Nov. Term, 1856. COLEMAN V. DOBBINS. HALE, chief justice, TWYSDEN and RAINSFORD, upon this point, namely, that it was the order and course of proceedings in Parliament to print and deliver copies, &c., whereof they ought to take judicial notice." In Birt v. Rothwell, the Court said: "Now the courts at Westminster ought to take notice of the beginning of all Parliaments." And it did accordingly arrest judgment on account of the mistatement of the place of holding the Parliament at which the statute relied upon in the declaration was made. In Rex v. Wilde, per Curiam: "The Court is obliged to take notice of the commencement of Parliaments, and also of prorogations and sessions." This case was precisely similar to Birt v. Rothwell. In Rex v. Arundel, Ld. HOBART said: "But now suppose the journal were every way full and perfect, yet it hath no power to satisfy, destroy or weaken the act, which being a high record must be tried only by itself, teste meipso. Now journals are no records, but remembrances of forms of proceedings to the record; They are not of necessity, neither have they always been. They are like the dockets of the pronotaries, or the particular to the King's patents. The last intended Parliament, 10 Jac., if you be judged by the journal, it was a large and well occupied Parliament, yet because no act passed, nor record is of it, it was resolved by all the judges to be no Parliament. 1 Ro. 29, p. 1, Hutt. 61. "The journal is of good use for the observation of the generalty, and materialty of proceedings and deliberations as to the three readings of any bill, the intercourses between the two Houses, and the like; but when the act is passed, the journal is expired." In Rex v. Knollys, Ld. HOLT said that the "journals are not records of Parliament, and therefore we cannot take notice of them," and cited Hob. supra. Stockdale v. Hansard, reported in 7 C. and P. 731, and 9 Ad. and El. 1; the Sheriff of Middlesex's case, 11 Ad and El. 80, Philad. ed., and Cassidy v. Stewart, 2 M. and G. 437, refer to the privileges of Parliament and its members, and seem to have no bearing upon the questions in this case. (4) As to how much the journals or parol testimony ought to weigh in evidence against the validity of the statute, see the remarks of the chief justice, in Hunt v. Van Alstyne, 25 Wend. 606, and the conflicting opinions of senators FRANKLIN and PAIGE in Purdy v. The People, 4 Hill, 384; PERKINS, J. in Skinner. Deming, 2 Ind. R. on p. 560; and MURRAY, C. J. in Fowler v. Pierce, supra. Vide, also, The People v. The Supervisors, &c., 4 Selden, on p. 329; 5 Ohio R. 363; 3 Ohio State R. on p. 482. (5) Senator PAIGE, in that case, p. 394 said: "We have a right, I think to go behind the printed statute book in order to ascertain whether bills have been constitutionally passed. Judges, who are bound to take notice of a public act, must determine this question by an inspection of the record; for nul tiel record cannot be pleaded to a statute." Senator FRANKLIN was of the same opinion, p. 404. The authorities cited are, Dwarr. on Stat. 630, 665; 8 Coke's R. 28; Rex v. Robotham, 3 Burr. 1472. In Warner v. Beers, and Bolander v. Stevens, 23 Wend. 103, Senator VERPLANCK held that the doctrine of Lord Coke, "that against a general act of Parliament, or such an act whereof the judges ought ex officio to take notice, nul tiel record cannot be pleaded, applied to an act of our legislature. That it was the duty of the Court, without the intervention of a jury, to inform themselves as to the legal existence of a statute the best way they could, by reference to the journals of the legislature, by adverting to uncontradicted contemporaneous public history, and by inspection of the statute in manuscript in the secretary's office." Nov. Term, 1856. MEDLER V. HIATT. MEDLER V. HIATT. Incumbrances on real estate conveyed by a deed containing a covenant To produce such exclusion, there must be in addition to such notice, APPEAL from the Randolph Circuit Court. DAVISON, J.-Hiatt sued Medler upon two promissory notes, each for the payment of 100 dollars. The defendant's answer to the complaint avers that the notes sued on were given by the defendant for the purchase-money of certain lands which are described, and which, by deed in fee, were conveyed to him by the plaintiff. That in and by said deed, it was covenanted, 1. That the lands are unincumbered excepting the dower right of one Catharine Hiatt; 2. That the grantor is lawfully seized, &c.; 3. That he will warrant and defend against all claims whatsoever, excepting said dower right. It is alleged that a stream of water called Cabin creek Friday, Nov. Term, 1856. MEDLER V. HIATT. runs through the lands, and that at the time of the conveyance there was across Cabin creek, a short distance below said lands, a dam which backed the stream upon them, so as to overflow a large quantity thereof, viz., ten acres, which lands so overflowed are thereby damaged 200 dollars. And further, that the right so to back the water had been obtained from one Jether Hiatt, a former owner of the lands, and was, at the time of said conveyance, an easement and an incumbrance existing thereon, and that it still does exist