author: Minshall, J.

text:
    Whiting v. State.

      Indictment — How may be found — Grand jury — Indorsement by foreman of — Practice—Criminal Pleading — Larceny—Receiving stolen goods— When may be joined in indictment — Instructions to jury — When verdict of. jury conclusive.

    1. Where witnesses have been duly sworn and sent to a grand jury, and there examined, and an indictment found and presented, it is not necessary that they should be recalled and re-examined, to warrant the grand jury in finding another indictment against the same person, and before the former one has been nollied.
    2. Though the better practice, it is not necessary as a matter of law, that the foreman of a grand jury, in indorsing an indictment, “ a true bill,” should describe himself as foreman; for, being appointed by the court, it is presumed to know who the foreman is.
    3. It is an established rule of pleading that facts, and not conclusions of law, should be pleaded. Therefore, an indictment under section 6858, Revised Statutes, which charges that the accused did unlawfully and fraudulently receive certain personal property — describing il and giving its value and ownership — knowing the same to have been stolen, sufficiently charges an offense under that section, without an averment as to the character of the offense he is thereby deemed to have committed.
    4. Where, in an indictment for larceny, a count is added under the provisions of section 7227, Revised Statutes, for receiving stolen property, knowing it to have been stolen, without an averment that it is the same property, the state cannot be required to elect on which count it will proceed, where it appears from the description to be the same property, and no motion has been made to quash upon that specific ground.
    5. In instructing a jury that, the evidence of an accomplice should be cautiously received and closely scrutinized, it is not error for the court, in introducing this caution, to say, that the witness “ admits her complicity in the crime.”
    6. Whether the proof shows that the accused is guilty as a principal in the larceny, or simply of receiving the goods knowing them to have been stolen, is a question of fact, and where there is room for doubt, the finding of the jury should be accepted as conclusive.
    (Decided March 31, 1891.)
    Error to the Circuit Court of Sandusky county.

      Emmitt Tompkins, Greorge Kinney, Frank O'Farrell and James Sunt, for plaintiff in error.
    I. The indictment of September 8 should have been quashed, as .requested in defendant’s motion, for the reason that the grand jury had no evidence, or information, before it, on which to found the case. State v. Ivey, 7 American Crim. Rep. 245; State v. Fellows, 2 Hay. (N. C.) 520; State v. Cain, 1 Hawks 352.
    It has been repeatedly held that the indictment should be quashed where the same was found upon evidence of witnesses not sworn. State v. Roberts, 2 Dev. & B. 540; State v. Lanier, 90 N. C. 714.
    II. The demurrer to the first count should have been sustained. It does not sufficiently charge an offense. Wilson’s Crim. Code (3d ed.), 89. Also 2d ed., revised 1883; Pratt v. Commonwealth, 132 Mass 246; State v. Graham, 4 Am. Crim. R. 276; 38 Ark. 519; State v. Butler, 5 Am. Crim. R. 206; 21 S. C. 353; Bishop Stat. Crimes, secs. 139, 370, 372, 425; 7 Gray 43; Archibald’s Crim. Law, 86: Titus v. State, 7 Am. Crim. Rep. 254; Titus v. State, 49 N. J. L. 36; Mann v. The State, 47 Ohio St. 556; 4 Blackstone, 306 (Sharswood); Bishop on Statutory Crimes, sec. 139; Wharton on Criminal Law, section 372; 1 Hawk. P. C. 209; Bishop Statutory Crimes, secs. 425, 372, 373, 374, 361, 362, 363, 364, 365, 366, 369, edition of 1873; 1 Archibald Crim. Prac. & Pleading 265. See note near bottom 266, also near top 268. As to forms under similar statutes, see Bishop Statutory Crimes, bottom pages 282, 283-also sections of text in connection therewith, 419 to 425 inclusive. Hamilton v. State, 11 Ohio, 435; Fisher’s Dig., p. 303; 1 Mass., 116, Bishop Statutory Crimes, sec. 259. Statutes are to be construed in harmony with the common law. Bishop Stat. Crimes, secs. 114, 246; Bishop Stat. Crimes, secs. 193, 194, 218; 2 Leach C. C. 1105 n.
    The sufficiency of the indictment.depends upon the first count, for Whiting was acquitted of the second. In the first count strike out all after the words “ well knowing said personal property to have been stolen as aforesaid ” (for what follows is a mere‘deduction or conclusion which constitutes no charge) and what have we ? Simply the declaration of the grand jury that the defendant unlawfully and fraudulently received certain goods “then lately before stolen,” “ then and there well knowing said personal property to have been stolen as aforesaid.” If this language charges any offense at all, it is that of receiving stolen goods. Such an offense is not now recognized by the law of Ohio. It was by the act of 1835: Shriedly v. The State, 23 Ohio St. 130. But by sec. 6858 the elements which constituted a separate crime known as receiving stolen goods now constitute the crime of larceny, and the old offense has been merged in the one defined by sec. 6856. It follows then, that what once made receiving stolen goods now makes simple larceny, and whatever is necessary in charging a crime under sec. 6856 is also necessary in charging a crime under sec. 6858. They are twins. They differ not at all in nature, and only in the manner of commission; for which the law cares not, in this sort of offenses. What we commonly call larceny is where the whole offense is committed by one person, or set of principals, while what in police circles is called receiving stolen goods implies that there was a preceding offense. Nevertheless, both are composed of the same ingredients, viz.: trespass and asportation; for, unlawfully taking what has been unlawfully taken is a continuous trespass and asportation. It was the recognition of this principle that caused the legislature to repeal the act of 1835 and substitute sec. 6858, and called the offense by its real name, larceny. Now what’s to be done ? Why, when one commits the continuous trespass and asportation as above suggested he should be indicted for “ stealing, taking and carrying away the property in the manner and form aforesaid.” There is no escape from this, and since larceny is the crime, it must somewhere and somehow be charged. It will not do to simply say that the goods were theretofore stolen and that the accused knew it. That does not charge anything, in law. The fact of criminally receiving stolen goods is one way of committing larceny; larceny is the crime. Under the second count of the indictment Whitney could have been convicted upon the same evidence that would convict in the manner and form as charged in the first count and it would stand (provided the count was a good one) because the offenses are identical, and made so by the statute. The refusal of the court to put the prosecutor to an election as to which count he would try was based upon the fact that they both (conceding the first one to be good) charged the same crime. What was the crime ? Why, old fashioned larceny, as the veriest tyro in criminal jurisprudence understands it. Therefore, coming back to the oft-repeated proposition which is done for emphasis only, larceny should be pleaded in both counts. This was not done. The statement in the first count as to the goods having been stolen, is like the conclusion of an indictment for murder in the first degree where the grand jury say “ and therefore we find that A. B. on the day aforesaid did commit deliberate and premeditated murder.” That affirms nothing substantial and constitutes no part of the necessary charge, and has been so decided by this court.
    But suppose, for the sake of argument, that receiving stolen goods is a distinct statutory offense, it is thereby a dependent one, and necessitates the existence of a prior offense from which it flowed. The existence of a prior .offense, then, should be pleaded. Both creator and creature should be declared. Subornation of perjury is charged by setting out in full the perjury; nothing short will do. To punish for aiding and abetting there must be charged the chief offense; to prosecute for harboring a thief the indictment must set out the larceny by the thief in words. It would not be sufficient to say that “ C. D. stole a horse and E. F. knowing this harbored him.” The indictment must allege that C. D. “ did steal, take and drive away a certain horse,” etc. The illustration in the 132 Mass., 246, is most striking; to kill one in a duel is murder in the first degree, yet, who would contend that an indictment for such a murder would be sufficient, if it declared that “B. killed D. in a duel.” No, the crime is murder — the duel the manner of perpetration. Our statute makes death by the administration of poison, the committing or attempt to commit rape, robbery and arson, etc., murder in the first degree. But would a pleader content himself by averring that “ A., in committing arson, killed B?” What is the difference between these supposititious cases and the one at bar? There seems to be no way to avoid pleading larceny, even were the receiving of stolen goods a separate statutory offense. In the light of the case of Mann v. The State, 25 Ohio St. 668, we do not insist that the words “ did steal, take and carry away,” the common law declaration of larceny, shall be employed; but we do insist that larceny shall be specifically affirmed in terms equally as cogent and certainly no milder than those employed in Mann v. The State, supra. Implication, inference or innuendo will not suffice. We must have the clean-cut declaration that the accused “ did steal.” The indictment at bar falls far short of this. We desire particularly to call your attention to the trial court’s charge, where the jury are instructed' in the following words, to which the defendant below at the time excepted; (page 152 of Bill of Exceptions:) “ In this case there has been submitted the testimonj'- of Eva West who admits her complicity in the crime committed.”
    It is a well recognized rule that all matters of fact in dispute are left to the jury to settle; and when the court in its charge assumes such dispute to be settled one way or another it invades the jury’s province and commits prejudieal error. Cline v. The State, 43 Ohio St. 332.
    The case at bar differs from the one cited, in this, there the question went to the weight of conflicting evidence as to whether threats had been made. The court assumed that threats had been proven, and in this it erred, while here the dispute did not relate to an incidental and contributing fact, as in the Cline case, but to the whole • complaint or accusation. If it was prejudicial to Cline for the court to assume that he had made certain threats, which were but a fraction of the proof of the corpus delicti, how much more grievous and all powerful must be that assumption which hoists the whole dispute above the jury, and lays it upon the bench. Whiting contended in the common pleas and circuit court, and still contends, that no crime was committed. His plea to the general issue placed the burden upon his prosecutors to prove beyond a reasonable doubt that larceny (the corpus delicti) had been committed. A heavy burden this, oftentimes; so heavy indeed, that the state has lain down by the wayside under its weight more than a hundred times. Yet in the case at bar, the trial court substituted itself for proof, relieved ■the state, and took the load upon its own broad shoulders. Think you that this was not wrong! If in the Cline case, supra, it was invading the province of the jury to assume that threats had been made, what shall be said of that trial judge who assumes the indispensable prerequisite to have been established, when its existence is denied ? Cline might have been convicted without any proof of threats, but Whiting could not without clear proof of a larceny. Threats were evidence only tending to prove shooting with intent to wound, while in the case at bar the instruction complained of assumed the whole crime to have been proven. There is this much difference between the two cases; threats were but a part of the corpus delicti; the assumption, in the case at bar, was all of it.

