author: Hitchcock, J.

text:
    *Asa Howard v. The Trustees of Whetstone Township.
    Where a woman, whose husband is able to support her, is driven from her home by his cruelty and becomes a township or county charge, the money expended for her support may be recovered of the husband at the suit of the party making the advances.
    This is a writ of error to the court of common pleas of the county of Crawford.
    The original action was assumpsit, brought by the trustees of Whetstone township, against Howard, the plaintiff in error, for meat, drink, lodging, and other necessaries furnished by the township to and for the use of Joanna Howard, his wife. The declaration contains the appropriate common counts.
    To the declaration the defendant pleaded the general issue, and the cause was tried by a jury, at the April term of the court of common pleas, 1839. The jury returned a verdict in favor of the plaintiff for S21.62J, for which judgment was rendered.
    The defendant then tendered a bill of exceptions, which was allowed by the court and is made a part of the record.
    This bill of exceptions shows that, on the trial, the plaintiffs gave evidence tending to prove, that about eighteen years before that time, the wife of Howard, who was then and still is a resident of said township, separated from her husband and has ever since lived separate from him. Before leaving her husband he had frequently beaten, whipped, and abused her. On the morning of her departure he kicked her and whipped her with a rope, in consequence of which abuse she left him, fearing to return. For many years after leaving her husband she supported herself by her own industry, but was now feeble, having arrived at about the age of sixty years, had no property, and was without the means of subsistence. In the opinion of witnesses, Howard is worth at least $2,000, and it was unsuitable and unsafe for his wife to reside in 366] the family with him. About September 1, 1837, the ^said Joanna applied to the overseers of the poor for Whetstone township, for relief under the law for the relief of the poor, which relief was furnished, and a contract made with one Doty to support her as a pauper. To recover the expenditures incurred in furnishing this relief, and for the amount of a physician’s bill for services and medicines furnished the said Joanna while thus a pauper and which had been paid by the township, the suit was brought-The plaintiffs having proved the foregoing facts rested their case, whereupon the defendant, by his counsel, moved the court to direct a nonsuit. This motion was overruled, and to the opinion of the court overruling the motion the defendant excepted.
    The defendant then introduced testimony tending to prove that after said Joanna left her husband, and before she became chargeable as a pauper, she was detected some time after night in bed with a man residing in the neighborhood of bad character, and with whom she was well acquainted, by the name of Edgington. The detection took place, however, within threo minutes after Edgington had gone to bed. It was further proven, that on a subsequent occasion, while the said Joanna was sitting by the fire in company with her son-in-law, a son and a daughter, the said Edgington sat down by her and put his arm on the top of the chair around her shoulders, and that her daughter came up and removed the same.
    The counsel for the defendant then requested the court to instruct the jury:
    1. That the plaintiffs, as officers of the township, could not maintain the action.
    2. That the plaintiffs could not recover under the pleadings.
    3. That the plaintiffs could not recover, under the pleadings, for the physician’s bill and for medical attendance.
    4. That if, after the separation from her husband, the said Joanna was detected in bed with a notoriously lewd person, although the detection was before any crime of adultery had been committed, it would be sufficient evidence of lewdness to exonerate her husband from any legal liability for her support.
    The court refused to give the instructions requested, but did ♦instruct the jury, that the plaintiffs had the same right to [367 sustain the action for necessaries furnished the pauper by the township, as an individual would have who had furnished the same necessaries.
    That the plaintiffs could recover, under the pleadings, for necessaries furnished and for medical attendance, if the same had been paid for by the township.
    And that the defendant, in oi’der to exonerate himself from legal liability to support his wife on account of her lewd conduct, must prove that she had been guilty of adultery; but that it would be sufficient to prove a single act of adultery.
    To the opinion of the court, in refusing to give the instructions requested, and in the instructions given, the defendant excepted.
    The errors assigned are, in substance, that the court erred in refusing to nonsuit the plaintiff, in refusing to instruct the jury as requested, and in the instructions given.
    Stewart, for the plaintiff in error.
    Boalt & Scott, for the defendants,
    insisted that the action was well brought. The husband is bound 'to sustain his wife; and if, by his cruel treatment, he drive her from her home, he gives her » credit for necessaries when furnished by a third person. And there is no good reason, if such necessaries are furnished by the township, why the township should not be entitled to be indemnified by the husband. Gilman v. Brown, 14 Mass. 127; 1 Esp. 442; Sel. N. P. 281, 282; Bolton v. Prentice, 2 Str. 1214; McCutchen v. McGahay, 11 Johns. 281; McGahay v. Williams, 12 Johns. 293; 2 Kent Com. 148; 4 Esp. 41.
   Hitchcock, J.

The first error assigned in this case is, that the court of common pleas refused to nonsuit the plaintiffs. This bill of exceptions shows that the plaintiff in error, by barbarous and 368] cruel treatment, drove his wife from her home, ^thrusting her upon the world to take care of herself, and rendering it unsafe for her to reside with her own family. The husband is bound-to provide his wife with necessaries during coverture, and if he refused to do it, and she contracts debts for such necessaries, even during cohabitation, he is ‘obliged to pay those debts; but for anything beyond necessaries he is not chargeable. 2 Kent Com. 146. And if he turn her out of doors, or if she receive such treatment from him as renders it unsafe for her to cohabit with him, he will be bound by her contracts for necessaries suitable to her condition and standing in life. And although he may have given notice that he will not be answerable .for debts of her contracting, and this notice is brought home to the knowledge of the individual furnishing her with necessaries, he will still be liable. 2 Kent Com. 148; 11 Johns. 281; 1 Esp. 441. Such is the law as it respects individuals. And, in the case before the court, had the necessaries been furnished to the wife by an individual, such individual could undoubtedly have sustained an action against the husband.

But it seems to.be supposed, that where a woman is driven from her home, by her husband, without the means of subsistence, and becomes chargeable as a township pauper, the township is without redress, and that the relief furnished under the poor laws must be considered as a gratuity. Whether a township, having furnished relief to a pauper, can, at a subsequent period, recover compensation from the individual relieved, such individual having accumulated sufficient property to pay, is perhaps a doubtful question. In Massachusetts, it seems to have been held that no such recovery can be had. But the case is entirely different where a woman is driven from her home by her husband, who is abundantly able to support her. There is no reason why the same rights should not accrue to a township furnishing her relief as to an individual. In the case of Hanover v. Turner, 14 Mass. 127, it was held, that the expenses incurred by a town for the relief and support of a woman whose husband is of sufficient ability to support her, *may be recovered of the husband. And such [369 we hold to be the law, and that the court of common pleas decided correctly in overruling the motion for a nonsuit.

It is next claimed that the court of common pleas erred in deciding that the plaintiffs in the court below, as officers of Whetstone township, could sustain the action. If this objection to the recovery presents a question in any shape different from that under the first error assigned, it must be in consequence of the peculiar manner in which the suit was brought. It is in the name of Chambers, Brehman, and Campbell, trustees of Whetstone township. The trustees of a township are the proper plaintiffs or defendants, in prosecuting or defending a claim for or against a township, unless express provision is otherwise made by law. It was so held in the case of Harding v. Trustees of New Haven, 3 Ohio, 227.

It is expressly provided, in the law for the relief of the poor, that suits originating under that law between townships shall be prosecuted and defended by the trustees. In the case before us the suit was properly commenced by the trustees of the township. It was not necessary that the individuals then constituting the board of trustees should be named, but the fact that they were named could not affect the proceedings.

Again, it is assigned for error that the court of common pleas decided that the plaintiffs in the court below could recover under the pleadings iri the case. The declaration was in assumpsit, containing the common counts, for meat, drink, washing, lodging, and other necessaries furnished the defendant’s wife, for goods sold, for work and labor done, and for money paid to the defendant’s use. This was the proper form of action, and under the declaration, the evidence set forth in the bill of exceptions was properly received. The township had paid money for the sustenance of the defendant’s wife, and also for medical attendance furnished her. It was the legal and moral duty of the defendant to have paid this money, and being paid as it was by the township, it was paid to his use.

370] The next objection is, that the court of common pleas ♦refused to instruct the jury, that if, after the separation of the said Joanna from her husband, she was detected in bed with a notoriously lewd man, although the detection was before any act of adultery committed, it would be sufficient evidence of lewdness to exonerate her husband from her support.

If a wife elopes from her husband and lives with another man in a state of adultery, the husband is not bound to support her. Nor is he if she leave him without cause, so long as she remains absent from him. And even when by his cruelty, he has driven her from her home, if she subsequently cohabits with another in a state of adultery, he will no longer be bound for her maintenance. But the fact of guilt in this respect, in the ease under consideration, as it will be in every similar case, was a fact to be ascertained by the jury. The evidence exhibited conducing to prove this fact, was proper for the consideration of the jury, and the court could not with propriety have expressed an opinion as to the effect of that evidence.

