author: Minshalr, J.

text:
    Railway Co. v. O’Harra, Adm’r.

      Administrators—Legal capacity of, to sue—Damages—Practice in civil cases.

    1. An action by an administrator to recover of a railroad company compensation and damages for wrongfully taking and appropriating lands of tbe decedent during bis lifetime, cannot be maintained, for tbe reason tbat sucb wrongful taking did not divest tbe decedent of bis title to the land; and the land, therefore, descended at bis death to bis heirs.
    Where tbe petition in sucb action, in addition to a claim for sucb compensation and damages, makes a case, and asks a recovery, for such damages to the lands of tbe decedent as be could have recovered in bis lifetime in an action of trepass, or case, without separately stating and numbering the same, a failure to demur to tire petition on tire ground of a want of legal capacity to sue, is not such a waiver of the objection as willpreclude the defendant from making it by an objection to evidence offered at the trial, or in a motion for a new trial, on the ground that the verdict is contrary to law.
    (Decided December 19, 1893.)
    Error to the Circuit Court of Mahoning county.
    The plaintiff below, as administrator of Anna Eoftus, deceased, commenced an action November 22, 1887, in the court of common pleas of the county to recover damages for the wrongful appropriation by The Eawrence Railroad Company of part of a highway of which the decedent was owner of the fee simple at the time, and of which she died seized; for the injury to her easement of ingress and egress to certain of her lands abutting on the highway; and, also, for consequential damages to the same. By reason of the nature of the questions made upon the record, the petition is here set out, and is as follows:
    “Plaintiff says, that he is the duly and legally appointed and qualified administrator with the will annexed of Anna Eoftus, deceased; that he was appointed such administrator by the probate court of Mahoning county, October 81,1887; that Anna Eoftus died about the 27th day of December, 1869; that no executors ever were appointed under her said will, and that no administrator ever was appointed until said October 31, 1887.
    “That The Eawrence Railroad Company is a corporation of the state of Ohio, owning a line of railroad from Youngstown to Eawrence Junction, in the state of Pennsylvania; that the Pennsylvania Railroad Company, .is a railroad corporation of the state of Pennsylvania, doing business in, and operating lines of railway in the state of Ohio.
    “That in the year 1868, and at the time of the wrongs and grievances hereinafter related, Anna Eoftus was the owner of the following described tracts and parcels of land, namely:
    “ First parcel; Situated in Youngstown township, Ma-honing county and state of Ohio, bounded and described as follows:

      “On the east by lot owned and occupied by James O’Harra, five chains and eight links (5c., 8 1.); north by the Catholic burying grounds,ninetj'-nine links; west by lot contracted to Mathew Roitus; south by the Cleveland and Mahoning Railroad; being part of lot No. 45, in the original survey of the township of Youngstown, and containing one-half an acre of land, and all the title and interest of Henry Manning, either in law or in equity of, in and to the said premises, together with all the privileges and appurtenances to the same belonging
    “That Anna Roftus became the owner of said first parcel, by deed dated April 2, 1861.
    “Second Parcel: Situated in Youngstown township, in the county of Mahoning, and said state of Ohio, being part of lot No. 45, in the original survey, containing one and 47-100 (1 47-100) acres, beginning at a stake in the north line of the land owned by Henry Manning, Sr., conveyed to the Cleveland and Mahoning Railroad, which stake is also the southeast corner of the lot which Henry Manning has contracted’to Owen Roftus; thence north 50°, east 7 chains, 9 links, to land sold by Henry Manning to William Jones; thence south 51J°, east on Jones’ line 1 chain 7 links, to the west line of the Catholic cemetery lot: thence southwardly on the line of said cemetery to the southwest corner of the same, and thence on the westerly line of a small lot deeded by Manning to Anna Roftus, to the line'of land conveyed to the said Cleveland and Mahoning Railroad Company, and thence on said line to the place of beginning. Also all my right to land in front of this lot and between it and the highway, Henry Manning having in a former conveyance to said railroad company, reserved all the land not wanted for county or railroad purposes, and all the estate, title and interest of the grantors of said Anna Roftus, either in law or in equity of, in and to the said premises, together with all the privileges and appurtenances to the same belonging, containing one and one-half (1-J-) acres of land.
    “That Anna Roftus became the owner of said second parcel by deed dated September 3, 1864.

      “Third Parcel: Situated in the township of Youngstown, county of Mahoning and state of Ohio, and known as part of lot No. 45, in the original survey, bounded and further described as follows: Beginning at a stake standing on the line of Hubler’s lot; thence north 5(KJ¡-°, east 6 chains and 83 links, to William Jones’ lot; thence south 51°, east 3 chains and 2 links, on said Jones’ line, to a stake which is the corner of a lot sold to Mathew Eoftus; thence south 50£°, west on the line of Mathew’s lot, 7 chains and 9 links; thence north 39°, west 2 chains and 95 links, to the place of beginning, containing two acres of land.
    “ That on the southwest of these several parcels of lands, was a highway leading from Youngstown down Mahoning Valley, to Haselton, and all that section of country and the Mahoning Valley, lying south and east of Youngstown, and was the leading highway leading into and out of the city of Youngstown, and was the only way of ingress and egress to and from said several parcels of land heretofore described.
    “That said highway in front of said property, was from fifty to sixty feet wide, and was bounded southwesterljq by a fence erected by The Cleveland and Mahoning Railroad Company, that said Cleveland and Mahoning Railroad Company had their track southwesterly from this 'fence and between said fence and the old Pennsylvania and Ohio Canal.
    “That the said Cleveland and Mahoning Railroad Company, occupied said right of way, under deed from Henry Manning, dated April 24, 1858, in which Henry Manning expressly reserves to the use of himself and heirs, all of said premises not required by said company, for the use of said railroad.
    “That all the land required for the use of said Cleveland and Mahoning Railroad, was southwestern'' of the said fence so erected by them on the southwesterly side of the aforesaid highway, and the southwesterly boundary of said lots; was intended to and did extend to the aforesaid fence, erected on the northwesterly side of the said Cleveland and Mahoning railroad track.
    “That about the year 1868, The Eawrence Railroad Company wrongfully and unlawfully entered upon and took possession of said highway and land, and located their line of railroad thereon, and without making any compensation to said Anna Roftus, the then owner thereof, and wrongfully and unlawfully appropriated the same to its use, and on the said highway, and land dug up and removed the earth, and made a deep cut and excavation to the depth of from six (6) to ten (10) feet, for a place and bed whereon to lay the ties and iron rails of their locomotive railroad; and built and erected its railroad track thereon and shortly thereafter commenced to use said railroad tracks, so wrongfully located and built on the said highway, on and over the premises of Anna Roftus, and in front of the said parcels of land so described, at all hours of the day and night until some time about the year 1873, when pursuant to some sort of an arrangement or lease, which plaintiff has no definite information, the Pennsylvania Company obtained possession of said railroad track, so unlawfully located and built by the said Rawrence Railroad Company, and said Pennsylvania Company has ever since continued to use and occupy the said railroad track as the said Rawrence Railroad Company had formerly used the same.
    “That all of said wrongful acts and the appropriation of said right of way and the use thereof was done without any agreement with the owner thereof, Anna Roftus, and appropriated to its use said right of way, without first making compensation or securing the same by a deposit of money, and without having the compensation and damage assessed in a court of record as prescribed by the constitution of the state and the law of the land.
    “That such use of said highway was not within the contemplation of the parties at the time said highway was located and dedicated to public use; that the entering upon, digging up, removing the earth, and making said cut and excavation, and building thereon said railroad track, occupying from one-half to two-thirds of said highway was a new use of the same not contemplated by the parties at the time of the location and dedication of said highway, and in no wa}' consented to by the owners of the fee thereof, and those owning property located on and abutting on said highway.
    “That about the time of the unlawful taking and appropriation of said highway and land to its use, said highway by the extension of the city limits became and was East Federal street of said city.
    “That said described parcels of land aggregating about four (4) acres in extent at the time of the wrongs and grievances herein related, was valuable suburban property so situated and located on the extension of the principal street of the city of Youngstown, and was of the value of three thousand dollars ($3,000) per acre, or twelve thousand dollars ($12,000); that on the same were dwellings, and improvements, and appurtenances thereto,locatedand erected with reference to the use of said highway, as said highway existed previous to the wrongful and unlawful use and appropriation thereof by said Eawrence Railroad Company.
    “ That by reason of the wrongful location of said railroad so near to said dwellings and appurtenances, and the danger from fire, and the nuisance occasioned by the soot and smoke, and the noise of bells and steam whistles, and the continual jarring of windows, occasioning the loosening of plaster and breakage thereof, the destroying of cellar walls and chimneys, the said propertj'- with its appurtenances became and was substantially valueless.
    “That by reason of the wrongful and unlawful location, use, and obstruction of said highway, so unlawfully appropriated by the said Eawrence Railroad Company, travel was driven and directed from said street, and the right of ingress and egress to and from said lots made extremely hazardous and dangerous, and making said property impassable for anything but foot passengers.
    “That the small part of said highway so left is so narrow that it will not permit the turning of a team therefrom on to the said land so described, and so narrow that there is only room for a vehicle, without any room for a sidewalk thereon.
    “That the value of said parcels of land and the appurtenances thereunto belonging, after the said wrongful taking and appropriation, did not exceed the sum of one thousand ($1,000.00) dollars.
    “That the said Eawrence Railroad Company have ever since delayed making reparation for the wrongs so done, and making compensation for the property so unlawfully taken and appropriated to their use.
    “And that by reason of the premises, said Anna Eoftus has been damaged in her estate, to the extent of twenty thousand ($20,000.00) dollars.
    “Wherefore, said plaintiff, Patrick O’Harra, administrator •of Anna Eoftus, asks judgment against the said defendants for said sum of twenty thousand ($20,000.00) dollars, with his proper allowance for interest and his costs.”
    The answer contained a number of defenses, to which there was a reply. The issues were found in favor of the plaintiff, so that, on the record as presented, the questions arise'upon the petition taken as true, and the pleas of the statute of limitations, in substance that the action was not •commenced within two, four, six, or even ten years, after the cause of action, if any, stated in the petition, accrued
    On the trial to the jury the defendant objected to any evidence being received under the petition in the case, for the reason that it does not state facts sufficient to constitute a •cause of action: and, also, because the plaintiff has not legal •capacity to sue. The objection was overruled and the defendant excepted. And at the conclusion of the evidence the court was asked by the defendant to charge the jury ,‘that under the evidence that had been offered, the plaintiff •cannot recover, and your verdict should be for the defendant;” which was refused and the defendant excepted. The jury rendered a verdict in favor of the plaintiff for $1,200.00.
    The defendant then moved for a new trial on these, among other grounds. (1) That the court erred in overruling the •objection of the defendant to the receiving of any evidence under the petition in the case; (2) that it erred in refusing to charge as required; an.d (3) that the verdict is contrary to law. The motion was overruled, exception taken and judgment rendered on the verdict. The judgment was affirmed on error by the circuit court—to reverse which judgment and that of the common pleas, this proceeding is prosecuted.
    The errors assigned are substantially the same as the grounds relied on in the motion for a new trial.

