text:
    *Sarah McAfferty and others v. Thomas J. Conover’s Lessee.
    Effect will be given to the intention of parties to a deed, in respect to lines and corners; and parol evidence of declarations and conduct may, for this purpose, be received where there is a latent ambiguity, or where the application of the description in the deed to the monuments found on the land require identification. But the intention of the parties can not be made to take the place of a controlling call in a deed, or to contradict the description in the deed. When, therefore, the intention and the controlling call are so inconsistent with each other, that the land as described in the deed, and the land intended to be conveyed, are different tracts, the description in the deed must prevail at law, and the parol evidence of intention must be rejected.
    To conclude the owner of land from denying his own acts and declarations in relation to an erroneous line, which have influenced the conduct of another, and to work an estoppel in pais, and forfeit title, the acts and declarations of the owner must, in general, be willful — that is, with knowledge of his rights, or with intention to deceive the other party.
    'When the line between owners can not with certainty be ascertained, and they, in view of this, agree upon and establish a line, such agreement settles the line; but where a line or corner is, in fact, certain, and an erroneous line or corner is, by mistake, made, the acts of the parties in making such mistake, and the declarations or admissions induced by such mistake, and the fencing by both parties, in accordance with such mistake, do not operate in the nature of an estoppel in pais to forfeit the estate. What subsequent acquiescence, after the mistake is discovered, or what gross neglect afterward to assert a right to correct it, amounting to fraud, will conclude the owner, is another question.
    Ejectment.
    On petition in error to reverse the judgment of the ■district court of Butler county.
    Thomas J. Conover owned a tract of land, called the Chambers •tract, bounded on the south by a county road. One Smith owned land on the east' side of this tract; and defendants below, McAfferty .and Stimpsons, owned land on the south side of the Chambers tract. The county road run between the Chambers tract and the lands of McAfferty and Stimpsons. Conover and Smith, in 1849, .procured a surveyor to survey the Chambers tract. There was no doubt about the true lines and monuments of the Chambers •*tract; but the surveyor so surveyed it, by disregarding the monuments, as to overlap and take in a strip of two acres of Smith’s land on the east, and leave out a strip of two acres of the Chambers tract on the south, adjoining the lands of McAfferty and Stimpsons, thus giving to McAfferty and Stimpsons two acres on the north side of the county road. Smith was present at this survey, and seems to have supposed the survey correct; and he and Conoverplanted stones and moved their fences accordingly. As to the strip left out of this survey on the south, Conover set a stake and stone to mark the new corners of the Chambers tract on its south 3ide. Up to this time it does not appear that McAfferty or Stimpsons knew anything about this survey. Conover then called on McAfferty and Stimpsons *to purchase this strip of land in the Chambers tract, lying on the north side of the county road. They denied owning the strip, and claimed no land upon the north side of the county road; but Conover insisting that they did own it, purchased it from them, and on the 7th and 12th of September, 1849, they made deeds to him, with covenants of general warranty and title. Conover, having thus purchased his own land, and paid McAfferty and Stimpsons for it, soon afterward discovered that the true lines of the Chambers tract did not overlap Smith’s land, and did extend to the county road. He did not like the trade, and thought- McAfferty and Stimpsons should pay back the money. McAfferty and Stimpsons liked the trade, and juref'erred keeping the purchase money. Conover took the advice of counsel. The deeds of McAfferty and Stimpsons, which were intended to convey the strip to Conover, described a strip of land, and conveyed the-following premises: “ Beginning at the southeast corner of the Chambers tract, now owned by said- Thomas J. Conover; thence west, eighty rods; thence south four rods; thence east eighty rods; thence north four rods, to the place of beginning, containing two' acres of land, strict measure.” Conover then, under the advice of counsel, brought this action of ejectment, to recover, not the strip' of land in the Chambers tract, which McAfferty and Stimpsons intended by this description to convey, but to recover a strip of land on the south side of the county road, adjacent to, and south of, the-true lines of the ^Chambers tract. The defendants below* obtained a verdict in the common pleas. On appeal, the case was’ tried in the district court, and a verdict rendered for Conover. A bill of exceptions was taken. The lines and monuments of the-Chambers tract, as set forth in the deed therefor, are not stated in the bill of exceptions; but by the bill of exceptions, it was admitted that the parties claimed under a common source of title; that the Chambers tract as deeded, and according to monuments erected, extended to, and was bounded by, the county road ; and, consequently, the true southeast corner of the Chambers tract was at the road. The defendants below then, for the purpose of locating the lands described in their deeds to Conover, within the true, limits of the Chambers tract, offered to prove the circumstances above mentioned, under which the purchase was made and the deeds were executed to Conover : thereby showing the intention, of the parties, and the location of the land intended to be convoyed. This proof was objected to by the plaintiff, and the district court ruled out the testimony. The question whether the district court erred in ruling out the testimony, is now before this court on petition in error filed by MeAfferty and Stimpsons.

      Thomas Millikin, for plaintiffs in error, insisted:
    1. Conover made a new south line, put in new corners for the Chambers tract, moved his fences on the east side; and then represented to the plaintiffs in error that these were the true lines and corners. The plaintiffs in error acted upon these representations upon the request of Conover, and he is estopped by his own acts and admissions from denying that the new corners are the true corners, or from asserting that he owned land south thereof. 1 Greenl. Ev., sec. 207; Gray’s Adm’r v. Allen, 14 Ohio, 58, 71; Galloway et al. v. Brown’s Lessee, 16 Ohio, 428; Swarts v. Moore, 5 Serg. & R. 257, 265; 1 Phil. Ev., Cow. & Hill, 200, 212.
    2. There -are two corners on the ground — the old and the new corners. Here is a latent ambiguity, and parol evidence may be received to show which was intended. 1 Greenl. Ev., note 1, sec. 301; 2 Phil. Ev., Cow. & Hill, 1390; 13 Pick. 265; *2 Greenl. Cruise, 337, note; 2 Met. 41; Mann v. Pearson, 2 Johns. 37.
    3. Parol evidence is competent to show an agreed corner. 9 N. H. 473; Wright, 576. Such agreement is not within the statute of frauds. Lindsay v. Springer, 4 Harr. 547; 4 Wheat. 513; Jarrot v. McIlvaine, 1 Richardson, 14. Such proof is admissible to aid the interpretation. Stone v. Clark, 1 Met. 373.

      John It. JOewis, and Scott & McFarland, for defendant in error:
    1.. We admit that in a suit in equity, parol evidence might be received to correct a mistake in the deeds where the mistake is charged in the bill, so that it may be answered and issue taken upon it. But in that case the party seeking relief must do equity— must offer to refund the purchase money, which seems to be far from the intention of the plaintiffs in error in this. case. But such a defense can not be set up at law. Patterson et al. v. Hull, 9 Cow. 742; Austin v. Sawyer, Ib. 39.
    2. It was not competent for the plaintiffs in error to prove that by the “southeast corner,” Conover intended the corner made by the new survey. There is no ambiguity, either latent or patent, in the deed as to the place of beginning. To say that a tract of land, lying in the form of a parallelogram, and bounded by north and south, and east and west lines, has two southeast cox-ners, is simply an absurdity; there can be but one, and any other point than the true one is not Hthe southeast corner,” and to receive evidence as to any other point is to contradict the deed. Jackson v. Wendell, 5 Wend. 146; Jackson v. Wilkinson, 17 Johns. 147; Bratton v. Slawson, 3 Strobh. 127; Bell v. Moore, 6 N. H. 205; Milling v. Crankfield, 1 McCord, 257.
    3. It is claimed that the parol evidence was competent to show an agreed corner. But there was no dispute between the parties to this action, nor is the desorption in the deed doubtful, both of which conditions we conceive to be necessary in order to render such evidence admissible. In the case cited from Wright, 576, *the court say: “ But if, without such controversy or ageement to settle, the parties under a mistake as to the boundary, or in ignorance of the line, shajxe their occupancy to a supposed line, which is afterward discovered not to be the line, they are not concluded by such occupancy, but may resort to their title jxapers.”
    4. Conover is not estopped by his acts and admissions from claiming the land in dispute, because they resulted from mistake, and not from a fraudulent intent, which, aixd that the party alleging the estoppel is himself ignorant of the truth, and relied on the faith of such acts or declarations, and that the truth will injure him, are necessaxy to constitute an estoppel in pais. See Dezell v. Odell, 3 Hill, 215; Dye v. Cady, 20 Conn. 563; Martin v. Angell, 7 Barb. Sup. Ct. 407; Commonwealth v. Moltz, 10 Barr, 527; Copeland v. Copeland, 28 Maine, 525; Tilghman v. West, 8 Ired. Eq. 183; 5 Met. 478; Tolman v. Sparhawk, Ib. 469. The case of Gray’s Adm’r v. Allen, 14 Ohio, 58, does not conflict with this rule, but rather tends to establish it.

      Again: an estoppel in pais is never allowed to be used as an instrument of fraud; but only to prevent injustice. Pierrepont v. Barnard, 5 Barb. Sup. Ct. 364.
   J. R. Swan, J.

No doubt the rights of these parties could be readily adjusted, and upon just principles, in a court of equity. Our inquiry now is : What are their rights at law?

I. Can McAfferty and Stimpsons be permitted to show that, by the call in their deed of “ the southeast corner of the Chambers tract,” they and Conover meant and intended the corner made by the then recent survey.

