usage of the country.

A door would be open for controversy, whether the the note were any evidence of debt, or whether the whole original contract must be made out in proof by the plaintiff? This is required neither by justice nor by common sense. A principle once established and continued by common consent, and with general approbation, ought to be received as the law of the land. It should not, but for very weighty reasons indeed, be departed from or overruled. In this case we are of opinion that no such reasons exist.

The objection to the manner in which the breach is asssigned, is not well founded. The term "currency" in a contract must be taken to mean current money, unless there be something in the contract itself to require a different interpretation. The case in 9th Johnson is considered clear on this point. Judgment reversed.

CAMPBELL v. HAMPSON.

The Sheriff has no authority to provide a Jail, or to imprison a debtor in any other place than the public jail.

No action lies against the sheriff for imprisoning a debtor in the same room with criminals, if the county jail contain but one apartment.

This case was certified from the Supreme Court of Muskingum county. It was an action of trespass, and was tried by a jury upon the plea of not guilty, who found a verdict for the defendant. The plaintiff moved to have the verdict set aside as against law. A statement of facts was made and agreed to by the parties; and the motion for a new trial referred for decision to this court. The facts stated are as follows:

The plaintiff was arrested by the defendant on the 26th day of September, 1822, by virtue of a capias ad respondendum issued from the Court of Common Pleas of Muskingum county, in favor of John S. Dugan, in an action on the case, and was in the lawful custody of the defendant as a debtor. The jail of the county of Muskingum contains but one apartment, which is used, and heretofore has been used, for the imprisonment of convicts, persons charged with crimes, and debtors, this being the only room or building appropriated by the commissioners for that purpose. And it also appeared in evidence that the sheriff had represented to the commissioners, the situation of the jail, and requested them to make provision for the separate confinement of debtors. The defendant, on said 26th day of September, by virtue of said writ, took said plaintiff to said jail, and there imprisoned him in said apartment, which then contained two insane persons, one person charged with rape, and one with bigamy. The jail was described as a filthy and loathsome apartment, and the plaintiff protested against being confined there, and claimed decent and comfortable lodgings. The keeper of the jail treated the plaintiff with all humanity and gave him every accommodation, and kept the room as clean and comfortable as the nature of the place would admit. On the 28th day of September the plaintiff procured bail and was discharged.

Goddard and Spangler, for plaintiff.

By the COURT.

At the common law it was unlawful to confine a person in custody for debt in the same prison with those imprisoned for crimes, unless the debtor assented to it. If a debtor were thus imprisoned, he had his action for the wrong against the sheriff.

Our statute directing the erection of jails, provides that the jail shall contain not less than two apartments, one of which shall be apropriated to the reception of debtors; the other shall be used for the safe keeping of persons charged with or convicted of crimes. This provision is clearly predicated upon the principle that the unfortunate debtor is not be associated with the unprincipled and profligate felon. And the court have no doubt but thus to associate a debtor, is a wrong for which he may have an action for redress-the difficulty is, against whom shall such action be brought?

The fact, that this action is sustained, in England, against the sheriff, does not warrant us in sustaining it here. He has with us no authority to provide a jail, or to imprison a debtor in any other place than the public jail. It is the duty of the commissioners to erect and provide a jail. If this duty be performed-if there be a public jail with separate apartments, and the sheriff shall in such case confine a debtor among criminals against his consent, no doubt he would be subject to this action. But the facts agreed present a very different case. Here was a jail with but one apartment, and that contained persons charged with criminal offences. The sheriff had legally arrested the plaintiff he could not give bail, and it was the duty of the sheriff to confine him in the public jail. Had he imprisoned him elsewhere, it would have been illegal. The plaintiff, in the action, might have considered it an escapethe defendant a tresspass. Where the sheriff acted in strict obedience to his writ, and in the performance of his duty, he shall not be subjected to an action. The plaintiff has sustained an injury from others, and must seek redress against the wrong doers-not against the innocent sheriff.

The motion for a new trial is overruled.

REES v. SMITH.

An objection to the jurisdiction of the Chancellor comes too late, after a defendant has answered and contested the merits.

A punctilious performance of the minutia of a contract, is not always required in Equity. When a vendee files a bill for specific performance, and it appears that the vendor has sold the same land to a subsequent bona fide purchaser, for a valuable consideration without notice, Equity will retain the cause, and under the general prayer for relief will decree the value of the land to the complainant.