      J. R. Carey, and Hiñe & Clark, for plaintiff in error.
    The defendant in error has recovered judgment for land taken and damages to adjacent lands, caused by the building of the Eawrence Railroad in 1868. His decedent died on December 27, 1869.
    Thus, whatever cause of action grew out of the building of the railroad accrued in the lifetime of Anna Eoftus and so set the statute of limitations running, and once set running her death does not stop it. Granger, administrator, v.. Granger, 6 Ohio, 35; Williams et al. v. Presbyterian Society, 1 Ohio St., 478; Bartlow v. Kinnard, 38 Ohio St., 373.
    This brings us to the question raised by the objection to-the receiving of any testimony under the petition, viz.: was the right of action which grew out of the construction of that railroad track, i. e.:-—the property in that highway, for the taking of which damages is asked, land at the time of the commencement of this action, or was it simply a right or chose in action ? It must be one or the other, and yet, if either, the action was barred. For if it was land, the administrator, whose official powers extend over personal property only (except for payment of debts), could not maintain the action—it could be maintained by the one only to whom the fee passed on the death of Anna Eoftus.
    If it was a chose in action the longest possible limit of its life was ten years from the building of the track, or to-1878. Revised Statutes 4985. While this action was not commenced until November 22, 1887.
    The question as to the definition of such land owner’s right, has not been expressly decided by this court, except it be in Railroad Company v. Hambleton, 40 Ohio St., 496, where the right to sue for damages is held not barred for twenty-one years, which is tantamount to holding that the property in the street is land. And this is distinctly held in Valley Railway Company v. Bouchot, 4 C. C., 187, citing Railway Company v. Gardner, 45 Ohio St., 309.

      W. S. Anderson and S. L. Clark, for defendant in error.
    1. . There can be no question under the law, that if Anna Eoftus had lived, her action was not barred at the time of the commencement of this action. Railroad Company v. Hamilton, 40 Ohio St., 496, 500; Lawrence Railroad v. Loftus, No. 1939; Lawrence Railroad v. Hackett, No. 1937; “Washburn on Easements, 19; Butler v. Peck, 16 Ohio, St., 247, 253.
    The taking of this easement is the disseizin of title to an incorporeal hereditament belonging to the lot owner. Tootle v. Clifton, 22 Ohio St., 252; Bidelman v. Fulk, 5 Watts., 308; Syler v. Hooker, 7 Cowen, 266; Railroad Company v. Hamilton, 40 Ohio St., 496, 500.
    If Anna Eoftus had lived, her right of action lived for twenty-one years. Can there be any good reason for saying that her action became barred, and a different period of limitation applies to the action because she died, and without any administrator or executor to represent her estate, ■until about the time of the filing of this petition ?
    Anna Loftus was deprived of a private right, of the nature of an incorporeal hereditament, legally attached to her contiguous grounds; an incidental title to certain facilities and franchises assured to her by contracts and .by law, and without which her property would be comparatively of little value. This easement, appendant to the lots, unlike any right of one lot owner in the lot of another, is as much property as the lot itself. Crawford v. Village of Delaware, 7 Ohio St., 459, 469; Bingham v. Doan, 9 Ohio, 157; Street Railway v. Cumminsville, 14 Ohio St., 523, 547; Peoria & R. I. R. R. Co. v. Rice, 75 Ill., 329; Satterfield v. Crow, 8 B. Monroe (Ky.), 553; Neal v. Knox and L. R. R. Co., 61 Me., 298; Moore v. City of Boston, 274, 277, 278; Boynton v. Petersborough and S. R. R. Co., 88 Mass. (4 Cush.), 467; Boonville v. Ormroa’s Administrator, 26 Mo., 193; Ency. of Raw, Vol. 6, p. 590 (note 5); Ballou v. Ballou, 78 N. Y., 325.
    But it seems to be equally well settled law that where land or property appurtenant to the land, as in the case at bar, has been taken during the owner’s life, the compensation is payable to the administrator. Weller v. Cowles, 4 Conn., 182; S. C. 10 A. M. Dec. 115; 61 (Me.), 298; 58 Mass. (4 Cush.), 469; 36 Barber (N. Y.), 600; Howcott's Exrs. v. Warren, 7 Ired. (N. C.), R, 20; Ency. of Law, Vol. 6, p. 590 (note 6); Chicago & A. R. R. Co. v. Maher, 91 Ill. 312; Toledo W. W. R. R. Co. v. Morgan, 72 Ill., 155;, 50 Ill., 325 ; 39 Ill., 205 ; 100 Ind., 409; McFadden v. Johnston, 72 Pa. St., 335; 108 Mass., 209; 50 Mich., 470; 63 Wis., 178; Crawford v. Rambo, 44 Ohio St., 279; Delaware Railroad Co. v. Burson, 61 Pa. St., 369, 378.
    Did her death change the cause of action or period of limitations ? Wait’s Actions and Defenses, 10; Angell, Sec. 1; Ency. of Raw, Vol. 13, p. 668 (note 1).
    II. The record shows that no demurrer was filed in this, case and no objection raised by the answer to the legal capacity of plaintiff to maintain the action. Sections 5064 and 5062, Revised Statutes ; Bates PI., Vol. 1, pp. 66, 67 ; Hoop v. Plummer, 14 Ohio St., 448; Palmer v. Davis, 28 N. Y., 242, 247; Tapley v. Tapley, 10 Minn., 448; Jones v. Steel, 36 Mo., 324; Perkins v. Ingersol, 1 Dillon, 417; Section 5013, Revised Statutes; Depuy v. Strong, 37 N. Y.,. 372; Zabriskie v. Smith, 13 N. Y., 322, 336; Zimmerman v. Sheonfeldt, 3 Hun., 692 ; Saline Co. v. Sappington, 68 Mo., 454; Ryan v. Mullinix, 45 Iowa, 631; McCormick v. Blossom, 40 Iowa, 256; Parker v. Wiggins, 10 Kan., 420; Lowry v. Harris, 12 Minn., 255; Dewey v. Moyer, 9 Hun., 473 ; Affirmed, 72 N. Y., 70; Donnan v. Intelligencer, etc., 70 Mo., 268. It cannot be raised by charge to the jury. Bates’ Pl., Vol. 1, p. 70 ; Dunn v. Hannibal & St. Jo. R. R., 68 Mo., 268. Nor in the court above. Bates’ Pl., Vol. 1, p. 70; Potter v. Ellice, 48 N. Y., 321; Cairnes v. Knight, 17 Ohio St., 68; 29 Ohio St., 624; O’Briens. P. S. V. R. R. Co., 119 Pa., St., 184.
   Minshalr, J.

The first assignment of error, the admission of any evidence under the petition, for the reasons stated—want of capacity in the administrator to sue, and the bar of-the statute of limitations, makes it necessary to determine the character of the injuries for which a recovery was sought, and the time in which an action may be commenced thereon. By a reference to the petition it will, appear that the plaintiff claimed that the decedent, Anna Loftus, at the time of the injuries complained of, was the owner of three certain tracts of land, which, on their southwest sides, abutted upon a certain highway, leading from Youngstown down the Mahoning Valley to Haselton, the only ingress and egress to these lands. /That about the year 1868, The Lawrence Railroad Company wrongfully and unlawfully entered upon and took possession of the said highway and land, and located its line of railroad thereon, without making any compensation to said Anna Loftus, the then owner thereof, and appropriated the same to its use, without any agreement with her, and without having the compensation and damages assessed in a court of record, as prescribed by the constitution and the law of the land. That the use thus made of the highway was a new one, not contemplated at the time of its dedication as a highway by the owners. That these tracts of land, being at the time suburban property, were very valuable, but were greatly depreciated by the location and operation of the defendant’s road on the highway, and the inconveniences and annoyances incident to such use. That the part of the highway left was so narrow as practically to destroy her right of ingress and egress to her lands; and that by reason of the premises, Anna Loftus has been damaged in her estate to the extent of $20,000. It is, therefore, evident, as we think, from a consideration of the substance of the petition, that the injuries for which compensation and damages were sought, were the unlawful taking of the highway, the fee-simple being in Anna Loftus at the time; the disturbance of her ingress and egress to her lots; and the consequential injury to her lands not taken, arising from the usual annoyances incident to the location and operation of a railroad in their immediate vicinity. The question then arises, for which, if any, of these injuries, could the administrator maintain an action ; and, if for any, could it be commenced after the lapse of time shown by the petition, since the cause of action accrued.