Nothing is more common, upon the trial of eases to settle conflicting boundaries, than the admission of parol evidence of third persons, and proof of the declarations of the parties in interest, in relation to corners. In the application of the description of land in a'deed, to the land itself, the fact whether the monuments found thereon are identical with those mentioned in the deed, is always the subject of parol evidence. And, when *the calls of the deed, and the objects found on the land, render it uncertain which of the objects found were called for, parol evidence, the admissions of the parties, or other extraneous circumstances may be proved, to show which of the objects were in fact called for by the deed. In such case, there is a latent ambiguity arising in pais, and to be settled by proof in pais. Nor does such proof contradict the description in the deed. It simply aids in its interpretation, and gives application to its description of the land. But where there is a call in a deed, which was in fact not intended by the parties, and is found, and is unambiguous, the intention of the parties can not be made to take the place of the call; for if this could be done, titles and lands would be transferred by the intention of parties, and not by deed. Effect will be given to the intention of the parties, in respect to calls, only where the words of description they employ will admit of it, and are not inconsistent with the intention proved; further than this, a court of law can not go; beyond this, is the region of equitable jurisdiction, under the head of mistake.

In this case it was admitted as matter of fact, on the trial and by the bill of exceptions, that “the southeast corner of the Chambers tract ” is on the county road: the controlling corner of the land described and conveyed by the deeds of McAfferty and Stimpsons to Conover; and the only locative call in the deeds. This admission precludes any doubt as to where the southeast corner of the Chambers tract is; sets at rest any question of latent ambiguity; so that, if the proof of the intention of the parties to the deeds, is received and acted upon, it would contradict this call and transfer all the calls of the deed from the south side of the county road into the Chambers tract. Such a transition of a tract of land can not be made by proof of intention, in contravention of the calls of a deed. It is very clear that Conover made a mistake when he purchased from McAfferty and Stimpsons his own lands; and that MeAfferty and Stimpsons made a mistake in conveying to Conover their own lands south of the county road.

II. It is claimed that Conover made' a new southeast corner for the Chambers tract, represented the same to be the true corner, *and induced the plaintiffs in error to act on that representation ; and hence, Conover is estopped, by his own acts and admissions, from denying that the new corners are the true corners.

As a general rule, a party will be concluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter.

Estoppels by deed or by matter of record, sometimes conclude the party without any reference to the moral qualities of his conduct. But estoppels 'in pais are not allowed to operate, except where, in good conscience and honest dealing, the party ought not to be permitted to gainsay his admission. Commonwealth v. Moltz, 10 Penn. 531. And, in general, the act or declaration of the party must be willful, that is, with knowledge of the facts upon which any right he may have must depend, or with an intention to deceive the other party. Copeland v. Copeland, 28 Me. 525 ; Tilghman v. West etal., 8 Ired. 183. Thiskindof estoppel was first established by courts of equity; and has since been extended to courts of law.

It is founded on fraud. There are implied wai’ranties and implied guaranties which are enforced, not as estoppels in pais, but as contracts, and in which the question of fraud or fair dealing may or may not be involved. Whether it be a rule .without exception, that an estoppel in pais must always be accompanied with the willful act or declaration of the party upon whom it is to operate, we do not decide; but we do hold that such act or declaration should be willful, to operate as a forfeiture of lands.

Thus where the true lines are in fact unquestionable, and parties by mistake agree upon an erroneous line as their boundary, and suppose the line agreed upon to be their true line, and fence to it, their acts and declarations do not operate in the nature of an estoppel. A party will not forfeit his estate by a mere mistake; nor can the statute of frauds be thus evaded. Something more is required to transfer the title. If there has been acquiescence, adverse possession, and improvements made in accordance with such erroneous line, under such circumstances *as that the owner is chargeable with gross negligence amounting to fraud, an estoppel in pais may probably permanently establish the erroneous line.

There is another class of cases where the line between owners of land can not with certainty be ascertained; and because uncertain, they agree upon and establish the line. Such agreement settles the line; not by estoppel, but by agreement.

In the case before us, the corners of the Chambers tract were in fact indisputable. The parties acted under an honest mistake, without fraud or intentional deception. Declarations thus made do not operate in the nature of an estoppel to forfeit the title to land.

It is proper to remark, that the deeds made by McAfferty and Stimpsons, describe and convey on their face a strip of land, and the proofs of the acts and parol declarations of Conover would, if an estoppel in pais, convey another and different strip of land. A title to an entire tract of land dependent upon the establishment by parol proof of the acts and parol declarations of a third person, is not quite as certain and convenient a title as the law has in general so wisely provided for by deed and record. And this at least shows that the doctrine of estoppel in pais, however safe in courts of equity, should be carefully and cautiously applied to titles at law.

On the whole, we are of the opinion that in this case one tract of land-was conveyed by mistake instead of another; and‘the mistake can not be corrected at law by jiroof of the intention of the parties; and that under the circumstances of this case and their relations growing out of mutual mistakes as to the purchase and the deed, justice and good faith does not require the application of the law of estoppel in pais to the conduct and declarations of Con-over.

Judgment of the district court affirmed

Bartlet, C. J., and Brinkerhoee and Bowen, JJ., concurred.

Scott, J., having formerly been of counsel, did not sit.


source: Caselaw Access Project

author: Bowen, J.

license: Public Domain

text:
    *Robert Montgomery v. The State of Ohio.
    It ia competent for the court, on the hearing of a writ of error, to reverse im part, and to affirm in part, the sentence and judgment of a probate court in-a criminal case. Bonsal v. Ohio, 11 Ohio, 72; Lougee v. The State, Ib. 68
    An affidavit filed before a justice of the peace, charging a person with petit' larceny, will authorize his arrest, an inquiry into the complaint, and his-recognizance to the proper court, and confer jurisdiction on the latter, if it describe, substantially, the commission of the offense. - The failure to insert in such affidavit the name of the owner of the property which is alleged to have been stolen, does not entitle the defendant to a reversal of the proceedings.
    The return of the transcript and recognizance by justices of the peace, and other officers authorized to take the same, to the probate judge of the-counts', was necessary to give that officer jurisdiction of offenses; and the record of his court, to be sufficient to sustain a conviction and judgment - before him, must contain a transcript of proceedings before such justice, or other officer, in order to show that he properly acquired jurisdiction of the offense. Gates et al. v. The State of Ohio, 3 Ohio St. 293; Miller et al v. The State, Ib. 475; Aultfather v. The State, 4 Ohio St. 405; Robinson v The State, 6 Ohio St. 141.
    This is a writ of error to reverse the judgment of the district court of Richland county.
    The prosecuting attorney filed an information in the probate court charging Montgomery with stealing the property of the value of one dollar of Henry Deckison. Montgomery entered a plea of not guilty; but the jury found him guilty in manner and form as charged, and the court sentenced him to three days’ imprisonment on bread and water, and ordered that he “ make restitution to the person from whom the goods were stolen in twofold the value thereof.”
    To reverse these proceedings in the probate court, Montgomery prosecuted a writ of error in the district court.
    -■ The district court reversed the judgment of the probate court as to the order of restitution, and affirmed it in all other respects.
    ^Montgomery now seeks to reverse the judgment of the district court.
    It does not appear from the record of the proceedings in the probate court, that the charge upon which Montgomery was tried in that court had ever, before the case came there, been examined into, or made against him, before any justice of the peace or other examining officer.
    ■ There is with the papers of the case what purports to be a transcript of proceedings against Montgomery before a justice of the-peace; and this transcript is marked, “Filed October 25, 1854.”' It is not made a part of the record of the proceedings in the probate court, nor is it referred to by the probate judge, nor is there-anything else to identify it as a part of the proceedings in the case.
    This transcript sets forth that on the 17th of October, 1854, Henry Deekison made oath that a petit larceny was committed at-the county of Richland, by the stealing of seven cniekens, on or about the 14th of July, 1854, and that one Robert Montgomery was-guilty of the fact..
    The plaintiff in error insists that the district court erred:
    1. In reversing in part, and affirming in part, the judgment off the probate court.
    2. In not reversing the entire judgment, on the ground that the: probate court took original jurisdiction of the offense.

      McLaughlin & Stevens, for plaintiff in error.
    The Attorney- General, for the state.
   Bowen, J.

The plaintiff in error complains of the judgment off the district court in two particulars:

1. Because that the court reversed in part, and affirmed in part, the decision of the probate judge. This, it is well settled, may be-done. 11 Ohio, 68. There was nothing erroneous in that order.

2. The plaintiff insists that it was error in the probate court to-take original jurisdiction of the offense. This point has, likewise, «undergone judicial determination, and has been ruled adversely to the state, and favorably to the plaintiff. Gates et al. v. The State, 3 Ohio St. 293; Miller v. The State, 2 Ib. 476; Aultfather v. The State, 4 Ohio St. 467.

The record of the probate judge should show, upon the face of it, that the proceedings were instituted before the proper officer, who is empowered to recognize offenders, as provided by law. The transcript of the justice confers no aid to the record of the probate court. It is not attached to it, nor does it form any part of it. The judgment of the district court, in this particular, was-erroneous. It improperly sustained the original jurisdiction of the: probate judge over the offense.

The judgment is reversed, and cause remanded to the court of •common pleas of Richland county.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.


author: Brinkerhorr, J.

text:
    The Board of Commissioners of Hamilton County v. Jesse W. Mighels.
    The board of commissioners of a county are not liable, in their quasi corporate capacity, either by statute or at common law, to an action for damages for injury resulting to a private party by their negligence in the discharge of their official functions. The Commissioners of Brown County v. Butt, 2 Ohio, 348, overruled.
    In error to the Superior Court of Cincinnati.
    The case is stated in the opinion of the court.

