early settlement of a then small, remote, and sickly town, unsupported by the credit, influence, industry, and other aids, which he had a right to look for in this-connection. Indeed, the right to the land was strictly lost to both by the failure to meet the installments of 1803, 1804, and 1805,. and it was by the indulgence of government that Cooper obtained from the sales enough to meet the payment of 1813. Where, then, shall we find in this statement any equitable or meritorious ground to bestow upon Ludlow or his heirs, the benefit of an enterprise-to which Cooper devoted the last fifteen years of his life, the fruits-of which have been enjoyed for forty-one years, by him and his, in peace, without their contribution to its furtherance of the smallest imaginable aid?

My mind, however, is impressed yet more strongly with another view of these facts. The contract was made on December 23,1803; one payment had been made, another was just becoming due; the death of Ludlow occurred in a few weeks. Almost immediately .after Cooper could have heard of the event, a letter was written by him to Findlay, referring to the contract; another letter, in June •of that year, shows negotiations were pending for a relinquishment between Cooper and the administrators. Nothing further was beard of the contract for many years; its validity has never been ■asserted by the administrators or guardians ; no claim was set up •under it until 1825, and no attempt to enforce it until 1838. I can not resist the conviction that Cooper and the administrators settled this, with other claims, and that the latter relinquished, as far as •they were able, the interest of the estate of Ludlow to this land. If the equity of tbo heirs to the land had been perfect, the administrator can not impair it; but where it depends on the payments to be made by him on a contract to which he is a party at law, and he, acting in good faith, and for the apparent benefit of the estate, adjusts and compromises the demand, the dependent •equity may be extinguished. Howard v. Babcock, 7 Ohio, 73, pt. 2; Henry v. Conn, 12 Ib. 193. In estimating the propriety of such an arrangement, wo must not permit ourselves to be dazzled by the present *valuo of this property, but should revert to its condition in early times. The subject of arrangement was not the Dayton of 1844, but the Dayton of 1803. The estate of Ludlow consisted chiefly of land, which it was necessary to sell to pay ■other debts, and to support and educate his children. The exer•cise of sound judgment might well dictate that the family would be more benefited by the preservation of the lands from the sacrifices of forced sales, than by the remote and uncertain advantages likely to arise from the growth of an unhealthy village, containing ■less than twenty houses, on the then distant frontier. What else than the supposition of such relinquishment can explain the neglect of the administrators, to whom no other motives or intentions ■can be attributed, except the wish to promote the fortunes of their friends and sister’s family? Why else did James C. Ludlow refrain from pressing his claim in 1820? What restrained Garrard, in 1825, a man of excellent judgment, accustomed to maintain his interests with vigilance and vigor, except that Findlay, then living, could furnish evidence fatal to his claims?

Another defense, equally perfect, arises in this case from the inability of the court to do complete justice, from lapse of time. If the complainants have any rights, they depend upon, and are limited by, the results of an account. The account between them ■as partners must take, as its basis, the state of indebtedness in 1803 (a basis which involves an examination and adjustment of .all previous transactions), and it must contain a statement of all moneys received on sales of Dayton lots; all advancements of purchase money; all disbursements made in good faith to promote ■the progress of the town ; all just allowances for personal services; and it must embrace the transactions of successive owners, from 1796 to 1844. No such account is practicable. No entries to serve for such have ever been made, and its elements are irrecoverably lost. It is no answer to say, it was Cooper’s duty to have kept it. He has held the property as his own since 1804, with the knowledge of the administrators, the necessary parties to such an account; and the claims of the devisees have been known *as exclusive since T825. Since, then, the complainants have no rights except lifter an account, which can not be justly taken, the rule of lapse of time works a complete protection for the defendants. Bill dismissed.

MEMORANDUM.

David Easton and others v. Pennsylvania and Ohio Canal Company. Judge Birchard, being originally of counsel for one of the parties, did not sit in the case.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    Jabez B. Larwill v. John Kirby.
    In an action, under the statute, by the father of a female, against a clerk of the court of’ common pleas, for granting a license contrary to the statute, evidence of the had character of the husband may he received and considered by the jury.
    A recovery and satisfaction in such action is not a bar to a suit by the father for enticing away his infant daughter, and depriving him of her service.
    Whethor a clerk who issues the license is in all cases liable in the event of a legal impediment, if he does not require the oath of the applicant, quaere ?
    This case comes before this court on a writ of error, to the-court of common pleas of Crawford county.