The bill was brought by the assignee of the vendor of a tract of land, against the purchaser, to obtain a decree for the balance of the purchase money, or a rescinding of the contract. The facts were these: Ludwick Wolfley, James Hunter, John Hunter, Morris Rees, Solomon Rees, Thomas Rees and Noah Zane were proprietors in unequal proportions of sec. 11, T. 14, R. 19, situate in Fairfield county. The land having been entered at the Chillicothe land office, an agreement was made between the parties that the patent should issue

to Zane, who gave a bond to each of the others to convey him his share of the land when the patent was obtained.

In June, 1810, before the patent issued, Solomon Rees sold his tract of land to the defendant, Smith, as eighty acres, at eleven dollars and fifty cents per acre. Thirty dollars to be paid in hand: four hundred and thirty in September following, and the residue in three equal annual instalments. The title to be made in September when the payment was made, and if not then made, Rees to give security for the title to be made in a reasonable time. Possession to be given to Smith in the ensuing October, if required. The agreement was reduced to writing and executed by both the parties.

Upon this contract Smith paid forty dollars at the time of execution: two hundred and fifty dollars on the 27th of October, 1810, and one hundred and thirty in November following; and was put in possession of the land. Rees not having obtained a deed from Zane, in October, 1810, executed a bond to Smith for the title, with Thomas Rees and Jesse Rees as security, conditioned for making a title so soon as a regular survey could be made. Upon this bond the Reeses endorsed an order to Zane to make the title to Smith. The bond and order was presented to Zane, who endorsed upon the bond a promise and an engagement to make the deed to Smith.

After this a survey of the section was made, when it was found not to contain the full quantity. The proprietors all agreed to apportion the loss among them. selves, allowing to Smith his full quantity of eighty acres.

In August, 1812, Zane, Smith, and all the proprietors, met for the purpose of executing and receiving deeds. By the consent of all concerned, Zane conveyed to Ludwick Wolfley, James Hunter, John Hunter, and Morris Rees, their several tracts of the land by metes and bounds. At the same time he executed a deed to Smith for the eighty acres purchased of Solomon Rees, the descriptive terms of which are as follows-"being part of Sec. 11, T. 14, R. 19, containing 80 acres, the line to run on the south boundary of the said eighty acres so as to include the two small fields south of the road, and to run the line as near the said fields as may be practicable, so that the line including said fields: may be a straight line-thence to run east and west for the basis of the said eighty acres. The body of said eighty acres lying north of the run near Solomon Rees's dwelling house." Smith received this deed, and gave up to Zane the bond executed by the three Reeses, and upon which Zane had endorsed his At the same time Zane executed to the heirs agreement to convey to Smith. of Thomas Rees a deed for all the residue of the section, reserving for himself fifty-five acres, eighty-six poles in the north east corner.

These deeds Zane took with him to Virginia to complete them by adding his wife's relinquishment of dower. When these deeds were returned, Smith took the one for him to his attorney, who advised him that it was too vague and uncertain in description to be valid: upon which Smith refused to accept it, and left it in the attorney's hands.

The balance of the purchase money remaining unpaid, in February, 1813, Solomon Rees assigned Smith's covenant to the complainant, and, Smith refusing to pay, the complainant brought suit at law upon the covenant. Smith defended the suit and resisted a recovery, upon the ground that Solomon Rees, not having

executed the deed in September, according to the terms of the covenant, could not recover at law-and upon that ground obtained a verdict; after which this suit in equity was commenced.

Smith put in his answer without making or stating any objection to the jurisdiction of the court, and in his answer suggested that he was defendant in another suit in chancery, between other parties, in which the boundaries of the land were drawn in question, and praying that proceedings might be staid until that suit was determined. An order was accordingly made to stay the proceedings, and they were staid until the suit in question was decided, which settled the boundaries, as Smith, in his answer in that case, had claimed. This cause was then proceeded in to final hearing in the Common Pleas of Fairfield county, when a decree was made that the defendant should pay the balance of purchase money with interest. From this decree the defendant appealed to the Supreme Court, and the whole case was reserved for decision in this court.

Ewing, for Plaintiff.

Opinion of the Court by Judge Burnet.

