text:
    Furney Condrey, use of Anson S. Andrews, plaintiff in error, vs. John West, defendant in error.

      Error to Knox.

    Where the name of an obligee is stricken from a bond, and another name is inserted in its stead., it becomes a new agreement.
    In a purchase of land, where a party obtains from a vendor all the title the vendor agreed to give, he cannot plead a wants of consideration to an action brought on the obligations of the vendee, given for the purchase money.
    This was an action of assumpsit, brought on a promissory note, executed by West to Condrey, for $139 75.
    To the action defendant pleaded: 1. Non-assumpsit, on which issue was joined. 2. That the note was made without any consideration whatever; which 2d plea was withdrawn by the defendant. 3. To the first and second counts, which were upon the same note, that at the time of the execution of the note, (February 18, 1848,) the plaintiff claimed to be seized in equity of a certain tract of land, under an agreement in writing, with one Ellis B. George, (of which agreement profert was made) by which George covenanted, by a good and lawful deed, well and sufficiently to grant, convey and assure to the plaintiff, his heirs and assigns, in fee simple, clear of all incumbrances, the said tract of land, on or before the 24th October, 1848; that on said 18th February, the plaintiff bargained and sold the said tract of land, by a parol agreement, and with the assent of George, to the defendant, which was the consideration of the note; and that as a part of the said agreement of bargain and sale between the plaintiff and defendant, it was agreed, with the assent of George, that the plaintiff’s name in the agreement between the plaintiff and George, should be erased, and the defendant’s name inserted as a party to the said agreement last mentioned, in the room and place of the plaintiff; which was done accordingly. And the defendant averred that the land was not, on the 24th day of October, 1846, (the date of the agreement between the plaintiff and George) clear of all incumbrances, but that there then was, and ever since has been, and now is, a valid and permanent outstanding title to said land in one Therial; and so he says the consideration of the note has wholly failed. To this plea there was a demurrer. The demurrer was overruled, and judgment rendered thereon for the defendant. To reverse this judgment, this writ of error is prosecuted.
    This cause was heard before Minshall, Judge, at October term, 1849.
    C. B. Lawrence, for plaintiff in error:
    Here was no want or failure of consideration. The possession of lands, or a claim of title to real estate, may be the subject of sale, and is a good consideration to support a promise. Doyle vs. Knapp, 3 Scam., 338. Where there is neither fraud or warranty on the part of the vendor, the vendee cannot recover back the purchase money. Doyle Knapp, 3 Scam., 333 ; Owings vs. Thompson, ibid, 505. A plea of failure of consideration in cases of this sort is allowed, in order to avoid circuity of action. Frisbee vs. Hoffnagle, 11 J. R., 50 ; McAllister vs. Reab, 4 Wend., 490, and cases there cited; also, Duncan vs. Charles, 4 Scam., 568. If West had paid these notes, he would have no cause of action against Condrey. The inference is unavoidable, that he cannot set up this defence to Condrey’s action against him.
    J. Manning, on the same side, argued:
    1. Whatever is necessary to constitute the ground of defence, must be stated in the plea, and the plea must be taken most strongly againstthe pleader. 1 Chit. Pl., 195, 217; 7 Bouv. Bac. Abr., 495, title, “Pleas and Pleading;” Co. Lit.,303. 2. The third plea does not show that Condrey warranted, in any manner, the title to the land sold by him to West, and under the rule above stated, the presumption is that it was a sale without fraud or warranty. In which case the vendee takes the title at his own risk. Breese, 270; Doyle et al. vs. Knapp, 3 Scam., 338. Wherefore the plea is bad. 3. The third plea shows that Condrey, as the consideration of the note on which suit is brought, gave up his contract with George to West, which was a good consideration for the note. Price vs. Seaman, 10 Eng. Com. Law, 400. And in the absence of any averment to the contrary, West must be presumed to have taken the contract from George, at his own risk; which also renders the plea bad. 4. But there was a transfer of Condrey’s interest in the land, as shown by the third plea, by substituting West “ in the room and place” of George, in the original agreement between Condrey and George, with George’s assent; which transferred Condrey’s interest,in the land as effectually as could have been done by deed ; which interest, as the plea shows, was all that Condrey sold, and this was done without fraud or warranty of title. So that, unless the Court can presume fraud or warranty, where none is alleged by the pleader, the third plea is bad in substance. 5. The third plea shows that the note was executed, and West substituted for Condrey in the original agreement, on the 18th February, 1848, while by that agreement no deed was to be executed by George, until the 24th October, 1848. The substitution of West for Condrey was in effect a recision of the old agreement, and a making of a new agreement. So there was no breach of the agreement between George and Condrey, nor of that between Condrey and West, but only of that between West and George: for George had until the 24th day of October, 1848, to execute the deed and remove the incumbrance. Trask vs. Vinson, 20 Pick., 109-10; Smith vs. Haynes, 9 Greenleaf, 128. 6. The third plea does not state the terms of the contract between Condrey and West, and is therefore bad on demurrer. Wagy vs. Lane, 3 Scam., 237. 7. The third plea shows that the note sued on was given for the purchase of land, without any agreement on the part of the vendor that the title was good; and in such case the failure of title is no defence in an action on the note. Owings vs. Thompson, 3 Scam., 502. 8. The third plea is insufficient in not showing whether a deed had ever been executed by George to West, conveying the tract of land for the sale of Condrey’s interest, in which the note in suit was given. Merriweather et al. vs. Smith, 2 Scam., 30; Merriweather vs. Gregory, 2 Scam., 50. 9. It is apparent from the third plea that the consideration of the note was the giving up by Condrey all the rights which he had under the contract with George, and a re-execution (6 Rand., 86; 6 Cow., 59; 2 Greenleaf, 582,) of the same contract, by which those rights became vested in West. The contract between West and George was substituted for the contract between Condrey and George. Condrey has now no remedy against George on the original contract; all which he has for his rights under that contract is the note sued on. Now, either West is a party to the contract with George, as a trustee, or he is occupying the place of a party to that contract which ought to be occupied by West. If as a trustee, he cannot make this defence until he has sought a remedy for Condrey’s benefit for a breach of that contract; if otherwise than as trustee, then he cannot make this defence until he has restored, or at least offered to restore, Condrey to those rights which Condrey had under that contract, and which he parted with to West as the consideration of this note. And this plea does not show that he has done any of these things. The plea is of a failure of consideration, which presupposes that the consideration was originally good. West now stands in the attitude of refusing to pay the note, and at the same time of refusing to restore the consideration of the note to the plaintiff. He will have his remedy on the contract against George, but he will not pay the note which he gave for that contract. 10. This is not the case of a parol contract for the purchase of land. A parol contract, it is true, was entered into between Condrey and West, but the written evidence of that contract was executed between George and West. The parol contract was executed by the re-execution of the original agreement, and the statute of frauds does not apply to such a case. 4 Pick., 188.
    R. S. Blackwell, for defendant in error:
    The third plea is a good bar under our statute. Tyler vs. Young, 2 Scam., 444; Frisbie vs. Hoffnagle, 11 John. R., 50; Rice vs. Goddard, 14 Pick. R., 293; Tillotson vs. Grapes, 4 N. H. R., 444; Gray vs. Handkinson, 1 Bay. R., 278.
    E. N. Powell, with Blackwell :
    1. In an action upon a promissory note, given for the price of land to which the vendee received a bond for a title, to be made when the notes were paid: held that the vendee might show a failure of consideration, by showing want of title in the vendor. Peques vs. Mosley el al., 7 S. & M., 340; Mason vs. Wait, 4 Scam., 127, 135; 11 John., 50; 4 New Plamp., 444; Cook vs. Mix, 11 Conn., 432; 14 Pick., 293. 2. And where the payment of a note, given for the purchase of land, is made a condition precedent to the conveyance, a plea to an action on such note, which avers that the vendor, neither at the time when the contract Avas entered into, nor when the conveyance was to be made, nor since, has had title, is a good defence to the action. Gregory vs. Scott; 4 Scammon, 392; Tyler vs. Young, 2 Scammon, p. 445; Gray vs. Handkinson, 1 Bay’s, 278; 4 Wendell, 483; 22 Pick., 166; 4 Scam., 561; 2 McLean, 464. 3. The bond referred to in the plea, and made a part thereof, and the note sued on, are to be taken as one transaction. By the bond, it will be seen that the conveyance Avas to be made before the note was to be paid. This makes it a condition precedent on the part of the plaintiff, who stands in the place of the obligor in the bond, to shoAV a conveyance before a suit can be maintained on the note. Green vs. Reynolds, 2 John., 207; Van Benthuyson et al. vs. Crapser, 8 ibid, 257; Hunt vs. Livermore, 5 Pick., 395; Stone vs. Fowle el al., 22 Pick., 166; Duncan et al. vs. Charles, 4 Scam., 561.
    A. Williams, in reply:
    All the defendant claims to have bought Avas an equity. He has got what he bought. The substitution of West’s name in the bond from George made the bond a neAV bond, from George to West, and gave to West precisely Avhat he contracted for— the interest then held by Condrey in the land.
   Opinion by Mr. Justice Catón :

