
    James Dunlap v. Joshua Robinson, administrator, etc., of Anthony Williams, deceased.
    1. An amended answer, purporting, on its face, not to be supplementary to tho original answer, but, of itself, a “full answer to the plaintiff’s petition,” and stating facts inconsistent witli the original answer, is to be regarded as an abandonment by the defendant of the issues of fact previously made by the original answer, and the reply thereto.
    2. An administrator, in selling lands of his decedent, which he conveys without covenants of warranty, can not render the estate of the deceased liable in damages, by false representations as to the condition of the title, or the ex tent of existing incumbrances.
    3. Where a justice of the peace fails to render judgment, or take any other action, for a period of ten months, upon the verdict of a jury rendered in a cause upon trial before him, such neglect of duty, on the part of the justice, works a discontinuance of the action, and such verdict, without judgment, will not constitute a bar to a subsequent suit on the same cause of action.
    Error t) the court of common pleas of Ross county.
    
      Suit was brought in the court below, by the defendant in error, as administrator with the will annexed of Anthony Williams, deceased, to recover of the plaintiff in error, a balance claimed to be due on a promissory note, executed and delivered to the defendant in error, in his capacity of administrator.
    The defense set up by the original answer was threefold:
    First, a former recovery, upon the same cause of action, in a suit before a justice of the peace, tried by a jury, and in Avhich the plaintiff below obtained a verdict and judgment in his favor, from which he took an appeal to the court of common pleas, where his appeal was dismissed.
    In the second and third defenses it was averred, that the note sued upon was given in part payment for lands belonging to the estate of said Williams, deceased, which were sold by the plaintiff, as administrator, and of which the plaintiff, at the time, of sale, had promised to give immediate possession to the purchaser, and that defendant, upon his purchasing and receiving a deed for said lands, had been kept out of possession thereof, for a specified time, by a tenant lawfully holding the same; and incurred expense in recovering possession. This expense, together with the damage resulting from the failure to get immediate possession, the defendant sought to recoup, by way of counter-claim.
    To the first defense the plaintiff replied, denying that any judgment had been rendered on the note in the petition mentioned, or upon the verdict of the jury, as stated in the answer ; and also demurred to the several matters of counterclaim.
    These demurrers were sustained by the court; and the defendant excepted; and thereupon, by leave of the court, filed an amended answer, differing from the original answer only in averring that no judgment had been rendered upon the verdict, in the former action before the justice, and that the verdict had never been set aside, nor the said action dismissed, but was still pending before the said justice; and in stating the former grounds of counter-claim, as a partial failure of consideration.
    To this amended answer the plaintiff demurred, and his demurrer was sustained; to which the defendant excepted, and not answering further, judgment was rendered against the defendant, as upon default — to which exception was also taken.
    It is claimed that the court erred in rendering judgment against the defendant below, as upon default, without passing upon the issue presented by the first defense in the original answer, and in sustaining the demurrers to the second and third defenses of both answers, and to the first defense of the amended answer.
    
      Safford &¡ Madeira, for plaintiff in error.
    
      S. L. Wallace, for defendant in error.
   Scott, J.

The record in this case, shows the amended answer not to have been filed by way of addition to the original answer, but as a substitute therefor. It purports to be, of itself, a full “ answer to the petition,” and the first defense which it sets up is inconsistent with the first defense of the original answer, and both' could not have been honestly verified by affidavit, unless the one be regarded as a correction of, and substitute for, the other. The court below, therefore, properly regarded the issue made upon the first defense of the original answer, as withdrawn by the amended answer, which admitted that, as to that issue, the facts were as claimed by the plaintiff, and thereby abandoned the ground of defense originally taken.

The demurrer to the second and third defenses of the original answer, presents the question, whether, upon the sale of lands by an administrator, the estate which he represents can be held answerable in damages for representations made by him, at the time of sale, in regard to the character of the title, in respect to incumbrances, or the time at which the purchaser will be entitled to demand and recover the possession of the premises from the tenant in possession? The deed of conveyance from the administrator, in this case, contained no covenants of warranty; and it is clear that such covenants, made by the administrator, without authority, could not have bound the estate. As administrator he could only sell the interest or estate of the deceased in the premises; and covenants of warranty, unauthorized by the will, or the order of court under which the sale was made, could only bind himself personally.

If, then, express covenants, contained in the deed of the administrator, do not bind the estate, we think it clear that his verbal representations, in regard to the state of the title, can have no such effect. Whatever ground such representations may furnish for rescinding or setting aside the sale,, or whatever personal liability they may impose upon the administrator, the law which gives him the character of a trustee, has conferred upon him no power to create liabilities against the estate by any warranties, either within or outside of his deed of conveyance. His power extends only to the sale and conveyance of such interest as the deceased held in the premises, and the maxim of “caveat emptor” is fully applicable to all such sales.

It follows, that the- demurrers to the second- and third defenses, both of the original and amended answers, were properly sustained by the court.

The only question remaining for consideration is, as to the sufficiency of the first defense stated in the amended answer. The verdict, in the suit before the justice, is shown by this defense to have been rendered about ten months before the commencement of the action in the court below; and it is averred that said verdict has not been set aside, though no judgment was ever entered upon it; that said suit, being on the same cause of action stated in the present petition, has never been dismissed, and is, therefore, still pending before the justice.

A majority of the court think the demurrer to this defense was properly sustained. Unless the verdict rendered upon a jury trial, before a justice of the peace, be set aside, the-statute makes it the duty of the justice to render judgment thereon immediately. (Sec. 107 of Justices’ Act, S. & 0. Stat. 788.) If judgment be not rendered till a subsequent day, it would be at least irregular, and for that reason reversible. Robinson v. Kious, 4 Ohio St. Rep. 593. A justice of the peace can not, by neglecting or refusing to enter judgment within the time required by statute, keep an actiou indefinitely pending before himself. When his power to determine the controversy, by a valid judgment, ceases, his jurisdiction ends. His power of adjudication is derived from the statute, and if not exercised within the time allowed by law, it is clearly lost; and the cause is no longer pending before him. The legal effect of such a failure in duty, is a discontinuance of the action. So, jurisdiction may be lost by an adjournment of the ■suit, without consent of parties, for a time longer than the •statute permits. Such unauthorized adjournment, or other neglect of duty by the justice, which prevents a hearing and •determination of the suit within the proper time, it has been repeatedly held, works a discontinuance of the action. 2 Johns. 192 ; 5 Johns. 353; 13 Johns. 469; 1 Cowen, 245.

Judgment of the court of common pleas affirmed.

Sutliee, C.J., and Brinkerhoee, J., concurred.

Peck and Gholson, J J., dissented as to the third proposition of the syllabus, but concurred as to the first and second.  