Two questions are presented in this case. 1. Has the court jurisdiction? 2. Has the contract been performed on the part of Rees, so as to entitle him to the relief prayed for?

As to the first enquiry, it is manifest that the subject matter of the contract comes properly within the province of a court of chancery. The defendant might have sustained a bill for specific performance, or to rescind; and it is contended with some force, that this right must be so far reciprocal as to authorise the vendor to sustain a bill where the covenants on his part have been substantially, though not literally, performed, and the party claiming a strict performance, is in the full and secure enjoyment of the thing contended for. A punctilious performance of the minutia of a contract, is not always required in equity, though the want of it may present a difficulty in a court of law. If the conditions have been substantially performed, and the benefits of the contract fully secured to the opposite party, equity has considered it sufficient: But in this case the defendant, by answering and putting the merits in issue, has submitted to the jurisdiction, and the court, at this stage of the proceedings, may go on and decide as the equity of the case may require. He has not only acquiesced, but has obtained a stay of proceedings till the fate of another bill should be known, to which he was a defendant, and by which he might lose a part of the premises purchased of the complainant. The existence of that suit, and the possibility of a recovery, were relied on as an important part of his defence. That suit has The court so considered it, and he was indulged with a delay. been decided in his favor, and now, for the first time, an exception is taken to the jurisdiction of this court. To indulge the defendant in this course, would seem to be trifling with justice. It has been repeatedly decided, that an objection to the jurisdiction of chancery comes too late, after a defendant has answered and contested the merits. If he do not demur to the relief, the court will decree for the complainant on the hearing. (Gilbert's History and Practice of Chan

cery, 219.) In the case of Ludlow v. Simond, (2 New York Cases of Error, page 56.) this doctrine is asserted and supported, both by reason and precedent.

The 26th section of the act directing the mode of proceeding in chancery, is also relied on. That section provides, "That after answer filed and no plea in abatement to the jurisdiction of the court, no objection, for want of jurisdiction, shall ever after be made, nor shall the court ever hereafter delay or refuse justice, or reverse the proceedings for want of jurisdiction, except in cases of controversy respecting land lying out of the jurisdiction of such court." Without undertaking to decide how far this section will control or affect the provision contained in the second section of the same act, by which the chancery powers of this court are created and limited, we may safely say, that in a case circum. stanced like the present, it may be relied on with propriety and effect.

On the part of the defendant it is urged, that the complainant's remedy, if any exist, is at law; but we cannot shut our eyes on the fact, that the remedy at law has been extinguished by a judgment rendered against the complainant by a court of competent jurisdiction, on the ground alleged by the defendant, that Solomon Rees had not complied with his contract. The defendant having succeeded on that ground, now attempts to defeat the application here, by maintaining the converse of the proposition. The words of the statute defining the jurisdiction of courts of chancery, relate to the time of filing the bill. If the complainant has not then a complete and adequate remedy at law, it would seem that the legislature intended to afford him the aid of chancery; nor does there appear to be any thing in the statute making it necessary to enquire whether at any former period a legal remedy did or did not exist. It is one of the peculiar provinces of equity to grant relief in cases of fraud and accident, and it is worthy of enquiry, whether both of these circumstances are not to be found in the present case. The defendant admits that, in the trial at law, he denied the existence of a legal remedy, and having succeeded in that defence, obtained a judgment. He now attempts to defeat the application on the equity side of this court, by advancing the converse of that proposition. Although he admits that the facts remain as they were, he contends that there was a remedy at law, and that this court cannot therefore grant relief. The accidental cir. cumstance, that the plaintiff's remedy at law has been destroyed by the practice. of the defendant, ought rather to strengthen than to weaken his claim to the aid of this court.

As the statute admits the jurisdiction of courts of chancery, in cases where there is not an adequate remedy at law, it is difficult to perceive how that juris. diction should be affected by showing that a legal remedy once existed, which has since been lost, without the fault or laches of the defendant. It is alleged, and such appears to be the fact, that the plaintiff in the court below being an assignee, had no knowledge of the bond and security given by Solomon Rees. to the defendant in October, 1810, or of the order on Zane for a deed, or of his acceptance of that order, which circumstance seems to account for his failure in the suit at law.

Circumstanced as this case now is, it must be admitted that the remedy at law, to say the least of it, is both doubtful and difficult, which has been generally considered as a sufficient ground for chancery to retain a cause.