The declaration counts on two promissory notes. The third plea of the defendant saj's, that the plaintiff held a Avritten agreement of one George, for a deed of certain premises, which, by a parol agreement with the assent of George, he sold to the defendant; which sale Avas the consideration for which said notes were giAren. That it was a part of said parol agreement, that the name of the plaintiff should be erased from said written instrument, and the name of the defendant inserted as purchaser; which, with the assent of George, was done. The plea then avers that George has no title, and so the consideration of the notes has failed. A demurrer was overruled to this plea, and this presents the only question for our consideration.

We cannot hesitate to pronounce this plea obnoxious to the demurrer. As between the plaintiff and defendant, the agreement was completely executed. The defendant acquired all the title which the plaintiff had, or pretended to have, or assumed to sell. In pursuance of the agreement for which the notes were given, the defendant became legally entitled to demand the deed of George. The transaction is the same as if the plaintiff had assigned the agreement for the deed to the defendant. The plaintiff transferred his equitable title, such as it was, to the defendant, precisely as he had agreed. The defendant got all that he bargained for with the plaintiff, who in no way assumed that George should perform his agreement, by the conveyance of a good title. For that, defendant must look to George alone. He should have secured a guaranty from the plaintiff, if he intended to hold him responsible for the performance of the undertaking of George.

The judgment of the Circuit ed, with costs, and the cause remanded.

it reversed.


source: Caselaw Access Project

author: Opinion by Treat, C. J.:

license: Public Domain

text:
    James A. Chadsey, plaintiff in error, vs. Benjamin Harrison, defendant in error.

      Error to Schuyler.

    The principle is well settled, that partners cannot sue each other at law, for any matter relating to the partnership concerns, unless there has been a final settlement between them, a balance ascertained, and an express promise to pay the balance.
    Without a general adjustment of the partnership concerns, there is no consideration to uphold an express promise of one partner to pay his co-partner a balance alleged to be due.
    Where a partnership is composed of three persons, two of them cannot state an account which will bind the third. All must concur in the settlement, and it must embrace all of the partnership transactions.
    This was an action of assumpsit, brought by Chadsey against Harrison, in the Schuyler Circuit Court, and a trial was had at the March term, A. D. 1848, before the Mr. Justice Purple, and a jury, when a verdict was rendered in favor of the defendant, for $ 150 08i