      Ferguson & Long, for plaintiffs in error:
    The question to be determined in this case is, whether damages resulting from neglect by the commissioners of a county of a public duty, can be recovered out of the public moneys of the *county, or whether, for such neglect, the commissioners are not alone individually responsible.
    I. As to the nature of the county organization.
    1. The state is divided into counties for public purposes, and particularly for the more convenient administration of justice. They are political organizations, not corporations. They can not sue or be sued, or contract, and they have no common seal. Constitution, art. 2, sec. 30; Ib. art. 4, sec. 3; Ib. art. 8, see. 6; Ib. arts 10 and 11; C., W. & Z R. R. Co. v. Commissioners of Clinton county, 1 Ohio St. 87, 89, 95; Commissioners of Crawford v. Commissioners of Marion, 16 Ohio, 466; Ward v. County of Hartford, 12 Conn. 404; County of Schuyler v. County of Mercer, 4 Gilman, 20.
    2. The public moneys of the county are chiefly raised by taxation, for certain specific purposes, and it is not lawful to use them for any other purpose. Damages, like those recovered in this case, .are not within the purview of the statute. Constitution, art. 10. ■sec. 7; Swan’s Stat. 927, sec. 78; 937, sec. 112-115; Kemper v. McClelland, 19 Ohio, 308.
    3. The power to determine on the amount'to be raised, is given to ■the commissioners, the collection and custody of the funds to the county treasurer, who is to keep separate accounts of each, and the control of their disbursement to various officers, tribunals, and boards, as well as the board of commissioners. Swan’s Stat. 63, sec. 11; 1009, sec. 5; Treasurer of Perry County v. Moeller, 11 Ohio, 428; Smith v. Commissioners of Portage County, 9 Ohio, 25; Ohio, ex rel. v. Auditor of Hamilton County, 19 Ohio, 116; Commissioners, of Clermont County v. Robb, 5 Ohio, 490; Board of Directors of Infirmary, Swan’s Stat. 613, sec. 19; 614, sec. 24; 615, sec. 30; 617, see. 40; Agricultural Societies, Swan’s Stat. 37, 39.
    II. The board of commissioners of the county is a quasi corporation having certain limited powers conferred by statute, and can exercise none not expressly granted, or necessarily incident to those granted. They have no corporate fund, and no power to bind the county funds except by contract. Swan’s Stat. 181, 758; 53 Ohio L. 153-155; Commissioners of Gallia County v. Holcomb, 7 Ohio (pt. 1), 233; Potts v. Henderson, 2 Carter, 327; Colton v. Hanchett, 13 Ill. 6, 15.
    III. The duty of providing “ some suitable place for holding the courts of the county ” — for the breach of which, resulting in a special injury to the defendant in error, this action was brought— ■is a public duty specifically imposed by the statute on the commissioners, in the performance of which they act as the agents of the State in carrying into effect one of the principal objects of government, namely, the administration of justice. Swan’s Stat. 182, sec. 16; 75, sec. 9; Ward v. County of Hartford, 12 Conn. 406-408; Canterbury v. Attorney-General, 19 Eng. Ch. (1 Phillips) 323; Commissioners of Trumbull County v. Hutchins, 11 Ohio, 368; Martin v. Mayor of Brooklyn, 1 Hill, 545-550; White v. City Council, 2 Hall’s So. Car. 571; Ex parte Black, 1 Ohio St. 30; Conna v. New York, 2 Sandf. S. C. 356, 375.
    IY. The duty imposed in this case, on the commissioners, is not more imperative than that enjoined on them in relation to the repair of bridges and the means no more ample; yet it has been uniformly held that the county was not liable to respond, in damages, to a party specially injured by their neglect in the latter case. Swan’s Stat. 137, sec. 7; 147, sec. 15; 181, sec. 11; Russell v. Men of Devon, 2 Term, 667; Mackinon v. Pierson, 18 Eng. L. & Eq 509; Mackinon v. Pierson, 25 Eng. L. & Eq. 457; Chidsey v. Town of Canton, 17 Conn. 475; Hedges v. County, 1 Gilm 567; Freeholders v. Strader, 3 Har. N. J. 108.
    V. The rule, that a municipal corporation enjoying special private franchises, granted as well for its private emolument and advantage-as for the public good, is liable in a civil action, for an injury resulting from the neglect of any duty which the charter or the law imposes upon it, does not apply to those minor political organizations or quasi corporations whose corporate powers and functions-are conferred for the benefit of the public at large. Morey v. Town of Newfane, 8 Barb. S. C. 645; Bailey v. Mayor of New York, 3 Hill, 531-539; City of Dayton v. Pease, 24 Ohio, 80-99.
    *YI If the law casts a duty upon a person which he refuses or fails to perform, he is answerable in damages to those whom his failure or refusal injures. If several are jointly bound to perform the duty, they are liable jointly and severally for the failure and the refusal; but the public fund is not liable to make good their misconduct. Ferguson v. Earl of Kinnooull, 9 Clark & Finnelly, 251, 279, 280, 307, 308; Duncan v. Findlater, 6 Clark & Finnelly, 894, 903, 907, 908; Hall v. Smith, 2 Bing. 156; 9 Eng. Com. Law, 358; Conwell v. Vorhees, 13 Ohio, 523-542; Griffith v. Follett, 20 Barb. S. C. 620; Comm’rs of Brown Co. v. Butt, 2 Ohio, 348.

      Johnston & Carrall, for defendant in error,
    cited Swan’s Stat. 181 Wright, 417; The Commissioners of Brown County v. Butt, 2 Ohio, 348; 18 Ohio, 229; 15 Ohio, 474.
    The case was further argued orally by Ferguson and Johnston.
   Brinkerhorr, J.

The defendant in error brought suit in the Superior Court of Cincinnati against the plaintiffs in error, and, on the 14th of May, 1855, filed therein the following petition, to wit:

The plaintiff, a citizen of the State of Ohio, and a resident of the county of Hamilton, says, that the defendants, the board of county commissioners of the county of Hamilton, in the State of Ohio, being authorized by law, in the exercise of their discretion, to erect a good and convenient court-house, upon such plan as they might project, in the city of Cincinnati, the seat of justice of such county, were on the 11th and 12th days of December, 1854, engaged dn the erection of such court-house, in the city of Cincinnati, which building was designed and then used for the holding of the courts of the county of Hamilton, and for the offices of thé sheriff, clerk of the courts, and certain other county officers, under the direction and sanction of the defendants. On the 11th and 12th days of December, 1854, the rooms on the northwest corner of said building, on the first *floor, were used, under the direction of the defendants, for the holding of the criminal court of Hamilton county; and a certain trial was then and there had, at which the plaintiff was required by a writ of subpena, to appear and testify, and was detained under the order of the court, as such witness, till night. In the erection of sgch court-house, upon the plan projected by the defendants, there was a certain stairway from the first to the second floor, opposite to the main entrance into the building, which persons in their egress from the said court-room, by the usual passages into the street must necessarily pass, and under said stairway was a large opening into the cellar, which the defendants wrongfully and unjustly permitted to remain open, unprotected, and uncovered, and wrongfully and negligently omitted in any manner to guard the same, so as to prevent persons passing along said passage from falling into such opening, and wholly omitted to light the same at night, by reason whereof, and for want of such light and protection over said opening, the plaintiff being such witness required to be in such building, and necessarily detained there in obedience to the order of said criminal court of Hamilton county, till after nightfall on the 12th day of December, .1854, in passing along said passages in his way from the court-room to the street, necessarily and unavoidably slipped and fell into said opening, and thereby the thigh and two ribs of the plaintiff were fractured and broken, and the plaintiff became sick, lame,. and disordered, and so remained for a long space of time, during all which time he suffered great pain, and was prevented from attending to and transacting his necessary and lawful business, and was obliged to expend and did expend a large sum of money in endeavoring to get healed of said wound, sickness, or disorder. The plaintiff therefore demands judgment against the defendants for ten thousand dollars damages.” To this petition the defendants below demurred, on the ground that it did not state facts sufficient to constitute a cause of action. On heai’ing, the demurrer was overruled, and leave was taken to answer. An answer was filed, admitting a part of the material facts alleged in the petition, and denying the remainder. The case was tried by a jury, who found the issues in favor of *the plaintiff below, and assessed his damages at $7,750. After motions for a new trial and in arrest of judgment were made, heard, and overruled, judgment was entered on the verdict. No bill of excep-. tions was taken to any ruling of the court below on the trial.

The case having been reviewed on error by the Superior Court at general term, and the judgment there affirmed, a petition in error is filed here to reverse that judgment of affirmance.

All the errors assigned or assignable on the record, present but the single question which was originally made by the demurrer to the petition, i. e., does the petition state facts sufficient to constitute a cause of action ? If it does, there is no error apparent on this-record ; if it does not, the judgment is erroneous and must be reversed.

It will be noticed that this is an action brought by an individual plaintiff against the commissioners of a county in their official or quasi corporate capacity, to recover damages resulting from the-negligence and misconduct of those officers. No claim is made-against those officers as individuals, but the recovery is sought .against the county; and if this judgment can be maintained, it must in. some way be met and paid by the people of Hamilton county. And thus we are presented with the question: Is a county, or, in: other words, the people of a county, liable in an action sounding in, tort, for the personal misconduct or negligence of the county commissioners while in the performance of their official functions?

