to give time of payment, and write for the parties an instrument, stipulating such extended credit; which, in this instance, had the effect in law, to convert the absolute deed into a mortgage. The witness was not informed by Phelps when he gave the advice, to give time of payment. What then is our duty, but to infer that the time was when the act done would have the effect intended, and which the witness says it had? The object and purpose of the statements of Phelps, and his advice to Ford, was to procure time of payment for French. The motive of Phelps may be altogether immaterial, but it is difficult to imagine any other than a favor to French, or to advance his own interest, or both. The latter might be effectually accomplished, by the delay, which might ena. ble French, in the mean time, to raise the money, to pay off Phelps' debt, if he owed him any at that time, on that note, or on any other account. Whatever the motive or object, the effect of those statements and advice, was to change the nature of the title, which Ford had to the land, from an absolute to a conditional fee, extending the equity of redemption to French a considerable length of time, and thereby enlarging his rights.-This in law, happen when it would, is sufficient to postpone and bar the lien of him who procures this to be done, by denying his own title, if he has any at the time, and persuading thereby his adversary to change his. And more so, if this was done, (and I feel warranted, from the evidence and all the circumstances of the case, to find it was) at the time when the absolute deed was made. It seems to me there is better reason to believe it was done at that time, than any other.--That it was done there is no reason to doubt, unless there be good reason to discredit the witness. As I understand the case, the actions of the parties, and the circumstances of the entire transaction, corroborate the witness in every particular so far as he undertakes to speak with any certainty. The testator acquired his right to that lien, if at all, when the note was assigned to him, and by that act-that was 1814. A payment was made to him in 1816, of $450. Is it not remarkable he did not assert his right to this security, and coerce payment of this debt, during his life, if he had the right, and the debt subsisted, from 1814 or 1816 until 1826 In the mean time deny his own right, and assure his neighbor his was perfect! I cannot overcome the reluctance I feel to set it up at this late day.

A sleeping mortgage, denied during all the life of the testator, to be set up after his death by his personal representative, and that with such a doubtful title to it, as here is manifested. It may sleep on for me. I cannot lend my aid, to give it foree to take from that neighbor his estate, clear of every other embar rassment, and clear of this, if any faith may be given to the assurance of his testator, in his life and in his actions neither of which, in this respect, did he ever contradict. It is due to his memory to believe, as he declared, that no such claim existed on the land. I should also be prepared to say, that as he acted, as the agent of French and Ford, in preparing the deed from French and wife to Ford, being the scrivener, it would be fraudulent in him, if alive, to set up any claim to an incumbrance which he then held on the land, and forebore to to disclose to Ford, who was giving a full consideration for it. Within the meaning of Chancellor Kent, in Brinkerhoff and others, v. Lansing, (4 John. Ch. Rep. 70, 71, 72,) I consider this employment of the testator, to prepare for the parties the conveyances, as equivalent to "asking imformation," and his "silence

deceptive," if indeed he could claim any title vested in himself, at that time, of the same land thus about to be exchanged by French for so great a price.

For him to insist on his title, under such circumstances, if not technically "active fraud," within the Chancellor's meaning, it seems to me, he would say it was most wickedly inactive, deception, and treacherous; against good faith, and pernicious in its consequences. In its features and circumstances, there is really no analogy between that case, and the present, It introduced the subject of this fraud, (by concealment of title, when others were dealing,) but made no case for relief. And the Chancellor, in discoursing upon it, ran it down, so eloquently, that there would be room to question the precision or accuracy of his language as to this active fraud, there considered necessary in all cases, if it could be made applicable to this case and its circumstances. On the whole, it is my opinion, that the bill ought to be dismissed; and at any rate, that no decree can be made, for plaintiff, until Gaius Pease be made a party. (Mallow v. Hinde, 12. Wheaton, 193, 196. 9. Cranch 25. 1. Peters, 243.)

BUELL v. CROSS.

However summary or irregular the judgment of a competent tribunal may be, it cannot be treated as a nullity.

A person having an option of law or equity, after selecting one tribunal, cannot resort to the

other.

Equity cannot revise the errors of a court of law.

This was a suit in chancery, and reserved for decision by the supreme court of Washington county.