      The declaration contained three counts: the first a special one, and the others general indebetatus assumpsit counts. The special count was in substance as follows :
    “ For that whereas the said Harrison, Chadsey, and one Jonathan D. Manlove, heretofore, to wit, on, &c., at, &c., associated themselves together for the purpose of building, fitting out and sending down the Illinois and Mississippi rivers, a large raft of saw logs, to be sold at the city of St. Louis, Mo., on the joint account of the said Harrison, Chadsey and Manlove; each to share and share equally in the profits and loss of said adventure. And the said Chadsey avers, that at the special instance and request of Harrison and Manlove, he, the said Chadsey, at the time and place aforesaid, undertook and agreed to superintend the fitting out, building and carrying down of said raft, and the selling of the same at the city of St. Louis aforesaid. And the said Chadsey further avers, that, in furtherance of the object of the association aforesaid, and of the request and agreement aforesaid, he, the said Chadsey, afterwards, to wit, on, &c., at, &c., did superintend the fitting out and building of the raft aforesaid, and carried the same down the Illinois and Mississippi rivers aforesaid, to the city of St. Louis, and paid all the expenses attendant upon the same, and then and there sold the said raft, upon the joint account of the said Harrison, Manlove and Chadsey. And the said Chadsey further avers, that the adventure aforesaid resulted in a nett loss to the said Harrison, Manlove and Chadsey of the sum of #231 98, over and above the proceeds arising from the sales of the said raft. And the said Chadsey avers, that the said Harrison and Manlove, each, by reason of the premises aforesaid, became liable to pay to the said Chadsey the sum of $ 77 32 2-3, being their respective proportionate shares of the loss incurred by reason of the adventure aforesaid, and paid by the said Chadsey as aforesaid. And the said Chadsey further avers, that the said Harrison afterwards, to wit, on &c., at, &c., in consideration of the premises aforesaid, undertook and promised to pay to the said Chadsey the said sum of $77 32 2-3, when he, the said Harrison, should be thereunto afterwards requested,” and concludes with the usual assignments of breaches.
    To the special count above set forth, the defendant demurred, and there was a joinder in demurrer, and the Court sustained the same. To the residue of the declaration the defendant pleaded the general issue, set-off, and several other pleas, which it is unnecessary to set out.
    The only error relied upon is, the judgment of the Circuit Court in sustaining the defendant’s demurrer to the special count of the plaintiff’s declaration.
    R. S. Blackwell, for plaintiff in error :
    The -first count of the declaration is good, and the demurrer improperly sustained to it by the Court below.
    1. Where there is a partnership for the purpose of a single adventure, as in this case, and that adventure has been fully completed, so that the partnership is at an end, assumpsit will lie by one of the partners against his co-partner, upon an express promise to pay a balance found to be due him. Musier vs. Trumpbour, 5 Wend. R., 274; Robson vs. Curtis, 2 E. C. L. R., 303. 2. So assumpsit will lie, by one partner against his co-partner, in all cases, to recover a final balance of a partnership account, where the judgment will be an entire termination of the partnership transactions between the parties to the action, so that no further litigation can grow out of them; and neither a settlement nor an express promise is necessary to support the action. Fanning vs. Chadwick, 3 Pick. R., 423; Williams vs. Henshaw, 11 Pick. R., 82. 3. And in all cases, where one partner expressly promises to pay his co-partner a certain sum of money, assumpsit lies, whether all of the partnership affairs have been finally adjusted or not. Gibson vs. Moore, 6 N. H. R., 547; Bonaffe vs. Fenner, 6 S. and M., 212. And on demurrer the promise alleged in this declaration will be intended as an express one. Beeker vs. Beeker, 7 John. R., 99; Holly vs. Rathbone, 8 John. R., 148; Elting vs. Vanderlyn, 4 John. R., 237; Atkins vs. Hill, Cowper R., 159.
    Browning & Bushnell, for defendant in error:
    The dissolution of partnership may arise from the full completion of the transaction for which it was formed. Story on Part., sec. 280. But after a dissolution, the partnership continues, for the purpose of the collection of debts, and the adjustment and settlement of the partnership affairs. Story on Part., secs. 324, 325, 326 and 328. No settlement of the partnership affairs can take place as between the partners at law, only by the action of account, and it makes no difference in this respect, whether the partnership is general, or only of a particular transaction. Gow. on Part., 70—73 ; 2 Caine’s Rep., 293; 1 Hall’s Rep., 180; Rogers vs. Rogers, 1 Hall’s Rep. 391; 3 Scam., 563; Bovil vs. Hammond, 13 Eng. Com. Law Rep. 125.
    But where an account has been had between the partners,, and a balance ascertained, one partner may maintain an action at law for such balance, if there has been an express promise to pay it, but not otherwise. Gow. on Part., 74-5; Foster vs. Manson, 2 T. R., 480; Davenport vs. Gear, 2 Scammon, 495; Frink vs. Ryan, 3 Scammon, 322, 325; Holmes vs. Higgins, 8 Eng. Com. Law, 27. And so is the law in New York. Casey vs. Burch, 2 Caine’s Rep., 293; Halsted vs. Schenetzell, 17 John. R., 80. Westerlo vs. Evertson, 1 Wend. R., 532; Attwater vs. Fowler, 1 Hall’s Rep., 180, 187-8. Murray vs. Bogart, 14 John. Rep., 318. Though in Massachusetts and Pennsylvania, where there has been an actual settlement and ascertainment of the balance, in consequence of their peculiar condition, having no Courts of Equity, a suit may be maintained for this balance, without an express promise. Ozeas vs. Johnston, 1 Binn. R., 191; Fanning vs. Chadwick, 3 Pick., 429; Williams vs. Henshaw, 11 Pick., 79 ; though in the case in the 11th Pickering, 79, it is admitted that the rule in Massachusetts is a departure from the common law. The ground of sustaining the express promise is, that the ascertainment of and agreement upon the balance due, creates a moral obligation to pay; which is a sufficient consideration to support the promise. Gow. on Part., 74—5; Foster vs. Manson, 2 T. R., 479. For the same reason, where the promise is held to be implied, from the ascertainment and settlement of the balance, it should be held that the implied promise is created and supported by the moral obligation to pay the debt actually ascertained. It will be difficult to find a case of one partner against another, for a balance due on the entire partnership transactions, where the suit has not been in form on an account stated. 2 Scam., 495; 2 Caine’s Rep., 293.
    This is a question of pleading. The promise, whether express or implied, must be sustained by the moral obligation arising to pay a debt ascertained by settlement. The declaration is special, and hence must show the facts which take this case out of the general rule, that one partner cannot sue another at law.
    If the suit had been by the common count of insimul computasset, the fact that a promise was made, might be good, and perhaps sufficient evidence to a jury, to enable them to find, as a fact, that a settlement had been had and a balance ascertained; but, I repeat, there is now, under this declaration, a question of pleading, and not of evidence. The pleader must himself state the facts, which sustain the action, and the promise, and show wherein this is an exception to the rule.
    The plaintiff might have brought his action on the common counts; then the questions would have arisen on the proof, but as he sued specially, contrary to the usual course, he must aver facts so as to require proof of a settlement under it: if not allowed, it would not be necessary for plaintiff to prove it, and the plaintiff would recover a balance without proof of settlement.
    But there is another fatal defect: the count no where shows that the plaintiff was entitled to any thing, or that he ever paid one cent on account of the joint concern, whereas it does show that the plaintiff received the whole proceeds of the sale of the adventure. If any presumption is to be indulged in, as to -who advanced the capital, it would be, that they had advanced in equal proportions, and hence, so long as the plaintiff had the proceeds of the sale in his hands, he would owe the other partners and not they him.
    The agreement was, to build, fit out and send down a raft of saw logs. The logs must have been on hand—they were the capital stock. The three were to build, fit out, &c., the raft. Chadsey agreed only to superintend the building of the raft, not to purchase; they were on hand. He avers he did superintend the building, &c., of the raft, and paid the expense of building or putting together the logs on hand into the raft, &c., and paid the expenses of what he did; not-that he bought the logs or paid for them. As nothing is said as to who paid for the logs, or the portion of capital stock each put in, the legal presumption is, that each of the partners paid an equal portion. That is true as to the presumption of an equal interest in profits, and an equal burthen as to losses, and why not as to the capital stock? As to community of profits and losses, see Story on Part., secs. 23 and 24. As to community of interest in the capital stock, equal interest implied, in the absence of express stipulation, see Story on Part., sec. 27.
    The declaration does not show that the logs were paid for. Every part of the declaration may be true, and yet Harrison may have paid for the logs; or is alone bound for their payment; or that the partnership bought them on a credit and will have them to pay for; or that the plaintiff who sues, and has received the whole proceeds of the sale, has not received twice as much as he has paid out. What consideration is alleged for the express promise, admitting one was made ? What right has Cliadsey to recover more money, till he shows that he has paid out for the joint concern, more than the whole proceeds of the sale which have come into his hands ?
   Opinion by Treat, C. J.:

The principle is well settled, that partners cannot sue each other at law for any matter relating to the partnership concerns, unless there has been a final settlement between them, abalance ascertained, and an express promise to pay the balance. Gow. on Part., 74; Westerlo vs. Evertson, 1 Wendell, 532; Foster vs. Allenson, 2 D. and East., 480; Davenport vs. Gear, 2 Scammon, 495.

The first count of the declaration, after stating the formation and nature of the partnership, simply alleges that the plaintiff paid the expenses of constructing the raft, and taking it to market; and that the nett loss on the adventure exceeded the proceeds of the sale two hundred and thirty-one dollars and ninety-eight cents; one-third of which amount the defendant agreed to pay him. This count fails to show a full adjustment of the partnership affairs. Manlove, one of the partners, was not a party to it. Two partners cannot state an account that will bind the third. All must concur in the settlement; and it must embrace all of the partnership transactions. The settlement between the plaintiff and defendant, if any was ever made, was partial in its operation. It related only to the expenses and proceeds of the raft, and did not extend to the capital stock, and the debts due to and from the firm. We are clearly of the opinion that this count of the declaration shows no cause of action. The promise to pay was not founded on a sufficient consideration—a general adjustment of the partnership concerns.

The Circuit Court decided correctly, in sustaining the demur* rer, and the judgment will he affirmed, with costs.

Judgment affirmed.


author: Opinion by Mr. Justice Trumbull :

text:
    Luther Woodward and George Cowell, appellants, vs. William Seely and Charles C. Elliot, appellees.

      Jippealfrom Woodford.

