V. WORTHINGTON, contra, cited, 5 Ohio R. 178; 18 O. L. 180; 22 O. L. 67; 4 Ohio R. 56, 459, 465; 13 John R. 537, 550; 1 Peter's R. 323; 1 D. R. 389; 2 Sel. Prac. 188; 6 T. R. 283; 2 Arch. Pr. 72, 76; 1 Peter's C. C. R. 449; 1 Wash. C. C. R. 463; 3 Wash. C. C. R. 209; 2 Saund. R. 72; 4 Bibb R. 24, 94; 2 Tidd's Pr. 1031, 1152, 1059; 4 Com. Dig. 142; 2 Bac. Ab. 361, H.; 6 Mod. R. 288; 1 Strange R. 100; Hardin R. 520; 2 Ser. and R. 142; 1 Ohio R. 150, 465; 2 Ohio R. 71, 290, 396, 400; 3 Ohio R. 139, 223; 3 Caines' R. 270; 8 John. R. 365; 13 Serg. and R. 203; 2 Call. R. 103; Virg. Rev. Code, 416; 3 Bin. R. 344; 7 Cowen R. 540; 2 Jac. L. Dic. 481; Ter. Laws, 16; 3 O. L. 69; 6 ib. 147; 8 ib. 71; 10 ib. 57; 14 ib. 171; 20 ib. 68; 22 ib. 108, 201; 29 ib. 73, 101, 114; 2 Saund. R. 72, v. 47, m. 101, p. 472; Cro. Eliz. 209, 237, 391, 397; 3 Bibb R. 344; 2 Ld. Ray. 1073, 1172; Cro. Jac. 73; 6 Mod. R. 290, 297; 1 Salk. 276, 323; 2 Im. Pr. 465; 1 Set. Pr. 535; 1 Ch. Pl. 354; Cro. Car. 328; 12 John. R. 208; 1 Mass. R. 403; 7 John. R. 428.

WRIGHT, J. delivered the opinion of the Court.

Reily, the complainant, claiming to have title and possession of certain lots of ground in Cincinnati, seeks the aid of this Court to quiet his title, and to compel the defendants to release claims by them set up to the property. The proceeding is predicated on the 14th section of the Chancery act, (29 O. L. 83,) which provides that "any person having the legal title and possession of lands, may file a petition against any other person setting up a claim thereto; and if the complainant establishes his title to said lands, the defendant shall be decreed to release his claims and to pay the complainant his costs, unless the defendant in his answer, shall disclaim all title or claim to such lands, and offer to give such release to the complainant, in which case the complainant shall pay to the defendant his costs, except for special reasons the Court shall otherwise decree." The case made is this:

Before the year 1820, one Hafer recovered a judgment against the Cincinnati Manufacturing Company, and levied an execution on the property in question.-This is the oldest lien.

The defendants recovered a judgment against that company the 12th of October, 1820, and levied an execution upon the lots on the 30th January, 1821. This judgment was suffered to lie without execution, from the 19th of June, 1823, until the 24th of December, 1829, when it was revived by scire facias.

Davies and others, recovered a judgment against that Company on the 12th of October, 1820, and levied execution upon the lots the 31st January, 1821. Writs of venditioni exponas were issued upon this judgment the 2d of April, 1822, the 25th June, 1823, and the 11th of November, 1823. On the 15th December, 1823, a sale was made on the last vendi. to Davies & Co.

Lytle and Avery recovered judgment against the Company on the 27th of Dec. 1820, and levied execution upon the lots on the 9th of February, 1821. Upon this judgment and levy vendis. were issued the 27th of March, 1824, the 23d of March, 1827, and on the 16th of June, 1829; and on the latter writs the lots were

sold to the Miami Exporting Company.

This judgment was assigned to the

Bank of the United States, the 13th of April, 1826.