      F. R. Fronizer, Prosecuting Attorney, and J. R. Bartlett, for defendant in error.
    I. The law does not require that the grand jury after having found and returned an indictment, on testimony sworn and sent before it, shall again hear such testimony before they can return another indictment covering the same transaction. Sec. 7207, 7191, 7192, Revised Statutes; Turk v. State, 7 Ohio, 2d. part, 240-242; State v. Clapper, 59 Iowa, 279.
    II. The motion to quash in this case, was a plea impeaching the conduct of the grand jury and alleging facts in contradiction of the record; this cannot be permitted. Turk v. State, 7 Ohio, 2d part, 242, 243. And certainly not by the testimony of one of the grand jurors that found the indictment.
    III. Is the indictment sufficient and does it charge the crime of receiving stolen property as defined by our statutes ? The settlement of this question will dispose of the questions made by the demurrer to the indictment and the motion in arrest of judgment.
    It is claimed by the plaintiff that inasmuch as section 6858, Revised Statutes, provides that a person unlawfully receiving stolen property “ shall be deemed guilty of larceny and punished accordingly,” the plaintiff should have been charged with larceny under section 6856, Revised Statues, viz.: “ That he did take, steal and carry away.” Such a construe-: tion, it seems to us, is totally subversive of all the well known principles of criminal pleading, and could not have been intended by the general assembly that passed the act.
    Such a pleading would be the suppression of the facts, and a substitution of a legal fiction, and would not only fail to furnish the accused with notice of what he is to meet, but lead him to believe that he was accused with taking, stealing and carrying away, instead of receiving. Lamberton v. State, 11 Ohio 282; Ellars v. State, 25 Ohio St. 385, 388.
    Applying this rule, as announced by this court in the Ellars case above quoted, to a charge of larceny by receiving, as defined by section 6858, Revised Statutes, we find, to procure a conviction, it is necessary to charge in the indictment, and prove upon the trial, that the property received by the accused had been previously stolen (that is feloniously taken and carried away) by some person other than the accused, and that the accused subsequently received it, knowing it to have been so stolen. Revised Statutes, sec. 6858; Russell on Crimes, 2d vol., 239 to 241, marginal paging; Roscoe Crim. Evidence, 871 to 875, marginal paging; Shriedley v. State, 23 Ohio St. 130; Holtz v. State, 30 Ohio St. 486; Ohio v. Pardee, 37 Ohio St. 63.
    And, applying the same rule to a charge of larceny, as defined under section 6856, Revised statutes, we find, to procure a conviction, it is necessary to charge in the indictment and prove on the trial, that the accused did feloniously take, steal and carry away, as the word “ steals ” used in this section implies a carrying away. State v. Mann, 25 Ohio State, 668.
    Thus it will be seen, that the definitions of the crime of larceny, as contained in section 6856, and larceny by receiving as contained in section 6858, have not been changed by the legislature from what were before the adoption of our criminal code, and also that these respective definitions are entirely different from, and opposed to, each other, and consequently the averment and proof of facts that would warrant a conviction under one of these sections, must necessarily acquit under the other. 9 Met. 138 — 143.
    Yet it is claimed by counsel, for plaintiff in error, that the indictment to charge the offense of larceny by receiving, under section 6858, must aver that the accused did unlawfully and fraudulently, receive the property then lately before stolen (that is feloniously taken and carried away), by some person other than the accused, knowing it to have been, so stolen, and in addition thereto the further inconsistent and necessarily untrue statement that, the accused did feloniously take, steal and carry away the same — 'thus charging him in one part of the count with having received property that had been previously stolen by another person, and in another part of the same count that he, the accused, did feloniously steal, take and carry away the same property; or, in other words, in an indictment consisting of a single count, charging the accused with separate and distinct offenses, and thus making the indictment bad for duplicity. Barnhouse v. State, 31 Ohio St. 39, 40. Such absurd and inconsistent pleading could never have been intended by the legislature, by the passage of section 6858.
    The ease of Commonwealth v. Pratt, 132 Mass. 246, upon which counsel for plaintiff in error rely as supporting their position, was an indictment for larceny by embezzlement, and should be distinguished from the case at bar. The rule of criminal pleading, as announced in that case, is in direct conflict with the opinion of this court as announced in the case of Ellars v. State, 25 Ohio St. 388, in this, that it requires facts to be plead that are not necessary to be proved, to wit: That he “ did steal, take and carry away,” and is opposed to the policy of our criminal law, as announced in section 7215, Revised Statutes.
    The reasoning of the Supreme Court of Mass., 132 Mass., 246, is based largely on the case of the Commonwealth v. Adams, 7 Gray, 43, which is in direct conflict with the holding of this court in the case of Ohio v. Mann, 25 Ohio St. 668.
    IV. It is only when the indictment charges two or more offenses, arising out of distinct and different transactions, .that the prosecutor may be required to elect upon which charge he will proceed, but the action of the court in this respect, being a matter of discretion, can furnish no ground for a writ of error. Bailey v. State, 4 Ohio St. 440, 442.
    But such election will not be required to be made, when the several charges in the indictment relate to the same transaction, or are simple variations or modifications of the same charge, with a view of meeting the proof.
   Minshall, J.

At the September term, 1891, of the court of common pleas of Sandusky county, to wit, September 8, an indictment was found by the grand jury against the plaintiff in error, 0.. H. Whiting. It contained two counts, the first charging him with receiving certain stolen property, knowing it to have been stolen, the second with larceny.

To this indictment he first filed a plea in abatement, to which a demurrer by the state was sustained; he next filed a motion to quash, which was overruled; he then filed a demurrer on the ground that it does not state any offense against the laws of the state, which was also overruled, and finally made a motion that the state be required to elect on which count it would proceed, which was overruled by the court. Exceptions were properly reserved to each of these rulings at the time.

He was then arraigned, and a trial had upon his plea of not guilty, which resulted in a verdict of guilty as charged in the first, and of not guilty as charged in the second, count of the indictment.

Various exceptions were reserved in the progress of the trial to the admission and rejection of evidence and to the charge of the court, which, with the rulings before stated, were assigned for error in the circuit court, as well as that the verdict is against the weight of the evidence. The circuit court affirmed the judgment. And, except as to the weight of the evidence, like errors are assigned here. We have carefully examined the various assignments of error, and such of them as are deemed of sufficient importance, we will proceed to consider.

1. As to the ruling on the demurrer to the plea in abatement: The plea avers that on or about the fifth day of September, at a time when the court was not in session, the grand jury, contrary to the oath of its members and'the instructions of the court, gave out that an indictment had been found by them against Whiting, and did then and there find and present an indictment against him. And that after the finding and presentment of that indictment, and without the examination of any witness or witnesses whatever thereafter, the grand jury found and presented the indictment herein, and before the former indictment had been nollied; the former indictment being the same as the second, except as to the count charging grand larceny, which it did not contain.

The only question presented by this plea is, as to the power of the grand jury to find another indictment upon the same evidence, without the witnesses being re-sworn .and reexamined, and before the former indictment had been nollied: For the supposed misconduct of the jury in giving out that it had found an indictment, and presenting it when the court was not in session, could not, of itself, affect the validity of one subsequently found.

We are unable to see the force of the objection presented to this indictment by the plea. The witnesses to the transaction having been once properly sworn and sent to the grand jury, there is nothing in the reason of things, why the evidence obtained upon their examination, could not be acted on at any time during tbe session of the grand jury, for a purpose within its jurisdiction. The finding of the first indictment, could not exhaust its powers concerning the matter inquired of. All the proceedings of a grand jury may be regarded as in fieri until its final adjournment. And, hence, the grand jury in this ease, had the power upon the same evidence to find another indictment, with the same or different counts, if in its judgment, the administration of justice required it. It will not infrequently happen' that, for some defect in the indictment presented, or for the want of counts that should have been inserted to meet the possible aspects of the testimony when the accused comes to be tried upon the indictment, it is prudent to present a new indictment, adapted to such contingencies, leaving the prosecutor to nolli the first one, as was done in this case. And, in such case, to require the witnesses to be again subpoenaed, sworn and sent to the grand jury for re-examination, would be a requirement of no value whatever to the accused, and unsupported by any reason. Pleas to an indictment based upon the grounds stated in this one, have met with little favor in this state. They are contrary to the policy which underlies the institution of the grand jury. Thus in Turk v. State, 7 Ohio, 240, where a similar plea was made, it is said: “ They,” the grand jury, “ are controlled by no technical rules of evidence. They must act according to the dictates of their own judgment and discretion, and whether a fact be proved by a witness, or disclosed by a fellow-juror, or from their own knowledge exists, it is their duty to present it to the court. They ought not to act rashly, nor without sufficient ground to believe, as the accusatory tribunal, in the existence of the fact they present. The grand jury are under the direction of the court, may be instructed by the court, and advised by the prosecuting attorney on matters of law. Of the facts, they alone must determine. The court neither keeps their conscience nor can control them in finding facts, when intending honestly to discharge their duty.” '

2. As to the ruling on the motion to quash. The motion contained two grounds: 1. The matter set up in the plea in abatement. 2. That the indictment was not indorsed a true bill by the foreman, as foreman. The fact being that it was indorsed by the foreman, John W. Smith, without the addition of his description, the description, “ foreman,” having been added by the clerk after the presentment of the indictment. The first ground was properly presented and disposed of on the plea in abatement — the matter presented not being-apparent on the record is not available on a motion to quash. Sections 7249 and 7250, Revised Statutes. The second ground presents no sufficient reason for quashing the indictment. It is true that an indictment must be indorsed “ a true bill ” by the foreman, and good practice requires that his description as such should be added to his name; but the omission is not fatal to the indictment. The foreman is appointed by the court, and his appointment is made a matter of record. Hence the court must take judicial notice as to who is foreman of the grand jury, and the addition of his description, in an indorsement upon an indictment, is not, therefore necessary as a matter of law.