    A bill”of peace, where the parties are not numerous, will not bo sustained to prevent multiplicity of actions at law, before the rights of the parties have been settled in a Court of law.
    A party cannot come into a Court of Equity to enforce his rights, when he has a full and complete remedy at law.
    A mere license, whether by deed or parol, is always revocable at the will of the licensor, unless coupled with an interest and executed, then it is irrevocable.
    A license coupled with an interest in land, must be in writing.
    A license perpetually to overflow the land of a party granting such license, would create an interest in the land, and, therefore, the license cannot be granted by parol.
    A Court of Equity will not enforce a parol license to overflow the lands of the licensor, even in favor of a party who, instead of procuring a license by deed, has acted in good faith upon the parol license, and made valuable improvements upon his own land, which will become worthless if the license is revoked.
    This is a hill in chancery, alleging that some time in the spring of the year 1835, Luther Woodward, one of the complainants, in company with one Levi Woodward, came to La Salle county, and became acquainted with William Seely, one of the respondents. That Seely told Luther Woodward, that he, Seely, owned an hydraulic privilege on the Big Vermilion river, where he had erected a saw mill; said Seely also told Woodward, that there was another water privilege on the said stream, immediately below the one occupied by him, and recommended Woodward very urgently to purchase and improve the same, by the erection of a saw mill, or in some other way. That Woodward, listening to the advice and persuasion of Seely, went with him to examine the said water privilege, when said Seely pointed out the lowest west line of his, said Seely’s land, on which he had erected his said saw mill, and pointed out and explained the nature and extent of the said water privilege, below the land of said Seely, and again urged and persuaded Woodward to purchase and improve said privilege, stating that it would be a great benefit to, and enhance the value of the land in the neighborhood. That Woodward, upon a careful examination of the premises, informed Seely, that he, Woodward, could not safely build a dam on the said water privilege, only at the place where Seely’s dam stood, by reason of the loose state of the bottom of the river; and in order to erect his dam with perfect safety, it would be likely to flow the water back above the west line of said Seely’s land, as there was little or no fall on the said lower water privilege, from the west line of said Seely’s land, to the place where said Woodward’s dam stood, at the time of the filing of the bill. Thereupon Seely told Woodward that there was a considerable fall on said Seely’s land, between his said lower or west line, and his saw mill, and that if Woodward would purchase and improve the lower privilege so pointed out and recommended by Seely to Woodward, that Woodward might have and enjoy the right to flow back the water, provided he did not raise his dam so as to cause the water to flow up stream, so as to interrupt and hinder Seely in the use of his mill. Which offer and inducement Seely repeatedly made and urged upon Woodward, until, in consideration thereof, Woodward was induced and persuaded to purchase the lower water privilege, or the lands so recommended by Seely to Woodward, viz: the west half of the south-east quarter, and the east half of the southwest quarter of section eight, township thirty-two north, of range two, east of the third principal meridian; and thereupon proceeded to improve the same, as is set forth in the bill. That in the month of May, 1835, Woodward purchased the fee simple and title of Edward Fay, who was then the proprietor of the west half of the south-east quarter of said section eight, and took a release of said Fay’s claim to the said east half of the south-west quarter of said section eight, and paid the said Fay therefor the sum of two hundred and five dollars. That Woodward, subsequently, about the month of July, 1835, purchased with and in the name of said Levi Woodward, of the government of the United States, the said last mentioned eighty acre lot, and paid therefor one hundred dollars. That complainant, Woodward, immediately after the purchase from Fay, and about the last of May, 1835, went to the state of Massachusetts, and commenced purchasing irons and other necessary materials for the purpose of erecting a saw mill on the premises, and improving the water privilege, in accordance with the permission of and understanding with said Seely, as above set forth; and in the autumn of the same year, Woodward employed two men and sent them to the said premises, with the said materials, at an expense of several hundred dollars; that these men, on arriving at the premises, commenced getting out timber and other materials, for the purpose of improving said mill privilege, in accordance with the permission granted by Seely. That Woodward returned to the premises with his family, and, in person, went on with the improvements already commenced. That in the spring of 1837 he commenced constructing his dam, and digging a race, to convey water to his mill, finished his dam, partly finished his mill-race, and mill. That all were completed and ready for operation some time in July following, at an expense of $5,000. That the dam is about five hundred feet long and three feet high, which is situated near half a mile above the mill, and about thirty rods below the west line of Seely’s land. That although the dam of Woodward and Cowell raises a head of water of about three feet, on the land of said Seely, to wit, in the bed of the river, yet it does not flow the water back, so as to interrupt him in the use and enjoyment of his said saw mill. That some time in the summer of 1835, Levi Woodward released and conveyed to Luther Woodward, complainant, whatever interest said Levi had in the premises, and about the same time, complainant, Woodward, sold to James S. Bullock, Joseph Bullock and Maxey O. Bullock, one undivided fourth part of the said premises, and in July, 1839, all of said Bullocks, for a valuable consideration, reconveyed to complainant, Woodward, all their interest in said premises. That some time in the spring or summer of 1837, Woodward conveyed to Cowell, his co-complainant in this bill, an undivided eighth part of said premises, and also to one Floyd C. Knapp, for a good consideration, another undivided eighth of the premises, which was reconveyed afterwards by Knapp to Woodward. That when Woodward returned to La Salle county, in the fall of 1836, he found one Charles C. Elliot, one of the defendants, in joint possession with Seely, of Seely’s premises, and that he conversed and advised frequently with Elliot, as to the construction of said dam, and explained his intentions in relation thereto. That some time in the fall of the same year, and while Elliot was in the immediate neighborhood, Woodward built a wall of stone, about eight feet long and three feet wide, and to the full height to which the complainants’ dam stood, and where it is now erected, and gave out and promulgated in the neighborhood, and also to Seely and Elliot, that the said wall was to show the location and height of Woodward’s then intended dam. That when Elliot became interested with Seely in the premises of Seely, he was fully advised and well aware of the existence, nature and extent of the license given by Seely to Woodward, and that he, Elliot, took his interest, subject to the license, and that Woodward and Elliot conversed frequently about the license, whereby Elliot was informed by Woodward of the existence, nature and extent of said license, and that Woodward was about building said dam in pursuance of said license, and that said dam, when erected, would flow the water back on to the land so occupied by Seely and Elliot, as high as the same might be done without injury to, or impeding of the operation of the mill of Seely and Elliot. That Elliot saw the works of Woodward daily as they progressed, from 1836 until about August, 1837, without intimating in any way, that he objected to the execution of the license, although it was notorious that Seely had given Woodward permission to flow the water up the stream as hereinbefore stated, and that without such permission, the dam would be entirely useless. That since the completion of the dam and mill, &c., on or about the 19th December, 1840, Elliot commenced an action at law in trespass against complainants, and the Bullocks and Knapp, complaining of the construction of said dam, whereby the water is made to flow back up said stream, and on the lands of Elliot, and thereby ' ’nvned out the water privilege of Elliot. That on the 26th December, 1840, and on several days subsequent thereto, the said Seely and Elliot commenced divers actions of trespass against complainants for the same cause. That Seely and Elliot refused to dismiss these several suits, but threatened, not only to prosecute them to judgment, but also to bring others, so long as Woodward and Cowell should continue to keep up their mill-dam.
    The bill prayed for an answer to the bill, an injunction against proceedings at law, and for general relief. An injunction was allowed.
    Seely answered separately, denying generally the allegations of the bill; admitted having had some conversations with the Woodwards about mill privileges on the Vermilion river, but denies having given permission to erect a dam, &c., as charged in the hill. Alleges that water flows back to the injury of his mill. Admits he brought the suits, and insists that he has the right so to do. Cowell makes much the same answer to the bill.
    Proofs were taken upon the bill and answer, but as the opinion of the Court does not depend upon the proofs, it is unnecessary to furnish an abstract of them.
    A ^change of venue was had in the suit, and it came on to be heard upon bill, answers, replications, depositions and exhibits, before Treat, Judge, at Woodford county, at the April term, 1847, of the Circuit Court, when a decree was pronounced, dissolving the injunction and dismissing the bill. An appeal was prayed by the complainant, Woodward, and allowed.
    S. T. Logan, for appellant.
    O. Peters, for appellees, presented and supported his argument as follows:
    A Court of Chancery has no jurisdiction of this case, the complainants having a complete remedy at law. If the license set up in the bill is a good license, it may be pleaded, and is a complete bar of the suits at law. 1 Chitty’s Pl., 528, 544. A trial at law of this issue, would determine the rights of the parties. Plumleigh vs. Dawson, 1 Gilman R., 544. Where the remedy is thus complete, Courts of Equity will not interfere. Jerome vs. Ross, 7 John. Ch. Rep., 331 and 337. By the bill it appears that the complainants have not established any right at law; and until this is done, a Court of Equity will not interfere; unless, perhaps, where parties are so numerous that a full remedy cannot be had at law. Fonblanque’s Equity, 28; Eldredge vs. Hill, 2 John. Ch., 281, also, 375 to 379; Livingston vs. Livingston, 6 John. Ch. Rep., 499; 2 Story’s Equity, p. 174, et. seq.