But what was this evidence, which was claimed by the plaintiff in error to evince lewdness, for it is not pretended that there was any actual adultery ? If there had been any, this jealous husband would not have failed to prove it. Here was a woman more than sixty years of age, who had been driven from her home by the savage barbarity of her husband some sixteen or eighteen years previous. She retired to her bed, and after she had thus retired, a base man went to the same bed, and continued there a space of time less than three minutes. Whether this was with or without her consent does not appear. But it is right to presume that it was without her consent. For had it been otherwise, the fact would undoubtedly have appeared upon the bill of exceptions. But this is not all. The same individual at a subsequent period, while this aged woman was sitting by the fire in company with her children, put his arm upon the top of the chair in which she was sitting. And these circumstances are relied upon by the barbarous husband as being sufficient to exonerate him from the support of his much abused wife. The court of common pleas correctly refused so to instruct the jury.

371] *Again, the plaintiff in error complains that the court erred in the instructions actually given to the jury.

These instructions were, that it was necessary for the defendant in the court below, in order to exonerate himself from the legal liability of supporting his wife, on account of her lewd conduct, to prove that she had been guilty of adultery, but that it would be sufficient to prove a single act of adultery.

Of these instructions, the plaintiff in error has no just cause of complaint. They are, to say the least, as favorable to him as he had any right to require, more reasonable than he had any right to expect.

The judgment of the court of common pleas is affirmed, with costs. Judgment affirmed.


source: Caselaw Access Project

author: Grimke, J.

license: Public Domain

text:
    Elizabeth Huber v. John Huber’s Administrators.
    Where money comes to a wife in right of a former husband, and the second husband borrows it of her and gives her a note for it, the note is good, and after his death she may set it up in equity against his administrators.
    This is a bill in chancery from the county of Fairfield.
    It is a suit against the administrators of John Huber, to compel the payment of two sums of money, which it is alleged accrued to her during the marriage, and out of the dower estate of her former husband, John Graham.
    The bill avers that the said John Graham made several entries of land, upon which partial payments were made; that the lands thus entered became forfeited to the government in consequence of non-payment. That afterward, in the year 1830, her two daughters, in pursuance of the laws of Congress with regard to forfeited payments, procured the money therefor, amounting to $300, and that they divided the same equally between themselves and the complainant, paying the complainant $100 as her equitable ^proportion. That her then husband, the said John [872 Huber, never claimed the same, but always spoke of and treated it as the separate property of the complainant. That some time alter the receipt of the money, the said John Huber being desirous to make use of the money, requested her to let him have the same, which she did, and that he then gave to her the following note:
    “Due Elizabeth Huber on demand $100, for value received, as witness my hand, this 12th day of September, 1831.
    “ $100. John Huber, Jr.”
    The answers of the administrators deny the equity of the bill, and the case is heard upon the bill, answers, and evidence.
    The claim to another sum of money mentioned in the bill was abandoned for want of proof.
    Brasee, for the complainant:
    It is a clear rule of equity that a husband and wife after marriage may contract, for a bona fide and valuable consideration, for a transfer of property from the husband to the wife, and the interposition of a trustee is not absolutely necessary; especially will equity sustain such a contract where the consideration of the promise consists in property received from the wife. Slanning v. Style, 3 P. Wms. 337; Lucas v. Lucas, 1 Atk. 270; Arundell v. Phipps, 10 Ves. 146-149; Livingston v. Livingston, 2 Johns. Ch. 537; Shephard v. Shephard, 7 Johns. Ch. 57; Reeves Domestic Rel. 166 ; 2 Roper, 227; Ridout v. Lewis, 1 Atk. 169.

    H. H. Hunter, for the defendants,
    admitted that a husband in his lifetime may settle a separate estate on his wife, but insisted that a note made during the marriage by the husband to the wife is void both at law and in equity. He cited Clancy on Women, 112.
   Grimke, J.

It is admitted by the counsel for the defendant that 373] a husband may, during his life, settle a separate estate *upon his wife; that is, he may (there being no claims of creditors to forbid it) transfer property to his wife in which she never had any beneficial interest, and which will inure to her as her separate estate. This may be done even without the appointment of a trustee. A court of equity would, if necessary, appoint one to execute the intentions of the husband. But the equity of the wife in the present case, presents even a stronger case to the consideration of the court, for ’in the money she once had a beneficial interest, of the advantage of which she is deprived by the rules which are administered in a court of law. That the rules, which are established in the two courts, are very different, is evident from the whole doctrine relative to the separate property of the wife, a doctrine which has been built up exclusively in the court of chancery, and which has been recognized in the courts of this country as well as in England. This does not produce any contradiction in the law administered by the two courts. It is not that a court of chancery and a court of common law may pronounce totally diverse opinions about one and the same subject matter, of which both may equally entertain jurisdiction, but rather that there is a class of cases which belong peculiarly to a court of equity, and which are, for that reason, withdrawn from the consideration of a court of law. And of this nature are agreements between husband and wife, where it is the intention of the husband, either oxpressly or by strong and reasonable implication, to give property which once was his to his wife, to her separate and individual use; and this property may be either real or personal, though in the great majority of cases a settlement of this kind embraces real property, as being more stable, and more capable of being withdrawn from the future control of the husband. If John Huber had been a wealthy man, and had, by a solemn deed and conveyance, transferred land and money to trustees for the use of his wife, there can be very little doubt but what such a conveyance would have been upheld as an effectual settlement in favor of his wife. But the intervention of trustees is not necessary. Trustees afford a great protection to the wife in the *event of the husband becoming embarrassed. They [374 interpose a protection against the too easy alienation of her property under such circumstances, and therefore it is very usual to convey the property to them for her use. But as to such property the wife is, to all intents and purposes, a, feme sole, even during the life of the husband. But in this case John Huber was not a wealthy man, and he has not adopted the form of a deed of settlement to cany into effect his intentions, nor was it necessary that he should do so, if we are satisfied that it was his design to give this money to his wife. A note from a husband to his wife is a very unusual thing, and this very circumstance in.this ease is, in consequence of its uncommonness, a convincing argument that he intended to withdraw the money, of which it was the evidence, from his own control, and to give it absolutely to his wife. There is no meaning to the transaction, unless this interpretation is put upon it, and when, with this circumstance, is combined the fact that the money was not originally his, the presumption as to hi.s intent is turned into a certainty, and enables a court of equity to fasten upon it in order completely to further his design. The cases are sufficiently numerous to show that this is a correct conclusion. In Lucas v. Lucas, 1 Atk. 270, Lord Hardwicke held that in chancery even gilts between husband and wife have been supported, although at law the property is not permitted to pass. And in Slanning v. Style, 3 P. Wms. 337, it is held that where a husband, voluntarily and after marriage, allows the wife, for her separate use, to make profit of various articles beyond what was used in the family, but of which the wife saves £100, which the husband borrows and dies, the court will uphold the agreement. These two cases are very strong and greatly resemble the present. I do not know what more we can require, if we are in search of light from adjudged precedents, unless in place of a most striking analogy, we demand an absolute and exact identity of the cases in all their parts. There are numerous other cases which establish the same doctrine, and which, in spite of the strict rules of the common 375] law, have declared that the husband and wife, instead *of being immutably one and the same person, may have separate wills. And this doctrine is upheld for the purpose of maintaining, and not to destroy or impair the family relation. There must, then, be a decree for the complainant, for the evidence, so far as regards this note, fully establishes the facts alleged in the bill. Decree for the complainant.


text:
    Trustees of Millcreek v. Trustees of Miami.
    An action can not be maintained by one township against another for expenses incurred in furnishing permanent relief to a pauper of the latter, unless an effort has been made to remove the pauper to his own township, or some excuse be given for not doing so.
    This is an action of debt from the county of Hamilton.
    The action was commenced in the court of common pleas of Hamilton county, for money expended in the support of a pauper, and removed into this court by appeal. On trial, a verdict was returned in favor of the plaintiffs, subject to the. opinion of the court on the following state of facts :
    David Coogals was originally settled in the township of Miami. On or about February 2, 1835, he removed to the township of Millereek, where, in August of the same year, he became a pauper and a township charge. The overseers of the poor of Millereek, on the 2d day of August aforesaid, took care of and provided for the said pauper for two weeks, in the township of Millereek, at the expense of two dollars per week, and then removed him to the hospital in Cincinnati, and paid the expense of keeping him in said hospital thirteen months, until September, 1837, at two dollars per week; also, there were some small charges for clothing. There was no proof that any notice was ever given to the pauper to depart, either by the overseers of the poor of Millereek or of Cincinnati township, or that any effort had been made to remove the pauper to Miami township. The court instructed *the jury to return a verdict in favor of the plaintiffs for [876 the expenses incurred in supporting the pauper from August 2, 1835, to February 2,1836, a period of six months, subject to a motion for a new trial by defendants. The jury returned a verdict in favor of the plaintiffs for $67.36.
    Van Matre, for the plaintiffs.
    Morris & Rariden, for the defendants.
   Hitchcock, J.