If a county be thus liable, that liability must be derived either expressly or by necessary implication from the provisions of some statute, or must rest on the principles -of the common law. W& therefore proceed to inquire:

1. Is such a liability anywhere created by statute?

The only statutory provision to which we have been cited, or of which wo are aware, as having, any bearing on this branch of our inquiries, is the seventh section of the act of March 12,1853, “ establishing boards of county commissioners and prescribing their duties.” Swan’s Eev. Stat. 181. The section is a re-enactment of ;« former statute, and is as follows:

“Seo. 7. That the board of commissioners in the several counties of this state shall be capable of suing and being sued, pleading and being impleaded, in any court of judicature within this state ; and they are hereby authorized and required to ask, demand, and recover, by suit or otherwise, any sum or sums of money or other property due to such county, on account of advances made-by them on any contract with any person or persons, for the erection or repairs of any public buildings or bridges, or any other contract which, by the provisions of this act, they are authorized to-enter into; and in like manner to sue for and recover in m.oney the-value or amount of any labor or article of value, subscribed instead of money, to aid in erecting or repairing public buildings or bridges, where such labor or article of valúe, upon their requisition, shall not have been performed, delivered, or paid for in a reasonable-time; and the money so recovered, in either of the above ckses,. shall be by them paid into the treasury of the county; and they shall take the treasurer’s receipt, and file the same with the auditor of the county.”

This statute does not in terms declare or constitute either the county or the board of county commissioners a body corporate proper; but it clothes the board with one corporate capacity, that of suing and being sued; and this is followed immediately by a specification of the matters in reference to which the board may sue; but the statute is entirely silent as to the matters in reference to which it may be sued. And it is worthy of notice that this statutory enumeration of the matters in respect to which the board of commissioners may sue, is confined to matters of contract. As to all actions or subject-matter of actions sounding in tort, the statute is silent. Now, neither a county nor the board of commissioners of a county is a corporation proper; it is at most but a local organization which, for purposes of civil administration, is invested with a few functions characteristic of a corporate existence. But it is an established rule, that a grant of powers to a corporation proper shall be strictly construed; and it seems to us that this rule is at least equally applicable in any inquiry into the powers and capacities of a quasi corporation, *whose powers and functions are, from their very nature and object, more strictly limited than those of a corporation proper.

While, therefore, it may be granted that inasmuch as the board of county commissioners may sue on all causes of action arising out of the contracts which it is by law authorized to make, it may be fairly and reasonably implied that it may be sued on all causes of action originating in such contracts, we can see no just ground for the further implication from this statute, that the people of the county shall also bo made answerable for the torts committed by the board or its members, while in the discharge of official functions. In the view which, on principle, we take of this statute, we are supported by the case of Commissioners of Gallia County v. Holcomb, 7 Ohio, 232, and by very respectable authority elsewhere. The Board of Chosen Freeholders of Sussex County v. Strader, 3 Harrison (N. J.), 108, is a case strongly analogous in many points to the case at bar, and the bearings of which on other branches of our inquiry will be hereafter noticed. “The board of chosen freeholders” of counties in New Jersey were not only authorized by statute to sue and be sued, but they were expressly created bodies corporate, and were made “ the agents of the counties for executing all the legal purposes, objects, business, and affairs of the counties.” Yet it was there held that the capacity to sue and be sued conferred by statute, must be considered as limited by a reference to the matters and things within the legitimate scope and object of the creation of the corporation, and that the board of freeholders was not liable in an action for negligence, in the performance of a public duty, resulting in a private injury.

The case of Hedges v. The County of Madison, 1 Gilman, 567, was an action against a county in Illinois for negligence in respect to a bridge, which the county was bound to keep In repair, whereby an injury accrued to the plaintiff. The provisions of the statute •of that state bearing on the question are thus stated by Shields, J., delivering the opinion of the court in that case: “ By ‘ an, act to incorporate counties,’ approved January 3, 1827, counties are constituted a body' corporate and politic, with power to make and enter into contracts, and capable of suing *and being sued in relation to such contracts. There is, however, no provision of law giving an action to recover damages in a case like the present.”

From this statement of the provisions of the Illinois statute, it would seem, that though its phraseology is different from that of •our own, its provisions are substantially identical. The Illinois statute expressly declares counties to be bodies corporate, which provision of itself implies the capacity to sue and be sued. The Ohio statute does not declare a county or the board of commissioners to be a body corporate, but imparts in general terms the capacity to sue and be sued. The Illinois statute, in addition to the words of incorporation, expressly gives the power to sue and be sued. “ in relation to contracts.” The Ohio statute enumerates certain causes of action arising out of contracts, in reference to which the board of commissioners may sue, but leaves the capacity to be sued in relation to the same matters to inference and implication. Both are silent as to actions sounding in tort. And in the case named, the Supreme Court of Illinois, in an apparently carefully-considered opinion, unanimously held that no right of action against the county for negligence resulting in individual injury was derivable from the statute.

We conclude, therefore, whether we look solely to the language of our statute, and apply to it those principles of construction which seem to be indicated by the narrow range of the objects and purposes of the county organization, or are governed by the light to be derived from analogous cases elsewhere determined, that if this action can be maintained at all, a foundation for it must be found elsewhere than in the provisions of our statute.

2. Is the action maintainable on the principles of the common law ? In entering on this inquiry, it is but justice to ourselves to .say, that, assisted by the researches of diligent counsel, we have given it an unusual share of labor and attention ; and this not only because of the importance of the question itself, but for the reason that the conclusion to which our minds have been compelled, is in conflict with a case (Commissioners of Brown County v. Butt, 2 Ohio, 348), decided by judges for whose judgment *we entertain that degree of respect which renders even involuntary and irresistible dissent from their conclusions, reluctant and self-distrustful.

For the purpose of maintaining this action, an effort has been made in argument to assimilate counties to natural persons and municipal and other corporations proper. Now it is conceded that that if the negligence and consequent injury to the plaintiff below, had been the act of a natural person in the construction of a private building, to which the plaintiff below had been invited, the party guilty of the negligence would properly be liable in damages. So, also, it now seems to be well settled, that had 'the defendants below been the agents of a municipal or other corporation proper, and had the plaintiff below been injured through like negligence and under like •circumstances, the corporation might be held to answer for the injury. And why? Because where there is a wrong there ought to be a remedy; persons, whether natural or artificial, are bound so to use their own property and conduct their own affairs as not to injure others; and where an act is done to the injury of another by a natural person in the pursuit of his own interests, or, through its agents, by an artificial person, a corporation proper, which is-called into existence, either at the direct solicitation or by the free consent of the persons composing it, for the promotion of their own local and private advantage and convenience, and which can work only through agents, such natural or artificial person is, on every principle of justice and enlightened reason, bound to rectify the consequences of his own misfeasance. And it is freely admitted that if counties are in all material respects like municipal corporations proper, and may be fairly classed with them, then this action ought to be maintained. But how is the fact ? This question is vital, and on its solution the case must depend.

As before remarked, municipal corporations proper are called into-existence, either at the direct solicitation or by the free consent of the people who compose them.

Counties are local subdivisions of a state, created by the sovereign-power of the state, of its own sovereign will, without the particular-solicitation, consent, or concurrent action of the people *who-inhabit them. The former organization is asked for, or at least assented to by the people it embraces ; the latter is superimposed by by a sovereign and paramount authority.

A municipal corporation proper is created mainly for the interest, advantage, and convenience of the locality and its people; a county organization is created almost exclusively with a view to-the policy of the state at large, for purposes of political organization and civil administration, in matters of finance,-of education, of provision for the poor, of military organization, of the means of ¿ravel and transport, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy. Ward v. County of Hartford, 12 Conn. 406; Boalt v. Commissioners of Williams Co., 18 Ohio, 16; C., W. & Z. Railroad v. Commissioners of Clinton Co., 1 Ohio St. 89.

The idea that the board of county commissioners is the agent oft the county or of its people, is prominently advanced and pressed on our attention. That board is, in some sort, the agent of the-comity, it is true; inasmuch as it alone is authorized to sue and be sued in respect to contracts growing out of the county organization. There is an administrative necessity that some name should be employed as the representative of the public interests involved' in such suits; and that of the board of county commissioners has, by law, been designated for that purpose; but the name of the-county auditor, or the name of the county itself, had the legislature chosen so to prescribe, would have answered the same purpose-quite as well; and the fact, we' think, has no special weight orsignificanee.

But, it is said, the members of the board of county commissioners are chosen by the electors of the county, and hence the-board is to be regarded as the agents of the county, for whose torts in the performance of official duties the county ought to be responsible. True, the people of the county elect the board of county commissioners; but-they also elect the sheriff and treasurer *of the county. Are the people of the county, therefore, responsible for the malfeasances in office of the sheriff, or for the official defalcations of the county treasurer? This will not be-pretended. And yet, if this case is to rest on the principles governing the relation of principal and agent, wherein is the distinction between the ease at bar and the case supposed? We confess-our inability to discover any such distinction. In the case of municipal corporations proper, the electors are, mediately or immediately, invested with very ample control over their agents, not. only as to what shall be done, but how it shall be done, and by whom it shall be done; they may exact such guarantees as they deem proper for their own indemnity, and may prescribe by-laws-for their government. As between the commissioner and the electors of a county all this is wanting. All his powers and duties are presci’ibed by the supreme legislature; and the electors can exercise no control over him whatsoever, except such as springs from-the bare fact of election; and to this extent they can control a sheriff or treasurer as well as a commissioner.

Chancellor Kent (1 Com. 572, 573) says, that “ a great proportion-of the rules and maxims which constitute the code of the common law, grew into use by the application of the dictates of natural justice and cultivated reason to particular cases;” and that “ the” best evidence” of what that law is, “ is to be found in the decisions-■of courts of justice, contained in books of reports, and in the treatises and digests of learned men.”

Now, on what principles of “ natural justice,” or of “ cultivated reason,” aside from positive statute, the people of a county should be hold responsible for the personal or official misconduct of a county commissioner, we are wholly unable to perceive.

But how stands the case upon authority, “ by the decisions of courts of justice, and the treatises of learned men?”