    The proof does not show such license as is claimed by the bill. Title cannot be proved by rumor or reputation. Nor is rumor sufficient to charge a pur chaser with notice. 2d Sug. on Vend., 315 to 320; 1 Story’s Equity, sec. 400; Jolland vs. Stainbridge, 3 Ves., 478. At common law, one cannot flow water back upon the land of another. Angel on Watercourses, 94; 9 Mass. R., 306 and 316; 2 Gil. R., 298; Plumleigh vs. Dawson, 1 Gil. R., 550; 23 Eng. C. L. R., 76 ; 27 vol. of same work, 11, as to priority. The license being by parol, as shown by bill and proofs, was not a good license, and was void, or at least voidable by the statute of frauds.
    The bill terms this a license; it is more properly an easement, for it is claimed as a permanent interest in, or right to encumber the defendants’ land. Rev’d Stat., p. 258, sec. 1; 1 Chitty’s G. Prac., 292, 337, 338, 339, 340, 635; Cook vs. Stearns, 11 Mass. R., 533; Mumford vs. Whitney, 15 Wend. R., 390; Right to flow must be secured by deed. Miller vs. Auburn and Syracuse R. R. Co., 6 Hill’s Rep., 61; 3 Kent’s Com., 451, 452 and 453, and also notes to the title “ Rights by License;” I Sug. on Vend., pa. 91 to 98, and note; Heaton vs. Ferris, 1 John., Rep., 145; Phillips vs. Thompson, 1 John. Ch. Rep., 131; II Metcalf’s Rep., 251, Stevens vs. Stevens.
    If there was a license, it was revoked before the commencement of the suits at law. Woodward was forbidden to proceed with his dam, and this was a good revocation. Ex parte Coburn, 1 Cowen, 568; Fentiman vs. Smith, 4 East Rep., 107; Hawkins vs. Shippam, 11 Eng. Com. Law R., 207; Tillotson vs. Preston, 7 John. R., 288; Cook vs. Stearns and Mumford vs. Smith, before cited.
    A license is personal and is not assignable. Emerson vs. Fish et al., 6 Greenleaf’s Reps., 205. The bill alleges that license was given to Luther Woodward; the proof is, that it was to others as well as to him; at least, others entered into the enjoyment of the supposed permission or license. This was, of itself, a revocation or rejection of the license, or an assignment of a part of it; and either would destroy it. So, too, a sale by Seely to Elliot was a revocation of the license; clearly so if he purchased without notice, as it is shown he did.
    If there was such a license as is claimed by the bill, Woodward exceeded it, and flowed higher than he pretended he was authorized to do. He makes no claim of any right to flow, so as to interfere with the saw mill of defendants.
   Opinion by Mr. Justice Trumbull :

This bill was filed to restrain the defendants from prosecuting certain actions which they had commenced, and perpetually to enjoin them from instituting others, to recover damages for the overflow of their lands; the complainants alleging that said overflow was by the license and.permission of the defendants, and occasioned by the erection of a mill-dam upon their own land, which they had been at great expense in constructing. None of the actions at law had been disposed of, when the bill was filed, though several were then pending, and the defendants were continuing to commence them at intervals of every few daysA °

Canrthis bill be maintained ? We think not. There is no instance in which a bill of peace, where the parties were not numerous, has been sustained, to prevent multiplicity of actions at law, before the rights of the parties have been settled in a Court of law. The principle that a party cannot come into equity to enforce his rights, when he has a full and complete remedy at law, is too familiar to require the citing of authorities to support it. The license in this case, if valid and effectual, constitutes a complete defence at law,; and until that defence has been established, and the defendants continue after-wards to harrass the complainants by vexatious suits, chancery has no jurisdiction in the matter. Eldridge vs. Hill, 2 John. Ch., 281; West vs. Mayor, &c., New York, 10 Paige, 539. But admitting that chancery has jurisdiction, and thatthe complainants have established by proof, the granting of a parol license to overflow the land of the defendants, as they insist—the evidence of which is by no means satisfactory—are they entitled to the relief sought? We are aware that there is some conflict in the authorities, as to the effect of a parol license to enter upon the lands of another; that a distinction has been drawn between an easement or privilege in land, and a license or authority to do something upon land, and that different Courts have arrived at opposite conclusions, as to the necessity of a writing, to take cases out of the statute of frauds, while professing to found' their decisions upon the same authorities. In this state the question is new, and we feel at liberty, in the conflict of authorities, to settle it upon principle, and what we believe to be the true interpretation of the statute, without attempting to examine and explain the numerous cases upon the subject of parol licenses, which have been so often reviewed and commented* upon by the various Courts, both of this country and England.

What then is a license? Simply the permission to do something which, without such permission, would have been unlawful. It matters not whether granted by deed or by parol; as a mere license, it is always revocable at the will of the licensor, but when coupled with an interest, and executed, it is irrevocable, and this constitutes the distinction between revocable and irrevocable licenses. In the books, this is illustrated by the case where a man authorized another to hunt in his park, and carry away the deer which he should kill.*' Here is a license todmnt, coupled with a grant or right to carry off the deer, and is,TOerefore, irrevocable when acted upon, and the deer killed, until they are carried away, if in a reasonable time; but a mere license to hunt in one’s grounds, whether by deed or by parol, is revocable at any moment. When the license is coupled with an interest in land, or of such a character that the interest could not pass by parol, then a writing is essential to the creation of the interest, otherwise no interest passes. In this case, the license, while unrevoked, authorized the complainants so to erect their dam as to overflow the land of defendants, and released them from the damages, to which they would otherwise have made themselves liable in so doing, but did it give them the right to overflow the lands of the defendants, and deprive them of their use perpetually and forever? If so, the license certainly carried with it an interest in the land, and if the grant of the interest was valid, the license became irrevocable. But can such an interest be granted by parol? To hold that it could, would, to use the language in 1 Sugden on Vendors, 80, be “in the very teeth of the statute,” which declares that every contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, for a longer term than one year, shall be in writing. If one man can acquire by parol, the right so to use another’s land as to render it useless to the owner, it will be but taking a short and easy step, and going very little further, to hold that he may acquire the title itself, by parol; for of what avail is it to a man to have the naked title to a piece of land, which he cannot use, but which, in spite of him, anothw has the right to keep forever covered with water ?