It seems to be settled by the previous decisions of this court that the wrongful taking of land by a railroad company for a right of way, does not divest the title of the owner, and reduce his remedj' to a mere claim for compensation and damages. He continues the legal owner of the land and has the right to recover it in any period short of 21 years from the taking. Railroad Company v. Robbins, 35 Ohio St., 483; Warner v. Tanner, 38 Ohio St., 120; Railroader. O’Harra, 48 Ohio St., 343; Railroad v. Perkins, 49 Ohio St., 326, 333; and it necessarily follows that at his death his title to the land with the right of recovery, as well as the right to compel the company to condemn and pay for the land under section 6448, Revised Statutes, descends to his heir and not to his administrator. Hence, so far as the administrator sought to recover for an}*- part of the land taken, included in the highway, the right of actidn was in the heir and not in him, and he had no right to sue therefor. And the same is true as to any compensation sought for the taking of the easement of the decedent in the highway as a means of ingress and egress to her lands. An easement of this kind belongs to the land, is a part of the realty, and on the death of the owner passes with the land to his heir. The administrator cannot recover .the land, nor compel compensation to be made, for, as shown in Railroad Co. v. Perkins, this can only be done by the “owner” of the property taken. But as to the damages which accrued in the lifetime of the decedent from the wrongful use made of her lands, the interruption of her easement, and the consequential injuries to her other lands, and for which she could have maintained a personal action, the case is different. Being choses in action the right to recover the same passed, at her death, to her personal representative as a part of her personal estate; and could only be recovered by the administrator within the time limited for the commencement of such actions, which is four years. It therefore appears, as we think, that the court erred in admitting any evidence under the petition, for the reason, that the right to recover compensation for the taking of the highway and her easement therein, was in the heir and not in the administrator; and the right to recover the damages that had been done to her property in her lifetime, was barred by the statute of limitations, pleaded in the answer; and, of course, he could recover nothing for damages of any kind, to the land that accrued subsequently to the death of the decedent, for the right to such damages is in the owner of the land.

The case of Railroad Company v. Hambleton, 40 Ohio St., 496, is relied on to support the judgment of the courts below. But we see nothing in that case that can be said to do so. The raising of the grade of the street above that which had been established, was held by the court to impose an additional burthen on the land, and permanently affect the value of the plaintiff’s property, and that the right to continue this change could not be acquired by an adverse use short of 21 years, that is for the length of time necessary to create a right by prescription; and, being a continuous injury, the plaintiff had the right to recover the damages to his property occasioned by the permanent impairment of his, easement in the street. That the court clearly distinguished between the damages occasioned by the taking of the plaintiff’s property and those resulting from a mere trespass or nuisance, is clear from what is said in considering the charge to which an exception had been taken. The language is, “The charge of the court on the trial below was correct, so far as the cause of damages were affected b}r limitation, that is, that for permanent injury the limitation would be twenty-one years, the whole period during which the act of the defendants in continuing the cause of such injury would be without legal right. And that for temporary injury the plaintiff would be limited to four years before his action for the same.”

The principle upon -which 'this case and those cited above, have been decided is, that the title to real estate is not changed bjr being taken for a public use, unless under an agreement with the owner, by proceedings in condemnation, or, the use has been continued as an adverse one beyond the period in which an action can be maintained to recover the possession. It therefore remains in the owner with all the incidents and character of real estate, passing by his deed, or, at his death, to his heirs. Hence, whatever title the decedent had to the soil of the highway on which the company constructed its road—whatever easement she had therein as a way to her lands, bounded on the highway, being realty, did not pass to her administrator as assets; and he has no right to recover the same, or to maintain an action in any form to recover its value. A recovery by him would not bar the right of the heirs or those claiming under them to recover the land with its easements and appurtenances, or its value in a proper proceeding.

Decisions from the courts of some of the other states have been cited; but upon examitiation it will be found that they relate to cases where there had been a rightful taking of the land by due process of law, without the compensation having been paid in the lifetime of the owner. Thus in Welles v. Cowles, 4 Conn., 182, the holding is that, “Where damages were assessed, by the county court, in favor of the owner of land, through which a highway had been laid out, in her lifetime, payable at a future period, when the road was to be opened, which did not arrive until after her death, that such damages, as soon as assessed, became a debt, which belonged to the executor, and did not descend with the land to the heir.” Many such cases rna}'- be found, and also, cases where a recovery by an administrator has been sustained for damages done to the lands of the decedent during his lifetime, and which he could have recovered in a personal action, such as trespass or case; but none, where the object of the suit was to recover the value of land, its appurtenances or easements, wrongfully taken for public use, during the lifetime of the deceased; or for damages of any kind to land suffered subsequent to his death. In all such cases the right is adjudged to be in the heir. Boynton v. Railroad Co., 4 Cush., 467; Neal v. Railroad Co., 61 Maine, 298; Howcott v. Warren, 7 Ired , 20; Hotchkiss v. Railroad Co., 36 Barb., 600. In the case last cited, and which was an action in ejectment against a railroad company to recover lands wrongfully taken and damages, prosecuted by devisees, the court properly distinguished the rights of the parties as follows: “On the decease of Mrs. Hotchkiss, under her will the title to all her real estate vested in her children. In the prosecution of this action they were entitled, at the trial, to recover the land, and the use thereof as incidents thereto from the time of her decease. All claim to damages done to the estate, and for the use and profits thereof at the time of her decease, went to her executor, and belonged to the personal estate. The plaintiffs were only entitled to recover the land claimed, with damages for withholding the same, and the rents and profits thereof from the time their title to such rents and profits accrued.”

But it is claimed that under the provisions of section 5064, Revised Statutes, the objection to the right of the administrator to maintain the action, was waived by a failure to demur on the ground of a want of legal capacity to sue. It may well be questioned whether the objection did not go to a want of facts sufficient to constitute a cause of action, rather than to a want of capacity to sue. (Buckingham v. Buckingham, 36 Ohio St., 68, 73; Dale v. Thomas, 67 Ind., 570, 578; Notes to Subdivision 2, section 5062, Revised Statutes, Whitaker’s Code); but, be this as it may, the objection could not have been taken by demurrer on the ground of a want of capacity to sue, since the petition was, in part, good against such an objection; for waiving theobj ection of the statute of limitations, the petition did state a right of action in the plaintiff to recover for the torts of the company committed' during the life of the decedent; and, therefore, though good as to part of the injuries complained of, could not have been sustained, because not good to the petition as an entirety. We, therefore, think that, considering the substance of the petition, the practice adopted was a proper, if not the only course, the defendant had to pursue, other than a motion to strike out the immaterial portions of the petition; and, a failure to do this, was not a waiver of the right to object to the plaintiff’s want of capacity to sue, by objecting to the evidence offered at the trial.

Judgment reversed, and petition of plaintiff below dismissed.


source: Caselaw Access Project

author: Dickman, J.

license: Public Domain

text:
    Baker v. Jerome.

      Action by guardian of insane person—Defense of usury—Incompetency of joint maker of note, in default for answer, to testify for co-defendant.

    1. In a joint action on a joint and several promissory note, one of the makers who fails to answer, may, upon a judgment by default after trial, have the benefit of a successful defense of usury set up by his co-defendant.
    2. Where the plaintiff in such action is the guardian of an insane person, the maker of the joint and several note who is in default for answer, is not a competent witness for his co-defendant to facts in reference to a usurious agreement between the makers and payee of the note, which occurred prior to the appointment of such guardian.

      Bell, adm’r, v. Wilson, 17 Ohio St. 640, and Baker and Brim, adm’rs, v. Kellog and Nickols, 29 Ohio St. 663, distinguished.
    (Decided December 22, 1893.)
    Error to the Circuit Court of Rake county.
    The defendant in error, Frank J. Jerome, as guardian of Jane A. Dobbs, an insane person, commenced the original action in the Court of Common Pleas of Rake county, against J. R. Eddy and the plaintiff in error, Abel R. Baker. The action was brought to recover a balance due of $1,600, with interest thereon, and was founded on two joint and several promissory notes set out respectively in the first and second causes of action in the petition, and of which the following are copies:

      “$1,000.00 Painesville, O., February 8, 1878.

    “Six months after date, for value received, we jointly and severally promise to pay to Chas. Chase, or order, one thousand dollars, with interest at the rate of 8 per cent, per annum, payable at the First National Bank of Painesville, Ohio.
    “J. R. Eddy,
    “A. R. Baker.”
    “$800. Painesville, O., April 8, 1875.