Most of the questions arising in this case have been already decided at the present term in the case of Trustees of Williamsburg v. Trustees of Jackson, in which, under circumstances somewhat similar to the present case, a judgment was entered in favor of the plaintiff. There is this difference, however, in the two cases : in the case cited, one of the paupers to whom the relief had been furnished was not in a situation to be removed, and as to the other, the relief was merely temporary; while in the case before the court, the relief furnished was permanent, and it does not appear but that the pauper might have been removed.

Under such circumstances, it was held, in the case cited, that there could not be a recovery; and this is upon the principle that before one township can recover of another for expenses incurred in the support of one of its paupers, the township seeking to recover must have strictly complied with the requisitions of the law. By section 9 of the act for the relief of the poor, it is mado the duty of the overseers of the poor to remove a pauper who may become chargeable in their township, not having a legal settle-? ment therein, to the township in which he may have a legal settlement as soon as the state of the health of the pauper will admit; and if so removed, a liability attaches to the township to which the removal is made to defray the expenses of removal and previous relief furnished. The removal precedes the right to demand payment, and it is an important requisition of the statute. Each 877] township is bound to support its own paupers, *but it has the right of making its own contract for their support, holding it liable for the expense of placing them within its power. It is known that the cost of supporting paupers is different in different sections of the state, and varies as much as does the cost of ordinary living; and to compel a township in the interior, where the means of living are abundant and cheap, to support its paupers in Cincinnati, or at any other place where those means are more expensive, would be inequitable and unjust. Such is not the intention of the law.

In the case before us no effort was made to remove the pauper, nor is any reason shown why it was not done; of course the plaintiffs have no right of action. j

A question is raised in the case, whether the pauper, at the time ' of the commencement of the suit, had gained a legal settlement in the township of Millcreek. His residence commenced in February, 1835, and he became chargeable as a pauper about six months thereafter. Instead of warning him to depart the township as the law required, the overseers of the poor furnished him relief for two weeks, and then removed him to the hospital in Cincinnati, and continued him there at the expense of Millcreok, for the period of thirteen months. During this period, he was actually living within the limits of Cincinnati township; but he was there by the procurement and at the expense of Millcreek, not for the purpose of gaining a legal settlement, but for the purpose of subsistence. Under such circumstances, he must in law be considered as if actually residing within the limits of the latter township, and as having gained a legal settlement therein. To held otherwise, would be opening the door by which townships might perpetrate base frauds upon each other.

The verdict of the jury is set aside and a new trial ordered, tho costs to abide the event of the suit. New trial granted.


author: Lane, C. J.

text:
    *Edward Tuite v. William Miller.
    Where dower exists but is not assigned at the time a conveyance is made, a subsequent decree against the grantee to pay an annual sum for dower, is no breach of the covenants in the deed of conveyance that the grantor is the lawful owner and has good right to convey, nor of the common warranty.
    Equity has no jurisdiction to enforce the specific performance of the covenant of warranty.
    This is a bill in chancery from the superior court of the city of Cincinnati.
    It sets forth, that in April, 1836, Miller conveyed to the plaintiff a lot in Cincinnati, by deed, containing the following covenants :
    1. That he was the lawful owner.
    2. That he had good right to sell.
    3. The common warranty.
    The bill proceeds to relate, that Elizabeth Satterthwaite, in 1838, filed her bill in the common pleas, topbtain an assignment of dower in these premises; that dower was ordered by decree, and the land being found incapable of division, the payment of the sum of $66, in half-yearly installments, was imposed as an annual charge upon it, in the hands of the plaintiff, and on failure of payment, so much of it as necessary was ordered to be sold on execution. He therefore asks relief, and his counsel at bar asks a decree for the specific execution of the covenants.
    Wright, Walker and Miner
    insisted that the covenants are broken, and that the complainant has no adequate remedy at law; and, to sustain these positions, cited King v. Kerr’s Adm’rs, 5 Ohio, 154; Waldron v. McCarty, 3 Johns. 471; Kortz v. Carpenter, 5 Johns. 120; Kerr v. Shaw, 13 Johns. 236 ; Greenby & Kellogg v. Wilcocks, 2 Johns. 1; Hamilton v. Wilson, 4 Johns. 72; Co. Inst. 315, n. 3 ; Delavergne v. Norris, 7 Johns. 358 , Stanard v. Eldridge, 16 Johns. 254; Hall v. Dean, 13 Johns. 105; Smith v. Shepard, 15 Pick. 147; Hamilton *v. Cutts, 4 Mass. 349 ; Abbott v. [383 Allen, 14 Johns. 248 ; Stone v. Hooker, 9 Cow. 154; Day v. Chism, 10 Wheat. 449; 19 Vin. Ab. 306; Dane’s Ab, C. 104, 3; Morris v. Phelps, 5 Johns. 49 ; Mitchell v. Warner, 5 Conn. 497 ; Lockwood v. Sturdevant, 6 Conn. 373; Thomas v. Perry, Pet. C. C. 49; Wheeler v. Hatch, 3 Fairfield, 389 ; Backus v. McCoy, 3 Ohio, 211.
    Equity will décree a specific performance of covenants, and its mode of administering relief is peculiarly adapted to cases like this. Allen v. Deschamps, 13 Ves. 228; Iggulden v. May, 9 Ves. 333; Willan v. Willan, 16 Ves. 84; Furnival v. Crew, 3 Atk. 89; Davis v. Hone, 2 Sch. & Lef. 340; Johnson v. Nott, 1 Vern. 271.
    Riddle and Roll, for the defendant,
    insisted that there was no eviction or disturbance of the possession, and that if the complainant had any remedy, it was at law. King v. Kerr3s Adm’rs, 5 Ohio, 154; Kortz v. Carpenter, 5. Johns. 120; Waldron v. McCarty, 3 Johns. 471; Hamilton v. Cutts, 4 Mass. 348.
   Lane, C. J.

There is a well-established chancery jurisdiction over certain covenants. The chancellor will exercise a restraining power where the covenantor, contrary to his stipulation, disturbs the tenant by his own act; and he will enforce the specific performance of the covenant for further assurance. But we find no case of interference on this side the court, in relation to the covenant of warranty. This absence of precedent, although not conclusive, is a strong argument against the plaintiff’s right to relief.

In cases, too, of covenants real, any innovation of the settled construction of the parties’ rights should be made by courts with great caution. The parties select their own covenants, and the liability of the defendant is not to be extended beyond the intendment of those by which he binds himself. It would have been easy for them to have inserted the covenant against incum384] brances, under which -the plaintiff would have *found an easy protection. But he has no rights, except those which arise from other stipulations, and we must examine if the defendant has incurred any liability under them.

The two first, viz: “that he was the lawful owner,” and had good right to convey,” are not broken ; for at that time he held the estate, and it passed by the deed; the interest of the dower was not then a vested estate, but an interest contingent and uncertain, which might never be set up.