A right of way, it is said, cannot be granted by parol, but must e founded upon a deed, or writing, or presumption which preupposes one, and it is difficult to conceive how the right to pass over the land of another should constitute an interest in it, incapable of being granted by parol, while the right to cover it with water constitutes no such interest. In our judgment, a license perpetually to overflow the land of the defendants would create an interest in it, and, therefore, could not be granted byparol ; consequently, the license in this case carried with it no interest, and was revocable at the will of the party granting it. The defendants have chosen to revoke it, and thereupon the complainants became liable for any subsequent overflow of the land. It makes no difference that the complainants may have acted upon the parol license, and erected valuable buildings, which will become worthless in case the license is revoked: before acting so imprudently, they should have' acquired permission by deed to overflow the land of the defendants. Nor can the complainants call upon a Court of Equity to enforce the license, upon the ground that they have made valuable improvements, and expended their money, relying in good faith upon it. It is not like the case of a parol purchase of land, where the purchaser contracts to pay the value of the land, enters into possession, and makes valuable improvements, when a Court of Equity will compel the vendor, who has received the purchase money, to make a title to the land; and Courts have some times regretted that the statute should so far have been departed from, as to allow parol contracts for the sale of lands, even under such circumstances, to be enforced. To enforce the license in this case, where nothing was ever paid or agreed to be paid the defendants, for the privilege of flowing their land, and where no improvements have been made upon, or possession taken of it, except by covering it with water, would be a still farther departure from the statute, by extending a doctrine, originally of doubtful propriety, and which, if it were a new question, would now perhaps be settled otherwise. A reference to a few modern decisions, analagous in principle, is all that is deemed necessary in support of the views we have expressed. The case of Wood vs. Leadbbtter, decided in the Court of Exchequer in 1845, and reported in 13 Meeson & Welsby’s Rep., 837, is the mostrecent English decision upon this subject that has come to our notice. In that case, the plaintiff had purchased a ticket of the proprietor of the Doncaster race course, for which he paid a guinea, and which was understood to entitle him to come into the stand and enclosure surrounding it, and remain there every day during the races. While in the enclosure, he was requested by the defendant to leave, and upon his refusing to comply, the defendant, by the direction of the proprietor of the race course, turned him out, and for so doing the plaintiff brought suit. The Court, after reviewing most of the cases upon the subject of parol licenses which had been decided in England, came to the conclusion, that a right to come and remain for a certain time upon the land of another, could be granted only by deed ; and that a parol license to do so, though money be paid for it, is revocable at any time, and without paying back the money. Consequently, it was held that the plaintiff could not recaver, though he had in nowise misbehaved, and that his having paid a valuable consideration for going on the stand, made no difference. The cases of Fentiman vs. Smith, 4 East, 107; Rex vs. Horndon on the Hill, 4 M. & Sel., 565; Hewlins vs. Shippam, 5B. & C., 222; Bryan vs. Whistler, 8 B. & C., 288, and Wallis vs. Harrison, 4 M. & W., 538, are referred to as sustaining the decision in the case of Wood vs. Leadbetter. In Gale & Whatley’s Law of Easements, 29, the result of all the decided cases is stated to be, “ that a man may, in some cases, by parol license, relinquish a right which he has acquired in addition to the ordinary rights of property, and thus restore his own and his neighbor’s property to their original and natural condition; but he cannot by such means impose any burden upon land in derogation of such ordinary rights of property; as for instance, a parol license will be valid for building a wall in front of his ancient windows, while a similar permission to turn a spout on his land, from a neighboring house, will be invalid and revocable.” Tested by the law as here stated, the license in this case was clearly invalid, as it did impose a burden upon the land of the defendants, in derogation of what ordinarily belonged to it, and there can be no difference in principle, whether water is turned upon the land of another by means of a spout or a mill-dam. In the United States there are numerous cases to the same effect. Cook vs. Stearns, 11 Mass., 533; Stephenses. Stephens, 11 Met., 251; Thompson vs. Gregory, 4 John., 81; Miller vs. Auburn and Syracuse R. R. Co., 6 Hill, 61; Mumford vs. Whitney, 15 Wend., 381. The cases of McKilliss vs. Mcdhaney, 4 Watts, 317, and Woodbury vs. Parshby, 7 N. H., 237, and upon which plaintiff’s counsel principally relies, are admitted to lay down a doctrine in conflict with the views we have expressed; hut those cases are entitled to the less weight as they were both decided upon the authority of cases which have either been expressly overruled, or else do not sustain the conclusions they were cited to establish. Especially is this so as to the cases of Webb vs. Paternoster, Palmer, 71; Wood vs. Lake, Sayer, 3; and Taylor vs. Waters, 7 Taunton, 374; all of which are overruled, or shown to be without authority, by the decision in the recent case of Wood vs. Leadbetter.

The decree of the Circuit Court is affirmed.

Decree affirmed.

      Mr, Justioe Catón haying been of counsel, did not sit at the hearing of this cause.


text:
    Robert H. Rose and Joseph T. Campbell, appellants, vs. Henry Choteau, appellee.

      Appealfrom Schuyler.

    To justify an appeal on tlie ground that the judgment relates to a freehold, tho right of the freehold must ha ve been directly the subject of the action, not incidentally or collaterally: and the judgment must be conclusive of the right, until it is reversed.
    On motion to dismiss appeal.
    R. S. Blackwell, for the motion:
    An appeal is a proceeding unknown to the common law, and cannot be extended beyond the plain and obvious meaning of the statute granting it. Wetherbee vs. Johnson et al., 14 Mass. R., 420; Murdock, appellant, &c., 7 Pick. R., 320-1 ; Street vs. Francis, 1 Ohio Cond. R., 573; Schooner Constitution vs. Woodworth, 1 Scam., 511; Bowers vs. Green, 1 Scam., 43. The statute allows an appeal, only where the judgment or decree Is final, and shall amount, exclusive of costs, to $20, or relate to a franchise or freehold. R. S., 420, sec. 47. An order setting aside an execution, See., is not a final judgment, within the meaning of this statute, but merely a decision upon a collateral or interlocutory point. Brooks vs. Hunt, 17 John. R., 484; Robinson vs. Scott, 3 Litt. R., 233. There is no judgment for any sum of money against the appellants, nor even a judgment for costs. The appeal, then, if sustained at all, must be upon the ground that it relates to a freehold. But to authorize an appeal in such cases, the freehold must be directly involved in the action, and not incidentally. Hutchinson vs. Kellam, 3 Munf., 202, cited, 1 U. S. Dig., 170, sec. 137-8; Skipwith vs. Young, 5 Munf., 276; Briscoe vs. Briscoe, 3 A. K. Marsh. R., 498; Norton vs. Sanders, 3 J. J. Marsh., 396; Nichols vs. Hansel, 3 ibid, 442; Briscoe vs. Briscoe, 1 Litt. R., 363.
    Bhowning & Bushnell, contra:
    An appeal will lie in this case. The judgment below is final. It is final both in form and in effect. It not only settled principles, ascertained rights, but it adjudicated upon those rights and ex vi termini carried them into effect. Breading vs. Taylor, 6 Dana, 226.
    The defendant in error admits that a writ of error lies in this case. This is an admission that the judgment is final. In this respect there is no difference between a writ of error and an appeal. Neither will lie except from a final judgment or decree. Hedges vs. Madison, 1 Gilm., 306; Poet vs. McGraw, 21 Wend., 667; Bank of Lexington vs. Taylor, 2 S. and M., 27. The judgment relates to a freehold, not incidentally, but as the direct object of the proceeding. The motion was based upon a question of title. The affidavits, the substitutes for pleadings, raise that question and no other, and the judgment acts directly upon title, and upon nothing else—divests it from one party and invests it in the other. Under the form of a common law motion it is really and substantially a proceeding in chancery ; at most a concurrent, not an exclusive remedy. The judgment has the form, and requisites and operation of a chancery decree, not of an ordinary judgment at common law. And can there be a doubt that an appeal would lie from a chancery decree on the same facts, and affecting lands in the same manner? Can substance be merged in forms, and lands be affected or not affected by a judgment or decree, as we pass from one Court to the other ? The whole reasoning of the Court in the case of Enos vs. Hunter, 4 Gilman, 211, shows that this is a judgment relating to a-freehold. It may affect incidentally and subsequently interests in personam, but it acts and purports to act, not upon the person, but directly on title deeds—on title.