3. Did the court err in overruling the demurrer to the indictment? This presents the question most relied on by counsel for plaintiff in error. The first count is framed upon the provisions of section 6858, Revised Statutes, which, omitting the portions inapplicable to this case, read as follows: “ Whoever.....receives .....' anything of value which has been stolen.....knowing the same to have been stolen.....shall be deemed guilty of larceny and punished accordingly.”

It is charged in the first count: “ That C. H. Whiting . . . on. the third day of September, 1891, .... in the said county of Sandusky and state of Ohio, unlawfully and fraudulently did receive ” certain personal property giving a description of it, its ownership and value, laid in all at $287 “ then lately before stolen, he, the said C. H. Whiting, then and there well knowing said personal property to have been stolen as aforesaid, and that by the receiving of said personal property which had been stolen, knowing the same to have been stolen, and by force of the statute in such case made and provided, said C. H. Whiting is deemed to have committed the crime of larceny,” with the usual conclusion, against the form of the statute and the peace and dignity of the state.

The second count contains a charge of larceny of the same property in the usual form.

It is contended that, by force of the language “ shall be deemed guilty of larceny,” contained in the section on which the first'count is founded, the offense of receiving stolen property, knowing it to have been stolen, should be charged as a larceny. In other words that the design of this section was not to define a new offense, but, by legislative extension, to make the receiving of stolen goods under such circumstances, a form of felonious asportation, and so a larceny; in analogy to the doctrine of the common law, which regards each 'removal of the stolen property by the thief a separate asportation, so that he may be indicted for larceny in any county into which he may take and carry the goods.

Although this view is supported by an argument of much force and ability on the part of counsel for the plaintiff in error, we are unable to adopt its conclusions. In the first place it does not consist with the provision contained in section 7227, Revised Statutes, that “an indictment for larceny may contain a count.....for receiving or concealing the same property, knowing it to have been stolen,.....and the jury may convict of either offense” This clearly indicates a legislative understanding that the two offenses are distinct, else why provide that an indictment for larceny may contain a count for receiving, etc., and that the jury may convict of either offense. If they are genetically alike, and not only may, but should, be charged in the same form, then this provision is not only useless but misleading.

Again, the object of all pleading is to advise the opposite party of the nature and character of the claim or charge made against him, so that he may come prepared to meet it with evidence. In the application of this principle it has become a settled rule, both in civil and criminal proceedings, that facts, and not mere conclusions from them, should be stated, otherwise the opposite party cannot know with any certainty, from the averments of the pleading, what he may be required to meet. This principle seems wholly disregarded in the argument of counsel for plaintiff in error. For, if the charge were larceny in the usual form, no conviction could be had on a case simply showing a receiving of the property, knowing it to have been stolen, without resorting to the fiction of a constructive taking — in other words, the implication of a fact that has no real existence, and which can only be made, as a conclusion of law from the facts of the ease. Therefore it is not only wrong in principle, but misleading, to charge that the defendant did steal, take and carry away certain property, when, as a matter of fact, it is known to the pleader that he did not, and the only purpose is to charge, that he received it, knowing it to have been stolen.

I have not overlooked the fact, that it is claimed, that the indictment should charge in a direct form, that the accused received certain stolen property, knowing it to have been stolen, and that it should be then averred by way of conclusion, that the accused “in manner and form aforesaid” did steal, take and carry away the property of the person named. This, however, concedes the whole contention of the state. Where the facts have been averred, the law attaches the proper legal conclusions; and their averment in the indictment adds nothing to its substance as a pleading. And where they are not stated, their averment by way of legal conclusion is of no avail. This is too well settled to admit of controversy. See Fouts v. State, 8 Ohio St. 98, and authorities cited at p. 118. It was there held that an indictment for murder, defective in not containing a direct averment of an intent to kill, as required by our statute, was not helped out by the usual conclusion, found in indictments framed as at common law, in which it is averred that the accused, “in manner and form aforesaid ” etc. “did ” etc., “purposely, and of deliberate and premeditated malice ” etc., “ kill and murder, contrary to the form of the statute ” etc. And so, in Mann v. State, 47 Ohio St. 556, the indictment was held defective, because it did not directly aver that Mann had charged the prosecutors with maliciously administering poison to his colts, though it did charge, that he accused them of a crime punishable by law, namely, of administering poison, etc. The legal effect of the averment being simply to aver, by way of conclusion, that administering poison to colts is a crime punishable by law, though it may have been done innocently.

The case of Commonwealth v. Pratt, 132 Mass. 246, is much relied on in support of the argument for plaintiff in error. The indictment there was upon a statute declaring that an embezzlement should be deemed a simple larceny; and the court held that the indictment must charge that the defendant did feloniously steal, take and carry away the property which is the subject of the indictment. This may be a proper construction of that statute; but it does not seem consistent with the holding of the same court in Commonwealth v. Simp son, 9 Metc. 138, where it is said, “ that the two offenses of larceny and embezzlement are so far distinct in their character, that under an indictment charging merely a larceny, evidence of embezzlement is not sufficient to authorize a conviction; and that, in case of embezzlement, the proper mode is, notwithstanding the statute to which we have referred, to allege sufficient matter in the indictment to apprise the defendant that the charge is for embezzlement. Although the party, in the language of the statute, “ shall be deemed to have committed the crime of simple larceny,” yet it is a larceny of a particular character, and must be set forth in its distinctive character. This accords with the construction we place on our own statute; the clear purpose of which is, as we think, not to make the offense of larceny and that of feloniously receiving stolen goods, identical in law, and so indictable by like forms of averment, but to provide that feloniously receiving stolen goods shall be punished as larceny; that is, where the property so received is of the value of thirty-five dollars and over, the accused on conviction shall be punished as for a larceny of a like sum, and where it is under that sum, the punishment shall be as for petit larceny. Hence the portion of this indictment to which objection is made on the ground of the generality of the averment, being mere surplusage, may be regarded as stricken out, and, as what remains sufficiently charges the offense of feloniously receiving stolen goods, knowing them to have been stolen, (since the word “steal” implies a felonious taking and carrying away, State v. Mann, 25 Ohio St. 668,) the demurrer was properly overruled.

The count demurred to is supported by approved precedents : Shriedley v. State, 23 Ohio St. 130, 138; Maxwell, Crim. Proc., 382, 383. Judge Wilson in the third edition of his work on the Ohio Criminal Code, p. 89, has, since the decision in Com. v. Pratt, added to the form given by him, “ so the jurors say that in manner and form aforesaid,” the accused “ did steal, take and carry away,” etc., but, in so doing he has, as we think, simply added to the phraseology of his form, without adding anything to its legal effect.

4. As to the motion that the state should be required to elect on which count it would proceed: There was no error in overruling this motion. The code specially provides as before shown, that an indictment for larceny may contain a count for receiving the same property, knowing it to have been stolen. It is claimed, however, that it should have been averred to be the same property. It is shown by its description, its value and ownership, to have been the same property. This we think, in the absence of a motion to quash on that express ground, is sufficient.

This disposes of all the assignments, except as to the errors claimed to. have occurred at the trial. An examination of the transcript fails to disclose that the bill of exceptions was ordered to be made a part of the record. This is necessary to enable the court to review rulings made at the trial, and which do not otherwise appear from the record. But the plaintiff in error has lost nothing from this oversight, as, from an examination of the bill, we fail to discover any errors committed at the trial, for which the judgment should be reversed.

The two errors most relied on in this regard are: 1. The court erred in saying to the jury, “ in this ease there has been submitted the testimony of Eva West, who admits her complicity in the crime, the weight and degree of credit which ought to be given her testimony is a matter exclusively for your consideration,” the objection being to the language, “ who admits her complicity in the crime,” it being claimed that this should have been left to the jury, and not assumed by the court. Now it appears from the evidence that Eva West testified that she did take the ring, valued at over 1150.00, that it belonged to Mrs. West, and that she did not at the time intend to return it; and further testified to a state of facts, which, if believed, showed that the defendant, Whiting, received the property, knowing it to have been stolen and converted it to his own use. The jury were then told, that such evidence should be cautiously received and closely scrutinized by them. We fail to perceive how the accused could have been prejudiced by what the court said in this regard. It was an observation made in his favor. It did not take from them the question, whether the girl was to be believed in what she stated in regard to her own connection with the offense; on the contrary, it submitted her entire statements to the jury as evidence to be cautiously received by them and closely scrutinized. 2. That the evidence showed, if believed, that the accused was an aider and abettor in the commission of the larceny, and that he could not, therefore, be lawfully convicted of the crime of receiving the goods, the latter being a separate offense. The fallacy in this consists in assuming that the jury must have believed, if they believed any part of the evidence, that Whiting was an aider and abettor of the larceny. The jury may have had doubts about this, and yet have fully believed that, though not connected with the stealing of the goods, he feloniously received them, knowing them to have been stolen. If this were so, then they rightly acquitted him on the second count, which was for larceny, and found him guilty as charged in the first. There is no such state of the evidence.as should have required them to find differently.