The county organization, substantially similar in all its general features and functions, has existed in England from the earliest times, and in all the States of this Union, with perhaps one or two exceptions, more nominal than real, from the period of their ■settlement; yet the researches of diligent counsel, have failed to ^furnish a single case, where an action has been maintained .against a county in a case like the one before us, except that of the Commissioners of Brown County v. Butt, before cited, and which was recognized as authoritative in Richardson v. Spencer, 6 Ohio, 13, but, apparently without any particular examination of the principles on which it was based, or of the authorities bearing <upon them.

It is said that the court below sustained the action in the case before us, on the authority of Commissioners of Brown Co. v. Butt; and we concur with the court below in the opinion, that if that ■case was properly decided, this action must be maintained. We have looked in vain for any substantial distinction between them.

’ In that case, the debtor, having been surrendered by his appear - .ance bail, and committed to the custody of Butt, who was sheriff of Brown county, escaped, by reason of there being no jail in Brown county, and the sheriff not being by law at liberty to imprison the debtor elsewhere than in the jail of the county. The ■creditor having recovered against him, as sheriff, for the escape, But brought his action on the case against the board of commissioners of the county, to recover the damages he had thus sustained by reason of its neglect of duty to provide a jail. The ■court, Burnet, J., dissenting, held the action to be well brought, on the ground that the commissioners were the agents and representatives of the county. In that opinion, for the reasons before indicated, as well as on the authorities about to be noticed, we find ourselves unable to concur. We can not but think that county commissioners are not agents or representatives of the; county in any such sense or manner as to render the people of the county justly answerable for their neglect. The reported opinion of the majority of the court in that case may furnish very abundant reason why the utter neglect of county cornmissioncrs to furnish a jail, and, the sheriff himself being in no fault, a plea of these facts ought to be held a good bar to an action for an escape, and the creditor turned over to an action against the commissioners personally; or, why, if such plea be held bad, the sheriff might maintain his action against the county commissioners in their individual capacity, for the personal injury resulting *to him from their neglect — and as to these alternatives, the question not being directly before us, we express no opinion — but it affords-to our minds no satisfactory reason why the people of the county should be held pecuniarily responsible for the delinquencies of officers over whose acts that people have no supervision or control whatsoever. And the case itself, as before remarked, stands alone. At the time it was made, it was unsupported by any reported case; and, so far as we can ascertain, it remains still unsupported by any case outside of Ohio; while the cases on the other side are uniform, and so numerous as to render a particular notice of all of them too tedious to bo attempted.

The leading case on this subject seems to be that of Russell v. The Men of Devon, 2 Term, 6G7, which was an action on the case against the men dwelling in the county of Devon, to recover satisfaction for an injury done to a wagon of the plaintiff in consequence of a bridge being out of repair, which ought to have been repaired by the county ; to which two of the inhabitants, for themselves and the rest of the men dwelling in that county, appeared and demurred generally. On hearing, the court of king’s bench unanimously sustained the demurrer; and this, apparently, on three grounds: 1. That there was no precedent for such an action; 2. By reason of the inconvenience resulting from the multiplicity of actions for contribution to which a recovery and levying of the judgment upon the inhabitants of the county would give rise; and, 3. That the county of Devon had no fund out of which satisfaction could bo made. And this last reason, it seems to us, applies with great weight to the case in hand. It is true, counties in Ohio have a treasury, and in it various funds. But those funds are all raised for specific purposes ; to those purposes they must be devoted; th© commissioners are authorized to levy no tax, except for such purposes as are authorized, by statute; and we have no statute authorizing the levy of a tax to satisfy such a judgment as this. And in Boalt v. Commissioners of Williams County, before cited, it was decided that a bill in chancery would not lie against a county to subject equities, and, in the opinion of the court in that case, it is ¡assumed, arguendo, as indisputable, that county bridges, courthouse, ^public offices, jail, or poor-house can not be sold on ■execution at law.

In Riddle v. The Proprietors of the Locks and Canals on Merrimack River, 7 Mass. 169, Parsons, C. J., delivering the opinion of "the court, clearly lays down the principle on which we proceed. He says: “We distinguish between proper aggregate corporations .and the inhabitants of any district who are by statute invested with particular powers without their consent. These are in the books sometimes called quasi corporations. Of this description are counties and hundreds in England; and counties, towns, etc., in this state. Although quasi corporations are liable to information or indictment for a neglect of public duty imposed on them by law, yet it is settled, in the case of Russell et al. v. Inhabitants of the County •of Devon, that no private action can be maintained against them for a breach of their corporate duty unless such action be given by statute. And the sound reason is, that having no corporate fund, and no legal means of obtaining one, each corporator is liable to satisfy any judgment rendered against the corporation. This burden the common law will not impose but in cases where the statute is an authority, to which every man must be considered as assenting. But in regular corporations which have, or are supposed to have, a corporate fund, this reason does not apply.”

The same doctrine is asserted by the same court in Mower v. Inhabitants of Leicester, 9 Mass. 247; and is recognized as settled law by Angell & Ames on Corporations, sec. 630, note. So in South Carolina, 2 Nott & McCord, 537, Young v. Commissioners of the Roads; and White v. City Council, 2 Hill, 571. So in Connecticut, Ward v. The County of Hartford, 12 Conn. 404. The case of the Freeholders of Sussex County v. Strader, 3 Harr. (N. J.) 158, before alluded to, was an action brought by Strader against the county of Sussex, New Jersey, to recover damages for an injury to a team of the plaintiff, on account of a defect in a public bridge which the -chosen freeholders of the county were bound to keep in repair. In that case the court not only sustain the doctrine and distinction laid down in the Men of Devon, and by Chief Justice Parsons, *in 7 Mass., but Chief Justice Hornblower, in delivering his opinion, supposes, and remarks upon almost the very case before us. He says: “ It is the duty, for instance, of the board of freeholders to erect and keep in repair court-houses and jails. A neglect to do so may occasion great inconvenience, perhaps positive loss or •injury to some individual whose business or duty requires his attendance at court. The building, by being old and out of repair, may give way and break a man’s limbs, or occasion him an injury ■in some other way; but no one will pretend that in such a case an action would lie by the person injured against the county.”

The same doctrine was recognized and applied in Illinois, in Hedges v. The County of Madison, 1 Gilman, 567; by the Supreme Court of the United States, in Fowle v. Common Council of Alexandria, 3 Peters, 409; and is also applied and strongly urged and approved by the Supreme Court of New York, in the able opinion of Selden, J., in Morey v. The Town of Newfane, 8 Barb. S. C. 645.

It is undoubtedly competent for the legislature to make the people of a county liable for the official- delinquencies of the county commissioners, and if they think it wise and just, without any power in the people to control the acts of the commissioners or to exact indemnity from them; but this has not yet been done, and we think that such liability can not be derived from the relation ■of the parties, either on the principles or the precedents of the common law.

In conclusion, and at the risk of the penalties of tautology, I repeat, that while, both upon principle and authority, we find ourselves compelled to overrule the case of The Commissioners of Brown County v. Butt, as having been erroneously decided, we do so with extreme reluctance, and with all respect for the judgment and veneration for the memory of the judges who decided it; but, with our convictions, we could not do otherwise, and in overruling it, we are satisfied we are contributing to place the law of Ohio upon a.footing of sound principle, as well as in harmony with that of other states, whose jurisprudence, like our own, rests on the basis of the common law.

Judgment reversed.

*Bar.tley, C. J., and Swan, Bowen, and Scott, JJ., concurren.


text:
    The State of Ohio, on relation of Elias Ellis, v. The Commissioners of Muskingum County.
    The period for the expiration of the term of office of a county treasurer, held by appointment to fill a vacancy, is subject to legislative regulation.
    The office of county treasurer, thus held, terminates on the first Monday of June next following his appointment, if a successor to the office shall, before that time, be elected and qualified.
    There is no provision in the laws of this state authorizing the election, by the people, of a county treasurer to fill a vacancy in that office, occasioned by the death of the incumbent.
    But the law does confer authority on the people of the county to elect a successor to the vacant office of treasurer, at the annual October election, who will in such case be entitled to hold the office for the full term of two 3rears, commencing on the first Monday of June next after hia election.
    Motion for mandamus.
    At the October election in 1855, Benjamin Adams was elected treasurer of Muskingum county, and entered upon the duties of bis office on the first Monday of June, 1856. On the 16th of September, 1857, Adams died; and on the 17th of the same month the commissioners appointed John Dillon to fill the vacancy. On the 18th of September the sheriff gave notice, by proclamation, for the election of a treasurer for the full term, and also one to fill the vacancy. At the annual October electipn then nest following, Ellis was elected to fill the vacancy, and on the 20th of October, 1857, the governor issued to him a commission, authorizing him to hold said office until the first Monday of June, 1858. On the 30th of October, 1857, Ellis presented his commission to the county commissioners, together with his bond, the necessary sureties thereto, and his oath of office indorsed thereon, for their acceptance. The commissioners refused to accept the bond, on the ground that there was no vacancy in the office.
    *The relator asks for a writ of mandamus to compel the commissioners to accept his bond.

      G. W. Searle and A. P. BloeJcsom, for the relator.
    P. Stillwell, for the defendants.
   Bowen, J.

Article 10, section 2, of our present constitution, provides that county officers shall be elected on the second Tuesday of October, until otherwise directed by law, by the qualified, electors of each county, in such manner and for such time, not exceeding three years, as may be provided by law.

The legislature is thus vested with the power to regulate the mannev of electing county officers and their terms of office. Tbeperiods when the duties of the office shall commence, and when they shall terminate, are the subject of statutory regulation. Vacancies which may occur in them are also left to be provided for by the legislature.