      The action was debt, and in the declaration it is charged in substance that the plaintiff in error, as clerk of the court of
    ^common pleas of said Crawford county, on August 5, 1842, issued under his hand and the seal of his office, a license authorizing any person empowered to solemnize marriages, to join in marriage one John Shields and one Ruth Kirby, the said Ruth being the daughter of the defendant in error, and within the ago of eighteen years; the said defendant in error not having given his assent thereunto, either in person or in writing, attested by two witnesses, contrary to the statute, etc., whereby a right of action accrued, etc.
    To this declaration the then defendant, now plaintiff in error, interposed a plea of the general issue, and the case was submitted to a jury at the June term of the court of common pleas, 1843. The jury returned a verdict in favor of the plaintiff, for $150 debt and one cent damages, upon which verdict a judgment was entered.
    A bill of exceptions was then tendered by the defendant in that -case, which was allowed by the court,-anji is made a part of the record. From this bill of exceptions-it appears that, on the trial it was proven, among other things, that Larwill was clerk, and that a marriage license had been issued under his hand and seal, as stated in the declaration, for the marriage of the said Shields and the said Ruth Kirby ; that the said Ruth, at the date of the license and at the time of the marriage, which took place a few • days thereafter, was within the age of eighteen years, residing with her father in the county of Marion, and that her father did not consent to, but was opposed to the marriage. The plaintiff offered to prove, for the purpose of enhancing damages, that Shields was a man of bad moral character, which was objected to, but the objection was overruled. It was proven that, at the time the license was issued, Larwill was sick and confined to his house, and that the license was issued -without his knowledge. The license was, in fact, issued by a young man by the name of Sizer, who was not a deputy clerk, but occasionally in, and at the time had charge of, the office. Madison W. Welch, a man of respectability, who applied for the license, was not examined by Sizer 3] under oath or ^affirmation, but stated that the partios were of full age, that they were both unmarried, and that, of his own personal knowledge, all was right; that there was no impediment to the marriage, and -that the relatives of the girl were all satisfied. With this statement Sizer was satisfied, and consequently issued the license.
    The court then charged the jury that, if Larwill issued the license without inquiring of the applicant under oath or affirmation, although he may have been fully satisfied that there existed no legal impediment to the marriage, by the statements and assurances of a man of known veracity, he was liable to the penalty of the statute, in case it turned out that the girl was under age and not a resident of the county, and the father had not given his consent to the marriage.
    The court also charged the jury that they might take into consideration the evidence proving the bad character of Shields, and the unsuitableness of the marriage, for the purpose of aggravating the damages, and also that, although an action might have been sustained by the plaintiff against Shields, or against Shields and Welch, for enticing away his daughter; yet if there was a recovery and satisfaction in this case for damages, arising to the plaintiff, from the loss of his minor daughter’s services, and from the bad character of Shields and the unsuitablenoss of the match, it would bar the plaintiff from the recovery of damages on the same ground against Shields, or Shields and Welch ; that, although there might be two recoveries for the same wrong, the plaintiff could claim but one satisfaction.
    To this charge of the court Larwill, by his counsel, excepted, and to reverse the judgment this writ of error is prosecuted.
    The case was argued by Bartley and Adams, for the plaintiff in error. No argument was submitted for the defendant.
   Hitchcock, J.

Various errors have been assigned in this case, which will be considered in the order in which they are presented upon the record. But before proceeding to do this, *it may not bo improper to say that it seems to us difficult to ascertain upon what principles this action could be sustained, if all the evidence before the court and jury is detailed in the bill of exceptions. The license, which is the subject matter of controversy, was not, in fact, issued by the plaintiff in error, or with his knowledge or consent. It was issued by an individual who, at the time, bad charge of the office; but there is nothing to show that he was authorized to transact business of this character. No objection, however, is interposed on this account, and we will not, therefore, for this cause, interfere with the judgment.

The first error assigned is, that the declaration is insufficient in law to maintain the action. Counsel have not pointed out, nor have the court been able to discover, wherein the declaration is defective. Although not, perhaps, very formal, it seems to us to contain all the necessary allegations.

The second error assigned is, in substance,.that the court erred in charging the jury that it was necessary for the clerk, in order to exonerate himself from the penalty imposed by the statute, to examine the applicant for a marriage license under oath or affirmation.