    “Six months after date, for value received, we jointly and severally promise to pay Chas. Chase, or order, eight hundred dollars, with use at 8 per cent, per annum, payable at the First National Bank of Painesville, O. .
    “A. R. Baker,
    “J. R. Eddy.”
    Sundry receipts of interest were indorsed on each of the notes, and each of the notes was indorsed and transferred by I. Everett, administrator of the payee, Charles Chase, deceased, to the order of E. J. Jerome, guardian of Jane A. Dobbs.
    Eddy and Baker filed separate demurrers to the petition. The demurrers were overruled, and the defendants severally excepted to the overruling of the same, and had leave to answer.
    Eddy filed no answer. Baker answering for himself alone, said:
    “He admits the execution and delivery of the promissory note of $1,000 mentioned in the first cause of action of the petition, but he saj^s that said note was given for a loan of $1,000, made by the said payee, Charles Chase, in his. lifetime to this defendant and the said J. R. Eddy. That before and at the time of making said loan the agreement then made by the said payee and said defendants was, that said loan should be made upon the unlawful and usurious rate of interest of ten per cent., and the said Charles Chase then exacted of said defendants the rate of ten per cent, interest as a part of the terms and conditions of said contract of loan, and the defendants then agreed to pay the same. That said note was made to assume the form of an eight per cent, note and was written with interest payable at the rate of eight per cent, only, for the purpose of evading the usury laws of the state of Ohio, That in pursuance of said agreement for ten per cent., said defendants paid on said note interest at the rate of ten per cent, for the years 1873, 1874, 1875, 1876,1877, ending August 3d of each of said years.”
    For answer to the second cause of action the defendant, Baker, said: “He admits the execution and delivery of the said note for $800 in the petition mentioned by himself and said Eddy to the said Charles Chase in his lifetime, but he says that said note was given in renewal of a certain other promissory note made and delivered by said defendants to said Charles Chase on the first day of November, 1870. That at said last mentioned date this defendant and said J. R. Eddy loaned and borrowed of said Charles Chase the sum of $800, for which they gave him their promissory note of that date, to-wit: for the sum of $800 on the 1st day of November, 1870. That said note was given upon the sole consideration of said loan, and said $800 was loaned to and borrowed by said defendants upon the agreement of said Charles Chase and said defendants that said loan should bear and draw interest at the rate of ten per cent, per annum; and said agreement to pay interest on said money borrowed was a part of the terms and conditions of said loan. This defendant says that, to the best of his knowledge and belief, said note was written at the rate of ten per cent, interest, but he says that if the same was not so written then the rate of interest written in said note was eight per cent, per annum, and was so drawn for the sole and special purpose of evading the usury laws of the state of Ohio, and was so written as a shift and device to procure the payment of the unlawful and usurious rate of ten per cent, interest. That in pursuance of said agreement to pay interest on said loan at ten per cent, this defendant paid on said note of November 1, 1870, interest at the rate of ten per cent, per annum.”

      The defendant, Baker, further answering, said:
    “That on the 3d day of April, A. D. 1875, said note of November 1, 1870, was renewed by said note in suit mentioned and set forth in said second cause of action; the sole and only consideration was the said note of November 1, 1870, which was then surrendered and given up by said Charles Chase. That said last-named note was in form drawn and written, as to the rate of interest to be paid, at eight per cent., but this defendant says that the said Chase exacted of said defendants interest on said note and renewal loan at the rate of ten per cent., and it was then agreed by and between said Charles Chase and said defendants that said Chase should have and receive, and said defendants should thereafter pay on said note and renewal loan and forbearance of money, interest at the rate of ten per cent, per annum. That said Charles Chase, for the sole purpose of creating a shift and device to evade the statute of the state against usury, caused said note to be so written as to read that the same drew interest at the rate of eight per cent. only. That in pursuance of said agreement for interest at ten per cent, this defendant and said J. R. Eddy paid upon said note interest at the rate of ten per cent, per annum.”
    The plaintiff filed a reply, denying each and every allegation contained in the answer.
    A jury being waived, the cause was submitted to the court upon the pleadings and the evidence.
    On the trial of the cause, the defendant, Baker, to maintain the issues on his part and the allegations of his separate answer, called as a witness in his behalf, the said J. R. Eddy, one of the defendants, but who had failed to plead or answer to the petition, to testify generally in the cause to acts, conversations, and agreements made and had with Charles Chase, the payee and owner of the notes, prior to his decease, and prior to the appointment of the plaintiff as guardian of Jane A. Dobbs. But the plaintiff objected to said witness testifying and giving evidence in relation thereto, on the ground that he was and is an incompetent witness in-that behalf; and thereupon the court sustained the objection and held and ruled, as matter of law, that, the witness was an incompetent witness to testify in the action to any act or thing which occurred between said Chase and the defendants prior to the appointment of the plaintiff as guardian of Jane A. Dobbs, and the witness was excluded from testifying in that behalf. To which ruling and decision of the court touching the competency of said witness to testify generally in said cause in behalf of Baker, the defendant Baker at the time excepted.
    Thereupon the defendant, Baker, by his counsel, put to. the said witness, J, R. Eddy, the following interrogatories,, to-wit:

      “ Q. You may state who were present at the time the thousand-dollar note in suit was signed?”
    Objection by plaintiff’s counsel; objection sustained by the court, and the defendant Baker, by his counsel, at the time excepted to the ruling of the court.
    Defendant’s counsel stated that they proposed to prove that said J. R. Eddj^, A. R. Baker and Charles Chase were present.

      “ Q. You may state what the talk or conversation was at the time of the execution of this note?”
    Objection; objection sustained by the court, to which ruling the defendant, by his counsel, at the time excepted.
    Defendant’s counsel stated that they proposed to prove that, it was requested of Mr. Chase by said Baker and Eddy to borrow a thousand dollars of him and that he agreed to loan them a thousand dollars, and it was then stipulated and agreed in parol that the note should be drawn at eight per cent, but they should in fact pay ten per cent, interest upon that note.

      “ Q. You may state to the court what interest if any, you paid upon the thousand dollar note, up to and until the payment of two hundred dollars on the 3d day of September, 1887—what the amount of interest was that j^ou paid each year upon the thousand dollar note?”
    Objection; objection sustained by the court to which ruling of the court, the defendant, at the time by his counsel, excepted.

      Defendant’s counsel stated that they proposed to show that the amount of interest paid each year upon the thousand dollar note was one hundred dollars, and that it was paid semi-annually in sums of fifty dollars each.
    Other interrogatories of like character were put by defendant’s counsel to said witness, J. R. Eddy, for the purpose of establishing the defense of usujy, which were objected to by plaintiff’s' counsel, the objections sustained, and exception taken by defendant’s counsel to the ruling of the court.
    The court, upon the pleadings and evidence found, “that the rate of interest on each of said notes agreed upon between the makers and the payee and stipulated for therein was, and is, eight per cent.;” and that there was due the plaintiff as such guardian, from -the defendants jointly and severally, upon the two promissory notes set out in the petition, the sum of $1,984.18; and adjudged that the plaintiff recover from the defendants jointly and severally the said sum, with interest at eight per cent, per annum from February 18, 1889, and costs. The defendant, A. R. Baker, filed his motion for a new trial which was overruled, to which ruling he excepted. A bill of exceptions setting forth the evidence offered by defendant Baker for the purpose of establishing the defense of usury, and excluded upon objection thereto by the plaintiff, was presented to and allowed by the court.
    The defendant, A. R. Baker, filed a petition in error in the circuit court; and the said J. R. Eddy, on his own motion, and by leave of that court, was made party defendant in error therein. The circuit court affirmed the judgment of the court of common pleas, and the action of the circuit court in affirming the judgment is assigned for error.

      Alvord & Alvord, for plaintiff in error.
    By our law no one is excluded from testifying, on the sole ground of interest. Revised Statutes, sections 5240, 5241 and 5242; Cochran v. Almack, 39 Ohio St., 314.

      The ruling below was, and its advocates simply reply, that the plaintiff was a guardian. That he was adverse to Baker and Eddy, and that Eddy being a party adverse to plaintiff, is rendered incompetent by the forepart of section 5242 and subdivision one of that section.
    While Eddy was a party to the suit, he was a formal party merely, and not a real party, in the status the case assumed. And we simply assert, because we believe the question is adjudicated, that the rule applies only in cases where the parties intended to be excluded as incompetent, are the real, and not the formal parties, or nominal parties on the record. Wolf v. Cowner, 30 Ohio St., 476.
    The defendant in error is not helped out of this dilemma by the last clause or part of the section. 30 Ohio St., 477; 39 Ohio St., 314, 317. .
    Again, the parties spoken of in section 5242 must be ad- ■ verse in interest, and not merely in their formal status in the case. 30 Ohio St., 476; 29 Ohio St, 663; 22 Ohio St., 221; 18 Ohio St., 73; 41 Ohio St., 368, 371; 8 Record, 360; 3 Bulletin, 590; 9 Bulletin, 294, 295; 17 Ohio St., 640; 22 Ohio St., 208; 24 Ohio St., 402.
    Eddy was always in default. He was in point of fact always a nominal, and not a real party. He never was interested, because it made no difference with him, from the beginning to the end, whether Baker’s partial defense was good or not. He was in for the whole of plaintiff’s claim, in any event.
    It was a case where there might be one judgment against him for the full amount claimed, on default, and judgment againt Baker for a less amount, on contest and trial. Language affords no means to state a clearer case, in reason and common sense, and in law, where the party was not disqualified because he had, first, an interest; second, an adverse interest as a party.
    As to particular cases which are in line with our contention: Bell, administrator, etc. v. Wilson, 17 Ohio St., 640; 29 Ohio St., 663; Rapalje Law of Witnesses, page 43, section 38, and cases cited in the notes; Talmage v. Burlingame, 9 Pa. St., 21; Bank v. Moore, 19 N. H., 564; 1 Ohio St., 313; Rapalje on Witnesses, page 223, section 132.

      Burrows & Jerome, for defendant in error.
    We claim that the defense of usury set up by the one defendant, enures to the benefit of the other defendant, although he is in default for answer, and that, therefore, the non-answering defendant is interested in the event of the trial and is adverse to the plaintiff guardian.
    The question of the rights or standing of the parties in case a default had been taken, does not arise, as no default was taken, and no judgment was rendered against Eddy for any greater sum than the amount found due by the court, after deducting certain usurious payments found by the court from other evidence. Revised Statutes, Secs. 3183, 5242; Bates’ PL, Vol. 2, page 803; Miller v. Longacre, 26 Ohio St., 291; 5 Am. and Eng. Ency. of Raw, page 496; Sprague, administrator v. Childs, 16 Ohio St., 107, 117.
   Dickman, J.