There remains nothing but the covenant of warranty. The rule is universal, that no right of action arises under this covenant, except after an eviction, or something which, is equivalent. King v. Kerr’s Ad’mrs, 5 Ohio, 154. But all the rights which the party is authorized to claim exist at law, and admit entire compensation in damages. Whatever difflcultiés may bo in the way of the plaintiff, in seeking indemnity against this rent charge, it seems to us that to extend the defendant’s liability beyond that of responding in damages, after an eviction, or its equivalent, would be to extend it beyond the settled terms of the covenant. Bill dismissed.


text:
    Steamboat Monarch v. Samuel B. Finley.
    Under the act of February 26, 1840, for the collection of claims against steamboats, etc., a suit may be brought against any steamboat or other watercraft by its name.
    The act does not include debts contracted before its passage.
    This is a writ of error to the court of common pleas of the county of Hamilton.
    In the original case, Samuel B. Finley commenced an action by warrant against the steamboat Monarch, in pursuance of the act of February 26, 1840, “providing for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against them by name.” In virtue *of the war- [385 rant the sheriff seized upon the boat, but left her in the possession of the owners, taking bond according to the statute, that she should be forthcoming to answer the judgment. Upon the return of the warrant a declaration in assumpsit was filed against the boat by name, to which declaration a plea of the general issue was filed.
    This issue was submitted to the court, who, upon hearing, rendered a judgment against the steamboat.
    The defendant then tendered a bill of exceptions, which was allowed by the court and made part of the record.
    In the bill of exceptions, it is stated that the plaintiff, in order to sustain his action, proved by the clerk of said boat the account annexed to the bill of exceptions, and that all the items of the account were for debts contracted for and on account of said steamboat Monarch, by the master thereof, and there rested his ease.
    Whereupon the-counsel for the defendant claimed judgment because all the items of said account are dated prior to the day when the act above referred to took effect. And it was proved for the defendant that L. & A., of New Orleans, became joint owners with others, of said boat on May 22, 1839, and sole owners on the 9th day of September of the same year; and thereupon it was claimed, that if judgment should be entered for the plaintiff, it should be only for so much of said account as accrued subsequent to the 22d day of May, or the 9th day of September aforesaid. But the court ordered judgment to be entered for the entire balance of said ■ account, with interest.
    The first item of the account annexed to and made part of the bill of exceptions, is charged on July 24, 1839, and purports to be for balance of account rendered, and amounts to $1,254.35. The-last item is charged on April 25, 1840. The whole amount of the account is $2,120.80, of which $697.40 accrued subsequently to February 26, 1840. The account is credited with $1,213, leaving a balance of $907.80, and the amount of judgment rendered $932.66.
    *The writ of error is prosecuted in the name of the steam- [386-boat, and the errors assigned are:
    1. That the declaration and matters therein contained, are insufficient in law to maintain the action.

      2. That judgment is entered for too large an amount.
    3. That judgment should have been entered for defendant, and not for plaintiff.
    Wrighit, Walker & Miner, for the plaintiff in error,
    cited Gilmore v. Shuter, 2 Lev. 227; Couch v. Jeffries, 4 Burr. 2460 ; Call v. Hagger, 8 Mass. 423; Dash v Vankleek, 7 Johns. 477; Society, etc., v. Wheeler, 2 Gall. 105; McCormick v. Alexander, 2 Ohio, 65.
    Chase & Ball, for the defendant,
    cited Keane v. Brig Gloucester, 2 Dallas, 36.
   Hitchcock, J.

This case is one of importance, as, in order to its decision, it is necessary to give a construction to the act of February 26, 1840, “providing for the collection of claims against steamboats and other'water-crafts, and authorizing proceeding against the same by name.” This law gives a lien upon such crafts for certain claims against them. Its object is, on the whole, a beneficial one, and if possible should be carried into effect. Had the law merely declared the lien, and authorized the commencement of suit against the owners or officers, by warrant or attachment levied upon the boat or craft, there could have been little or no difficulty. Such, however, is not the case, and as the law now stands, there does appear to be some incongruity in its various provisions. These will be noted as we proceed with the case.

The original action was against the steamboat Monarch, byname, and judgment was rendered in favor of the plaintiff. It is sought to reverse this judgment for error, and the first error assigned is, that the declaration is insufficient. The declaration is in assumpsit, and contains the common counts. It is in common form and 387] not defective in substance. The*only objection to it is, that the defendant is an inanimate thing, that could neither assume nor promise. In this respect it is defective, unless the statute already referred to justifies such mode of pleading. If the statute authorizes it, we are undoubtedly bound to sustain it. Let us then examine this statute.

In its title, it is called “ an act providing for the collection of ■claims against steamboats and other water crafts, and authorizing proceedings against them by name." Although the title to a statute constitutes no part of the law, yet it may well be considered in its .construction as furnishing an index by which doubtful matters in the body of a statute may be settled. Especially is this proper where, as in this state, the title is prefixed by a solemn vote of the legislature passing the law. ' From this title it is manifest that the legislature supposed the act authorized proceedings against a steamboat or other water-craft by name.

Section 1 of the act provides “that steamboats and ofher water-crafts navigating the waters within or bordering on this state, shall be liable for debts contracted on account thereof, by the master, owner, steward, consignee, or other agent, for materials, supplies, or labor, in the building, repairing, furnishing, or equipping the same, or due for’wharfage; and also for damages arising out of any contract for the transportation of goods or persons, or for injuries done to persons or property by such craft; or for any damage or injury done by the captain, mate, or other officer thereof, or by any person under the order or sanction of either of them, to any person who may be a passenger or hand on such steamboat or other water-craft, at the time of the infliction of such damage or injury.”

From this section it will be seen that a steamboat is liable, not only on account of contracts, but for torts, and may well, in a proper case, be charged for an assault and battery committed by one of her officers, as in assumpsit for supplies, materials, or labor furnished in her construction or repair. This, however, can make no difference as to the form of pleading.

*In section 2 it is provided that “any person having such [888 demand may proceed against the owner or owners, or master of such craft, or against the craft itself.” In the next section it is provided that “ when suit shall be commenced against the craft, the plaintiff shall file his precipe to that effect, naming said craft, if she have a name, and if not, giving a substantial desm^tion of the same ; and with it a bill of particulars of his demand, verified by his own affidavit, or that of his agent or attorney, or other creditable witness.”

Taking these two sections together, there can be no doubt that it was the intention of the legislature that a person having either of the claims specified in section 1 of the act, might at his election proceed either against the craft itself, or against its owner. In fact, it is so expressly declared in section 2; and in the third, the steps to be pursued in order to obtain process, where the plaintiff elects to proceed against “ the craft itself,” are pointed out.

The same intention is manifest in section 4, in which the duty of the clerk, after a precipe shall have been filed, is prescribed. He shall “issue a warrant, returnable as other writs, directing the seizure of such craft by name or description as provided for in section 3 of this act, or such part of her apparel and furniture as may be necessary to satisfy the demand, and to detain the same until discharged by due course of law.”

It is then made the duty of the officer to execute and return the writ with an inventory of the property seized, and to retain the same in his hands until final judgment, unless the “ owner, master, steward, consignee, or other agent,” shall give security in double the amount of the demand sworn to, to have the property seized» or double the amount sworn to, forthcoming to answer the judgment.

In section 6 of the act it is provided, that “ upon the return of the writ, the pleadings and other proceedings shall be as in other cases of process served and returned.” Now wliat are these pleadings and proceedings in other cases ? The plaintiff files his declara389] tion against the defendant served with fprocess, not against another person or thing. And to this declaration the defendant files his plea, and so soon as an issue is made up, the case is ready for trial. Who is the defendant served with process in the case before the court? The steamboat f‘Monarch.” And the steamboat “Monarch” was properly made defendant according to the law under which these proceedings were had, so far as we have progressed in the examination of that law. So far in truth there is nothing to excite a reasonable doubt upon the subject. It is true the proceeding is anomalous in the practice of a common law court, but the legislature have power to authorize it, and it is somewhat analogous to proceedings in admiralty courts.

But as we proceed further we shall find difficulties. Section 6 further provides, that “after judgment the property seized-and still held, may be sold upon execution to satisfy the judgment, and if the proceeds of said sale fall short of satisfying the judgment, the balance shall remain to be eollocted on execution as upon other- judgments.” Executions upon other judgments are issued against the judgment debtor, and his property is seized to satisfy the-debt. But in proceedings under this statute, where a creditor elects- to proceed against the “ craft itself,” that craft is defendant. And if the “craft itself ” will, not, at sheriff’s sale, satisfy the judgment, I do not see how the balance can be made by another execution against the same defendant; unless, indeed, it be intended that the “ craft ” shall be sold over and over again until the debt is paid. Such, however, is not the intention. Will it be said that the execution may be considered as against the owner of the boat or craft, and that his property may be taken to satisfy it? This is not the way judgments are enforced by execution in other cases. The owner of the craft is not a party to the suit. He has had no day in court. The plaintiff might have made him a party, but he elected to go “ against the craft itself,” and must abide the consequences.