This assignment presents a question of some difficulty. By the 'act to regulate marriages, in the last clause of section 7, Swan’s Stat. 582, it is enacted that, if any clerk shall, in any other manner,” that is, in any other manner than is prescribed in the act, “issue or sign any marriage license, he shall forfeit and pay a sum not exceeding §1,000, to and for the use of the party aggrieved.”. Section 1 of the same act provides that male persons over the age of eighteen, and females over the age of fourteen, may b° joined in marriage; but if the male be under twenty-one, or the female under eighteen, the consent of the lather, mother or guardian, as the case may be, of such infant, must first be obtained. In addition to this, before the marriage takes place, notice thereof must be published, on two several days of public worship, in the presence of the congregation, or license therefor be obtained from the clerk of the court of common pleas of the county * where the female resides. And if any person authorized to solemnize marriages shall join two in marriage without such previous publication or license, he is subjected to a penalty not exceeding §1,000.

Section 7 of the act provides, that the clerk of the court of common pleas may inquire of the party applying for license, as aforesaid, upon oath or affirmation, relative to the legality of such contemplated marriage; and if the clerk shall be satisfied that there is no legal impediment thereto, then he shall grant such marriage license.” By the general provisions of the law, the clerk is liable to a penalty, if he grants a license where there is any legal impediment to the marriage. As, however, it is not supposed that he can, of his own personal knowledge, know whether there is or is not any legal impediment, this provision is made, that he shall grant the license, if he is satisfied that there is no such impediment. But how is he to be satisfied ? The statute answers, “By the oath or affirmation of the party making application for the license.” It seems to me that, by a fair construction of the act, if he becomes satisfied, by any less evidence than this, and it so happens that there is in fact a “ legal impediment,” he must be liable to the penalty. But, as there is not a perfect accordance of opinion in the minds of the members of the court, upon this subject, wo do not decide the question.

The.next error assigned is, that the court erred in charging the jury that, in ascertaining the amount of their verdict, they might take into consideration the bad moral character of Shields, and the unsuitableness of the match.

It seems to the court that this was a proper subject for the jury to take into consideration. The intention of the statute, so far as the penalty is concerned, was to prevent violation of the law; and if the law was violated, to furnish some redress for the injury inflicted on the party aggrieved. Now, in a case like the present, the extent of the injury must depend much, if not entirely, upon the character of the parties to the marriage contract. If the match be a suitable one, although the feelings *of the father may have been wounded, still'the actual injury would- bo but trifling; whereas,-if his daughter was joined in marriage with an immoral, prodigal, and dissipated man, it would be difficult to measure the extent of the injury. In this part of the charge there vfras no error.

But in charging the jury that a recovery by Kirby, in this case, would be a bar to any right of action which he might have against Shields, or against Shields and Welch, for enticing away his daughter, we are of opinion the court of common pleas were mistaken as to the law. This action is one given by statute, and is not like a case of separate action against joint trespassers, where a recovery against one, and a satisfaction of that judgment, is held to be a bar. Even in such cases, there may be separate judgments, but there can be but one satisfaction. This part of the charge was calculated to enhance the damages upon a false basis, and was therefore injurious to the plaintiff in error. For this cause, therefore, upon the general error assigned, the judgment of the court of common pleas is reversed, and the cause remanded for further proceedings.


author: Wood, C. J.