The record presents for our determination the question, whether in an action by the guardian of an insane person against two joint and several makers of a promissory note, one of the makers, who is in default for answer, may, for the purpose of establishing the defense of usury set up by the other maker, be a competent witness for his co-defendant of facts which occurred prior to the appointment of the guardian. It is provided by section 5242, of the Revised Statutes, that a party shall not testify where the adverse party is the guardian of an insane person, except of facts which occurred subsequent to the appointment of such guardian. But, the fact that one is merely a nominal party will not be sufficient to disqualfy him as a witness, though the adverse party may be a guardian, trustee, executor, administrator, heir, grantee or devisee.

A party designed to be excluded from testifying by the above mentioned section must be a real and not a mere formal and unnecessary party. Pie must be adverse in interest and not merely in his nominal status. And his incompetency as a witness arises not simply from standing in the position of a party—which alone would not disqualify— but because being opposite in interest, the adverse party is a guardian, or belongs to one of the classes named in the statutes.

In setting up the' defense of usury, it is averred by Baker that, at the time of borrowing the sums of money for which the defendants executed and delivered the two promissory notes described in the petition, it was agreed by and between the payee, Charles Chase, and the defendants, that each loan should be made upon interest, at the illegal rate of ten per cent, per annum; that the payee then exacted of the defendants interest at that rate, as part of the terms and conditions of each contract of loan, and the defendants then agreed to pay the same; that the notes were made to assume the form of eight per cent, notes, only for the purpose of evading the usury laws of Ohio; and that in pursuance of such agreement, the defendants did pay interest at the rate of ten per cent, per annum on the notes.

By section 3183 of the Revised Statutes, payments of money or property made by way of usurious interest, whether made in advance or not, shall be deemed and taken, as to the excess of interest above the rate allowed by law at the time of making the contract, to be payments made on account of principal; and judgment shall be rendered for no more than the balance found due, after deducting the excess of interest paid. But, parties to a bond, bill, promissory note, or other instrument of writing for the forbearance or payment of money at any future time, may, by another section of the statute, stipulate therein for the payment of interest upon the amount thereof at any rate not exceeding eight per centum per annum, payable annually. These enactments impose a limit, beyond which, interest may not be taken without contravening the public policy of the state. In McClelland v. Sorter, 39 Ohio St., 17, the court in enforcing the limitation say: “The legislative intent was that a creditor who stipulates for more than eight per cent, interest, payble annually, should be remitted to simple interest at the rate of six per cent. And it matters not as to the form which the usurious transaction may be made to assume, whether it be plainly written on the face of the bond, or be added to the principal debt, or be paid in advance, or evidenced by a collateral agreement.”

The facts stated by Baker in his answer were sufficient to constitute a usurious contract if established by competent evidence. The plea of usury goes to the validity of the cause of action. To the extent to which the excess of interest paid above the rate allowed by law is deducted from. the principal, the right of action to recover the full amount, of the loan is taken away or impaired for want of consideration. A party defendant, therefore, who is so far interested in the event of the suit as to be entitled to the benefit of a deduction from the principal of all sums paid as interest on the loan in excess of the legal rate, cannot be deemed a nominal party merely, but must be treated as a real party having an adverse interest.

Unquestionably, Baker, by virtue of having such an interest, would have been incompetent to testify as to facts in relation to the usurious contract with the payee, which occurred prior to the appointment of Jerome as guardian. But the relation existing between Baker and Eddy as joint makers of the notes was such, that though in default of answer, Eddy would share in the benefit of a successful defense of usury set up by his co-defendant, and stand with him in the attitude of a party adverse in interest to the plaintiff guardian, and thus disqualified as a witness.

It is contended in behalf of Baker, that Eddy having failed to answer was always in default, and never was an interested party, because, it made no difference to him from the beginning to the end whether Baker’s defense was good or not; that in any event, Eddy would be held for the whole of the plaintiff’s claim on the notes, and that the case was one in which there might be a judgment against him for the full amount claimed, and a judgment against Baker for a less amount, on contest and trial.

No judgment by default was taken against Eddy before trial, and no judgment could have been rendered against the answering defendant and against Eddy on default, after trial, for any greater sum than the balance found due, by competent evidence, after deducting the usurious payments. That is to say, the defendant, in default for answer, had the right to avail himself of the successful defense of usury set up by his co-defendant Baker.

It was held in Miller v. Longacre, 26 Ohio St., 291, that where the makers of a promissory note are sued jointly, an answer by one of the defendants, setting up as a defense that the consideration of the note was illegal interest, inures to the benefit of all the defendants. In that case, the defendants were all served with process, but B. W. Miller alone answered. In his answer he alleged usury. It was held that the defense did not go merely to the exoneration of the answering defendant from liability, leaving a valid cause of action against the other defendants; but to the invalidity of the note, for want of consideration, as a cause of action against any of the defendants. See, also, Sprague adm'r v. Childs, 16 Ohio St., 107, in which is laid down the governing rule for the case of Miller v. Longacre.

If a security is usurious as to one joint contractor, it is to be deemed such as to all'; and each defendant jointly sued is equally interested in every fact tending to prove the usury. Where there is but one issue, like usury, and the fact is established under it in favor of one or more of the joint defendants, it would be difficult, upon reasonable . grounds, to exclude any defendant from its benefit. If the note sued on is tainted with usury, the evil lies at the root of the .action, and a defense available to one joint obligor should inure to the benefit of his co-defendant.

In Morrison v. Stoner, 7 Iowa, 494, Morrison sued Rosenberger and Stoner upon a joint note. Rosenberger set up a usurious contract in relation to the note. It was said by Woodward, J.: “ In the case at bar, both contractors are in court. If the one pleads a matter which goes to the validity of the contract, or which is a defense for both, in its nature, on the whole or a part, .and succeeds, the books hold that the other, even though in default, takes the benefit of it.”

Sutherlin and Maxwell v. Mullis, 17 Ind., 19, was an action by Mullis against the appellants upon a promissory note made by the latter to the former. The defendants answered separately: 1st, usury; 2d, want of consideration. Maxwell afterwards withdrew his answer. Sutherlin offered his co-defendant as a witness in his behalf, but his testimony was rejected on the plaintiff’s objection. The court in the opinion said: “If Sutherlin succeeded in his defense, no damages could be assessed against Maxwell, on his default. The answers of Sutherlin, we have seen, were usury and want of consideration. If he succeeded on either of these, it would defeat the note, not only as against himself, but also as against Maxwell. Although Maxwell made default, yet the entire record would show that there was no good cause of action against him.”

Numerous authorities in the same line might be cited in illustration of the rule, that one of two joint defendants who is in default for answer, or against whom judgment has been rendered as on default before or after trial, may have the benefit of a successful defense of usury set up by his co-defendant in the action.

It is urged by counsel for the plaintiff in error, that- the question as to the competency of Eddy as a witness is determined by the cases, Bell, administrator, v. Wilson, 17 Ohio St., 640, and Baker and Brim, administrators, v. Kellogg and Nichols, 29 Ohio St., 663. But those cases are readily distinguishable from the case now under consideration. It is assumed in behalf of the plaintiff in error, that the relation existing between Eddy and Baker was that of principal and surety, and it is sought to establish an analogy between the above entitled cases and the case at bar. The record discloses no evidence,, in writing or by parol, that Eddy and Baker were to each other in the position of principal and surety, and the answer of Baker, as repugnant to that idea, alleges that the promissory notes upon which the action was founded, were given for money loaned by Charles Chase to himself and Eddy.

In the first of the above cited cases, the action was. brought by Bell as administrator of the payee of a promissory note, against the makers, one of whom was principal and the other surety. No defense was made by the principal, but the surety answered, and set up an alleged agreement between the principal and the payee for an extension of the time of payment. It was assigned for error, that the principal maker was admitted as a witness for the surety to prove the agreement; but it was held that the principal was a competent witness, and that the court below did not err in permitting him to testify. It could not well be said that the principal was a party adverse in interest to the plaintiff administrator, within the meaning of the statute. He was in default for answer, and subject to the rendition of a judgment by default. But, if upon his testimony, the surety could obtain his discharge, by reason of an agreement to extend the time of payment, such discharge would not work a discharge of the principal, and his liability as maker of the note would still continue without diminution.

The same distinguishing principle is manifest in the second of the cases above referred to by counsel for plaintiff in error. Baker and Brim, administrators, brought their action against Kellogg1 and Nickols, upon a promissory note made by the defendants to the intestate. Nickols made no defense. Kellogg answered, that he signed the note as surety, and that after the maturity of the note he had served a written notice upon the plaintiffs, requiring them forthwith to commence an action on the note, and that the plaintiffs did not bring the action within a reasonable time thereafter. On the trial to a jury, Kellogg offered his co-defendant Nickols as a witness, and proposed to prove by him that he, Kellogg, was surety on the note. The plaintiffs objected to Nickols as a witness, on the ground that he was incompetent under the 313th section of the civil code (Revised Statutes, section 5242), being an adverse party, and the plaintiffs being administrators. The objection was overruled, and the witness and his testimony were admitted, and the plaintiffs took exception. As said in Fewlass v. Abbott, 28 Mich., 270: “The release of the surety, whether erroneous or not, could in no wise prejudice the defendant or affect his liability as principal, and he will not, therefore, be heard to complain of it.” The court, therefore, properly held, that Nickols, as a party, was not adverse in interest, but merely in his nominal status, and hence was a competent witness in behalf of the surety as against the plaintiff administrators.

It follows from the views which we have expressed, that the judgment of the circuit court should be affirmed, and judgment is rendered accordingly.


author: Bradbury, C. J.

text:
    Gas Fuel Company v. Andrews.

      Natural gas—Duty of companies transportating same— When liable for damages—Section 8561a, Revised Statutes, construed.