There is a difficulty, too, in reconciling section 8 with the preceding sections of the act, if we áre right in our construction-This section provides “ that if any suit or action *shall be [390 commenced under this act without reasonable or proper cause, the person or persons commencing such suit or action shall be liable to make compensation to the defendant or defendants for all damages by him, her, or them sustained, by reason of' the commencement of such suit or action; the defendant or defendants, if appearing and defending, and damaged as aforesaid, shall set forth in his, her, or their plea or pleas, or notice attached to the plea of the general issue, that such suit was commenced without reasonable or probable cause, to the damage of the defendant or defendants,” etc. And if, on trial, it shall be found that the action was commenced “without reasonable or probable cause,” the jury are required to assess damages for the defendant or defendants, and judgment is to be entered accordingly. The difficulty with respect to this section does not arise from the fact that the defendant, in a certain state of case, is authorized to recover damages as for a malicious prosecution or vexatious suit, if the action was commenced against him without reasonable or probable cause, but from the fact that the section speaks not only of a defendant, but of defendants, and in such a manner as would seem to imply that these defendants were things animate rather than inanimate. For it is not readily perceived how two steamboats could be joint contractors or joint trespassers. But perhaps the provisions of this section were intended to apply to those cases only where a plaintiff elected to proceed “against the owner or owners of the craft,” rather than “ against the craft itself.” Be this as it may, we do not feel ourselves at liberty, in consequence of anything in this section, to depart from the evident intent of the statute, as expressed, in the preceding sections. And we entertain the opinion that this suit is prosecuted in conformity with tho statute, and that the declaration is sufficient.

The second error assigned is that the judgment of tho court of common pleas was rendered for too great an amount. And in considering this question it becomes necessary to inquire, whether the law of 1840 was intended to have a retrospective or merely a 391] prospective operation. No court will give to *a statute a retrospective operation, unless it is absolutely necessary to carry out the intention of the legislature. The legislature itself has not constitutional power to enact an ex post facto law; and should that body pass a law retrospectively to divest an individual of his previously existing rights, I think this court, as at present constituted, would not enforce it. There is certainly nothing in the act now under consideration which, in the least degree, indicates that it was intended to have a retrospective operation. If it merely gave a new remedy for the recovery of existing debts, it might be enforced. But it does more than this. It makes a steamboat, or other water-craft, liable for debts contracted on its account. Such debts are contracted by the owner of the boat or for his benefit, and he is accountable for them. If debts had been contracted on account of a boat, and subsequently she had changed owners, previous to the j>assage of this act, by giving to it a retrospective operation, we should sacrifice the property of one man to pay the debts of another. The new owner would be charged with debts which he had neither contracted himself, and which had not been contracted for his benefit. This will not do. In our opinion the law only applies to debts which have been contracted, or to causes of action which have accrued since its enactment.

G-iving it this construction, what is the effect upon the case before the court ?

The law took effect on February 26, 1840. The articles furnished by the plaintiff, on account of the boat, subsequent to that date and previous to the commencement of the suit, amounted to only §697.40, while the judgment rendered is §932.66, exceeding what it should havo been by more than §200. Hero is an error, and for this cause the judgment must be reversed with costs, and the case remanded for further proceedings. Judgment reversed.


text:
    *John Prather v. J. T. Ellison.
    Where, under the charter of a turnpike company, damages are assessed for injuries done to the land over which the road passes, the owner of the land can not afterward sue one employed to make the road, for cutting the timber, within the lines of the road, into cord-wood and selling it.
   Grimke, J.

This is a writ of error to the court of common pleas of the county of Adams, and the error complained of appears from a hill of exceptions which was taken to the opinion of the court. The action is trover, brought by the proprietor of land, against a contractor on the Zanesville and Maysville turnpike) to recover the value of timber. In the court of common pleas the cause was submitted to the court; and the evidence showed that the defendant had caused a large quantity of timber growing on that part of the land of the plaintiff through which the road was constructed, to be felled and cut into cord-wood, and that ho had afterward sold it. Was he justified in so doing, is the single question for consideration. By section 11 of the charter of the company, it is made the duty of the company to open the road not exceeding one hundred feet in width ; that is, they are to cut down and remove the timber growing within that space; they are to free the whole line of the road from every obstruction of that kind. It will, I presume, be admitted that under this power the company, or the contractor acting under them, would be authorized to destroy the timber after it was cut down. He might burn it upon the ground. But the right to destroy it seems necessarily to imply an authority to make any disposition of it which should be equivalent to destruction. I do not see any difference between burning the wood on the ground and parting with it to a third person who should burn it. And I suppose there never would have been any complaint, if the defendant had merely, through the intervention of third persons as his agents, caused the wood to be burned, instead of selling it to them for that purpose; and yet the thing required to be done, and no more, is performed, which ever mode is pursued. The plaintiff is dissatisfied that the ^defendant. [897 should have derived any pecuniary advantage from the course which he adopted in order to free the line of the road from the incumbrance of the timber. But this can only be on the ground that he is himself entitled to that advantage. And yet how can this be, when upon the land being condemned for the purposes of the road, an assessment of all damages accruing to the proprietor is made in his favor. According to his construction he would be twice paid for the timber, first by the commissioners, and secondly by the consideration which he should receive for the wood.

But there is another difficulty in the way. If the contractor permitted the timber to remain on the ground occupied by the road, until it suited the convenience of the former owner to remove it, he would fail entirely to execute the duty imposed upon him by the charter, and if, on the other hand, he removed it upon the uncondemned land of the plaintiff, ho would be guilty of a violation of his rights, and might be sued in an action of trespass! so that in whatever light we can view the question the conclusion is the same, that this action can not be maintained.

Judgment for the defendant.


author: Grimke. J.

text:
    Peter Lockwood v. David Adams.
    The oath of a party is not admissible to prove the service of notice to take depositions.
    This is a writ of error to the court of common pleas of the county of Hancock.
    The single error relied upon grows out of a bill of exceptions taken during the trial. The plaintiff below offered to prove by his own path the service of notice to take depositions, and his testimony was received.
    898] *Godman, for the plaintiff in error:
    The rule of the common law is, that a party to the record can not be received to testify in a cause without the assent of the opposite party. 1 Phil. Ev. 69; Haswell v. Busring, 10 Johns. 128; Supervisors v. Birdsall, 4 Wend. 453; Nason v. Thatcher, 7 Mass. 398; 12 Mass. 358; Fox v. Whitney, 16 Mass. 118; John Quincy Adams, Trustee, v. Leland, 7 Pick. 62; Commonwealth v. Marsh, 10 Pick. 57. In the United States the rule varies in different courts as to the admissibility of the party’s own oath on preliminary matters, such as the loss of papers, etc. In South Carolina, Connecticut, New Hampshire, and Vermont, a party is not permitted to prove by his own oath the loss of any paper, whatever the circumstances may be. Sims v. Sims, 2 Const. S. C. 215; Coleman v. Walcott, 4 Day, 388; Swift v. Stevens, 8 Conn. 431; 5 N. H. 355; 1 Aik. 304. In New York, Pennsylvania, Massachusetts, and Virginia the contra rule prevails. Jackson v. Livingston, 16 Johns. 193; Chamberlain v. Gorham, 20 Johns. 144; Jackson v. Van Schaick, 5 Cow. 123; Schemerhorn v. Schemerhorn, 1 Wend. 119; Betts v. Jackson, 6 Wend. 173; Davis v. Rounseville, 3 Pick. 284; 6 Munf. 201; Douglas v. Sanderson, 2 Dall. 116; Jordan v. Cooper, 3 Serg. & Rawle, 575.
    No argument for the defendant came to the hands of the reporter.
   Grimke. J.

The question in this case, it will be perceived, is one of mere practice, and lies in the smallest posssible compass. The case has only been brought here for the sake of establishing uniformity of practice, for there has been as great a contrariety of decision in the Supreme Court on the circuit, as there has been in the common pleas.

I suppose that the safest rule which can be established is to exclude such testimony. There are a few cases in which a party to •a suit is competent to testify. The question has sometimes been placed on the distinction whether the fact offered *to be [399 proved is a traversable one or not. If traversable, the party is not a competent witness, and if not traversable he is competent. But this rule would often operate unjustly; it would sometimes exclude the testimony when it ought to be admitted, and at other times it would admit it when it should be excluded. It is of great importance that, if possible, the testimony should be of a disinterested character, although it may conduce to prove only a preliminary fact, since a preliminary fact may lie at the foundation of the whole case. The general rule is, that the best possible testimony which the nature of the case admits of should be offered, and not merely the best possible which the circumstances created by the party have produced. Now, there can be no necessity for proof-of this kind-; on the contrary, it is an entire departure from the usual mode of proceeding, and that alone lays it under-the imputation of being suspicious and objectionable testimony. The proof of service of notice is a preliminary fact in truth, but on it depends the validity of the deposition, and on this again may hang the issue of the whole controversy between the parties. The establishment of the rule that a party is not competent to prove the service of notice can hardly be considered as a merely arbitrary one, since it proceeds upon an acknowledged principle that the testimony from the beginning to the end of a case should be of a disinterested character, every part of a case being equally to be guarded, if possible, against the invasion of prejudice or any other improper feeling.