We see no error in the record, and the judgment is

Affirmed.


source: Caselaw Access Project

author: DlCKMAN, J.

license: Public Domain

text:
    Stevenson v. Colopy.

      Chattel Mortgage — Record—Copy—Construction.
    1. A mortgagee of chattels who deposits the original mortgage with the township clerk or county recorder, by whom the same is indorsed, entered, and recorded, in all respects, as required by sections 4152 and 4153 of the Revised Statutes, will not, by withdrawing the instrument from the files for other than a temporary purpose, lose his priority of lien as against a judgment creditor of the mortgagor, who causes an execution to be levied on the mortgaged property before the instrument is again deposited with the clerk or the recorder.
    2. The recording of a chattel mortgage in accordance with section 4153 of the Revised Statutes, is a substantial compliance with the statutory requirement, that the mortgage or a true copy thereof, when deposited in the office of the township clerk or county recorder, shall be there kept for the inspection of all persons interested.
    (Decided March 31, 1891.)
    Error to the Circuit Court of Knox county.
    Joseph H. Colopy and Levi F. Colopy the defendants in error, brought their action of replevin in the court of common pleas, against John Gr. Stevenson, sheriff of Knox county, the plaintiff in error, for the recovery of specific personal property, and for damages for its detention. The answer to the petition was a general denial. A jury was waived; the case was submitted to the court; and the court made the following findings of fact and law:
    “ I find the facts to be as follows: That on the 4th day of September, A. D. 1886, J. A. Colopy executed and delivered to Joseph H. Colopy a chattel mortgage on the property therein described, consisting of the property described in the petition of plaintiff, and on the same date a chattel mortgage to Joseph H. and Levi F. Colopy on the same property and therein described and set forth — that the chattel mortgages were executed and affidavits made thereon by the mortgagees in all respects as required by the statutes. That at said date the mortgagor Jonathan Colopy resided in Brown township, in said county of Knox, and has been a resident of said township ever since the execution of said mortgages. That said original mortgages were on the 9th day of September, A. D.-1886, deposited by the mortgagees with the clerk of said Brown township, and were indorsed and entered in a registry and index book direct and reverse provided for that purpose and in all respects as required by the statutes (section 4152). That on the request of the party depositing said mortgages, Levi F. Colopy, for himself and Joseph H. Colopy, the said township clerk copied and recorded the same in a book provided by the township trustees, but not used exclusively for that purpose; that said book was used for the record of chattel mortgages and for other township records, and was a miscellaneous record book for said township; that said record had an index of its contents, and that said mortgages were properly entered in said index. I find further .that the party depositing said mortgages requested said township clerk to deliver said mortgages to him after the same had been recorded, and that said party was acting for himself and for Joseph H. Colopy; that after the same had been recorded, and on the 9th day of September, 1886, the said township clerk did, in pursuance of said request, deliver to said mortgagees said mortgages, and the same were taken possession of and retained by the said mortgagees until the 6th day of Januarjr, A. D. 1887, when they were again deposited with said township clerk. I find further that from the 9th day of September, 1886, until the 6th day of January, 1887, neither the original mortgages nor true copies of the same were on deposit with said township clerk, but that in addition to the registry and index of said mortgages as required by statute, there was during all said time a true copy of said mortgages in said book as recorded therein, and in the possession of said township clerk in his office made by request of the party depositing the same as aforesaid; that on the 8th day of December, 1886, John D. Ewing, a judgment creditor and attorney for himself and the other judgment creditors saw and examined said record; that said mortgages were executed and deposited in good faith to secure a bona fide claim which is still unpaid, and that among other things said mortgages provided that in case of default of payment, or any attempt to remove said property out of the county, or upon seizure of it or any part thereof by process of law, the said mortgagees should have the right to take possession of the same, and that there had been no change of the possession of said property from date of the execution of said mortgages until said levy, said property all of said time remaining in the possession of said J. A. Colopy, and that the judgments against the said Jonathan A. Colopy and upon which executions were issued to defendant, were valid and are still unreversed and unsatisfied.
    “ That on the fifth day of January, 1887, the defendant, as sheriff of said county of Kuox, and by virtue of and under certain, executions, issued upon certain judgments, against the said. Jonathan Colopy levied upon the goods and chattels described and set forth in said chattel mortgages, and took possession of the same as the property of the said Jonathan Colopy. I find that at the time of such levy neither the said original mortgages, nor true copies thereof as required by sec. 4152, wére on deposit with said township clerk, but that said mortgages had been taken from the files on the 9th day of September, 1886, by said mortgagees as aforesaid, and kept off the files until after said levy and until the 6th day of January, 1887, when they were again deposited; that the said mortgages were not taken from said files for any temporary purpose, and that during this time and from the 9th day of September, 1886, and continuously until after said levy was made, the record of said mortgages was in the office and custody of said township clerk. That said records or either of them did not include any record of the indorsement entered on said mortgages at the time of the indorsement and filing of the same. As to the law to be applied to said facts, I find and so hold that under the statutes of Ohio and law of the state as between the mortgagees and judgment creditors, it is essential to the validity of the chattel mortgages, that the original mortgages or a true copy of the same must be on actual deposit with the proper officers unless withdrawn for temporary purpose only. That a record under section 4153 does not dispense with the necessity of having the original mortgages or a true copy thereof, on actual deposit, unless withdrawn for temporary purposes only. That under the facts found herein the said chattel mortgages were void as against the said execution creditor. I find that at the commencement of this suit the said defendant had the right of possession of said property, and do assess his damages at three hundred and sixty-six dollars and seventy cents ($866.70). It is therefore considered and adjudged by me that the defendant, John Gf. Stevenson, sheriff, recover of said plaintiffs, Joseph H. Colopy and Levi F. Colopy the sum of $366.70, his damages, so as aforesaid assessed, together with his costs in his behalf expended, taxed at $-; and that of said judgment for $206.45 to J. S. Ringwalt, $203.45, bear interest at the rate of eight per cent, from this day, for John D. Ewing, making $-in all.”
    To the aforegoing rulings, findings, and judgment, the plaintiffs excepted; and moved to set aside the said findings and judgment, and for a new trial, which motion was overruled, and exception taken.
    The circuit court, on a petition in error, reversed the judgment of the court below, and held that, upon the facts as found by the court of common pleas, the judgment of that court should have been for the said Joseph H. Colopy and Levi F. Colopy, and remanded the cause for further proeeedings.
    To reverse the judgment of the circuit court, this proceeding in error is prosecuted.

      I). F. J. I). Fiving, for plaintiff in error.
    The protection afforded a mortgagee of chattels is created by statute, and a right solely created by statute can only be had by a strict compliance with the statute creating the samel 42 Ohio St. 125; 45 Ohio St. 630.
    Sections 4150 and 4151, of the Revised Statutes, distinctly state to a mortgagee of chattels just what he shall do with his chattel mortgage, that he may have a lien by reason thereof upon the chattels therein described that will be valid against judgment creditors of the mortgagor, and by these sections the mortgage is declared void against creditors if the things therein directed to be done are not done. These are the only sections of the statutes of Ohio which declare when a chattel mortgage is void against judgment creditors of the mortgagor. Therefore, this case must be determined by comparing what the defendants in error in this case did with their mortgages, according to the facts found by the common pleas court, with that which they were required to do by section 4151 of the statutes.
    The record of said mortgages did not contain a record of the indorsements placed thereon by the clerk of the township upon receiving them, and which endorsements are required, by section 4152, Revised Statutes, to be placed thereon by the township clerk. Now, clearly, by the statutes above referred to, and 20 Ohio 161, 42 Ohio St. 380, and authorities- therein cited, the taking of the mortgages from the custody of the township clerk and away from his files, and continually keeping them therefrom until after the levy by the sheriff, a period of about four months, placed defendants in the same condition with reference to their rights under their mortgages, they would have occupied if they had never deposited their mortgages with the township clerk, or had not placed said mortgages on file in his office.
    It has been claimed in this case that the record referred to in the finding of the facts by the common pleas court was a sufficient compliance with sections 4151 and 4152 of the Revised Statutes. We think not, because no record of the instrument is necessary to prevent the mortgage from being void against judgment creditors of the mortgagor. No record is required; the mortgagee may have one made if he desires, and section 4156 of Revised Statutes declares the only purpose of such record, and that being an entirely different one from that claimed, surely repels the idea that it could have the effect contended for.
    But, again, section 4152, of Revised Statutes, among other things, says, the clerk shall deposit the instrument in his office to be there kept for the inspection of all persons interested. Now the instrument referred to is the instrument that the mortgagee is required to deposit or file with the township clerk, and that instrument must be either the original chattel mortgage or a true copy thereof, and whichever paper the mortgagee elects to deposit and file with the township clerk is the paper that must be kept on file in the clerk’s office, with its proper indorsements thereon, and for inspection, as above stated, that the mortgagee may have a valid mortgage against any judgment creditor of the mortgagor.
    An instrument on file with an officer is one thing, a record of an instrument is quite another and different thing. Suppose the law required, as it did formerly, that the chattel mortgage should be both filed and recorded, would any one claim that either filing or recording, would alone be sufficient ; or suppose the law required that the chattel mortgage should be recorded in a special record book for that purpose, would any person claim that filing with the clerk and prohibiting the record to be made as required would be sufficient ?