In fixing the time at which a county treasurer shall obtain control and enter upon the duties of his office, considerations of convenience to the public, as well as to the incumbent, have, doubtless,, influenced, to some extent, legislative action on the subject.

By existing laws the taxes are required to be paid to the treasurer between the first Monday of June and the 20th of December of each year. On the 15th of January annually he is required to-make settlement with the county auditor; and on the first Monday of February pay to the treasurer of state all of the moneys by him, received for state purposes, and at the stated meeting of the commissioners in June he must make a full settlement with them of all, of his receipts and disbursements during the past year. A balance-sheet between himself and the county is then made up, and a new' fiscal year commences. While an officer is in the actual performance of these various duties between the commencement and termination of the fiscal year, to put another in his place would be-attended with great inconvenience, and might produce mischief to-the public interest. *When death or other causes creates the necessity for the introduction of a new incumbent into the office,, the evils incident to the change, however great, must be borne. Provision might, doubtless, be made by law for supplying an unexpired term of the office, by election to a vacancy happening therein, and the inconveniences attending the change of incumbents, somewhat guarded against. If our present statute intended to confer that power we should expect to find in it some appropriate and necessary regulations, directed to that end. The absence of any such provision may be taken as evidence of a contrary intention on the part of the law-makers. It affords, to say the least of it, a satisfactory reason for not adopting the construction claimed by the relator in this case.

The act of March 12, 1831, fixed the term of office of county •treasurers at two years from the first Monday of June next suc-cecding their election; and in case of a vacancy in the term, occasioned by death, or any other cause, the county commissioners were -required to meet forthwith, and'appoint a suitable person to •fill such vacancy, and the person so appointed, held his office until the expiration of the term for which his predecessor was elected.

This law was amended by an act passed May 1, 1854, and the section which thus regulated the treasurer’s term of office, was repealed.

The section now in force, provides that whenever the office of county treasurer shall become vacant by death, removal, resignation, neglect to give bond, or from any other cause, the county commissioners of the proper county, shall, forthwith, appoint some suitable person to fill such vacancy; and the person so appointed shall • • • hold his office until the next annual election, and until his successor shall be elected and qualified. Provided, that if such appointment shall not be made more than twenty days before the annual election next thereafter, then, in such ease, the treasurer so ■appointed, shall hold his office until the second annual election next after his appointment, and until his successor is duly elected and ■qualified.

It is claimed by the counsel for the relator that this amendatory *act is remedial of what was regarded as an evil under the old law, and supersedes, at the earliest day at which it can be done, the ■appointment of the commissioners by an election of the people. It is quite apparent that some essential changes in the practice which had before prevailed, were contemplated by the legislature in making this amendment. But docs it effect what the relator claims? If the appointment be made more than twenty days preceding the •second Tuesday of October, the person appointed holds the office until the annual October election, and till his successor is elected .and qualified. The successor here referred to, can mean no other than one who may be elected for the full term of two years. There is nothing said about supplying the vacant term by election, but the .appointee shall continue to serve in the office until the election, and until his successor can be qualified to take his place. This latter act, the law prescribes, can only be done on the first Monday of Juno. No one, under an election, can enter upon the duties of the ■office before that time, and then he is clothed with authority to remain for two years, and must so serve, for that length of time, unless he resigns the post. _ In the view we take of the question, there •can not be a fractional term filled by an election. Whenever the people of the county, by their votes, given at the proper time, choose a treasurer, they thereby confer on him the office for the full term allowed by law.

Dillon was appointed more than twenty days before the October •election. It was, consequently, competent for the people to choose a successor to Adams, who had died. This was done, and that successor is authorized, by the terms of the statute, to qualify himself, by giving bond, etc., to take charge of the office on the first Monday of June, 1858. He will be entitled to remain in office for two years from that date. The election of the relator, for the unexpired term •of Adams, was a proceeding unauthorized by the law. We know of no statute which sanctions it. If twenty days between Dillon’s appointment and the October election had not intervened, there could have been no successor chosen until a subsequent annual election took place, which would have extended Dillon’s commission to the first Monday of June following such *subsequent election. In some cases this would give to the appointed treasurer nearly a full term of the office, while in other instances it would circumscribe the term to a shorter period than the law gives to the elected treasurer. But this can make no difference as to the construction of the statute, the obvious intent of which, we think, is that the appointee to a vacancy becomes treasurer de jure, till an election of another for the usual term prescribed by law, supersedes him in the office.

The county commissioners properly refused to accept the relator’s bond, or to recognize his right to the office of treasurer of that county.

The motion is overruled.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.


author: J. R. Swan, J.

text:
    Thomas Lawson v. Thomas S. Bissell.
    An appeal from the common pleas to the district court vacates the report of referees under the code; and the case stands for trial as if no reference had been made below.
    In error to tbe district court of Scioto county.
    The facts are as follows:
    July 27,1853. Bissell brought a civil action against Lawson, in Scioto common pleas, to enforce the specific execution of an alleged' parol contract, for a ninety-nine-years’ lease from Lawson to him, and also to recover certain supposed profits, alleged to have been derived by Lawson, from the premises covered by the contract.
    August 22, 1853. Lawson answered, denying the alleged contract, or Bissell’s possession or performance, and also his claim to the profits ; averring that Bissell had had possession for a time as-his tenant, under a different contract,but had abandoned the same, *and gone away without paying his rent, and, by way of' counter-claim, demanding a judgment for the same.
    February 24, 1854. By consent, it was ordered by' the common* pleas, “that this cause, and the issues involved therein, be and stand referred to J. W. Collings, Esq., to state the accounts of the parties, to examine the parties on oath touching the issues, and to hear and report to the court upon all the questions involved in this cause. It is further ordered, that said roferee report to this court the evidence by him taken, and the facts found, and the conclusions-of law, separately.”
    November 4, 1854. The referee made his amended report (his first report having been referred back to him for amendment, etc.);, to which report Lawson excepted.
    May 25,1855. The exceptions to the report were overruled, and the same adopted and in all things confirmed. And thereupon judgment was given for Bissell, according to the findings of the-referee, and substantially as prayed for in the petition.
    From this judgment Lawson appealed to the district court.
    In the district court no order of reference was made ; nor was any testimony ever taken or heard in the cause, while pending in> either court, save that taken and heard by the referee of the common pleas.

      The district court pi’oceeded to hearing upon the exceptions to ■the report of the referee, made to the common pleas, adopting and confirming said report, and, on final hearing, finding as the referee had found, and giving judgment as the common pleas had done.
    Dawson seeks to reverse this judgment.

      A. 6r. Thurman (with whom were Moore & Davis), for plaintiff •in error, insisted that:
    I. The district court erred in giving judgment upon the finding ■of the referee of the common pleas, because his report was vacated by the appeal.
    A referee’s report stands either as the decision of the court to which it is made, or as a special verdict. Code, sec. 283. It has no higher dignity, and, like them, is vacated by an appeal.
    * Again: It is the policy of our law to give a party two trials —as well upon the facts as the law. Swan’s Stat. 516, 717; 1 Ohio St. 173; Ib. 511; Ib. 604; 3 Ohio St. 366; Ib. 543; 4 Ohio St. 210.
    But, if a referee’s report is not vacated by an appeal, a party is deprived of two such trials.
    The general construction has been that it is vacated.
    II. If the court gave judgment — not upon the findings of the referee, but upon what purports to be the testimony taken by him — ■ it erred.
    1. That was'not testimony, but merely the referee’s notes — and there is no pretense of any other testimony.
    - 2. Their return, by the referee, was unauthorized by law and inconsistent with the code.
    3. If they could be looked at at all, it was only by the common pleas, when considering the exceptions to the report.
    4. They fell with the appeal.
    III. An “exception” to the judgment of the court was not necessary.
    The code only gives an additional mode of taking an exception, to wit, by journal entry. It does not require an exception where a bill of exceptions was not necessary under the former practice. Hence, exceptions are necessary only:
    1. To bring some fact upon the record which otherwise would not appear in it; or,
    2. To save some point which otherwise would be waived by the subsequent proceedings; or,

      3. To call tbe attention of the court — while the proceedings are in fieri — to some accidental error, or erroneous interlocutory ruling, in order to afford the court an opportunity to correct it.
    The first and second of these rules manifestly have no application to this case. Neither has the third, for it applies to interlocutory matters simply — never to final judgments.
    Suppose, for example, that the record shows that there was no cause of action — or that the proceedings were coram non judice— or that a district court rendered judgment upon the findings of *the common pleas — or, as in this case, rendered judgment without testimony, verdict, subsisting report of referee, confession, or default — are such judgments intangible if not excepted to when rendered? Surely not.
    IT. If an exception were necessary, the exceptions to the report were sufficient. • They were a standing exception to any judgment that might be rendered on that report.
    The code is to be liberally construed to promote justice (sec. 2), and this court has said that, in code proceedings, it “will look, at the substance of things, regardless of mere names.” 6 Ohio St. 227.

      Glover, for defendant in error.
   J. R. Swan, J.

Whether the report of referees is vacated by an appeal is not settled by any provision of law.

The code must be construed upon this question with a view to the laws in force relating to our system of practice.

The effect of an appeal of a cause tried by a jury is to vacate the submission to the jury, the verdict, and judgment; and the district court proceed in the action appealed, as if there had been no trial in the common pleas.. So, if the issues are submitted to the court of common pleas, and verdict and judgment rendered by the court, an appeal vacates the verdict and judgment.