Judgment reversed.


author: Wood, J.

text:
    Alexander Anderson v. David Harold.
    The memorandum required by section 5 of the statute of frauds is not valid unless the name of the party to be charged appears somewhere on the instrument.
    This is a bill in chancery from the county of Sandusky.
    It is brought by the complainant to compel the respondent to specifically execute a contract averred to have been made 400] ^between the parties, for the sale and purchase of a certain tract of land, situated in the county of Sandusky. The bill sots out the consideration and terms of purchase, but they need not be noticed,-as the case turns entirely upon the fact whether, if any contract be proved, it is not within section 5 of the statute for the prevention of frauds and perjuries, which enacts, “That no action shall be brought whereby to charge any person upon any contract or sale of lands and tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” Such memorandum is averred by the complainant, in his original and amended bills, to have been put down by the respondent in his memorandum-book at the time the contract was made.
    In his answer, the respondent denies that any binding or obligatory agreement was ever entered into by him. He admits a negotiation with the complainant, and that he made a memorandum of it at the time, which was shown to the complainant, but denies that it was ever signed, or that he ever intended to execute a contract until the first payment was made, agreeably with the understanding existing between him and the complainant.
    Rawson, for the plaintiff,
    insisted that the contract of sale was established by the proof, and that the memorandum of it in writing was sufficient to meet the requisites of the statute of frauds. He argued at length -on the facts of the case, and cited 2 Story’s Eq, 22; 1 Stark. Ev. 353; Roberts on Frauds, 105, 108; 2 Story’s Eq. 57, 58; Ten Broeck v. Livingston, 1 Johns. Ch. 357; Story’s Eq, Pl. 590; Cozine v. Graham, 2 Paige, 177. He further maintained that the literal act or particular place of subscribing the name is not material. Penniman v. Hartshorn, 13 Mass. 87; Douglas v. Spears, 2 Nott & McCord, 207; Ballard v. Walker, 3 Johns. Cas. 60; Raget v. Merrit, 2 Caine, 117; Roberts on Frauds, 120; *Barry v. Combe, 1 Pet. 640. Nor is it essential that [401 both parties sign the instrument. Roberts on Frauds, 124; Jeremy’s Eq. 434. Nor is it material whether the signature, or even the memorandum itself, be made with a pen and ink or written with a lead-pencil or otherwise. Clason v. Bailey, 14 Johns. 484.
    Watson, on the same side,
    claimed that by both the English and American authorities, the plaintiff was entitled to relief. Sug. Vend. 85, 99; Cosack v. Descoudres, 1 McCord, 425; Denton v. McKenzie, 1 Des. 289; Johnson v. Ronald’s Adm’r, 4 Munf. 77. That if an answer admits a document material to the plaintiff’s case to be in the possession of the defendant, the court will order it to be left with the defendant’s clerk in court for the inspection of the plaintiff, his solicitor or agent, it being considered part of the defendant’s answer. Bettison v. Farringdon, 3 P. Wms. 363 ; 4 Br. C. C. 479; Taylor v. Milner, 11 Ves. 41; Gresly’s Eq. Ev. 25.
    May, Parish and Sadler, for the defendant,
    maintained that there was no obligatory contract between the parties. A memorandum in writing for the sale of lands to be valid must not only be signed by the party to be charged, but contain the essential terms of the contract expressed with such clearness and certainty that they may be understood in the writing itself, or some paper to which it refers, without resort to parol proof. Parkhurst v. Vancortlandt, 1 Johns. Ch. 273; Sug. Vend. 54; Roberts on Frauds, 121; Fowle v. Freeman, 9 Ves. 351; Sanderson v. Jackson, 2 Bos. & Pul. 238; Knight v. Crockford, 1 Esp. N. P. 190; Stokes v. Moore, 1 P. Wms. 770. A party himself in default can not ask a specific performance. Remington v. Kelly, 8 Ohio, 103 ; Higbee v. Whitaker, 7 Ohio, 201, pt. 1; Benedict v. Lynch, 1 Johns. Ch. 370; Milwood v. Earl of Thanet, 5 Ves. 720; 1 Mad. Ch. 117 ; Ellis v. Deadman’s Heirs, 4 Bibb, 466.
    Where it is doubtful whether the transaction is an agreement or a mere treaty, equity will not decree a performance. *Stratford v. Bosworth, 2 Ves. & Bea. 341; Seagood v. [403 Meals, Prec. in Chanc. 460; Roberts on Frauds, 105: Mad. Ch. 374; Huddleston v. Biscoe, 11 Ves. 591; Brashier v. Gratz, Wheat. 541.
   Wood, J.

A great deal of testimony has been taken in inis case; the letters of the respondent are introduced, both to the complainant and one Bveret, in which the respondent speaks of the sale of his farm to the complainant, and in general terms of the conditions of tho sale, and there is some confusion in the evidence, whether a slip of paper produced in pencil marks, dr a book introduced in testimony, contains the contract referred to; or whether another book, kept back by the respondent, is the one in which it is entered. So far as it relates to the two first, they may be laid out of view, for the name of Harold, the respondent, neither appears in the body, at the top nor bottom of either; and it is a well-settled rule, that the name of the person to be charged must appear at least somewhere upon the instrument, and it must be placed there for the purpose also of giving it authenticity:

I shall at this time advert to no other evidence but that of R. Dickinson, which is relied upon by the complainant, as proving the execution of such memorandum on the book which it is supposed by counsel has not been produced in court. He states that he saw the parties together, in the respondent’s office, seven or eight years ago, and heard a conversation between them in relation to tho sale of this land. Ho understood the contract was not reduced to writing, in full, but the respondent remarked he had taken down the heads, in order to write it out in full when he got home, as he always did. The witness understood the terms were agreed upon, and noted down in a book, which he saw, but the witness is uncertain whether he saw the memorandum or not.

This is the evidence on which counsel mainly rely to prove the execution of this memorandum. It is, in our view, insufficient. It is denied by the answer that it was over executed ; it is denied iu 403] the letters of the respondent, introduced by the *complainant, and there is no evidence by the complainant, who sets up such memorandum, that it over was signed; there is no act relied upon as part performance, to take tho case out of the statute, and the bill must be dismissed, as the case is clearly embraced within its provisions, and for want of such memorandum signed by the party, can not be sustained. Bill dismissed.


text:
    Alexander Miner v. Cadwallader Wallace.
    Where real estate is subject to two liens, the elder a judgment and the younger a mortgage, if the judgment lies dormant five years its priority is lost and the mortgage takes the estate. *
    One in possession of land has such an interest as may he sold on execution.
    This is a bill in chancery from the county of Ross.
    The papers are voluminous, and so much only of the case is stated as is necessary to comprehend the opinion of the court.
    The bill is filed by a purchaser under a judgment against one Kerr, to quiet a title acquired by a sale, against the defendant, who claims by a purchase from the heirs of the original patentee, and by a purchase under an execution of levari facias, to sell tenements mortgaged by Kerr.
    The title of the plaintiff is as follows: -
    The land was patented to Powell’s heirs in 1818, under an entry of 1787, surveyed in 1793.
    Powell sold to Orr, who, after a sale and resale with Wilson, sold to Massie.
    Massie sold to Abrams the one hundred acres now in dispute.
    Abrams sold to Finlay.
    Finlay sold td Kerr, who held possession from 1809 until after the sale.
    On May 23, 1816, the Bank of Marietta recovered a judgment against Kerr, which was levied on this lot June 6,1816, and returned.
    *On January 8, 1829, a vendi. issued, and was returned [404 January 26, 1829, with a sale of the lot to Miner.
    In 1826, the defendant purchased the title of the heirs of Powell.
    In 1814, before the Marietta Bank judgment, Kerr mortgaged the land to the Bank of Chillicothe, nominally to secure a debt he owed the bank, but really to secure his indorsers. No act of the bank was done to accept this mortgage; but it was recorded by Kerr, July 23,1816, after the judgment lien. In 1822 a scire faciaswas issued upon it, in the name of the bank. The defendant was the purchaser at the sale under this mortgage in 1834; he has since recovered possession.
    The ease was argued at great length by Douglas and Munter for the complainant, and Leonard, for tho defendant, but as the decision of the court turns on a point not taken in argument, the discussion of counsel is omitted.
   Lane, C. J.

The rights of Wallace relate back to the record of the mortgage in July, 1816, at which time it became a specific lien on the land, all of which passed by the sale under the scire facias execution of 1834. For the objections to the mortgage, whatever might be their weight between the parties to it, do not affect the title of the purchaser under the judgment, in which all these parties acquiesced.

But this is posterior to the judgment, and the plaintiff, who is the purchaser under the judgment, holds all the judgment lien embraced at tho time of the sale.