      S. II and JR. M. Greer, Oooper £ Moore, and O. F. Col-ville, for defendants in error.
    The decision of this question, of course, depends upon the statute relating to the filing, depositing and recording of chattel mortgages, and in construing these statutes the court will give great consideration to the purpose of the legislature in making these enactments and the result to be thereby secured, which we submit was simply to inform and notify all parties interested and the public generally, of the nature and extent of the lien of the mortgages. See Jones on Chattel Mortgages, secs. 176, 190.
    We assume that it will be conceded that this object can be at least quite as well attained by the recording of the instrument in the proper office as by filing and keeping the same on file there. In some of the states the mortgagee of chattels is required to have his mortgage recorded as in the case of a mortgage upon real property; in other states the only provision for the required notice is the filing, and keeping on file of the original instrument or a copy thereof— while our state has as we understand our statute provided for either method.
    In Ohio, prior to 1876 there was no provision by statute for the recording of chattel mortgages. In 1876 our legislature, following the precedent of several other states^ enacted a law requiring chattel mortgages in all cases to be recorded either by the township clerk or county recorder. No lien being created upon the property unless the mortgage was recorded. This enactment, being followed of course by the usual outcry about increase of costs and fees, the legislature the following year passed the present stature, different from that of any other state, embodying, as we understand it, the features of both the former statutes.

      Counsel for the plaintiff in error answer that it is to enable the mortgagee to use a copy of the record in evidence under section 4156; but we submit that such a construction renders the statute concerning the recording of the mortgage not only worthless, but a snare and pitfall to parties undertaking to comply therewith, for under section 4156 the mortgagee can use in evidence a certified copy of the original instrument or a copy thereof, which he had merely filed and left with the officer, quite as well as he can a copy of the record of the instrument, so that he gains nothing whatever in this respect by having his mortgage recorded, and yet for this he is to have his mortgage recorded, to pay for the same, and is required to have added to the record at his own expense at each renewal of the mortgage the new affidavit required, also all credits or statements of any kind which have been placed on the instrument after it was recorded, and in addition thereto he is required when the mortgage has been satisfied to forthwith inform the officer who made the record thereof, who is commanded without delay to note such cancellation and satisfaction upon the record.
    Is it possible that the legislature intended or expected any man to do all this without some corresponding benefit therefor? Is it not manifest that the legislature intended to place the recording substantially upon the same plane with the recording of mortgages upon real estate ? And this view is strengthened by sections 4148 and 4156, by which the copy of the record of a chattel mortgage is made evidence of as high a character as the copy of the record of a mortgage upon real property.
    We also call attention to the fact that in this case the judgment creditors had actual notice of the lien of the defendants in error, and upon this point refer to Jones on Chattel Mortgages, section 308.
   DlCKMAN, J.

When there is not an immediate delivery of goods to the mortgagee at the time the mortgage is executed, followed by an actual and continued change of possession of the things mortgaged, the mortgage will be absolutely void as against creditors of the mortgagor, subsequent purchasers, and mortgagees in good faith, unless the instrument or a true copy thereof, is forthwith after its execution deposited either with the township clerk or county recorder, as the case may be, in accordance with the requirements of the statute. Revised Statutes, § 4150.

It is made the duty of the officer receiving such instrument, to indorse thereon the time of receiving it and its consecutive number; to enter in a book, provided by the township trustees or county recorder, the names of all the parties to the instrument alphabetically arranged, with the number of the instrument, its date, the day of filing it, and the amount secured thereby; and to deposit the instrument in his office, to be there kept for the inspection of all persons interested. Revised Statutes, § 4152.

The statute, however, provides, that if the party depositing the instrument may desire to have it recorded, the officer shall record the same, at the expense of the person making the request, in a book, provided by the township trustees or county recorder; and shall enter upon the margin of such record when the instrument is re-filed, any affidavit, credit, or statement, placed thereon after it was recorded. Revised Statutes, § 4153.

It is contended that notwithstanding the recording of the chattel mortgages in controversy, they ceased to be valid liens on the mortgaged property, as against the executions levied upon valid and subsisting judgments, for the reason that from the 9th day of September, 1886, until the 6th day of January, 1887, neither the original mortgages nor true copies thereof, were on deposit, having been on request of the mortgagees Joseph H. Colopy and Levi F. Colopy, delivered to them by the township clerk, and by them retained until the day after the 1’evy of the executions, when they were again deposited with the township clerk.

It is now provided by the statutes of many of the states, that mortgages of personal property, like those of real estate, shall be publicly recorded, in order to give them validity against any but the parties themselves, unless the mortgagee take and retain possession of the. property; in which case, registration is dispensed with, because the purpose of it, notice of the encumbrance, is accomplished in another way. 2 Hilliard on Mortgages, 244. Registration in those states becomes a substitute for delivery, and enables the mortgagor to hold possession until default. It gives notice to the world of the liens which are held on property by persons not in possession, so as to prevent credit from being given to the holders on account of the possession of it. In lieu of a delivery of possession of the mortgaged property, the purpose is accomplished by substituting a record or a filing of the mortgage. Mr. Jones, in his treatise on chattel mortgages, § 190, says: “ In almost all the states of the United States, the statutes in effect make a recording or filing of the instrument equivalent to a change of possession of the property.” But the main object of either filing or recording is to give the requisite notoriety to the mortgage transaction, although, by extending the mortgage upon the record, notice of its contents may be more effectually preserved than by simply keeping the instrument on file until it is canceled.

A compliance with the statute requires, that the instrument when deposited shall be kept in the offiee for the inspection of all persons who may be interested. The instrument referred to is the original mortgage or a true copy thereof. If the original is not placed on file, a copy must be substituted. But such copy, within the meaning of the statute, may, we think, be either in the form of the original mortgage and so filed, or it may be a transcript which is spread out in extenso in the book designed for the recording of chattel mortgages. To protect creditors of the mortgagor, subsequent purchasers, and mortgagees in good faith, from the imposition which might be practised upon them by persons appearing to be the absolute owners of goods which are really subject to encumbrance, it is evident that as full, clear and explicit notice of such encumbrance may be given by means of a public record, as by depositing the instrument, or a copy of it, with the township clerk or county recorder, as directed by statute.

It is a legal presumption, that all persons subject to any law which has been duly promulgated, must be supposed to be acquainted with its provisions sufficiently for their own personal guidance. A judgment creditor, therefore, will be held to have knowledge, that the law has made provision not only for depositing but also for recording mortgages of goods; and by examination at the proper office, he may readily learn whether his debtor has or has not encumbered his property. If the creditor levies execution upon goods embraced in a mortgage that has been already recorded, though the original be not on file, he will do so with constructive notice of and subject to the prior encumbrance. But in the case at bar, the notice was actual, for, by the finding of facts it is shown, that long before the levy — as early as the 8th day of December, 1886 — a judgment creditor and attorney, for himself and the other judgment creditors, saw and examined the record of the mortgages executed by J. A. Colopy. Although the original mortgages had been taken from the files and not returned, yet, the township clerk upon receiving them, having made the required indorsements thereon, and having entered them in a registry and index book, direct and reverse, provided for that purpose — and having afterwards, at the request of the mortgagees, copied and recorded the instruments in the regular record book with an index of its contents, the judgment creditors readily acquired, as contemplated by the statute, the same notice and knowledge which they would have received, had the instruments remained on file without being recorded.

By the act of April 30, 1877, (74 Ohio Laws 149,) it was made the duty of the township clerk to record any chattel mortgage deposited with him, at the expense of the person depositing it. Chattel mortgages were thereby placed, as to recording, upon a level with mortgages of real estate: It evidently was not the intent of the law, after a copy of the original mortgage was thus required to be perpetuated on the record, that the original might not be withdrawn from the clerk’s office otherwise than temporarily, without destroying its force as a prior lien. The act of April 30 was repealed by the act of May 11,1878, (75 Ohio Laws, 519,) but it was then enacted, as provided in section 4158 of the Revised Statutes, that it shall be the duty of the recorder or cleric to record any chattel mortgage at the expense of the person depositing the same, “ if the party depositing such mortgage shall desire the same recorded.” If the priority of the lien is not to be lost by a withdrawal of the instrument when the' recording of' it was made compulsory, we do not think that a different rule should prevail when the recording was at the desire of the party. The chief purpose of the record is attained in the one case as completely as in the other.

It is said in behalf of the plaintiff in error, that the only object of the statute in authorizing chattel mortgages to be recorded, is to enable a duly certified copy of the record of the instrument to be admitted in evidence, as provided in section 4156 of the Revised Statutes. That the use of a certified copy of the record in evidence might be an important incident to, and benefit from the recording of the mortgage, is manifest; but such use can no more be deemed the primary object of recording a chattel mortgage, than the admission in evidence of a duly certified copy of the record can be regarded as the main object of recording mortgages of real estate.

Our conclusion, therefore, is, that by recording the original mortgages the defendants in error substantially complied with the statutory provision for depositing a true copy of the instruments with the township clerk; and that by withdrawing the originals from the files, the mortgagees did not lose their priority of lien as against the levies made by the sheriff.

Judgment affirmed.


author: Bradbury, J.

text:
    Railroad Company v. Commissioners.

      Taxation — One mile Assessment Pike Law — Railroad subject to — Powers and duties of Commissioners — of County Auditors.