On the 3d of September, 1829, the counsel managing the three last judgments, entered into an agreement, by which the sales on the two last were set aside, and the lots subdivided in order to effect better sales, and a new inquest and appraisement had in parcels. It was further agreed that execution should be issued on the Lytle and Avery judgment, then owned by the Bank of the United States, to the November term, 1829, on which the lots should be offered for sale; and that upon such sale a clear title should pass to the purchaser, and that the priorities of the liens under the several judgments and levies, should be tried in such mode as might be thought advisable, and the proceeds of sale appropriated accordingly. Under this agreement, an execution issued upon the Lytle and Avery judgment, on the 10th of Sept. 1829, on which the lots were sold to the Bank of the United States for 26,860 dollars, upon the 16th of November, 1829. This sale was affirmed by the Court, and a deed made by the sheriff in pursuance of the order of confirmation. The Bank of the United States subsequently sold and conveyed these lots to the complainant.

The proceeds of this sale to the Bank of the United States, was by common consent first applied to satisfy Hafer's judgment. As to the residue, application was made to the Court to direct the distribution, in behalf of Davies & Co. and of the defendants, and of the Bank. The order of distribution was brought before

this Court and decided in January, 1831. See 4 Ohio Rep. 459. The Court determined that the judgments of Davies & Co. and the Miami Exporting Company, had become dormant, because at the time of the sale to the Bank, no executions had issued upon them for more than five years, and so were not entitled to any distribution of the proceeds of sale; and that all advantage arising from the previous sales on these judgments had been waived by their voluntary appearance in Court and setting them aside.

Since this decision the Miami Exporting Company have taken out execution upon their judgment, sold a part of the premises by the sheriff, have themselves become the purchasers, and obtained a deed. Upon this they claim to hold the lots, and threaten ejectment to recover possession.

The view we take of the case renders it unnecessary to follow the counsel for the defendants, through the various points discussed with much ability in the argument. The simple question is, has the Miami Exporting Company authority to go back of their agreement under which the property was sold to the Bank of the United States, and set up their judgment lien. There is no pretence of fraud or unfairness on the part of the Bank, in procuring the agreement. It was understandingly made by the parties in interest, to obtain a better price for the property, leaving the right of each to be made operative upon the proceeds, to be settled as they should be advised. Their claims were made in a Court of competent jurisdiction, and settled-the claim of the M. Ex. Co. being adjudged invalid, after a severe contest. If the decision be erroneous, this Court has no power to renew it; while the decision remains unreversed, it is conclusive upon the subject of it. The Miami Ex. Co. was an active agent in procuring the sale on the Lytle judg

ment. She agreed to it, and agreed moreover, "that a clear title should pass to the purchaser under that sale.” "How can a clear title pass to the purchaser, if this company can be permitted to set up against the lots the lien of their judg ment." The sale, under the agreement of the parties, as it regards their claims against the purchaser, is precisely as if it had been made under either or all of the judgments claimed to be liens. The same as it regards the M. Ex. Co. as if made upon execution on her judgment. Each of the parties agreed to support a sale for the benefit of all, and to settle their priority of lien in a contest for the proceeds of sale. It would be a gross fraud upon the purchasers, if either of the parties, having thus induced a purchase upon the assurance that a clear title should pass, were permitted to set up their prior lien against the lots, and a title against that passed by their own agreement, to the purchaser. "It is a well established principle in equity, that if a person, having a right to an estate, permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right;" and this rule prevails even against femmes covert and minors. Smiley vs. Wright, 2 Ohio R. 510; 16 Vesey, jr. 253; 4 Munf. 449; 11 John R. 564; 6 John Ch. 166; 9 Mod. R. 35; 6 Vesey, 174; Cory vs. Girthen, 2 Mod. R. 40; 1 Vern. 136; 7 Vesey, jr. 231, 6; 5 Vesey, jr. 688, 9; 2 Atk 83; Jeremy, Esq. 387, 8, 9; 4 John Ch. 65; Ohio R. 318.

The title and possession of these lots being in the complainant, he makes a case for relief under the statute.-The defendants will be perpetually enjoined from enforcing the lien of their judgment against these lots, and ordered to release the complainant and pay costs.

PELATIAH BLISS, vs. DAVID LONG.

THIS is a motion to quash an appeal from the Common Pleas. It is the same case adjourned here from Cuyahoga, the last term. Sce 5 Ohio Rep. 276.

BY THE COurt.

By the transcript now exhibited, it appears the Court of Common Pleas, since the last continuance of this case, has retaxed the costs, and rejected from the judgment six dollars and five cents, by mistake of the clerk, included in it. The bond is now in double the amount of the judgment in the Court of Common Pleas, and sufficient.-The motion being now without any foundation, is overruled.