The bill stated, that sometime previous to the 14th of May, 1817, the plaintiff was treasurer of a certain company or association, existing in Washington county, and known by the name of the Duck-creek Bridge Company, which company, before that time, and under an act of the legislature of Ohio, had erected, at a great expense, a bridge across Duck-creek, and had been accustomed to receive tolls, authorized by said act. That on the 14th of May, 1817, one William Hart and the plaintiff, as treasurer of said company, entered into an agreement by which said Hart rented said bridge for the term of one year for the sum of three hundred and thirty-seven dollars, to be paid quarterly.That to secure the payment of the rent, Hart executed to the plaintiff, as such treasurer, a joint bond with Obadiah Lincoln, Philip Abbott, and Timothy Stanley, as securities. That no part of said rent has ever been paid by Hart, or any of his securities. That Timothy Stanley died sometime in March, 1819, leaving a will, and Abigail Stanley his executrix, who made probate of the will. That on the 15th of April, 1819, the plaintiff commenced a joint ac. tion of debt on said bond, against Hart, Lincoln, Abbott, and Abigail Stanley, as executrix of Timothy Stanley, and in July, 1819, a judgment was rendered by default, against all the defendants, for the sum of five hundred dollars, the whole penalty of the bond-no breaches having been assigned. That after the rendition of said juudgment, and before the 24th of March, 1825, Abigail

Stanley died, and the administration of her estate, as well as that of Timothy Stanley, not fully administered upon, was committed to the defendant, Lucius Cross.

On the 24th of March, 1825, the plaintiff issued a scire facias to revive said judgment against Cross, as administrator, de bonis non,of Timothy Stanley,upon which Cross appeared, and on demurrer, a judgment was rendered against the plaintiff, in June, 1825. Since the rendition of the original judgment, Lincoln has died wholly insolvent, Hart and Abbott are both insolvent; and at no time since the rendition of the original judgment, could any thing have been collected from Hart, Abbott, or Lincoln. Executions against them were returned, no property found.

The prayer was, that Cross be decreed to pay the said sum of three hundred and thirty-seven dollars, with interest, to the plaintiff, as treasurer of the Duckcreek Bridge Company, and for general relief.

The defendant demurred generally.

Nye, in support of the demurrer. Goddard, contra.

By the COURT.

The plaintiff, by his own showing, has a judgment now subsisting against the executrix of Stanley, and no good reason is assigned why that judgment does not embrace his rights. The doctrine, recognized by this court, in 3 Ohio Rep. 305, is applicable to this case: that however summary, or however irregular, the judgment of a competent tribunal cannot be treated as a nullity. There is an explicit and formal judgment, and although the proceedings upon which it was predicated, may be unknown to our jurisprudence, still, as in all other judgments, they are not open for enquiry, except in a regular mode of re-investigation, on writ of error or certiorari. The remedy of the plaintiff is purely at law: this remedy he has attempted by the scire facias. If he properly failed, his rights are at an end; if improperly, his remedy was by error or appeal.

A person having an option of law or equity, after selecting one tribunal, cannot resort to the other. (1 Ohio Rep. 435. 2 Ohio Rep. 268. 3 John. Chy. 356.)

It is unnecessary to determine the question argued by counsel, whether, when the legal remedy against a surety is extinct, a court of equity will enforce the obligation. This court would hesitate, before they adopted the doctrines contained in the cases cited from 2 Wash. 136. 2 Hen. & Mun. 124.

Bill dismissed.

KERNS v. SCHOONMAKER.

The statute of limitations begins to run from the time of the injury committed, and not from the time of the damages sustained, or discovery of the injury.

This cause was reserved for decision by the Supreme Court of Hamilton county.

It was an action on the case to recover damages of the defendant, for negli. gence and omission of duty, as Justice of the Peace.

The declaration alleged, that on the 25th of April, 1825, one John Stewart voluntarily confessed a judgment, in favor of the plaintiff, Jacob Kerns, before the defendant, as a justice of the peace, for the sum of one hundred and seventy-two dollars and sixty-nine cents. On the 28th of April, 1825, Stewart of fered one Simon Elliott, as security, for the stay of execution upon this judg ment, who was accepted by the defendant; but the entry upon his docket was so carelessly, negligently, and informally made, that Elliot was not legally bound thereby. Stewart died, insolvent, before the supposed stay of execution expired. The plaintiff prosecuted Elliot, upon the informal recognizance, taken by the defendant, and such proceedings were thereupon had, that this court pronounced the supposed recognizance absolutely void; and Elliot was discharged. The plaintiff claimed the amount of the judgment, with interest, and also his costs and expenses in prosecuting Elliot.