    1. Where a tax is levied for a public purpose, and the rule of equality has been observed in making the levy, its payment cannot be defeated by showing that no direct, or pecuniary, benefit will accrue to either the property, or its owner, from the proposed expenditure of the funds raised by the tax.
    2. Where a railroad track runs through a taxing district created under the “one mile assessment pike law” (tit. VIL, ch. 7, Revised Statutes), it is subject to taxation in such district, in the proportion that the mileage of its track therein beai’s to its whole track, according to the rules prescribed by sections 2770 to 2776, inclusive, Revised Statutes, for taxing railroads in this state.
    3. The provisions of the one mile assessment pike law, together with the statutes that prescribe the duties of county auditors in this state, afford sufficient means for such officers to ascertain what personal property, and what property of a railroad company, is properly taxable in a taxing district, created pursuant to the law.

      4. While it is made the duty of county commissioners to purchase and pay for the gravel, stone, or other material used to cover the road bed of highways improved under the “ one mile assessment pike law,” yet payment therefor should be made out of funds raised by the special tax, levied within the taxing district, according to the provisions of that law.
    (Decided March 31, 1891.)
    Error to the Circuit Court of Marion county.
    The plaintiff in error brought an action in the Court of Common Pleas of Marion county to enjoin the collection of a tax levied by virtue of the one mile assessment pike law on a railroad under its control as the lessee thereof. The action was appealed to the circuit court, where it was tried, and a decree rendered for the defendants at the January term, 1889, of said court, to reverse which the proceedings in this court were instituted.

      Williamson Sf Gushing, McNeal Sf Wolford and W. Z. Davis, for plaintiff in error.

      Q. F. Gcarberson and B. Gr. Young, for defendants in error.
   Bradbury, J.

In June, 1887, proceedings were instituted before the County Commissioners of Marion county, of this state, to create a taxing district, under the one mile assessment pike law, to raise funds to pay for improving the “ Caledonia Free Turnpike Road.” The plaintiff in error, as, also, did The Cleveland, Columbus, Cincinnati & Indianapolis Railway Company, as well as some other owners of property within the proposed district, protested and remonstrated against the proposed improvement. The district, however, was created, and the improvement ordered tó be made; whereupon the plaintiff in error brought its action to enjoin the collection of the tax, levied therefor, against the railroad under its control. By its petition it sought to attack, not only the regularity of the proceedings had before the county commissioners, but, also, the validity and constitutional operation of the law itself. The action was appealed to and tried in the circuit court, and the findings of fact made by that court upon the trial, eliminate all questions respecting the regularity of the proceedings had before the county commissioners, leaving for our consideration the questions only that relate to the construction and validity of the law. Counsel for plaintiff in error have criticised the law, (the one mile assessment pike act) with extreme severity, and demonstrate that in the case of the plaintiff in error, and others in like situation, it compels a heavy contribution to the costs of an improvement, from which they derive very little, if any, benefit. This, however, is not a test, fatal to the power of taxation; if the object is in its nature public, it is not necessary to the validity of a tax levied to accomplish it, that persons or property taxed therefor should be directly or pecuniarily benefited thereby. Cooley’s Constitutional Limitations, 587.

The power of the legislature to authorize the commissioners of a county to establish a taxing district like the one involved in this case, was sustained by this court in Bowles v. State, 37 Ohio St. 35, in which decision we fully concur. The taxing district, being constitutionally and legally created in the exercise, of the general power of taxation, as distinguished from the power of local assessment, it follows that the tax is valid if the constitutional rule of equality has been observed in making the levy. This rule requires that the rate shall be uniform upon all property subject to taxation within the district.

That nearly six and six-tenths miles of the track of the roadway of the plaintiff in error is situated within the taxing district is shown by the finding of the circuit court. Upon this property it was subject to be taxed according to the general rules prescribed by statute for. the taxation of railroads in this state. Section 2774, Revised Statutes, prescribes that the value of the “ property, moneys and credits, of any railroad company, as found and determined by such board (of county auditors) shall be apportioned by said board among the several counties through which such road, or any part thereof, runs, so that to each county and to each city, village, township and district, or part thereof therein, shall be apportioned such part thereof as shall equalize the relative value of the real estate, structures, and stationary personal property of such company therein, in proportion to the whole value of the real estate, structures, and stationary personal property of such railroad company in this state; and so that the rolling stock, main track, road bed, supplies, moneys and credits of such company shall be apportioned in the same proportion that the length of such road in such county bears to the entire length thereof in all said counties or county, and to each city, village, and district, or any part thereof therein,” etc. This section provides that such proportion of the entire property of a railroad, (except realty not necessary to its daily running operations) shall be taxed in each district through which it runs, as the length of road in such district bears to its whole length.

The method of taxing railroad companies prescribed by section 2774, Revised Statutes, has been in use in this state for more than a quarter of a century, and its validity has not been seriously challenged before; nor do we understand it to be questioned now in its usual and ordinary operation ; though counsel vigorously assail the alleged injustice of its operation in the case before us. If it is unjust in its operation, the remedy is with the legislature, for that body, while acting within the sphere of its authority to tax is the sole judge of the wisdom and justice of the measure it may adopt; exact justice in matters of taxation being practically unattainable in any event. Cooley’s Constitutional Limitations, 630, 631.

The constitutional operation of the one mile assessment pike law is assailed on a number of grounds, only two of which, however, it will be necessary to notice. They are, that the law provides no means by which a county auditor may ascertain the taxable personal property within the district generally; and, especially, that it provides no means by which that officer may ascertain the amount and value of the property under the control of the plaintiff subject to taxation therein. These two objections can be considered together.

It is true that the one mile assessment pike law contains no express provisions prescribing the steps to be taken by a county auditor to ascertain the amount and value of the personal property of the plaintiff in error, or even any other personal property, within the district that is subject to taxation therein. Section 4777, Revised Statutes, does, however, require a county auditor to enter the amount levied “ upon the duplicate for collection, on all the lands and taxable property within the bounds of the road, as laid out and established,” and it provides that there shall be transmitted to him a map and profile of the road as the same has been established by the road commissioners. The duties of the county auditor under this statute are plain. He is to place the tax against all the lands and personal property within the bounds of the road, and he has before him a map showing the boundaries thereof. No minute and specific statutory directions are necessary to enable one possessed of ordinary intelligence to discharge this duty, and, therefore, if among the multitude of provisions regulating the duties of county auditors no express directions are to be found prescribing the precise manner in which this one is to be performed, he must adopt and pursue such means as are reasonably fit and appropriate to the matter in hand. He has in his office not only a map showing the boundaries of the taxing district, but records showing the valuation per mile placed upon the railroad by the proper board, and the amounts of personal property in each township and municipality returned for taxation and to whom it is to be taxed. With this information before him there would seem to be no practical difficulty in the way of obtaining such other information as might be necessary to enable him to enter the tax as required by the statute under consideration. The other objections made in argument to the constitutional operation of this law are not presented by the record in a manner calling for consideration at this time, and will not therefore be further noticed.

This disposes of all the questions raised by the record except that which relates to the obligation resting on the county commissioners to pay out of the county funds the cost of the material used in constructing the road.

The special findings of the circuit court show that the material used for covering the road was crushed limestone, the value of which in its several stages of preparation were as follows: In the earth before any labor was expended on it, $1,516.50, when earth had been stripped from it, $2,022.50, when quarried, $3,033, when delivered at the crusher, $3,527.50, and when crushed ready for hauling $5,055.

The plaintiff in error contends that by force of section 4800, Revised Statutes, this material should be bought by the county commissioners, and paid for out of funds belonging to the county at large, relieving, thereby, to that extent the taxing district. That statute reads as follows: “ Section 4800. The county commissioners shall build any or all of the bridges and culverts upon the roads provided for in this chapter, contract and pay for all material used in the construction or repair of such roads, and in case the county commissioners and any owner of any material cannot agree upon the amount to be paid therefor, then the county commissioners shall have all the rights and powers of applying to the probate court of the county to appoint appraisers to assess the value of such material,” etc.

If this statute stood alone, the inference, that the cost of the material was to be paid out of the general funds of the county, would be forcible, though the words of the statute ' do not in direct terms so order; yet the statute is not inconsistent with the contention that its purpose was merely to clothe the county commissioners with the duty of making the purchase, or exercising the right of eminent domain as the case might be, on the ground that their wider experience, or other reasons, made it expedient to require them to do so. However this may be, or whatever difficulties might arise in construing this section if it stood alone, but little doubt remains when it is construed in connection with section 4912, Revised Statutes.

“ Section 4912. When county commissioners, in contracting for the construction of turnpike roads, under any law, find it necessary, by reason of the inconvenient location of gravel or stone for the construction or repair of such roads, to have the gravel or stone transported to convenient points by rail, they may make such contracts for transportation, at public sale, as will best subserve the public interest; the cost of such material, and the transportation of the same, shall be paid from the county treasury, by order of the commissioners, from any funds applicable to the construction of such roads.”

By this section (4912, Revised Statutes) the costs of the material, as well as the cost of its transportation, while made payable out of the county treasury, is to be paid from funds applicable to such roads. The direction that it shall be paid out of the county treasury has little or no significance, for the funds raised in the taxing district are within the county treasury as well as the general funds of the county. The important direction as respects the matter in hand is that which orders payment to be made out of “ any funds applicable to such roadsj ” for the only funds so applicable are those raised by the tax levied on the property within the taxing district that was created for that very purpose.

Judgment affirmed.


author: Spear, J.

text:
    James & Neer v. Plank Ex’r.

      Bailment — Sale—Warehousemen—Custom—Contracts—Arrest of case from jury — When error.