      R. S. Blackwell, in reply :
    Our statute granting appeals, is copied from the Virginia and Kentucky acts, and should receive the same construction. The decisions in those states show that the freehold must be directly, not incidentally, involved. The case of Hutchinson vs. Kellam is strikingly in point. The action was trespass quare clausum fregit; plea, liberum tenementum; upon which issue was joined, verdict for plaintiff, and judgment rendered thereon; from which defendant appealed. The damages not amounting to one hundred dollars, exclusive of costs, as required by the Virginia statute, the appeal was improvidently taken, unless it could be sustained upon the ground that the judgment appealed from •“ related to a freehold.” The Court dismissed the appeal upon the ground that the freehold was not directly the subject of the action; yet the effect of the judgment was to conclude the title of the defendant. It is clear that if the defendant had afterwards brought ejectment against the plaintiff, for the purpose of trying his title and recovering possession of the freehold, the verdict and judgment in the action of trespass could have been set up as an estoppel. 3 East, 346. Or, if defendant should repeat the trespass, chancery would perpetually enjoin him, upon the ground that his title had been tried at law. 1 John. Ch. R., 166. The Kentucky cases are strong authorities in favor of the position taken by me. An action of forcible entry and detainer is a possessory action; possession is prima facie evidence of a freehold right, and though restitution was not awarded in those cases, and the possession was not, in fact, changed by the judgments appealed from, yet the verdict and judgments must necessarily conclude the parties as to the right of the possession. In the case at bar, the freehold is only incidentally involved, and neither the title or possession of the freehold is affected by the order appealed from.
   Opinion by Treat, C. J.:

Choteau recovered a judgment against Rose and Campbell, and, under executions issued thereon, purchased certain real estate, and received a conveyance from the officer. On his application, the Circuit Court set aside the executions, and all the proceedings under them; and Rose and Campbell prosecuted an appeal from the decision setting aside- the executions; which the appellee now moves to dismiss.

Appeals are allowed " where the judgment or decree appealed from he final, and shall amount, exclusive of costs, to the sum of twenty dollars, or relate to a franchise or freehold.” Rev. Stat., chap. 83, sec. 47. The question before the Court related to the regularity of the proceedings under the judgments, and not to the title to the land. The Court held the proceedings to be irregular; it did not determine the rights of the parties in the cause. There was no adjudication of that question,. To justify an appeal on the ground that the judgment relates to a freehold, the right of the freehold must have been directly the subject of the action—not incidentally or collaterally; and the judgment must be conclusive of the right, until it is reversed. The judgment in this case does not conclude either party from asserting title to the land. The effect of it may be to prevent Choteau from claiming title under the judgment, but he is not precluded from setting up title derived from any other source. The proper mode of reviewing the decision is by a writ of error. The appeal will be dismissed.

•Appeal dismissed.


text:
    The County of Pike, plaintiff in error, vs. Lucius G. Hosford, defendant in error.

      Error to Pike.

    Counties are not liable to pay interest on tbeir contracts, except in pursuance of an express agreement to do so.
    This action was commenced March 7th, 1849. The form of the action was debt. The cause of the action was a contract made March 6th, 1848, between Hosford and The County of Pike, by which Hosford agreed to build a bridge for Pike county. In consideration of which, the county agreed to pay Hos-ford $779, when the bridge should be completed and received by the county; which was to be on or before the first of January, 1849. A demurrer was filed to the declaration; and at the April term, 1849, by agreement, the matters of law and fact were tried by Minshall, Judge, who found for the plaintiff.
    The bill of exceptions, presents these facts : 1. The making of the contract, as alleged in the declaration. 2. That the bridge was built according to the stipulations of the contract. 3. That two of the commissioners of Pike county received the bridge, November 9th, 1845, during a vacation of the County Commissioners’ Court. 4. That on the 7th November, 1848, the county paid Hosford $ 220, on the contract. 5. That at December term, 1848, Commissioners’ Court of Pike county, by an order entered of record, directed their clerk to draw orders on the county treasurer, in favor of Hosford, for the sum of $ 559, the balance of principal on said contract. 6. That the clerk did accordingly draw said orders ; but Hosford refused to receive them, “ unless they were payable with legal interest.” 7. That no demand was ever made by Hosford for said orders. 8. That on the 6th March, 1849, there was sufficient funds in the treasury to pay said orders.
    R. S. Blackwell, for the County:
    1. The revenue of counties is raised by taxation. R. S., 133, sec. 25. They have no power to borrow money. Law 1845, p. 352. The revenue of counties is received, kept and disbursed by the county treasurer. R. S., 138, sec. 4, 5, 7 and 9 3 R. S., 139, sec; 10. The County Commissioners’ Court can reach the county funds in no other manner, than by appropriating the same and drawing an order on the treasury. R. S., 138, sec. 63 133, sec. 20, 26 ; 134, sec. 32. The power of the county to raise revenue, the extent of her means, and the manner in which her disbursements are made, are within the knowledge of persons contracting with the county, and they are presumed to contract with reference to those facts. 1 Scam., 72. Again, the law having pointed out the manner in which the county is to contract, and the manner in which she is to perform her engagements, this law enters into and forms a part of all contracts entered into with the county. Reynolds vs. Hall, 1 Scam., 35. And again, by the usage of counties, they draw orders on the treasury in payment of their debts, and this usage is to be regarded in the construction of all contracts entered into by a county. Robinson vs. Fiske, 25 Maine R., 4013 Varner vs. Nobleborough, 2 Greenleaf, 126. County orders are recognized by law as valid. R. S., 133, sep. 20 and 26; 134, sec. 32; 136, sec. 46-7; 138, sec. 4; 139, sec. 13; 141, sec. 23; 163, sec. 73; 438, sec. 9. If illegal, county commissioners are liable to indictment. R. S., 175, sec. 136. Therefore, when a county tenders to her creditor an order on the treasury, this is all that can be reasonably required by the creditor. 2. It is then the duty of the creditor to present his¡ order to the treasury; if payment is not made, the county is then in default, and he can recover interest on the order from the time of presentment. But in no other case is the county bound to pay interest on her outstanding orders. Madison County vs. Bartlett, 1 Scam., 67; Robbins vs. Lincoln County, 3 Mo. R., 57; Varner vs. Nobleborough, 2 Greenleaf, 121.
    Williams & Lawrence, for Hosford:
    It is apparent from the record that the only question in litigation between the parties is, whether a county is liable to pay interest for money due from it, on a bond for the payment of money, from the time it becomes due till it is paid. This is a suit on such bond, and by its terms, the county was to pay the defendant $775, when a certain bridge should be completed by him, and received by the said commissioners; and it is admitted, that it was so completed and received on the 9th day of November, 1848.
    By the laws of the state, counties are made bodies politic and corporate, with the capacity to contract, and to sue and be sued. It is not contended that the contract sued on is not valid and binding. By its terms and legal effect, then, the county was bound to pay the defendant the price of the bridge, on the 9th day of November, 1848, and having failed to do so, the defendant’s right of action accrued, unless the county can claim an exemption from the operation of those laws which are binding upon other delinquent debtors. It is subjected to suit, without any designation of the causes for which it may be sued; and of course these are left to be determined by the principles of the common law, and the general laws of the state. Nor do we find in those laws any thing exempting counties from the performance of their contracts. It is obvious, then, that the county was liable to be sued for the money due by said bond, and the only remaining question is, whether it was bound to pay interest from the time the bond became due. The statute provides, that “ creditors shall be allowed to receive interest at the rate of six per centum per annum, for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing,” &c. In this case the defendant is a “creditor;” the money sued for was due to him “ on a bond,” on the 9th day of November, 1848. His case, then, is within the express letter and spirit of the statute. There is no exception to the right of such a creditor to receive interest, unless it is to be raised by implication; and one authority is relied on, which, by a dictum of the Judge in delivering the opinion, gives countenance to the idea that such exception is to be implied in cases like this, from the sovereign character of counties. Whilst it is conceded that the decision of that case may be corrected, it is respectfully submitted, that the dicta of the learned Judge cannot be sustained, either upon principle or authority. In Cohens vs. Virginia, 5 Pet. Cond. R., 112, Chief Justice Marshall says: “It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connexion with the case in which those expressions are used., If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision.” In this case it was also contended, that an exception was to be implied, on account of the character of one of the parties. Judge Marshall, in stating the point, says: “ The first question to be considered is, whether the jurisdiction of this Court is excluded by the character of the parties, one of them being a state, and the other a citizen of that state.” 5 Pet. Con. R., 100. He proceeds to say, “ the jurisdiction of the Court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim, on the spirit and true meaning of the constitution ; which spirit and true meaning must be so apparent as to overrule the words which its framers have employed.” “ After bestowing on this subject the most attentive consideration, the Court can perceive no reason founded on the character of the parties for introducing an exception which the constitution has not made; and we think that the judicial power, as originally given, extends to all cases arising under the constitution or a law of the United States, whoever may be the parties.” 5 Pet. Cond. R., 108. In the county of La Salle vs. Simmons, 5 Gilman R., this Court took the same sensible view of our interest law, and, by subjecting the county to the payment of interest, expressly repudiated its pretensions to an exemption from the operation of that law, on account of its supposed sovereign character. The Supreme Court of Missouri seem to have taken the same view. 8 Missouri R., 57; and there are many other cases the same way.
    The plaintiff, it is admitted, owed the defendant the money sued for by bond; that it was due on the 9th of November, 1848; that they have not paid or offered to pay it. The law provides that every creditor may sue for and recover money when it is due, with interest from the time it becomes due. It does not exempt counties which fail to pay their debts from this liability; and there is nothing in their character from which such exemption can be implied.
    Mr. Williams, in the course of his argument suggested that if the Court intended to adhere to what was stated in the opinion of the Court in the case of Barnes vs. Barber et al., 1 Gilman, 401, he would ask the benefit of that opinion, and asked the Court to refuse to entertain this cause for the reason that the defendant in the Court below did not interpose a motion for a new trial. Mr. Blackwell was about to reply to this objection, and was stopped by the Court. The Chief Justice stated that when a cause was submitted to the Judge for trial, it was not necessary that a motion for a new trial should be interposed, in order to bring the cause to this Court.
   Opinion by Treat, C. J.:

In March, 1848, an agreement was entered into between Hos-ford and the county commissioners of Pike county, by the terms of which, the former was to'erect a bridge on or before the first of January thereafter, and the latter were to pay him §779, when the bridge should be finished and accepted. The sum of $ 220 was paid to Hosford on the 7th of November, 1848; and the bridge was completed by him, and accepted by two of the commissioners, on the 9th of the same month.

At the December term, 1848, of the Commissioners’ Court, an order was entered of record, directing the clerk to draw orders on the county treasurer,, in favor of Hosford, for the payment of $ 559; and the orders were issued by the clerk and tendered to Hosford, who refused to receive them, because they did not in terms bear interest.

In March, 1849, Hosford brought an action against the county of Pike, on the original contract; and the Circuit Court, on the foregoing state of facts, gave judgment in his favor for $ 559, and interest, from the day of the completion of the bridge.

That decision is assigned for error. The funds of a county are required to be kept in the county treasury, and are only to be paid out on the orders of the Commissioners’ Court, or ee by virtue of a law specifically directing such payment to be made.” R. S., ch. 28, sec. 6. The commissioners have no authority to take funds from the treasury, and pay the same out directly to the creditors of the county. They may audit claims against the county, and direct warrants to be drawn on the treasurer for their payment. The creditor must procure an order from the Court, and present it to the treasurer for payment. This is the only mode by which he is to receive payment of his debt. Even when he recovers judgment against the county, he can only obtain satisfaction, through the medium of an order on the treasurer. He is not entitled to execution on the judgment. R. S., ch. 27, sec. 20.

In no other way could Hosford obtain payment of the amount due him from the county. Before this suit was commenced, and at the first term of the Commissioners’ Court held after the bridge was completed, warrants were issued and tendered him, for the balance due on the contract. He declined to receive them, because they did not bear interest on their face. The only point in the whole case is, whether the county is bound to pay interest on the balance after it became due. If it is liable to pay interest, the amount tendered was insufficient; if otherwise, the tender was sufficient, and constituted a goo# bar to an action on the contract. This Court, in the case of Madison County vs. Bartlett, 1 Scammon, 67, decided that counties are not bound to pay interest on county orders, in the absence of an express agreement to pay it. That decision seems to be conclusive of this case. If an order drawn on the settlement of a demand against a county, does not bear interest unless it is so expressed in the order, it is very clear that interest will not run on an unadjusted cause of action, on which interest was not originally agreed to be paid. There is no provision of law, requiring county orders to be drawn payable with interest; and the contract between these parties did not provide that interest should be paid, after the money became due. The parties contracted with reference to the laws governing contracts made with counties, and prescribing the mode of obtaining payment. If they had designed to take this contract out of the operation of the general rule, they would have expressly stipulated for the payment of interest.

The plaintiff has no just cause of complaint against the county. The commissioners, at the earliest moment, complied with every legal obligation, for the performance of the contract, on the part of the county. They promptly tendered him all that he had any legal right to demand—all that he could obtain by a suit against the county. He ought therefore to have accepted the warrants in liquidation of his cause of action.

There is a clear distinction between the case of Madison County vs. Bartlett, and that of La Salle County vs. Simmons, 5 Gilman, 513. The former case, like the present, arose out of a contract made with a county in the course of its legitimate business transactions ; and it was held, that the county was not to be charged with interest, in the absence of an agreement to pay it. . In the latter case, the county had, without authority of law, or color of right, obtained the possession of money belonging to Simmons, and detaining it against equity and good conscience, it was required to make compensation for the injury inflicted on Simmons, by the payment of interest, in the way of damages. The conclusion to be drawn from these decisions is, that counties do not pay interest on their contracts, except in pursuance of an express agreement to do so; but that in actions originating in torts, they are liable to the same extent as private persons. *'

The judgment of the Circuit Court is reversed, with costs.

Judgment reversed.