    The provisions of section 3561a, Revised Statutes, imposes on plaintiff in error the duty of keeping under its control natural gas while it is transporting the same, and if damages should result to others, without their fault, by its explosion while being thus transported, the plaintiff in error will be held liable therefor, although not negligent in regard thereto.
    (Decided December 19, 1893.)
    Error to the Circuit Court of Mahoning county.
    The defendant in error recovered against the plaintiff in error, in the Court of Common Pleas of Mahoning county, a judgment for damages caused to her property by an explosion of natural gas while the same was being conducted by plaintiff in error along one of the streets of the city of Youngstown. The judgment was affirmed by the circuit court.
    The facts necessary to understand the decision will be stated in the opinion.

      George F. Arrel, and Hiñe & Clarke, for plaintiff in error.
    The plaintiff in errdr rightfully entered upon Boardman street and laid therein its gas pipe, and was lawfully in the exercise of its powers and franchises in the transportation of natural gas for fuel through its gas pipe so laid in the street, when the accident which resulted in the destruction of the property of the defendant in error occurred; and for the purposes of this question it must be assumed, in the language of the eighth request, that the break in the pipe line o ccurred without any negligence on the part of the plaintiff in error, and by reason of some casualty over which plaintiff in error had no control, and of which p¡. had no knowledge in time to prevent the destruction of the property of defendant in error. Railroad Company v. Shultz, 43 Ohio St., 270; Small v. The C. R. I. & P. R. Co., 50 Iowa, 338; Slosson v. The B. C. R. & W. R. Co., 51 Iowa, 294; Libby v. The C. R. I. & P. R. Co., 52 Iowa, 92; Anderson v. W. & J. V. R. R. Co., 2 Utah, 518; Railroad v. Payne, 33 Ark., 818; Tilley v. St. L. and San Francisco R. R. Co., 32 A. & E. R. R. cases, 324; The M., K. & T. Railway Co. v. E. G. Davidson, 14 Kan., 349.
    The construction which was given to the statute in the courts below, makes the plaintiff in error the absolute insurer of all the property which may happen to be located, anywhere along its pipe line and exposed to injury from the transportation of gas through its pipe line, and that,, too, without giving it the slightest interest in or control over the property; and also makes it the absolute insurer of the life and limb of every person who, with or without business, invitation or inducement, comes upon its premises. Such construction should be adopted only when the court is fully satisfied that the statute will bear none other.

      Sanderson <Sf Norris, for defendant in error.
    Supposing that, without the intervention of an act of the legislature, the plaintiff in error had brought upon its own land, adjacent to the land of defendant in error, this natural gas, and stored the same, and from thence it had escaped and caused the damage complained of in this cause, what would have been the liability of plaintiff in error? Would the defendant in error have been required to allege and prove negligence on the part of the gas company, in order to entitle her to recover, under the rules of the common law, independent of the statute? We say, clearly not, because the natural gas was likely to do mischief. Addison on Torts, Sec. 95; Rylands v. Fletcher, Raw R. 3 H. L., 330, affirming Raw 1, Exch., 265; May v. Burdett, 9 Q. B., 101; Smith v. Fletcher, Raw R. 7, Ex. 305; Eng. R., Moak’s Notes, Vol. 8, p. 510; Cahill v. Eastman, 18 Minn., 324; Hay v. The Cohoes Co., 2 Comst., N. Y., 159; Pixley v. Clark, 35 N. Y., 520; Gillham v. Madison Co. R. R. 49 Ill., 484; Livingstone v. McDonald, 21 Iowa, 160, 173; Shipley v. Fifty Associates, 106 Mass., 194; Wilson v. New Bedford, 108 Mass., 261; Tootle v. Clifton, 22 Ohio St., 247; Carman v. S. & I. R. R. Co., 4 Ohio St., 399; Tiffin v. McCormick, 34 Ohio St., 638; Valley Railway Co. v. Franz, 43 Ohio St., 623; Winslow v. Fuhrman, 25 Ohio St., 650 ; Vaughan v. Toff Vale Ry. Co., 5 Hurl. & N., 679 in Exch.; Mazetti v. N. Y. & H. Ry. Co., 3 E. D. Smith, 98.
    A statute enacted by a legislature, like the utterances of an individual, or any other body of individuals, in the use of words, does so, to convey some certain meaning. Potter’s Dwarris, 47, 143; Jackson v. Lewis, 17 Johns., 475; People v. N. Y. C. R. R. Co. 13 N. Y., 78; United States v. Fisher, 2 Cranch, 358; Vattel B. 2 Ch. 17, Sec. 263: Potter’s Dwarris, Stats., 144; Wallers. Harris, 20 Wend., 560, 561; McCluskey v. Cromwell, 11 N. Y., 593, 601; Newell v. The People, 3 Selden, 97; Millard v. Lawrence, 16 How., 256.
    The construction given to section 3561a by the courts below, is in the line with the decisions of this court, whenever such question has been before the court. Gries v. Zeck, 24 Ohio St., 329; Railway Co. v. Smith, 38 O. St., 410; Railway Co. v. Scudder, 40 Ohio St., 173; Pratt v. A. & St. L. R. R. Co., 42 Maine; 579; Simmons v. N. Y. & N. E. R. R. Co., 52 Conn., 264.
    The same law is enforced in New Hampshire. Adden v. White Mts. R. R. Co., 55 N. H., 413; Lyman v. B. & W. R. R. Co., 4 Cush., 288; Rowell v. Railroad, 57 N. H., 132.
    The provision of section 3561«, which we have before us, has exactly the same purpose in view with reference to natural gas. Ross v. Boston & W. R. R. Co., 6 Allen, 87 ; Perley v. Eastern R. R. Co., 98 Mass., 414.
   Bradbury, C. J.

The record discloses that the plaintiff in error, a body corporate, was engaged in transporting in pipes, natural gas to the city of Youngstown, and under ground along its streets to supply'its inhabitants with fuel; that the defendant in error owned valuable improved real estate in said city, the improvements of which were substantially destroyed by an explosiorf of the gas, while in course of transportation along a street of said city adjacent thereto. Upon the trial of the action in the court of common pleas, the evidence tending to show that the explosion occurred without negligence of the plaintiff in error, and it, contending that it was not liable for the results of such explosion, in the absence of proof of its negligence contributing thereto, requested the following separate propositions to be given in charge to the jury by the court:

“ I. If you shall find, from the evidence, that the gate or valve which defendant placed in its line of pipe, broke by reason of some latent defect in the metal of which it was composed, which defect defendant did not discover, or by the exercise of reasonable care could not have discovered, and that the escape of gas was due to such break, then the plaintiff cannot recover, and your verdict should be for the defendant.
“ II. The court says to you, that in and about the laying and constructing of the line of pipe which the defendant laid in and along Boardman street, the defendant was not required by the law to use the best possible mode and appliances for laying and constructing such line; but it was only required to lay and construct its pipe line in such manner and to employ such means and appliances, to guard against the escape of gas, as were at that time in common use by persons of ordinary care and prudence, who were at that time engaged in the same similar business, in similar locations.
“ III. The court says to you, that in and about the laying and constructing its line of pipe in and along Boardman street, the defendant was required to use only such care and precautions to guard against the escape of gas, as prudent persons, who, at the time when said line of pipe was laid and constructed, and who were then engaged in the same kind of business, were accustomed to use, under the same or similar circumstances.
“IV. If you shall find, from the evidence, that the fire, by which plaintiff’s property is alleged to ■ have been destroyed, was caused by the gas escaping from. the break which is alleged to have occurred in the gate or valve forming a part of defendant’s line; but, if you shall, nevertheless, find, from all the evidence in the case, that such break did not occur through any negligence on the part of the defendant, in any of the particulars set forth in the plaintiff’s petition, but, on the other hand, occurred by reason of some casualty over which the defendant had no control, and of which it had no knowledge, in time to prevent the injury which may have resulted therefrom, then the defendant would not be liable, and j’-our verdict should be in favor of the defendant.
“VII. The burden of proving negligence is on the plaintiff, and before there can be any recovery in this case, you must be satisfied, by a fair preponderance of the evidence, that the defendant was, in the manner averred in the petition, guilty of the negligence which directly resulted in the damage to the plaintiff by reason of the destruction of her property described in the petition, or some part thereof.
“VIII. Before the plaintiff can recover in this action, she must satisfy you, by a fair preponderance of all the evidence, that the defendant was guilty of negligence in and about some of the particulars set forth in her petition; and if you are not so satisfied that the defendant was guilty of negligence, your verdict should be in favor of the defendant.”

The court declined to give either proposition to' the jury, and instead instructed them as follows:

“ But, if on the other hand, you find that the defendant was engaged in the transportation of natural gas for the purposes mentioned, that the same escaped from the pipe line of the defendant at the gate or valve therein whilst the ' same was being so transported, at the time and place, ánd in the manner claimed by the plaintiff in her petition, and that the buildings were in fact destroyed by reason thereof, and that the same was the proximate and direct cause of the destruction of the buildings mentioned, and that the plaintiff’s own acts and conduct did not contribute to the injury of which she complains, then your verdict should be for the plaintiff, in such sum as the evidence shows you she has actually been damaged.”

The effect of the instructions thus refused and given, was to render the plaintiff in error liable, if the explosion was the proximate cause of the injury, although the jury should entirely exonerate it from negligence in connection therewith.

The question of how strictly, one, who undertakes to transport through or along the highways of populous districts, or to store adjacent thereto, subtle and dangerous substances, like natural gas, should be held to the duty of absolutely controlling it, is both interesting and important; but we are relieved from the duty of discussing it, in the case before us, by the provisions of the statute under which the plaintiff in error was authorized to transport natural gas through the streets of Youngstown at all.