text:
    The State of Ohio, on relation of John A. Corwin, v. The Urbana and Champaign Mutual Insurance Company.
    "When an incorporated company is, by its charter, authorized to lend money, ■without restriction as to the rate of interest, it does not work a forfeiture of its charter to receive more than six per centum; and where, by the terms of its charter, it is allowed to lend upon “such terms” as the directors may deem expedient, extra interest beyond six per centum can be collected by law.
    It is no violation of a charter, which contains a clause prohibiting the exercise of hanking powers, to receive money on deposit.
    An insurance company does not forfeit its charter because of non-user, by refusing to insure against extra hazardous risk.
    This is an information in the nature of a quo warranto, reserved, from the county of Champaign.
    *In the information filed in this ease, it is averred the defendant, being a corporation, has and still does misuse the liberties, privileges, and franchises conferred upon it by the act which gave it birth, in making loans of money at usurious rates of interest, to wit, at twelve per centum per annum; in the employment of its capital in the purchase of notes, bonds, and other securities, at enormous rates of discount, varying from fifteen to forty per centum, and in other moneyed transactions contrary to tho spirit of the act of incorporation, and against law; to the great damage and prejudice of the state and tho good people thereof.
    In a second count, the relator charges the defendant with having forfeited the franchises conferred by non-user, in this, that from January 1, 1838, up to January 24, 1842, the time of filing the information, the defendant ceased and refused to insure property from loss by fire or otherwise, such insurance being the sole object of its creation, in total disregard of the provisions of tho act, etc.
    In a third count, it is averred that the defendant, from March 1, 1841, used and still does use, without any warrant, charter, or grant, the liberties, privileges, and franchises o¡ becoming tho proprietor of a bank or fund for the purpose of receiving deposits, making discounts, and transacting other business, which incorporated banks in the State of Ohio may do by virtue of their acts of incorporation, and also that the defendant actually received deposits, gave certificates of deposit, made discounts, and carried on banking operations, and other moneyed transactions which arc usually performed by incorporated banks, and all which liberties, privileges, and franchises, the defendant did and still does usurp upon the State of Ohio, to the great damage, etc.
    The defendant plead, or more properly, answered, separately to each count. To the first, that by its charter, the company was authorized to loan any part of its capital stock, moneys, funds, or other property, to individuals or corporations on real or personal security, for such periods of time and upon such *fems as the directors of such company should deem expedient; and that, by virtue of said act of incorporation and the laws of the land, the said loans were made.
    To the second count, that the defendant had not ceased to insure property against fire or otherwise, but had always been ready and willing to make such insurances at reasonable rates.
    To the third count, that they had received deposits of money and other valuable things, but had not received such deposits and given out certificates as a bank, or done any banking business. This is disclaimed and denied.
    At the June term, 1842, those issues were subriiitted to a jury in the Supreme Court for Champaign county, who found that the defendant had loaned money, paid into .said company for stock or otherwise, at twelve per cent, per annum, since July, 1835, and from that period back to January of the same year, at ten per cent., and had purchased bonds, notes, and other securities, at an average rate of discount of sixteen per cent, since July, 1835; that the means of the company paid in, amounting to about $60,000, hath been thus chiefly used by the company.
    The jury further found there was but one insurance then existing on fire ; and that one risk, on a steam-saw mill, was declined, in consequence of extra hazard; that the defendant had taken but two insurances on fire, since 1838, but had always been ready and willing to take such risks.
    It was likewise found that the defendant had dealt as a savings bank or institution, receiving small deposits from many persons, from children and others, to the amount of some $>300 in all, up to the commencement of this prosecution ; but had received no deposits from merchants or traders. That the funds of the defendant fell on- dividend days, and once or twice, reduced the amount of moneys below the capital stock of the defendant on hand.
    On this “finding of the jury” the prosecution moved for judgment of ouster, which was resisted by the defendant; and this.is the question reserved for the consideration of this court.
    *Samuel H. Robinson and D. S. Bell, for relator.
    John H. James, for defendant.
   Wood, C. J.

The counsel for the prosecution insist that the state is entitled to judgment on this verdict, as a matter of course, on the first count in the information, because the facts are found by the jury substantially as they are averred. In most cases which occur, such a position could not well be successfully answered; for the allegata should, and usually do, when traversed and found to be true, constitute a good basis for a legal judgment. If such, however, be not the case, in civil actions even, the judgment will be arrested ; and in favor of a defendant, as strict rules, at least, should be applied, in what may bo termed a quasi criminal prosecution.

On this count, it will be seen, no facts are found by the jury, but what are expressly admitted by the plea. The issue, therefore, is upon the application of the law, and needed .not the intervention of a jury.

But do the facts, either admitted or found, constitute a misuser of the privileges or franchises of this corporation ? To determine this, it is necessary to look to the act by which it was created, and still continues to exist. Section 4, 29 Local L. 175, provides that it shall be lawful for said company to vest any part of its capital stock, moneys, funds, or other property, in any public stocks or funded debt, created or to be created by any law of this state ; and the same to sell and transfer at pleasure, and again to invest the same, or any part thereof, in such stocks or funds, or otherwise, whenever and so often as said company may deem it expedient; or may loan the same, or any part thereof, to individuals or corporations, on real or personal security, for such period of time, and upon such terms, and under such restrictions, as the directors of said company, for the time being, shall deem most expedient: Provided, that it shall not be lawful for said corporation to engarro *in the business of banking ; nor shall said company make, issue, or emit any bills of credit, as a circulating medium of trade or exchange; and, provided, also, that the capital stock of said, company shall not exceed §50,000.