The judgment was rendered in May, 1816. At that time Kerr held a perfect equity to the land, coupled with a lawful possession. This possession we have heretofore held is a legal estate, and may be sold on execution. The question which the parties argue, is whether the possession thus sold carries to the purchaser the equity also.

This question is one of the gravest character, and incumbered with great difficulties. We do not think the case requires its decision.

405] ^Admitting Kerr’s estate to have been a perfect legal title, binding the land at the time when rendered, the mortgage, being specific, appears to us, in the circumstances of this ease, to be the paramount lien; the sale under the scire facias to collect the mortgage under the laws then existing, transfers to the purchaser the whole interest of both mortgagor and mortgagee. The mortgagee, as between the parties to the mortgage, and in regard to all purposes contributing to the collection of his debts, is a purchaser and entitled to all his privileges of protection. The mortgagee became such a purchaser, in this case, in July, 1816, when the mortgage was recorded. The land might be then subject to the judgment lien; but when the judgment afterward became dormant, the case of Norton v. Beaver, 5 Ohio, 178, shows the lien likewise slumbers, and will not be revived at the expense of the right- of the intervening purchaser. Bill dismissed.


text:
    Thomas S. Mitchell v. Levin T. McCabe et al.
    If a plaintiff, after demurrer to a plea in bar overruled in the common pleas, takes issue upon it on leave, he can not afterward, on error to the Supreme Court, question the validity of the plea.
    In a suit by the payee against the maker, a promissory note is good evidence under the money counts.
    This is a writ of error from the county of Preble.
    The original action is assumpsit, and the declaration contains a count upon a promissory note, and the common counts for work and labor, goods sold, money had and received, money lent, etc.
    To this declaration the defendant pleaded the general issue and three special pleas in bar. Upon the first plea the plaintiff joined issue, and demurred specially to the three special'pleas. On hearing, the court of common pleas overruled this demurrer, and the plaintiff got leave to reply, which was done, *and the [406 several issues joined submitted to-a jury. After the plaintiff had closed his evidence, the court, on motion of the defendant, ordered a judgment of nonsuit to be entered, which was done accordingly.
    A bill of exceptions was then tendered and allowed by the court, which sets forth, that on the trial of the ease, the plaintiff gave in evidence a writing, of which the following is a copy: ■
    “On or before January 1, 1839, for value received, we, or either of ns, promise to pay Thomas S. Mitchell $300, it being the purchase money of a large brown jack, which we have this day pur. chased of said Mitchell, who warrants said jack to be a sure foal-getter for jennies as jacks in general; now if said jack should not fill said warranty, we are to have the liberty of making a set-off against this note. This note is to bear interest from date until paid, at the rate of six per cent, per annum, June 27, 1837;” signed by all the defendants: and then rested his case. Whereupon the defendants, by their counsel, moved the court to nonsuit the plaintiff, on the ground that said instrument of writing did hot support the issue joined between the parties. This motion was sustained by the court, and judgment rendered as before stated.

      To reverse this judgment of nonsuit, this writ of error is prosecuted, and the errors assigned are, that the court of common pleas erred in overruling the demurrer, and in directing a judgment of nonsuit.
    The ease was argued at great length by A. Haines, for tho plaintiff, and by Hawkins, for the defendants.
    It will be unnecessary, however, to abstract these arguments, except as applicable to the last error assigned.
    For the plaintiff, it was insisted that tho note was sufficiently described in the first count of the declaration, and that the plaintiff was not bound to go into a description of matters which would properly come from' the defendants by way of defense or of miti407] gation of damages. That it was not necessary *to set forth tho collateral parts of the note, of which no breach was alleged, to enable the plaintiff to recover. 1 Chit. Pl. 345, 6 ed.; Phil Ev. 1161; Clark v. Gray, 6 East, 568; Miles v. Sheward, 8 East, 6; Pichard v. Banks, 13 East, 20; Baptiste v. Cobbold, 1 B. & P. 7; 4 Taunt. 285, 11 Price, 19; 3 Price, 68; Parker v. Palmer, 4 B. & A. 387.
    In principle there can be no difference whether the warranty of property sold rest in parol or in the face of the note given for the price, because it constitutes only matter of evidence for the vendee, but forms no part of the note. But the plaintiff in either instance need not mention the warranty in declai’ing upon the note. Jerome v. Whitney, 7 Johns. 322; Sanders v. Bacon, 8 Johns. 379.
    The note declared upon is a good promissory note under the statute, and was therefore sufficiently described in the first count of the declaration. Ring v. Foote, 6 Ohio, 279.
    If the note was not sufficiently described in the first count, still it was proper and competent evidence under the money counts. Smith v. Smith, 2 Johns. 236; 2 Ld. Raym. 557; Clerk v. Martin, 3 Burr. 1525 ; 2 Strange, 755; Pierce v. Crafts, 12 Johns. 92; Story v. Atkins, 2 Strange, 719; Grant v. Vaughan, 3 Burr. 1516; Smith v. Smith, 2 Johns. 235; Lenningdale v. Livingston, 10 Johns. 36; Burdick. v. Green, 18 Johns. 14, 452; Arnold v. Crane, 8 Johns. 81; Tuttle v. Mayo, 7 Johns. 132.
    For the defendant, it was insisted that there was a variance between tho note given in evidence and the note described in the declaration. That the contract was a conditional one, the right of the plaintiff to recover depending upon the truth of the warranty. Of course the entire contract should have been set forth in the declaration, with an averment that the animal constituting the consideration was such as he was warranted to be.
    The note could not be received in evidence under the money counts unless the plaintiff elected to abandon the special count, and the record does not show that any such election *was [408 made. Lansing v. Turner, 2 Johns. 14; Burdick v. Green, 18 Johns. 14.
   Hitchcock, J.

Elaborate arguments have been presented in this case as to the correctness of the decision of the court of common pleas in overruling the demurrer to the special pleas in bar. The object of those pleas was to impeach in whole or in part, the consideration of the contract in suit, and if it were necessary for us to pass upon their sufficiency, questions of much intricacy and difficulty might be involved. Where there is an entire failure of the consideration of a promissory note, there can be no doubt that as between the original parties to the contract, this failure would constitute a good defense to an action upon the note. But where the consideration does not entirely fail, but is less valuable than it was supposed to be at the time the note was made, whether this circumstance can be given in evidence to lessen the amount to be recovered, is a vexed question, and modern decisions, instead of rendering the law more clear on the subject, would seem to make it more obscure. But it seems to the court, that in this case we have nothing to do with these questions.

A demurrer was filed to the special pleas, and that demurrer was overruled. If the plaintiff wished to take the opinion of this court upon the validity of those pleas, he should have suffered judgment to have been rendered against him upon the overruling of the demurrer, and then have prosecuted his writ of error. But instead of this he got leave to reply, and an issue was joined to the country upon those pleas. This leave could be granted only upon condition that the demurrer was waived or withdrawn, otherwise the case would present the singular aspect of a demurrer and a replication to the same plea. The demurrer can not, under the circumstances of the case, bo considered as constituting any part of the record as it now exists.

The only question now open for consideration is, whether the court of common pleas erred in ordering the nonsuit.

In the first count of the declaration the plaintiff declares as 409] *upon an ordinary promissory note, neither setting forth the actual consideration as it appears upon the face of the instrument, nor the right reserved to the defendants in a certain contingency of giving certain matters in evidence by way of set-off.

Is the instrument given in evidence a promissory note? It , contains a promise, for value received, to pay $300 by a specified day, with interest at the rate of six per cent, per annum. This promise is unconditional and absolute. On or before January 1, A. d. 1839, for value received, wo, or either of us, promise to pay Thomas S. Mitchell $300.” If this were all, there could be no doubt as to the character of the paper, nor could there be any doubt but that it was properly described in the first count in the declaration. But, in addition to this, it sets forth the specific consideration. “ It being the purchase money of a large brown jack, which we have this day purchased of said Mitchell, who warrants said jack to be a sure foal-getter for jennies and jacks in general; now if said jack should not fill said warranty, we are to have the liberty of making the set-off against this note.” It is necessary to ascertain the character of this stipulation, and the effect which it has upon the contract. It is supposed by defendant’s counsel to be in the nature of a condition, and that unless the animal was of the character and quality warranted, the plaintiff would have no right'of action. But we do not so understand it. It is a mere stipulation in favor of the defendants, that if the warranty should not be true, then the defendants should be entitled to a deduction, equal to the diminution in value, or, in other words, to set off this diminution in value against the note. If, without this stipulation, the instrument would have been a promissory note, the stipulation does not change its character. In the case of Ring & Rice v. Foster, 6 Ohio, 279, this court held that a writing of the following character, “ Three months after date we promise to pay Samuel Foster $140.22, provided the said Foster delivers the crop of 410] tobacco raised by him and Throckmiller, *then the said Foster to have one-fourth of the above in hand, and, in addition thereunto, $3.50 for the part undelivered, payable one-fourth in hand, the balance in 130 days,” was a promissory note. Unless there was great error in this decision, the writing now in suit may, with propriety, be held to be a promissory note.