That statute reads as follows: * * * “But said company shall be liable for any damages that may result from the transportation of the same.”

This language is explicit and unambiguous. This court is asked to add to the language chosen by the legislature, the word “negligent,” so that the statute may read: “But said company shall be liable for any damage that may result from the negligent transportation of the same.”

Upon principles of universal application the company would be held liable for any damages that might result from its negligence in transporting natural gas through the streets of a city; therefore, to construe the statute as the plaintiff in error contends, would deny it any operation or effect whatever. ' We think that, when the subtle and dangerous properties of this fluid are considered, together with the long existing, and perhaps still unsettled, controversy, that has claimed the attention of courts and text writers, both in England and in this country, respecting the extent of the liability of those who deal in dangerous substances, for damages caused by them, the absence of the word “negligent,” in the act declaring the liability of the plaintiff in error, has great significance, and can only be reconciled with a legislative purpose to impose upon the company the duty of absolutely controlling this substance whenever it should .introduce it into places where, if it escaped control, it would menace the lives and property of others who had no control over it, and who were without fault themselves contributing to injury.

Judgment affrtned.


author: By the Court:

text:
    Ebersole v. Schiller, Adm'r.

      Statutory construction—Probate courts— When no appeal from orders of. •
    Section 6203, Revised Statutes, must be construed in connection with the act of April 17, 1857 (S. & C., 619), of which act it formed a part before the revision of the statutes; and, when so construed, it gives no right of appeal to the court of common pleas, from an order of the probate court refusing to remove an administrator.
    (Decided December 19, 1893.)
    Error to the Circuit Court of Mahoning county.
    Jones, Anderson & Terrell, and Harter & Kirchbaum, for plaintiff in error.

      Sanderson & Norris, for defendant in error.
   By the Court:

The only question involved in this case, is, whether or not, an appeal lies to the court of common pleas from an order made by the probate court, overruling a motion, by a party interested in the estate, for the removal of an administrator appointed by such probate court.

The common pleas court, on motion for that purpose, dismissed the appeal, and the circuit court affirmed the judgment of dismissal, to all of which plaintiff duly excepted.

It is claimed by plaintiff in error that section 6203, Revised Statutes, is broad enough in its provisions to sustain the appeal.

Section 6203, as it now stands in the Revised Statutes, is taken from section 9 of the act of April 17, 1857, entitled “An act to provide for the more speedy collection of claims of creditors, legatees and distributees of executors, administrators and guardians, and .to define the jurisdiction of the court of common pleas and probate court in certain cases.” S. & C„ 619.

This act of 1857, now forms sections 6195 to 6203, both inclusive, of Revised Statutes, without material change. These sections must receive the same construction that they would receive, if yet standing in the original act of April 17, 1857. State ex rel v. Commissioners of Shelby County, 36 Ohio St., 326; Williams v. State, 35 Ohio St., 175; City of Warren v. Davis, 43 Ohio St., 447.

Section 9 of the act of April 17, 1857, standing in connection with the other section of the act, gave the right of appeal only from the “orders, judgments and decrees” which might be made under that act, and the right of appeal given by said section 9, as incorporated into section 6203, is limited to the same “orders, judgments and decrees,” and can have no wider scope.

An order refusing to remove an administrator is not included in the “orders, judgments and decrees,” authorized by' the act of April 17, 1857, and therefore is not included in the orders from which an appeal may be taken by virtue of section 6203.

True, the present section, 6203, is broad enough, standing alone, to include an order refusing to remove an administrator; but it is not broad enough to include such order, when construed in connection with the act of April 17, 1857. There is, therefore, no error in the record.

Judgment affirmed.


author: Williams, J.

text:
    Platt, etc., v. Colvin et al.

      foint stock companies— When preside7it or stockholder of, Tnay stie Jor beTtefit of 7nembe7~s—Pci7'ties—Practice—Sectio7i 5008, Revised Statutes, c07islrued.

    1. Section 5008, of the Revised Statutes, which provides that when the parties are very numerous and it is impracticable to bring them all before the court, one or more may sue for the benefit of all, applies to actions of a legal, as well as to those of an equitable nature.
    2. Where the members of an unincorporated joint stock company are numerous, (in this case being about one thousand), so that frequent changes are liable to occur in the ownership of the shares, by sale, or death of members, or otherwise, it is impracticable, within the meaning of section 5008, to bring them all before the court; and the president, being a stockholder, may sue in behalf of himself and all other stockholders, for the recovery of money which had been stolen from the company.
    (Decided December 22, 1893.)
    Error to the Circuit Court of Allen county.
    On the 2d of January, 1892, the following petition was filed in the Court of Common Pleas of Allen county:
    “Thomas C. Platt, president and stockholder of The United States Express Company, plaintiff, v. William R. Colvin and Harmon Colvin, defendants.
    “The said plaintiff says that The United States Express Company is a joint stock association, duly organized in the year A. D. 1851, under the laws of the state of New York, and ever since existing and doing business as such, and consists of about one thousand shareholders owning seventy thousand (70,000) shares, all of which persons have a joint ownership and interest in the cause of action hereinafter set forth, but are too numerous to be joined as parties plaintiff: and further, that by the laws of the said state of N ew York, under which said express company was organized and now exists, it is authorized and empowered to sue in the name of its president, who is said Thomas C. Platt, and the said Thomas C. Platt is president of the said United States Express Company and a stockholder therein, and as such brings this suit in behalf of said association, and all the stockholders thereof.
    “ The said plaintiff avers that on the 22d day of February, A. D., 1882, and for a long time prior thereto, the said United States Express Company was, and had been, a common carrier for hire, of moneys, goods and personal property, along the line of the Rake Erie & Western Railroad, through said county and through said state and through the city of Rima in the said county of Allen, and at said date, and for a long time prior thereto, said express company had, in said city of Rima, in the old frame depot, then near by the Pittsburg, Fort Wayne & Chicago Railroad track, an office for the receipt and storage for safekeeping of moneys, goods and other personal property which came into the care and custody of said United States Express Company for transportation and delivery to its customers and patrons, and which said office on the 22d day of February, A. D. 1882, was, and for a long time prior, had been in the charge of the agent and servant of said express company.
    “ The said plaintiff as aforesaid described and authorized, further avers, that on the 22d day of February, A. D. 1882, said United States Express Company, as above described and authorized, was in the custody and possession, as said common carrier, of a certain package of money, containing seventy-three hundred ($7300.00) dollars of the value of seventy-three hundred ($7300.00) dollars, which sum of money was then in the said office of the said express company at said depot in said city of Rima, Ohio, and in charge and possession of said United States Express Company, by its then servant and agent, to be delivered soon thereafter to the consignee of said package of money,-Thomas, whose first name is unknown to plaintiff.
    “ The said plaintiff, as aforesaid described and authorized, further avers that said defendants, William R. Colvin, Harmon Colvin, and each of them, knowing prior thereto that said package of money would arrive at said office and he received into the custody and possession of said United ■States Express Company, on or about said 22d day of February, A. D. 1882, did unlawfully and wrongfully combine .and confederate and conspire together to seize, take and make way with said package of money amounting to seventy-three hundred ($7300.00) dollars, of the value of sev■enty-three hundred ($7300.00) dollars, and to that end said •defendants and each of them, planned and devised ways and means to carry said unlawful purpose into execution, and in furtherance and consummation of said conspiracy •and combination, the said defendants, each performing his part in said conspiracy and combination, about the hour of one o’clock A. M., on the said 22d day of February, A. D. 1882, and while said package of seventy-three hundred ($7300.00) dollars of money, and of that value, was in the care, custody and possession of said United States Express Company, as said common carrier, did unlawfully, wrongfully and fraudulent^ seize, take and carry away from said express company, while its said agent was temporarily absent from said office in said city of Tima, where said money was then stored for safe keeping, the said package containing seventy-three hundred ($7300.00) dollars, and then and there of the value of seventy-three hundred ($7300.00) dollars, which said sum of money said defendants wrongfully and unlawfully and fraudulently did then and there convert to their own use, without the knowledge or consent of said'express compan3', or any of its agents, and have neglected and failed to return or repay any part of said sum to said express company, or to anyone for it, whereby said defendants and each of them are indebted to said express company and to plaintiff in said sum of seventy-three hundred ($7300.00) dollars, with six per cent, interest thereon from February 22, A. D. 1882.
    “ The said plaintiff, described and authorized as aforesaid,1 avers that said United States Express Company was obliged to and did make good and pay over to said consignee the said sum of sevent3^-three hundred ($7300.00) dollars, the sum so appropriated by defendants to their own use as aforesaid, directly after defendants received and converted the same as aforesaid.
    “ The said plaintiff, described and authorized as aforesaid, further avers, that he did not discover that the said defendants and each of them, were said wrongdoers and committed the wrongs hereinbefore set forth, until within the year next preceding the filing of this petition; and further, that said plaintiff did not discover the fraud and wrongs as having been committed by said defendants and each of them, until within the year last past before the filing of this petition; • and further, that said joint stock association, The United States Express Company, did not discover that the said defendants and each of them, were said wrongdoers and committed the wrongs hereinbefore set forth, until within the year next preceding the filing of this petition; and further, that said association did not discover the frauds and wrongs as having been committed by said defendants and each of them, until within the year next preceding the filing of this petition; and further, that not one of said stockholders) in said joint stock association, The United States Express'Company, discovered that said defendants and each of them, were said wrongdoers, find committed the wrongs hereinbefore set forth, until within the year next preceding the filing of this petition, nor did any one of said stockholders discover the said fraud and wrongs as having been committed by said defendants and each of them, until within the year next preceding the filing of this petition.
    “Wherefore plaintiff prays judgment against said defendants and each of them for seventy-three hundred ($7300.00) dollars, with six per cent, interest thereon from February 22, A. D. 1882.”