It is not a question for us, whether the powers conferred by this section are the result of wise or unwise legislation. The privileges and franchises granted, are extensive in the extreme, and but feebly guarded from misapplication and abuse; and it should have been foreseen by the legislature which conferred these extraordinary powers, that corporations, like individuals, would sometimes apply their means to the acquisition of gains beyond what the ordinary sense of mankind would consider strictly justifiable or purely moral.

But had this defendant the power to loan money at twelve per cent, per annum, and to purchase bonds, notes, and other securities at sixteen per cent, discount, as found by the jury?

The charter is the law of the case. If none of its provisions have been violated, it is difficult to find any legitimate ground to demand its surrender. The defendant, not by implication or inference, but by express grant, may invest any part of the capital stock'in stocks or funds, or otherwise, whenever and so often as is doomed expedient. “ Otherwise,” would seem to indicate, in any other lawful manner. It may, therefore, invest in bonds and notes, and by discounting them ; and, as the company is restricted to no rate of discount, it is by no moans a violation of its charter, if it make a good bargain. By the charter, it may loan money to individuals or corporations, on real or personal security, for such period of time, and upon such terms as the directors deem expedient. The rate of interest is not restricted. The charter, then, is not violated by the reception of twelve or fifty per cent, on the loans of this company. An individual may contract for any rate of interest under the general law; but the law will coerce the payment of six per cent, per annum only; but the contract is no violation of law, because it is not prohibited. An individual may, for the same ^reason, receive any rate of interest. It is no violation of law, and when paid, it can not be recovered back.

A corporation, unrestrained, may occupy the same ground. The rato of interest demanded or received, though it may be so exorbitant as to shock the moral sense of the community, is no violation of its charter, unless restrained by it.

We incline to the opinion, however, that this charter confers the power to bargain for any rate of interest; and, if so, any rate of interest agreed upon could be recovered by law.

The persons to whom loans may be made, are described; the kind of security and the period of time is provided for, and loans are to be upon “such terms," as the directors deem expedient. By the words, “ upon such terms," must, probably, mean to intend such rate of interest; for, as the persons to whom loans may be made, the kind of security and length of time for which made, are all enumerated, it is difficult to imagine what else could have been designed by the words “ upon such terms,” unless to fix the rate of interest by agreement. But if such were not the object of this legislation, there is nothing averred in this first count which can be said to be legally a misapplication, abuse, or misuser of the franchises granted; and, consequently, no legal judgment of ouster can be predicated thereon, although such averments are found by the jury to be true.

The facts averred in the second count are, by no means, found by the jury, in a legal sense, at least, although insurance was evidently one of the objects of the company, and provided for in section 2 of the act. The jury found one existing insurance, one refusal, because extra hazardous; but that the defendant was always ready and willing to insure at reasonable rates. The law by no means requires this defendant, nolens volens, to insure property or forfeit its charter for non-user ; but applications must be made and refused, at reasonable rates, and -without excuse.

The third count of the information, in substance, charges upon the defendant a usurpation of the franchises of banking, and %peeifios, with minuteness, the acts done and the usurpations relied upon, as within the proviso of section 4, and violations of the charter.

The finding of the jury does not, however, appear to us to square exactly with the allegations in this count. The jury say the defendant has dealt as a savings bank or institution, receiving sma'l deposits from children and others, to the amount of some $300 in all, but have received no deposits from merchants or traders; nor is it found a single certificate of deposit was given by the company.

It does not appear to us this finding is within the prohibition against banking; and, if not, it is a lawful pursuit, in which a corporation, as well as an individual, may engage ; and it is well said by the defendant that, although receiving deposits is a part of the business of banks, it is no exclusive privilege of theirs, nor is the discounting of notes.

All persons in Ohio, artificial as well as natural, may pursue the business of banking, with the single exception of the issuing of notes for circulation as money. This is the mischief the legislature have sought from time to time to remedy ; it is the only exclusive, and the principal franchise, except its life, conferred upon a bank. It is against the issue and circulation of notes, as currency, that our penal statutes have, without exception, it is believed, been directed from 1816 to the present day. These deposits in savings institutions, however, have but little semblance to bank deposits. In general bank deposits no interest is paid by the bank, and the money is repaid on demand. In savings banks, the deposits, though called such, aro strictly loans, on which interest is paid, and are repaid only on express and specific notice.

We have, therefore, come to the conclusion, that the finding of the jury on this count, does not lay the foundation for judgment against the defendant, but that judgment on all the counts must be entered in his favor.