The defendant plead, first, not guilty. Second, not guilty, within one year next before the commencement of this suit.

The plaintiff joined issue upon the first plea. To the second he replied spe cially, that on the 26th of January, 1828, he brought an action of debt, against Elliot, upon the supposed recognizance, in the court of Common Pleas of Hamilton county, in which, a judgment was rendered against the plaintiff, at November term, 1828. The plaintiff appealed to this court, and at May term, 1829, this court gave judgment against the plaintiff, upon the ground that the supposed recognizance was void; which judgments are unreversed. The plaintiff further alleged, that this suit was brought within one year after his rights were made known by the decision of this court, at the May term, 1829. This suit was commenced on the 12th of December, 1829.

To this replication there was a general demurrer and joinder. The court below sustained the demurrer, and gave judgment for the defendant, from which the plaintiff appealed to this court.

There was no argument in support of the demurrer.

Caswell and Starr, contra.

By the COURT.

The plaintiff insists that his right of action did not accrue until the termina. tion of the suit in this court, in 1829: and unless he can sustain this position, he is too late in his action. For if the action accrued when the mistake was made, or when the supposed stay of execution expired, or when the suit was instituted against Elliot, more than one year had elapsed before the commencement of this suit.

It is unnecessary to determine the precise moment when the statute did attach, for we entertain the opinion, that no later period can be selected than the institution of the suit against Elliot. Admitting that the plaintiff might reasonably expect Elliot to fulfil his supposed recognizance, and pay the debt, yet, when he evinced his intention not to be bound, the plaintiff's remedy against the Justice was complete.

It is, however, objected, that only nominal damages could have been recov. ered, previous to the determination of the suit against Elliot. This objection. seems to be removed, and, indeed, the whole case disposed of, by the decision of the Supreme Court of the United States, in the case of Wilcox, et al. v. Plummer, 4 Peters, 172. It was a suit brought against an attorney for negligence. The plaintiffs placed a note in the hands of Plummer for collection. On the 7th of May, 1820, he commenced a suit against the drawer, but neglected to do so against the endorser. The drawer proved insolvent. On the 8th of February, 1821, Plummer sued the endorser; but in consequence of a misnomer, the plaintiffs were non-suited in June, 1824. Before the non-suit, the action against the endorser was barred by the statute of limitations. The suit against the attorney was instituted on the 27th of January, 1825, to which was pleaded the statute of limitations of North Carolina, which interposes a bar after three years. Mr. Justice JOHNSON, in delivering the opinion of the court, uses this language: "When the attorney was chargeable with negligence, his contract was violated, and the action might have been sustained immediately. Perhaps, in that event, no more than nominal damages may be proved, and no more recovered; but, on the other hand, it is perfectly clear, that the proof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of action. This is fully illustrated by the case from 1 Salk. 11, in which a plain iff having previously recovered for an assault, afterwards sought indemnity for a very serious effect of the assault, which could not have been anticipated, and, of consequence, could not have been compensated, in making up the verdict."

The cases are numerous and conclusive on this doctrine. As long ago as 20th Eliz. 1 Cro. 53, this was one of the points ruled in the Sheriffs v. Bradshaw. And the case was strong one; for it was altogether problematical whether the plaintiffs ever should sustain any damages from the injury. The principle has often been applied to the very plea here set up, and in some very modern cases. That of Baltley v. Faulkner, 3 B. & A. 288, was exactly this case; for there the damage depended upon the issue of another suit, and could not be assessed by a jury until the final result of that suit was definitely known. Yet it was held that the plaintiff should have instituted his action, and he was barred for not do. ing so. In Howell v. Young, 5 B. & C. 254, the same doctrine is affirmed, and the statute held to run from the time of the injury, that being the cause of action, and not from the time of damage or discover of the injury. (a.) Demurrer sustained.

(a.) The recognizance taken by the Justice, was as follows:

Jacob Kerns,

V.

Recognizance bail, 25.

Simon Elliot appears, and acknowledges himself bail in the John Stewart. above case.