Instead of submitting a case to a jury or the court, the code provides for a third mode of deciding the issues of fact and law: and this is by referees. The referees are substituted for the court and jury; and their province is to decide the facts of the case, if the facts only are submitted; or both the facts and the law of the case, if both are referred. Code, sec. 283. The trial before referees is oonducted in the same manner as a trial by the court on submission. The evidence is not to be reduced to writing. All such exceptions, as could be made in the progress of a trial before the-court, may be taken by either party in a trial before referees; and it is only in case an exception is taken, that so much of the testimony as may be necessary to give point and ^effect to the exception must be embodied in the bill of exceptions. When the reference is to report facts only, the report has the effect of a special verdict; if the reference is of the facts and law, the facts and the conclusions of law are stated separately, and the report stands as the decision of the court, and judgment maybe entered thereon as if the action had been tried by the court. The decision of the referees, however, may be reviewed by the court.

These provisions of the code show very clearly that while the trial before referees is subject to the review and revision of the court ordering the reference, it is a substitute for a trial in court. The finding of the facts is, in effect, the special verdict of a j.ury. The conclusions of law of the referees stand as the law decision of the court; and if not set aside, a judgment follows of course.

Now, shall a special verdict of a jury, and the decision of the court thereon, be at once vacated by an appeal, and the report of facts and conclusions of law by referees be held intact on appeal? We can perceive no good reason for such a distinction. If it be deemed necessary for the ends of justice, that a suitor should be entitled, on his own mere motion, by appeal, to two jury trials, to determine the facts of the case, he ought not to be concluded by facts found by referees, when their finding is'a substitute only for, or takes the place of, a single jury trial. The unnecessary expense and delay growing out of a vacation of the report is certainly a very pressing reason against another trial of the facts in the district court; but this reason is equally formidable where there has been a trial and a special verdict of a jury in the court of common pleas.

The report of referees is vacated by an appeal; and the case stands for trial in the district court as if no reference or report had been made below.

The judgment of the district court must be reversed.

Bartley, C. J., and Brinkerhoee, BoWen, and Scott, J.J., concurred.


author: Bowen, J. Bartley, C. J.,

text:
    *John Kanaga v. Jonah R. Taylor.
    Where K., residing in the State of New York, took a chattel mortgage from G., who resided in the same place, conditioned to secure part of the purchase money from the chattel which was the subject of the mortgage, in three monthly installments, and the mortgage was registered in the proper office of the same state, and there became valid between the parties, and G. afterward, before breach of the condition, removed into Ohio, taking with him the chattel, without the knowledge or consent of K., and there made sale of it to a third party, an action by the mortgagee will lie, in this state, to recover the value of the property from the purchaser, although he may have bought it without notice of the mortgage lien.
    Where personal property has been mortgaged in another state, and the mortgage is recorded in the town where the mortgagor and mortgagee reside and where the property is held at the time of the execution of the instrument, a subsequent removal of the mortgagor to this state does not render a new record or filing of the mortgage here necessary.
    By the law of comity between different states, the lex loci contractus controls as to the validity and construction of personal contracts, though not as to the remedy or rule of evidence; nor where it clashes with the rights of our own citizens, or the policy of our own laws.
    Motion for new trial.
    Reserved in the district court of Cuyahoga county.
    The plaintiff in his petition, which was filed March 2,1854, claims, that ever since the 17th of September, 1853, he has, by virtue of a chattel mortgage, been the rightful owner of a certain piano forte, and that the defendant, at the time aforesaid, came into possession of said piano, knowing it to be the property of plaintiff, and has refused to deliver it to plaintiff, although it has been demanded, and has converted it to his own use; by reason whereof, the plaintiff claims he is entitled to recover of him the amount due on said mortgage, being $157.00, with interest from September 17, 1853.
    The defendant, in his answer, denies that the plaintiff has any right either of property in, or possession of, said piano; and says he purchased it on or about September 17, 1853, of one Henry Moore, an auctioneer, and has himself the right both of property in, and possession of, said piano.
    *The jury, under the charge of the court, having found a verdict for plaintiff, the defendant moved for a new trial, because:

      1. The court did not charge the jury as requested by defendant’s ■counsel in any particular.
    2. The court erred in the charge which it gave to the jury.
    3. The verdict was for plaintiff, when it should have been for defendant.
    From the bill of exceptions the following facts appear:
    On the 17th day of June, 1853, the plaintiff, at Buffalo, New York, •sold a piano forte to one William Gregory, of that place, for $225.00, to be paid for as follows: $25.00 in hand, and $661&$r every thirty days, until the whole was paid, with interest.
    The $25.00 was paid in hand, and a mortgage was executed on the piano by Gregory to the plaintiff, to secure the balance, and the ■piano was delivered over to Gregory, and taken by him to his residence in Buffalo. Plaintiff had no knowledge or expectation that the piano was to be removed from Gregory’s dwelling-house; but ■it was taken with the understanding that it was to remain in his family for his private use, and that plaintiff was to keep it in tune ■one year.
    The mortgage was registered in the office of the clerk of Erie ■county, at Buffalo, New York, June 17, 1853, and became valid by the laws of that state.
    Two weeks after the execution of the mortgage the plaintiff called at Gregory’s house and ascertained that the piano had been previously boxed up, and that Gregory had removed to Cleveland, Ohio, taking it with him.
    It was proved by the testimony of Henry Moore, a witness called by defendant, that on the 12th of July, 1853, Gregory came to ■him, representing himself to be a resident of Cleveland, Ohio, but that he had lately come from Buffalo, New York; that said Moore was, at the time, an auctioneer and commission merchant in Cleveland ; that Gregory brought the piano to him and wanted an advance of one hundred dollars, which Moore made, and took of Gregory the following instrument:
    “Received, Cleveland, July 12, 1853, of H. Moore, one hundred dollars, advanced on a piano forte, to be sold at auction at the expiration of sixty days, «unless the money be returned. In .the meantime, to he held at private sale for two hundred dollars. I agree to pay at the rate of five dollars per month, to include interest, commission, and storage. William Gregory,

      “For L. Maiten, Bedford, Ohio.”

      On the 22d of July, 1853, Gregory applied to Moore for a further advance upon the piano, when the latter gave him twenty-seven dollars, and took from Gregory a paper of the following tenor :
    “Received, Cleveland, July 22, 1853, of Henry Moore, twenty-seven dollars further advance on piano forte, now in his possession, and unless I return the said sum of twenty-seven dollars to him by the 11th day of August, 1853, then the said piano is absolutely his, and I hereby agree to warrant and defend him in possession of the same. William' Gregory.”
    Moore asked Gregory if there was any claim against the piano. Gregory told him there was not. Moore said that it was a question which he always asked when property was left with him for sale,, and he was unacquainted with the parties. Moore further stated that he never heard of any lien or claim being on or against said piano, until late in the fall of 1853, and some two or three months-after the sale to the defendant, when he was notified of the mortgage, and the piano demanded. That previous to selling the piano-, to the defendant he sold it to another person for his (Moore’s) benefit, and after that sold”it to the defendant, at private sale, for $175.00.
    .No steps were taken by plaintiff for several months after Gregory left .Buffalo, taking the property with him to make known his-claim, or recover the property.
    Nor was the mortgage deposited for record in any clerk or recorder’s office in Ohio. Gregory made payment on the mortgage, so as to reduce the amount at the commencement of this suit to-$157. The defendant and Moore were citizens of Ohio at the times-aforesaid.
    This state of facts appearing, the defendant’s counsel requested the court to charge the jury:
    1. That the mortgage can not be enforced in this state, as a eon-tract made in New York, except by comity, and that by *eomity it can not be enforced, when it clashes with the rights of our' own citizens.
    2. That if the piano forte was in the State of Now York when the mortgage was executed, and was left in possession of the mortgagor, and by him brought to the city of Cleveland and pledged or sold to a citizen of Ohio for a valuable consideration paid, and without any notice of the plaintiff’s claim, the plaintiff can not recover in this action, unless the mortgage was deposited in the proper office, in Ohio, as required by “ an act to require mortgages or bills-of sale of personal property to be deposited with township clerks.”
    3. That if the mortgagee, after said piano forte was brought to Cleveland from Buffalo, by the mortgagor, delayed an unreasonable time to pursue said property, and take it, or give notice of his claim on the property, by depositing his mortgage as is required by the-aforesaid law of this state, or otherwise to give notice of his claim, and in the meantime the property was sold or pledged to a citizen of Ohio for a valuable consideration paid, without notice of the-plaintiff’s claim, then the plaintiff could not recover. This charge the court refused to give.
    The court directed the jury — That the mortgage upon which plaintiff bases his right to' recover in this action, being a mortgage-executed in the State of New York, and the property and parties-being there at the time the mortgage was executed, if the mortgage was valid by the laws of the State of New York, it was valid here, and would entitle the plaintiff to recover, and it was not necessary for him to deposit the mortgage for record in any office in Ohio. That leaving the property' in the possession of the mortgagor, and permitting him to remain in possession of it, was prima facie evidence that the mortgage was fraudulent in fact, but this presumption was liable to be rebutted by testimony showing that the transaction was fair and honest, and founded upon a good consideration. That if such presumption of fraud was rebutted, the fact that the-property was taken to Cleveland, and there sold to a citizen of Ohio, or pledged for a valuable consideration paid, without notice of the-mortgage, the plaintiff was still entitled to recover, as against said purchaser or pledgee, *and the mere right to pursue after said mortgaged property for the time it appears by the testimony in this case to have been omitted, and retake it, or deposit his mortgage in the proper office, as required by the laws of Ohio above named, would not prevent the plaintiff’s recovering, so long as said mortgage was kept good by the laws of the State of New York; and the fact that interests of citizens of Ohio were to be affected in this action, made no difference, as they could claim no better or greater privileges than if they were citizens of the State of New York.
    To which charge, and refusal to charge, defendant excepted, and now asks for a new trial.