    Action to recover value of wheat sold and delivered. Defense, that the wheat was not purchased but was taken in store at owner’s risk, and that, without, fault of defendant, it was destroyed by fire. Held:

    1. Where wheat is delivered to one engaged in buying and selling grain, and a receipt is given by the dealer’s agent, as each load is delivered,, acknowledging receipt of the wheat, and directing the holder to “ present this at office,” the law, in the absence of an express contract, will presume a contract of sale rather than of bailment.
    2. But where it is shown that the receiptor is a warehouseman whose business is, and for many years has been, to receive grain in store for others as well as to buy and sell, such presumption does not arise, and other circumstances must be shown in order to ascertain the real character of the transaction.
    3. And if, in such case, a custom among warehousemen doing business in the vicinity be shown to have prevailed for so long a time and to have become so well known as to warrant the conclusion that the depositor was acquainted with it, to the effect that in the absence of an express contract of sale, wheat deposited was to be mingled with like wheat owned by the warehouseman, and to be understood and treated as in store for the depositor, the warehouseman to have the right to take from the common mass only upon the condition that he at all times should keep on hand an amount sufficient to satisfy all depositors, each depositor having the option, on presentation of his receipts at the office, to either take pay for the wheat at the current market price, or, in case he desired to continue the storage, accept another receipt therefor fixing the terms upon which further storage should be had, the presumption of law would be that the transaction was a bailment, and not a sale.
    4. If, in such case, proof is given at the trial, tending to show the existence of such custom, and knowledge of it by the depositor at the time of so depositing the wheat, and tending to show that the warehouseman at all times prior to the fire retained in store sufficient wheat to satisfy all depositors, a case is made entitling the parties to have the questions of fact determined by the jury, and it is error for the trial court to arrest the case from the jury and direct a verdict for the plaintiff.
    (Decided March 31, 1891.)

      Error to the Circuit Court of Logan county.
    The defendant in error brought his action in the Court of Common Pleas of Logan county to recover the value of a quantity of wheat, which, in his petition, he alleged was sold by him as executor, on or about the 18th day of August, 1886, to the plaintiffs in error, who were partners in trade engaged in the business of purchasing, shipping and selling wheat.
    Issue was joined by answer and reply. The principal question to be determined was whether the delivery of the wheat by Plank was a sale or a bailment, the claim of the defendant below being that the transaction was a bailment, and that the wheat was, on the 26th day of August following, without fault on their part, burned except a small portion, of the value of $36.16, which amount had been tendered.
    At the conclusion of the evidence the court instructed the jury that under the undisputed facts the plaintiff was entitled to recover the value of the wheat at the time of delivery, with interest, and a verdict for the plaintiff was found accordingly. Judgment was rendered upon the verdict, which was affirmed by the circuit court, and to reverse these judgments this proceeding in error is brought.

      Keifer Keifer, for plaintiffs in error.
    I. Assuming that the answer sets up a good defense, and is supported by testimony as to its substantive averments, the common pleas court erred in its direction to the jury. If there was any evidence tending to prove James & Neer’s case, the charge of the court was erroneous. Dick v. Railroad Company, 38 Ohio St. 389; Whelan v. Kinsley, 26 Ohio St. 131; Turner v. Turner, 17 Ohio St. 449; Richardson v. Curtiss, 33 Ohio St. 339.
    II. Ignoring the question of custom, set out in the answer and proved on the trial, we confidently claim that the transaction of delivering the wheat at the warehouse, commingling it with other wheat of like kind therein, without any agreement to sell, and receiving weigher’s receipts therefor, of the character taken, create a bailment, and not a sale. Inglebright v. Hammond, 19 Ohio, 337, 346; 6 Am. Law Rev., pages 467, 469; 24 Am. Dec., 143, 155; Story on Agency, 229; Chase v. Washburn, 1 Ohio St. 244; 2 Kent’s Commentaries, 13th ed., 365, and notes; 590 and notes ; 2 Parsons on Contracts, 137; Cushing v. Breed, 14 Allen 376, 380; Young v. Miles, 20 Wis. 615; Mowry v. White, 21 Wis. 417; Young v. Miles, 23 Wis. 643; Stearns v. Raymond, 26 Wis. 74; Newton v. Howe, 29 Wis. 531; Kimberly v. Patchin, 19 N. Y. 330; Russell v. Carrington, 42 N. Y. 118; M. & M. Bank v. Hibbard, 48 Mich. 118; Ledyard v. Hibbard, 48 Mich. 421; Nelson v. Brown, 44 Iowa, 455; Irons v. Kentner, 51 Iowa, 88; Arthur v. C., R. I. & P. Railway, 61 Iowa, 648; Sexton & Abbott v. Graham, 53 Iowa, 181; Odell, assignee, v. Leyda, 46 Ohio St. 244; Benjamin on Sales, sec. 1; Wells on Replevin, secs. 3, 203, 205.
    III. If the transaction, as it appears by the weigher’s receipt and otherwise, does not alone show the bailment of the grain, then the evidence of custom or usage would make the delivery of the grain a bailment. An established custom has the force of law. 2 Disney, 482; Steel Works v. Dewey, 37 Ohio St. 242; 15 Ohio St. 571; Foster v. Robinson, 6 Ohio St. 90; Steel Works v. Dewey, 87 Ohio St. 242; Newhall v. Langdon, 39 Ohio St. 87; Lowe v. Lehman, 15 Ohio St. 179; Rodgers v. Woodruff, 23 Ohio St. 632; 11 Ohio, 364, 367; Irons v. Kentner, 51 Iowa, 91; 77 Ills., 305; 87 Ills., 556.

      West, Brown West, for defendant in error.
    In the case at bar, the warehouse receipts contain no suggestion of storage, bailment or risk. And nothing whatever was said by either of the parties in regard thereto. It was the delivery by the executor in’the regular course of trade of a quantity, of wheat to parties engaged in the business of buying, shipping and selling grain, and in no other business whatever. It must, therefore, be held to have been received by them in their regular course of business as merchants so engaged for the purpose of their trade, and therefore constituted a sale to them, unless .the circumstances showed the contrary. Plaintiffs in error seek to avoid this by evidence of local custom, contending that by such custom the wheat when delivered was a mere bailment, and continued to be the property of the executor until he should present the weigher’s receipt and demand payment therefor; that he had the option either to demand payment, or a return of the wheat, or demand and receive a regular storage certificate in the terms before set out, and that until he demanded payment, or a regular storage receipt, or a return of the wheat, the’bailment was at his risk. Custom is the growth of usage continuously practised for a long period. 1 Bouvier’s Die., 359; Inglebright v. Hammond, 19 Ohio, 337.
    Again, the claim that the holder of such weigher’s receipts had the customary right to surrender it at pleasure and demand and have a regular storage certificate, is unsupported. Eveiy such storage certificate was a special contract or agreement between the parties. It specially stipulated the length of time the grain might remain in store free of charge; that it should remain only at the owner’s risk; and that if he withdrew it five cents per bushel would be charged for handling the grain, together with regular storage charges for the time it remained. This is an express contract formally executed, and not an agreement created by or implied from custom or usage.
    • But if it were otherwise, the habit of giving such storage certificates when requested furnishes no evidence tending to prove that the grain represented by it was held in store previous to its issue, or was the property of him to whom issued previous thereto, while he held the weigher’s certificate only. Such storage certificate might upon a sufficient consideration have been issued to any one who never had or delivered a bushel of wheat, and yet the parties to the certificate be bound by all its terms and stipulations precisely the same as in case of previous delivery by a customer. So if one delivering upon an actual sale, should afterwards change his notion and request a certificate of deposit, the merchants might assent and issue it, in which case it cannot be contended that the grain represented by the certificate had been previously held in store for, and as the property of, the holder of the weigher’s certificate. An actual 'Sale may be afterwards converted into a bailment, by stipulation and agreement of the parties. If the executor in the case at bar after delivery of the wheat in controversy had changed his purpose, and upon agreement with the merchant, accepted a storage certificate of the character before set out, it is quite clear that he could not have maintained this action on the authority of O’Dell v. Leyda. The certificate would have shown that at the time of the destruction of the warehouse his wheat was held in store at his own risk. But he never requested a storage certificate and never delivered any wheat as executor for the purpose of storage, but as upon a sale only. Where grain is delivered by a customer to a grain merchant engaged in the business of buying, shipping and selling grain, and nothing is said at the time for what purpose, the presumption is that a sale thereof is intended, and that the delivery is upon sale. If nothing be said about the price, the presumption is that it is a sale at the maket price. Such was the case at bar.
    For the distinction between a bailment and a sale, see Benjamin on Sales, sec. 2, note 1.
   Spear, J.

The question is: did the court of common pleas err in directing a verdict for the plaintiff below ? If, as was assumed by that court, the undisputed evidence established that the transaction was a sale, then the direction was right, but if the whole evidence left a fair question as to whether it was a sale'or a bailment, then the question should have been submitted to the jury.

It was shown by the evidence that the wheat was delivered by an employee of the plaintiff, at the warehouse of the defendants, on the 17th and 18th days of August, 1886, and received by a clerk or foreman employed at the warehouse, who, as the loads came, issued receipts in substance like the following:

“No. 1721. DeG-raee, O., August 17, 1886.
James & Neeb.
“ Received of J. C. Plank, (Administrator), load of wheat, 11 bushels, 5 pounds.
“Not transferable. Present this at office.
“ J. H. McKinnie, Weigher.”

The wheat, when deposited, was mixed with other like wheat in the warehouse, some belonging to the defendants and some to others for whom it had been received in store.