But suppose that this addition or stipulation were held to be a condi tion, it is not perceived that it would make any difference as to the character of the instrument, although it might as to the mode of declaring.

The nest question is^ whether this instrument was properly described in the declaration. It is necessary for the plaintiff, in his declaration upon a written or parol contract, to set forth so much of the contract as will show a right of action, And, in setting it forth, he may do it in the terms of the contract or according to its legal effect. So far as he undertakes to set it forth, he must follow the contract substantially, otherwise the contract intended to be declared on will be rejected in evidence on the ground of variance. But it is not necessary to set forth the collateral matter, although contained in the same contract, of which the defend* ant may avail himself by way of defense. Such is the principle-recognized in the case of Clark v. Gray and others, 6 East. 564, in which the court say, “It seems to us it is sufficient to state in the declaration so much of any contract, consisting of several distinct parts, and collateral provisions, as contains the entire consideration, for the act, and the entire act, which is to be done in virtue of such consideration; and that the rest of the contract which only respects the liquidation of damages, after a right to them has accrued by a breach of the contract, is matter proper to be given in evidence to the jury in the reduction of damages, but not nocessary to be shown to the court in the first instance upon the record.”

In the case under consideration, the plaintiff stated in his declaration that the defendant, for value received, promised to pay him by a day certain, the sum specified in the instrument, and alleges, as a breach of the promise, that payment was not made. *This is sufficient to show aright of action, and there is nothing [411 in the instrument itself which shows that by its terms anything further was necessary to give this right. All the rest is collateral matter of which the defendant might avail himself in his defense. Had the contract been that the money should be paid upon condition that the animal was a sure foal-getter, then, indeed, this fact should have been averred. But such is not the contract. By it the promise to pay is absolute, reserving the right, however, to the makers of' the instrument, if the animal is not such as represented, to have the damages sustained set off against the note. In our opinion the instrument was sufficiently described in the first count of the declaration, and being given in evidence was sufficient to put the defendants upon their defense.

But if in this we are mistaken, it must be remembered that the declaration contains not only a special count, but also the common counts for money had and received, money lent, etc. Now, if this instrument is a promissory note for the payment of money, and we hold that it is, it was competent evidence under those counts. This principle that a promissory note is competent evidence under the money counts is too well settled to be controverted. It is admitted by the defendant’s counsel, but it is claimed that the plaintiff should in the first place have abandoned the first count in the declaration before the note could have been given in evidence under the others. The recoi'd shows that all the issues joined were on trial to the jury, and the plaintiff gave the note in evidence. It was not objected to on account of any variance, nor on any other account, but was received. A motion was then made to nonsuit the plaintiff, which prevailed. The reason for Sustaining this motion must have been, so far as wo learn from the record, that the evidence was insufficient to put the defendants on their defense. In our opinion the evidence was sufficient, and, uncontradicted, would have entitled the plaintiff to a verdict and judgment.

The judgment of the court of common pleas must be reversed, with costs, and the case remanded for further proceedings.

Judgment reversed.


text:
    *Joseph M. Linn v. E. C. Ross & Co.
    If a tenant agrees expressly, whether under seal or not, to pay rent, and makes no reservation on account of unavoidable accidents, he is bound to pay the rent for the whole term, notwithstanding the premises in the meantime are destroyed by fire.
    This is an action of assumpsit from the county of Clark.
    The suit is brought on a contract between the parties for the use and occupation of certain premises, and to enforce the payment of certain rents in consideration thereof. ■

      The contract is in these words :
    “I, Joseph M. Linn, have leased and let to E. C. Ross & Co. the west division of my new building in the town of Springfield, for two years from the first day of September, 1839, for $300 per annum, payable quarter-yearly. The occupants are to take reasonable care of said leased premises, and not keep more than twelve pounds of gunpowder at any one time -in said store.
    “J. M. Linn,
    E. C. Ross & Co.”

      “September 1,1839.
    To the declaration, founded on this instrument, the defendants plead the general issue, and gave notice that they should give in evidence on the trial, in bar of the plaintiff’s action, that they settled with and paid and accounted to the plaintiff for the rents accrued up to and including February 14, 1840; that on February 10, 1840, the said building, including the leased premises, were destroyed by fire, without any fault, negligence, or want of care of the defendants; and that, on the 15th of February aforesaid, the defendants yielded up and surrendered to the plaintiff their unexpired term to the leased premises; that the plaintiff accepted the surrender, entered into the exclusive possession, and hath hitherto exercised acts of exclusive ownership over the premises.
    The cause was submitted to the jury, and a verdict found for the plaintiff for the full amount claimed.
    *The counsel for the defendants moved for a new trial for [413 the supposed misdirection of the jury by the court. The whole controversy was confined upon the trial to the rent accrued after February 14, 1840, when the building was destroyed, as averred in the notice, and admitted by counsel to be without any default or negligence of the defendants.
    W. A. Rogers, for the plaintiff,
    insisted that the contract was express, and therefore, upon well-settled principles of law, the tenant is bound for the rent notwithstanding the destruction of the premises by fire. Comyn on Contracts, 3, 4 ; 2 Bl. Com. 443; 1 Wheat. Sel. 381; Platt on Covenants, 52, 195, 275; 4 Kent Com. 121; Walton v. Waterhouse, 2 Saund. 422, n. 2; Phillips v. Stevens, 16 Mass. 238; 1 Hill. Ab. 165; Fowler v. Bolt, 6 Mass. 67; 3 Kent Com. 465, 467. And the rule holds good whether the contract be under seal or not. Baker v. Holtzapfel, 4 Taunt. 45; Reding v. Hall, 1 Bibb, 536.
    Mason and Torbert, for the defendants :
    The general rule in this country and in Great Britain requires the tenant to pay the rent if he expressly binds himself to do so, though there ajDpear to be cases to the contrary. Ripley v. Wightman, 4 McCord, 447; 4 Paige, 355. But neither justice nor policy will allow the rule to be extended, and hence Chancellor Kent lays it'down as applicable only to express agreements to pay. 3 Kent Com. 464.
    This agreement at most contains nothing but an implied promise. Platt on Covenants, 47; 4 Amer. Com. Law 9, note; Hallett v. Wylie, 3 Johns. 44 ; Winton v. Cornish, 5 Ohio, 447.
   Wood, J.

It appears from the record that the court charged the jury, “ that the agreement on which the action was brought was an express contract for the payment of rent quarterly for the use and occupation of the building leased, and, being express, the defendants were not released from their obligation by the destruc414] tion of the building by fire on *February 14, 1840, though without the fault of the defendants.”

This instruction of the court is supposed to be erroneous, a-nd our investigation is resolved into the inquiry, whether the agreement to_ pay the rent, which is the basis of the action, is express or implied. For if it be express, whether under seal or by parol, whether the action be covenant or assumpsit, the destruction of the leased premises by inevitable accident, does not discharge the lessees from their liability to pay the rent. This is admitted by the defendant’s counsel, and it would be difficult to maintain the affirmative of the proposition against the weight of authority contained in both the English and American reports. 3 Kent Com. 373.

Is this, then, an express contract to pay the rent? An express contract may be defined to be an agreement whose terms are openly uttered or expressed by the contracting parties. In such a case, if the contracting party by his own act creates a charge upon himself, he is held to its performance, and inevitable accident does not excuse him, for it was his own folly that he did not provide against it in his contract. An implied agreement is where the terms of the contract are not expressed between the contracting parties, but the obligations of natural justice, by reason of some legal liability, impose the payment of money or the performance of some duty, and raise a promise to that effect. In the latter case, as the law creates the duty it also provides the exception, for if the party be disabled from performance without his own default, his obligation is discharged.

Is this contract, then, express or implied ? It is signed by both the parties. It expresses the description of the premises leased, the time for which they are to bo engaged, and the consideration, in these words: “For $300 per annum, payable quarter-yearly.’ Nothing is left here to inference; all is'agreed-by the parties themselves. The defendants have leased the store for two years, and agreed to pay the rent, $300, quarter yearly, and as they did. not provide in their contract against inevitable accident, they are not discharged *by the destruction of the store though [M5 without their default.

The instruction to the jury was right, and judgment will be entered on the verdict. Yerdict for the plaintiff.