JOHN JAMES, vs. RICHMOND AND BOSTWICK.

Book accounts continuously and fairly kept are to be considered an entirety, until closed, and may be proven by the party, within eighteen months, after such closing, under the statute of Ohio.

THIS cause came before the Court in Muskingum county, and, the Judges not fully concurring in opinion, was reserved for decision at the Court in Bank. It is a writ of error to the Court of Common Pleas. The action in the Court below was assumpsit for work and labor, goods, wares and merchandise.

Upon the trial of the cause; the book of accounts of the plaintif was produced, and all the items charged therein, with the exception of two, were proven by disinterested witnesses. The account appeared to be continuous, consisting of a variety of charges, some of which were of older and some of more recent date than eighteen months, previous to the commencement of the suit. The two items above referred to had been charged more than eighteen months before the commencement of the suit. To prove them, Richmond, one of the plaintifs in the Court of Common Pleas, was called as a witness. He was objected to as incompetent under the statute, but the Court overruled the objection, and he was examined. To this decision of the Court, the defendant by his counsel excepted, and his bill of exceptions was sealed. A judgment having been rendered against the defendant, this writ of error is prosecuted to reverse that judgment, and the principal error assigned and only one relied upon is, that the Court erred in admitting the testimony of Richmond.

JAMES, for plaintif in error.

GODDARD, for defendants.

HITCHCOCK, Judge, delivered the opinion of the Court.

The only question involved in this case is, whether, where there is a running account, a part of the items of which have been charged within eighteen months previous to the commencement of a suit, and a part at an earlier period, the party making the account is a competent witness to prove the validity of those items which are of more than eighteen months standing. Its solution depends upon the construction of the second section of "An act dispensing with proof in certain cases." (29th O. L. 122.) This section enacts, "That in all cases where any claim or defence is founded on book accounts of not more than eighteen months standing, in which is called in question the validity or amount of any such book accounts, the Court or Justice may, upon the trial of such action, examine the party under oath or affirmation, touching the validity of such account or accounts, which shall be admitted as evidence on the trial, the credibility thereof being left to the jury to determine." Under this statute the practice has been different in different parts of the State, and, that uniformity might be produced, was one object in view in reserving this case. The inquiry arises, what

is intended by the term "book accounts," as used in this law? A book account is an entire thing, as much so as articles of agreement, or a bond for the performance of covenants. True, it is made up of different items charged from time to time as articles are delivered or labor performed. But when charged it is the whole, all the items charged which constitute the account. The account itself is not closed until the dealings between the parties have ceased, or until it is done by some other act by them performed. Such must have been, we believe, the understanding of the Legislature; and if so, then a "book account" cannot be said to be of eighteen months standing until it shall have been closed for this period of time.

A case arising under this statute is somewhat analogous to a case under a statute of limitations; and under those statutes we have uniformly held, that to ascertain whether an account was barred, reference should be had to the items last charged.

Had the Legislature intended that the testimony of the parties should have been confined to those items alone which were charged within eighteen months, they would so have expressed it. They would have referred to the items, not to the "account."

It would not be sufficient to bring a case within the statute, that one item had been charged within eighteen months, after a lapse of a great length of time between it and the next preceding charge. The transactions must be apparently fair, and the account must have been continuous. In such case the facts may well be supposed to be within the recollection of the party, and his testimony may with safety be received. In the case of Marshal and others vs. Bend, John. Rep. 67, this construction was given to a similar statute, and we concur in the opinion of the Court expressed in that case.

We do not undertake to determine whether books of accounts of more than eighteen months' standing may or may not be given in evidence: or if given in evidence, by what description of testimony they shall be supported. Such accounts are admitted in some of our sister States, and to a certain extent have been admitted in our Courts. There is not, however, as we believe, any settled practice upon the subject. Nor is the case now presented such an one as to render it necessary or even proper to settle such practice. We are now called upon to give a construction to the section of the statute before referred to. And in our view of this statute, the Court of Common Pleas decided correctly in permitting Richmond to testify. The judgment of that Court must therefore be affirmed.