On the 26th day of August, 1886, a fire occurred which consumed the warehouse and nearly all the wheat there at the time. The fire was without fault on the part of the defendants. At that time none of the receipts had been presented at the office. Shortly after the fire Plank demanded of James & Neer pay for all the wheat delivered, which was refused. They, however, tendered $86.16, as his share of damaged wheat which had been sold after the fire.

Within the previous year Plank had delivered to the defendants at the same warehouse from eleven to twelve hundred bushels of wheat, for which he took weigher’s receipts in form similar to the copy given, which he subsequently presented at the office and received in exchange storage receipts, a copy of one of which is as follows:

“ James & Neer,
DEALERS IN GRAIN & SEEDS.
“No. 240. DeGraee, 0., January 5, 1886.
“ Received of Joseph C. Plank, four hundred and fifty-two bushels and 35 pounds of wheat (452 35-100 bushels). Subject to the following rules:
“ Storage free until June 1,1886. One cent per bushel per month or any part thereafter. All grains stored at owner’s risk. We will not be responsible for loss or damage in any way. Grain taken out of house by owners, five cents per bushel and usual storage. James & Neer.”

This wheat was subsequently sold to the defendants.

The evidence further tended to show that James & Neer were at the time, and had been for several years, engaged in storing wheat as warehousemen, as well as in buying and selling; that they sold and withdrew from the common mass, but never so much but that there was left sufficient to return to each depositor his proper quantity; and that, when the fire occurred, they had in the warehouse between 200 and 800 bushels of wheat in excess of the quantity necessary to satisfy all depositors, including Plank.

The evidence further tended to show the existence of a custom of dealing in vogue for many years at that and other warehouses in the neighborhood, of which Plank had knowledge, to the effect that grain deposited in the warehouse, for which weigher’s receipts were given, was regarded as grain in store until such receipts were presented at the office, when the owner had the option to exchange the weigher’s receipts for a storage receipt and continue the storage upon the terms specified in that form of receipt, or to sell at the price ruling the day such weigher’s receipts were presented; and that the receiving of the wheat and the giving of the weigher’s receipts did not constitute a sale of the wheat, but that it remained the property of the depositor until the weigher’s receipts were presented at the office and an election to sell made.

Let us examine and ascertain the effect of this evidence in order to determine the duty of the trial court with respect to it. The naked fact of the delivery of the wheat and the terms of the weigher’s receipts are consistent with either a sale or a bailment. It being shown further, however, by plaintiffs’ evidence that James & Neerwere buyers and sellers only of grain, it might well be claimed that the delivery and the receipts imported a sale. But the added character of warehousemen presented a new question. This question would have been removed, and the plaintiffs claim again sustained, had it appeared that James & Neer appropriated the grain to their own use by shipping, so as not to leave a quantity sufficient to satisfy depositors, for, in such case, it might fairly be presumed that the owner and receiptor had agreed upon a sale to the latter. Besides, while the mere option to elect to treat a bailment as a sale at some future time does not deprive it of its character of a bailment, (Colton v. Wise, 7 Ill. App., 395; Plow Co. v. Porter, 82 Mo. 23; Ledyard v. Hibbard, 48 Mich. 421), yet, where the depositary appropriates to his own use more than his proportion of the common mass the depositor may elect to treat the transaction as a sale, and demand pay for the wheat delivered. So that if at all times James & Neer left enough to return to each depositor, including Plank, his proper quantity, the depositors remained tenants in common of the mixed mass, each entitled to such proportion as the quantity placed there by him bore to the whole mass, and Plank, if a depositor originally, would remain such, because the mere fact that the warehousemen mixed the wheat of all of like quality in one common mass and shipped and sold, from time to time, from the mass, their proportion only, would not work a change in the ownership of the wheat, and it would follow that the fact of mingling and of such shipping and sale would not determine that the transaction was a sale rather than a bailment. Inglebright v. Hammond, 19 Ohio, 337; Chase v. Washburn, 1 Ohio St. 244; Odell v. Leyda, 46 Ohio St. 244; Rice v. Nixon, 97 Ind. 97. No doubt whatever exists that the warehouseman may become a tenant in common like any other depositor, and may be permitted to enjoy the same right of severance without affecting the title of his co-tenants. Sexton & Abbott v. Graham, 53 Iowa, 181. So that, further proof was necessary in order to ascertain to which class the transaction belonged.

No one will doubt that the parties were competent to make a contract either of sale or of bailment. And the parties having failed to make either directly, by spoken words or in writing, the circumstances surrounding the transaction and the parties at the time were to be resorted to in order to ascertain the real character of the business done. So, evidence having been given tending to show that the defendants were warehousemen as well as buyers of grain, if a custom of trade prevailed in the community, certain, definite arid uniform, and so notorious that it might be presumed to have been known to the plaintiff, throwing light on the understanding of the parties, and tending to show in which capacity the defendants received the wheat, that was competent to be considered. Ledyard v. Hibbard, supra. Such custom might give color to the otherwise doubtful acts of the parties so as to aid in arriving at their understanding, and it was necessary to ascertain that understanding in order to determine the legal effect of the transaction between them. This is the precise purpose and office of proof of a custom. Inglebright v. Hammond, supra. It in no rvay can be said to change the law. On the contrary, it may aid in determining the law.

The trial court assumed, that, upon the undisputed facts, a sale was conclusively shown, and that a question of law only remained. In this, we think, the court erred. Upon the whole evidence intelligent minds might reach a different conclusion, and wherever that state of the evidence exists it presents a case for the jury, under proper instructions. If the jury should find, from the evidence, that the understanding between the parties was that James & Neer were to mingle the wheat received of Plank with other wheat and sell and ship at their pleasure, and that the direction in the weigher’s receipts to “ present this at office,” was for the purpose only of indicating to the holder where he could get his pay, or, if the understanding was that thejr were to mingle the wheat with other wheat of like kind and sell only their own proportion, keeping enough for all depositors, and yet, in disregard of this, they actually did sell at their pleasure, not leaving enough on hand for depositors, then the verdict for the plaintiff as rendered, would have been justified. But if, on the other hand, the jury should be satisfied from the evidence that the custom as claimed by defendant, actually existed, was known to plaintiff, and from it and other facts appearing, that the understanding was that though the wheat might be mingled with other wheat belonging in part to depositors and in part to defendants, yet that defendants were to sell from the common mass from time to time, their proportion only, leaving sufficient on hand to satisfy all depositors, and the defendants observed this understanding; and especially if, in addition to the foregoing, they found further that the distinct understanding of the parties was, by virtue of said custom, that the wheat was to be regarded as in store until Plank should elect to make a sale of it, then, it appearing that no demand for the pay had been made by presentation of receipts at the office, or otherwise, before the fire, the jury would have been justified in finding for the defendants.

It is insisted that the court below is sustained by the-case of Chase v. Washburn, supra. We think not. In that case Washburn delivered to Chase several hundred bushels of wheat, taking receipts, as delivered, expressing that the wheat was “received in store.” The wheat was delivered between October, 1847, and August, 1849. In May, 1850, demand was made for either wheat or money, which was refused. Washburn’s evidence tended to prove further that he had instructed his agent who delivered the wheat not to sell unless he could get a dollar per bushel, and if he couldn’t get that to leave it in store, though it did not appear that this instruction was communicated' to Chase; that Chase was informed that Washburn had five or six hundred bushels to draw, and, when the first load was delivered, that Chase said they would pay the highest market price when Washburn should call for it. Chase’s evidence tended to show that his warehouse was burned October 26, 1849, and that there was consumed in it sufficient wheat to answer all outstanding receipts. Also, that the custom at Milan was to store all wheat received in a common mass and to ship from the same as occasion required, which was known to Washburn, and that the custom also was, when parties called for their pay, either to pay the highest market price, or deliver wheat to the holder of the receipt. Washburn’s rebutting evidence tended to establish that Chase had not sufficient wheat in his warehouse at the time of the fire to answer all his outstanding receipts, and that the warehouse was emptied of all wheat between the last receipts given Washburn and the time of the fire.

The gist of the defendant’s claim as to the law was summed up in his request to charge as follows : That the “ custom at Milan, if know to Washburn, in the absence of an express contract, became a part of the contract between the parties, and if the jury should find that Chase had sufficient wheat on hand at the time of the fire to answer all his outstanding receipts, that he was not liable, and that neither the mingling of the wheat, nor the shipment of it would make him liable if he had sufficient amount on hand at the time of the fire to answer his outstanding receipts.” This the court refused to give, but charged the converse of the proposition.

It is manifest that the strongest position Chase could claim was that the transaction was a mutuum. It left Chase the right to sell and ship at his pleasure, and pay either in money or wheat. The practical effect of a mutuum must always be to transfer the title of the chattels deposited. Otherwise the depositary would not have the unqualified right to sell. The custom introduced lacked definiteness as to one feature of it, and, taken altogether, imputed a sale. Hence it was proper for the court to refuse to charge as requested. The charge as given was correct, and the verdict being for plaintiff, he was entitled to judgment. And the affirmance of the judgment was clearly right. The reasons for the decision stated by Bartley, J., in the opinion, are given with the usual clearness and learning of that eminent jurist, and nothing further need be added.

A sufficient distinction between Chase v. Washburn, and the case at bar is that, while in the former case the evidence relied on by Chase tended to prove that the warehouseman was to have the right to sell upon the condition only that he have wheat enough on hand to satisfy Washburn when he should call, or pay money, in the present case the evidence relied on by the warehousemen tended to prove that they were to have the right to sell only their own portion of the common mass, and sold no more than that, having at all times prior to the fire enough to satisfy all the depositors. In the one case the defendant’s own evidence disclosed that the title to the wheat passed; in the other, if the defendants’ claim was established, it did not pass.

Judgment reversed.