The plaintiff, as “ assign” of the defendant, is within the proviso of the act of Assembly, and would be entitled to recover, if he could make out an equitable claim to the two years’ interest that was remitted, or any part of it.
It appears, that the defendant conveyed the land in question, with a warranty of title. There was no conveyance of juridical right ; there was no fraud, or misrepresentation by the defendant ; and the plaintiff had full knowledge of the state and condition of the land. The sale was made after the embarrassments respecting the title were well known. To entitle the plaintiff to recover, by making out an equitable claim, he must prove, that he purchased the land and gave for it a full price, admitting no embarrassment or inconvenience. existed with respect to the title or juridical right, and that he has sustained the injury arising therefrom. Yet there is no such averment in the declaration, and it does not appear from the proof but that, at the time of the purchase, the parties contemplated all the inconveniencies and embarrassments respecting the land for which the remission of interest was allowed, and that the plaintiff gave no more than what would have been a fair price on a calculation of the injury that might arise from the inconveniencies and embarrassments : so that the defendant, by the depression of the value of the land, sustained this injury, instead of the plaintiff. Admitting, then, that the inconveniences and embarrassments continued after the purchase of the land ; yet if they were taken into consideration in the price of it, the plaintiff cannot be entitled to the allowance. As it does not appear but that this was the case, I am of opinion, that this action cannot be sustained.
In this opinion, Trumbull, Edmond, Smith, Brainward, and Baldwin, Js. concurred. *568Hosmer, J.If the Court were empowered to adjudge this case, on the principles of natural justice merely, I should unhesitatingly concur with the Chief Judge, for the reasons he has assigned. But I am of opinion, that the jurisdiction of the Court is more limited. The result will be precisely the same. Notwithstanding this, I consider it expedient to express my views of the subject before the Court.
The General Assembly, by their resolve, have, on certain conditions, remitted to the obligors, two years’ interest on their bonds executed for the Western Reserve. They have subjoined a proviso, " That the interest remitted to the obligors, where a transfer has been made, enure to the benefit of the assign, in case he can make out a just claim thereto, in any court of law or equity." How is this claim to be established ? In the same manner, and on the same foundation, that all other demands are to be made out before the abovementioned courts ; that is, by the acknowledged principles of law or chancery. It was for this reason, in my opinion, that the legislature omitted to specify some rule or principle, as a directory to the parties interested. By refer ring the claims of assigns to courts, guided by established principles, they made all the provision which was necessary. The tribunals appointed to take cognizance of the controverted demands, were not vested with unlimited discretion. They were governed by principles well established, to the operation of which the legislature subjected every claim. Had the proviso referred the assigns to courts of law only, it would be the natural construction, that none but principles of law were to govern. If the reference had been to the chancery tribunals, the principles peculiar to those courts must have been the rule of decision. But as both courts are embraced, the extent of the relief intended appears to have been, all that law or equity, on the rules which govern in these courts, could possibly give. This construction I prefer, because it naturally expresses the full meaning of the proviso, and imparts settled rules and principles of decision, without confiding to the court that boundless discretion, which, except in cases of absolute necessity, ought never to be given.
To this construction of the resolve has been opposed the supposition, that it would render the proviso of no effect. The objection assumes the principle, that nothing can be *569efficacious, which is not of strict necessity. This is clearly unfounded, and not conformable to common experience. By imparting correct rules of decision explicitly, there was sufficient of utility to render the proviso desirable ; and on this ground, the legislature frequently qualify their acts in a similar manner.
It is not pretended, that there are any established principles of law or equity, which sanction the plaintiff's demand.
Gould, J.I assent to the opinion, that the plaintiff cannot recover ; but wish to be understood, as concurring in that opinion, upon the sole ground that he has not satisfactorily made out his case in evidence. As the views, which I entertain of the legal questions, arising out of the case, cannot influence the decision ; it is unnecessary for me to explain them. I would just observe, however, that if the plaintiff had supported his declaration, by sufficient proof of his having participated in the embarrassments, expenses and losses, specified in the memorial of the land-company to the General Assembly ; I should consider him as within the proviso of the resolve of October 1800 ; and, upon the equitable principles, which govern this action, entitled to a recovery.
Goddard, J. gave, no opinion.Judgment to be given for the defendant.