thereon, to the defendant's damage, &c., wherefore the consideration of the notes has failed, &c. The plaintiff replied, inter alia, as follows: "That the defendant, when he purchased the lands, well knew of the existence of said dam, and also, at the time and before he purchased, he knew of such pretended right to flow back the water." To this the defendant demurred, but his demurrer was overruled. There being issues of fact, the cause was submitted to a jury, who found for the plaintiff 210 dollars, the full amount of the notes and interest. New trial refused, and judgment. cause. It is conceded that the action of the Court, in overruling the demurrer, raises the main question in the And in support of that ruling it is insisted that, as the appellant received a deed for the lands, with full notice of the dam and the right to continue it, the law presumes that he took the conveyance subject to the in cumbrance. The rule of decision on this subject, as evinced by various authorities, is, to some extent, unsettled. None of the authorities, however, sustain the position that mere notice to the vendee, at the time he receives his deed, of an existing incumbrance, excludes it from the operation of an express covenant against incumbrances. To produce such exclusion, there must, in addition to notice, be something in the transaction of sale which conduces to show that the parties did not intend that the incumbrance should be within the covenant. Where, at the 1856. MEDLER time of the conveyance, it is verbally agreed or plainly Nov. Term, understood by the parties, that the vendee is to receive his deed subject to the incumbrance, as part consideration for the land, the existence of it would be no sufficient ground on which to resist the payment of a note given for the purchase-money. The plaintiff cites Allen v. Lee, 1 Ind. R. 58. There, Allen, as the administrator of James Woods, deceased, sued Lee on a promissory note given for real estate. The defendant set up as a defense an outstanding lifelease granted by John Gray, a former owner of the land, to one Prichard, which was alleged to be an incumbrance on the land. It was proved that at the time Lee purchased the land, he knew that the lease was outstanding, and contracted for Woods's interest subject to that lease; that the deed was drawn up in the presence of Woods and Lee, according to directions given by the latter; that after it was written, Woods stated that Lee was to take the land incumbered with Prichard's title, and he thought it should be so mentioned in the deed, and Lee replied, he knew that such was the contract, but it was unnecessary to mention it in the deed, for that he, Lee, was about to undertake to keep Prichard, and wished to have the whole title to the land in himself. The stipulation mentioned by Woods was therefore omitted. Upon this evidence the Court held that Lee received the deed subject to the incumbrance. We adhere to this decision, because the evidence simply proves an agreement that enters into and constitutes a part consideration for the land, and does not, therefore, in any manner contradict the terms of the written warranty. But how stands the case upon the record? The plaintiff's reply contains nothing from which a contract relative to the easement can be inferred. It is true, the defendant knew of the incumbrance; but mere notice of it does not indicate even an intent to relinquish any remedy he might have under the covenants in his deed. In sales of personal property, no doubt, a warranty of HIATT. Nov. Term, soundness does not extend to defects which are known, V. HUNT. A late case in the Supreme Court of Ohio, decides that incumbrances on real estate conveyed by a deed which contains a covenant against incumbrances, are not presumed to be excluded from the operation of such covenant because they were known to the parties to the deed at the time of its execution. Long v. Moler, May term, 1856. We are inclined to hold the decision of the Circuit Court overruling the demurrer, erroneous. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. J. Smith, for the appellant. W. A. Peelle and T. N. Browne, for the appellees. WESTFALL V. HUNT. Covenant. The declaration alleged that the defendant had sold to the plaintiff a lot in T., covenanting that he was seized in fee of the premises; that he had a right to sell and convey the same; that the plaintiff should have lawful possession and quiet enjoyment thereof; and that he, the defendant, would warrant and defend the title against all lawful claims. It was averred that the defendant was not so seized, and had no right to convey; that the plaintiff could not lawfully possess the premises; that the defendant had not warranted against all lawful claims, but that, at the time the deed was executed the paramount title and freehold was in a person other than the defendant; and that, by virtue of such title, the plaintiff had been evicted. Pleas traversing the averments. The facts were agreed upon as follows: The defendant laid out T. in 1830, on land of which he was seized in fee, and made a plat of the town, on which the lot in question is marked "Public Square." In June, 1830, he tendered the lot to the |