      Bishop, Backus &-Noble, for defendant,
    in support of the motion •for a new trial, urged the following points:
    1. We claim that the plaintiff’s lien by virtue of his mortgage, was lost by the mortgagor’s bringing the property into the State of Ohio and disposing of it to a citizen of Ohio, by pledging and afterward selling it, without the pledgee or purchaser having any knowledge of the plaintiff’s mortgage. Story Confl. Laws, secs. 244, 323, 326; Ingraham v. Greyer, 13 Mass. 146, 147; Skiff v. Solace, 23 Vt. 279; Potter v. Brown, 5 East, 124; Martin v. Hill, 12 Barb. 632.
    2. The plaintiff’s claim should fail, because to enforce it would ■not only prejudice the rights of our own citizens, but it would contravene our own positive law and policy. Story Confl. Laws, secs. 323-328; Swan’s Rev. Stat. 315; 2 Hilliard on Mortg. 212, 244, 250; Leland v. Medora, 2 W. & Minot, 103.
    3. If the plaintiff’s claim was ever available in this state, it was by comity, and it would work injustice to enforce it against the defendant, and therefore it can not prevail.
    It is a principle well established, that comity will never require the tribunal where the remedy is sought, to enforce a claim arising under a foreign contract, so as to work injustice, but the court enforcing this claim will look to the justice of the case. If the justice ■of the case is regarded here, the defendant certainly must succeed. Wrightman v. Steamboat Albree, American Law Reg., vol. 4, Nos. 1 and 2, p. 119.
    *For the courts of Ohio to enforce the plaintiff’s mortgage .against the defendant, would contravene the principle so clearly settled in Selsor v. Brock, 3 Ohio St., 308, “ that where one of two innocent persons must suffer by the fraud of a third person, he who trusted the third person, and placed the means in his hands to ■commit the wrong, must bear the loss.” See also Root v. French, 13 Wend. 572.
    In this case the plaintiff is trebly in fault. 1. He left the propperty in the mortgagor’s hands, thus enabling him to pass it off to an innocent purchaser or pledgee, without notice of his claim ; 2. He did not send his mortgage to Cleveland and deposit it in the proper office; 3. _ETe delayed for months to pursue after and look up the property. And by these means ho gave Gregory abundant opportunity to deceive others, of which opportunity he availed him.self most fully. See Story’s Confl. Laws, see. 386, note 1. Also 4 Mass. 467.

      Willey & Cary, for plaintiff, argued:
    That a ease of this description is not within the letter or spirit, of our statute; that the plaintiff is entitled to the enforcement of his mortgage in the same manner as if no legislation upon the subject had transpired; that to enforce it would neither prejudice the rights of our own citizens, in the sense to which that principle is limited, nor contravene any law or polieyof Ohio; that the claim of the plaintiff was not impaired by his omission to record his-mortgage in Ohio, nor by the comparatively brief interval which elapsed after the property was removed, nor by any act of his-tending to the prejudice of third persons.
    The plaintiff was entitled to a recognition of his mortgage lien. Roland v. Gowdy, 5 Ohio, 200; 1 Kent Com. 262; 5 Serg. & Rawle, 130; Hooban v. Bidwell, 16 Ohio, 509; Coles v. Clark, 3 Cush. 399; 2 Hill. Mort. 315, secs. 4-7; Brown v. Bement, 8 Johns. 98; Langdon v. Buel, 9 Wend. 83; Ackley v. Finch, 7 Cow. 292; Whitney v. Heywood, 6 Cush. 82; 1 Cow. 496; 12 Met. 310; 2 N. Y. Rev. Stat. 318, secs. 9,10; Supreme Court of N. Y. (McNett’s Dep.), Martin v. Hill, 12 Barb. 631; Story’s Confl. Laws, secs. 391, 402; *p. 668, sec. 402; p. 366, secs. 35, 242, 390-402; Offutt v. Flagg, 10 N. H. 46; 2 Hill. Mort. 258, see. 31; Hoit et al. v. Remick, 11 N. H. 285; Brigham v. Weaver et al., 6 Cush. 298; Longworthy v. Little, Law Rep. Nov. 1853, 410, (C. J. Shaw); Strang & Simpson v. J. G. Tenant et al. (Dis. Ct. Hamilton Co.); 2 Hill. Mort. 221, sec. 40; Lane v. Borland, 2 Shepp. 77.
   Bowen, J.

The motion for a new trial, in this case, is urged by the counsel for defendant, on the ground, mainly, that the plaintiff’s-lien, by virtue of his mortgage, was lost by the mortgagor’s bringing the property into this state and disposing of it here, to a purchaser having no knowledge of the mortgage.

It is admitted that the instrument, under which the plaintiff claims to recover, was valid in New York. It was not only executed, as the law there requires it should be, but it was-registered in accordance with the statute, in the town where' both parties resided, and the possession and use of the chattel, by the mortgagor, were there fully sanctioned by law. Before any breach in the payment of the money had occurred the property was removed into this state, and became subject to our laws. This removal was without the plaintiff’s permission, and if the transaction be closely scanned, it was, as to the mortgagor, an act not characterized by too strict regard to integrity, or the rights .and expectations of the mortgagee. Almost as soon as he arrived in Cleveland, he began to manifest an intention to defeat the plaintiff’s security. He at first assumed to pledge it to Moore, as the property of another, and not his own. He apprised Moore, however, that he had just come from Buffalo. . After getting as much for the piano as he could, by the devices which he adopted, he allowed it to be sold, knowing, quite well, that he had not paid for it, and that the security might, and as he doubtless supposed would, by such act of his, be entirely cut off as to the mortgagee, who had sold him the property. There is nothing to show the least want of diligence on the part of the plaintiff. The money secured by the mortgage, became due on the 17th of September, 1853, on which day the sale was made to the defendant in Cleveland. *This action was commenced in March following, by .a citizen of New York. Shall he be allowed to enforce his lien, under the mortgage, in the courts of this state?

The statute law of New York, in regard to the record of chattel mortgages, is, in the object and spirit of it, almost identical with ours. Mortgages, or bills of sale of personal property, and intended to operate as such, must be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the thing mortgaged, or the instrument deposited with the clerk of the township where the mortgagor resides, or if a non-resident, where the property shall be at the time of its execution, else, by the law of this state, the mortgage is void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith. Stat. 315. The law of New York is founded in the same policy, and contravenes no rights of our citizens, and is not at variance with any law, nor in violation of any principle of our government, either civil, political, or moral. Had the same mortgage been executed and filed for record here, it would be our ■duty to give it effect and protect the parties in their rights under it. The registry of such instruments is required to be made at the place of the transaction, or where the mortgagor may reside, in order to convey notice to others who may wish to become interested as purchasers or lienholders in the same property. It gives to the public the means of learning what has been transacted in relation to the incumbrance of property, and of deriving benefit, from a knowledge of it, which, in the absence of such salutary regulation, would be in the secrets only of the immediate parties interested, and might lead to the perpetration of fraud upon innocent persons. When that act is done which is necessary to give validity to the contract, at the time, and in the place and manner pointed out, the whole duty, in regard to it, is at an end. It is not made necessary to go into other townships, nor into other states, to procure hew registrations. The law has, for wise purposes, omitted any such requirement. Holding this instrument, then, as the plaintiff did, as a legal and valid one, by the law in force where he obtained it, he was entitled to enforce it; but as *the power to do that had been cut off by the removal of the property beyond the jurisdiction of the state, it was proper for him to sue in the courts of this state, and to derive the same relief by his action, as if he were pursuing a remedy where the contract was made. Offutt v. Flagg, 10 N. H. 46; Martin v. Hill, 12 Barb. 632.

It is a general rule of international law, that the rights of the parties to a contract, as distinguished from their remedies, are to be determined by the law of the place where the contract is to be performed. If a contract be made in one state or country, and it appears upon its face that it is to be performed in another, it will be presumed that the contract was entered into with reference to the laws of the latter, and those laws will be resorted to in ascertaining the validity, obligation and effect of the contract. This general rule, however, has its exceptions ; one of which is, that where a contract; is declared void by the law of the state or country where it is made, it can not be enforced as a valid contract in any other, though, by its terms, it was to have been performed there. Hyde v. Goodenow, 3 Conn. 266. So, if the law Of another government is in conflict with our own system of jurisprudence, or contravenes the policy of our government, there is no rule of comity or of international law which imposes on us the least duty to observe it.

In this case, as has already been shown, the New York law of chattel mortgages is entitled to full consideration for its harmony with our own law upon the subject, and we feel no hesitation in giving effect to it.

Gregory held the property subject to the condition of the mortgage, which was the payment of the money, as specified therein, or in ease of default, the plaintiff was authorized to take possession of, and to sell it. The default occurred after the property had been removed into a foreign jurisdiction. Gregory had no power to confer .any better title than he held; and those who might desire to-purchase of him, were bound by the rule of caveat emptor. True, there was no record of the mortgage in Ohio, but Gregory was a stranger to Moore, and apprised him that his late residence was Buffalo. This ought to have excited inquiry by *Moore, which might quite as well have been instituted in Buffalo as in another county of this state. He can not charge upon the plaintiff the consequences of this neglect of his. He took the property subject to the incumbrance upon it; and that amount, we think, was very properly found and reported by the jury in favor of plaintiff.

The motion for a new trial is overruled, and a judgment may be-entered on the verdict.

Swan, Brinkerhoee, and Scott, JJ., concurred.

Bartley, C. J.,

concurred in the judgment of the majority of the court, but differed as to the grounds upon which the majority placed it.