      The defendants demurred, on the grounds that the plaintiff was without capacity to sue, and that the petition stated no cause of action. The demurrer was sustained, the action dismissed, and judgment for costs rendered against the plaintiff.
    The judgment was affirmed by the circuit court, and error is prosecuted here.

      James L. Price and Judson Harmon, for plaintiff in error.

      William H. West and Walter B. Richie, for defendants in error.
   Williams, J.

The demurrer for incapacitj^ of the plaintiff to sue, is placed, in argument, upon no other ground than that the petition does not state a cause of action in favor of the plaintiff, and presents no question not raised by the general demurrer. The objection made to the petition is, that an action for the redress of the wrong alleged cannot be maintained by the plaintiff, because he is not the party injured, being only one of many who suffered the injury; or, more definitely stated, the express company, of which Platt is the president, is a copartnership, and must sue for the injury complained of, either in its copartnership name, or in the names of its members, all of whom must be joined, because all are united in interest.

Treating the company as a copartnership, some of the characteristics of which it undoubtedly has, though possessing others not pertaining to partnerships generally, as will be hereafter noticed, it is-obvious it cannot sue in its company name, under section 5011 of the Revised Statutes, for it does not appear to be “a partnership formed for the purpose of carrying on a trade or business in this state, or holding property therein.” Haskins v. Alcott, 18 Ohio St., 210. And, ordinarily, the only other mode in which a copartnership can sue is by and in the names of its members.

It was the general rule in chancery, before the adoption of the civil code, that suits must be prosecuted by the real parties in interest, and that all who were united in interest must be joined. There were, however, certain well established exceptions to the rule, which, like the rule itself, were adopted for the convenient administration of justice. Among these exceptions, it is stated in Story’s Equity Pleading, section 97, were, “(1) where the question is one of a common or general interest, and one or more sue, or defend, for the benefit of the whole; (2) where the parties form a voluntary association for public or private purposes, and those, who sue, or defend, may fairly be presumed to-represent the rights and interests of the whole; (3) where the parties are very numerous, and although they'have, or may have separate, distinct interests; yet it is impracticable-to bring them all before the court.” In speaking of the-second class of exceptions above mentioned, it is said that “In cases of this sort the persons interested are commonly numerous, and any attempt to unite them all in the suit would be, even if practicable, exceedingly inconvenient, and would subject the proceedings to danger of perpetual abatements, and other impediments, arising from intermediate deaths, or other accidents, or changes of interest. Under such circumstances, as there is a privity of interest, the court will allow a bill to be brought by some of the parties in behalf of themselves and all the others, taking care, that there shall be a due representation of all substantial interests before the court.” So that, the principle upon which, that class of exceptions rested, is not different in substance, from that of the last class mentioned, namely, that the parties are numerous, and it is impracticable, in the convenient and speedy administration of justice, to have them all before the court; and the courts in many adjudged cases appear to-have so regarded it. By reference to some of the cases it will be seen how the exceptions were applied in practice, and when it was deemed, by the courts, impracticable to bring all of the parties, when numerous, before the court. Taylor v. Salmon, 4 M. & C. (18 Eng. Ch. R.), 134, was a suit by the directors of an unincorporated mining company, in behalf of themselves and its other shareholders, to compel the execution of a lease to the company, under an agreement alleged to have been made in its behalf by certain of its members. The bill alleged there were one hundred and twenty-eight shares of stock held by the plaintiffs, and the other members of the concern, who were more than forty in number, in different proportions; and that the shares, which were transferable, were so liable to change of ownership as to render it impracticable, without great inconvenience, to make the owners all parties to the suit. One of the objections made to the bill was, that all the members of the company were not made parties. But Eord Chancellor Cottenham, overruling the objection, said: “That where the parties interested are numerous, and the suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and of the others, is established.”

In Walworth v. Holt, 4 M. & C. (18 Eng. Ch. R.), 619, a bill was filed by some of the shareholders of a joint stock banking company, on behalf of themselves and all other shareholders, except the defendants, against the directors and certain shareholders, who, it was alleged, had not paid their subscriptions to the stock of the company, to compel payment of the same, and the application of the money to the satisfaction of the company’s debts. The bill averred that all the shareholders had a common interest in having the partnership property gotten in and applied in satisfaction of the partnership debts, and, that the number of shareholders was so great, and their rights and liabilities so subject to change and fluctuation by death or otherwise, that it was not possible, without great inconvenience, to make them parties to the suit. The bill was demurred to for want of necessary parties; it being claimed that all shareholders who were not defendants, should have been plaintiffs. The demurrer was overruled, the Lord Chancellor remarking, that it was the duty of the court “to adapt its practice- and course of proceeding to the existing state of society, and not, by too strict an adherence to forms and rules, established under different circumstances, to decline to administer justice, and to enforce rights for which there is no other remedy. This has always been the principle of this court, though not at all times sufficiently attended to. It is the ground upon which the court has, in many cases, dispensed with the presence of parties who would, according to the general practice, have been necessary parties.”

Small v. Atwood, 1 Younge’s R., 407, was a bill by some of the members of a copartnership styled The British Iron Company, in behalf of themselves and all copartners, to rescind a contract for the purchase of certain mining property, and recover back the purchase money paid, on the ground of fraud. It was urged as an objection to the bill, that all the members of the firm should be parties, they being all interested in the recovery. In deciding against that objection, Rord ChiefBaronRYNDHURSTsaid, that “it is the rule of a court of equity that all persons who are interested in a question which is litigated, must, either in the shape of plaintiffs or defendants, be brought before the court. If that rule were to apply, in its strictness, to a case of this description, this consequence would follow, that justice in such cases would be unattainable in this court; because it is perfectly certain, that if it were necessary to put upon the record the names of all the persons who are members of this partnership, or were members at the time when this bill was filed (for they then amounted to nearly six hundred), it would be utterly impossible that the suit could ever come to its termination, from the necessary abatements which would, from time to time, take place from deaths and other causes.” The case, it was held, came within an exception to the general rule requiring all persons interested in the question to be made parties; which exception, it is said, was established at an early period for the purpose of preventing a failure of justice.

In Chancey v. May, Prec. in Ch. (Finch’s Chan. Cas.) 592, a bill was brought by the treasurer and managers of the Temple Mills Brothers’ Works, an unincorporated company, on behalf of themselves and all other proprietors, except the defendants, the late treasurers and managers, who were charged with the misappropriation and embezzlement of the partnership funds. The partnership consisted originally of eighteen shares, which were afterward divided into eight hundred. The defendants demurred, because the rest of the proprietors were not made parties. The demurrer was overruled on the grounds, first, that the bill was on behalf of all other co-partners, except the defendants, and so all of them were, in effect, parties; and, secondly, that it would be impracticable to make them all parties by. name, as there would be continual abatements by death, or'otherwise, and so no coming at justice, if all were required to be made parties. There are many English and American cases of like character. Those already adverted to, sufficiently show the nature of the exceptions which obtained in chancery, to the general rule in regard to parties, the principle upon which they were based, and the manner of their practical application. The rule, and its exceptions, in their breadth and substance, were adopted into our code, (sections 4993, 5007 and 5008, Revised Statutes), and, by its provisions made applicable to the civil action which it substituted for what was theretofore known as the suit in equity, and' the action at law. It is argued by counsel for the defendant in error, that the provisions of section 5008, permitting one or more to sue or defend for the benefit of all, when the question is one of a common or general interest of many persons, or when the parties are very numerous and it is impracticable to bring them all before the court, apply only to actions of an equitable nature, because, before the code, that manner of proceeding was allowed only in suits in equity. If that were a sufficient reason for restricting the provisions of that section to such actions, the same reason would make it necessary to so restrict the general requirement of the code that the plaintiffs must be the real parties in interest, and all must join who are united in interest; for that, as we have seen, was the general rule in equity, and not applicable to many actions at law; and so, with respect to the rule adopted by the code, requiring the petition to state the facts constituting the cause of action, and others of its provisions. Indeed, the mode of procedure in the civil action is, in most respects, taken from, or assimilated to, that which prevailed in suits in chancery. One object of the code in abolishing the distinction between actions at law and suits in equity, and prescribing the same method of procedure for the prosecution of both, evidently was to simplify judicial proceedings, and facilitate the administration of justice; and to accomplish that end, its provisions, and proceedings under them, should receive that liberal construction which it is expressly required shall be given them. To -restrain the application of section 5008, to actions of á purely equitable nature, would, we think, be at variance with its language, and the general spirit and purpose of the code. If it is competent for some of the shareholders of an unincorporated company to sue for themselves, and all others, to recover money which had been obtained from the company by fraud, as was done in Small v. Atwood supra, or, to recover money of the company which had been embezzled, as was the case in Chaney v. May, supra, there would seem to be no reason, in the nature of things, why a like action might not be maintained to recover money obtained from such a company by theft, as it is sought to do in the case before us. The same grounds appear in this case, which were deemed sufficient in the other cases, to entitle some of the shareholders to sue for all. The petition alleges, that the express company is a joint stock association organized in 1854, under the laws of the state of New York, having seventy thousand shares of stock owned by about one thousand shareholders, all of whom have a joint interest and ownership in the cause of action set forth in the petition, but who are too numerous to be joined as plaintiffs; that Thomas C. Platt is the president, and a stockholder of the company, and brings the action in behalf of the company and all of its stockholders; and that such suit is authorized by the law under which the company was organized. Though such associations are not corporations, they possess some of the attributes of corporations, and in these respects differ from ordinary mercantile copartnerships. They can sue and be sued in the name of their president or treasurer; their capital is represented by stock certificates which are transferable; the death of a member, or transfer of his shares, does not dissolve the company, which is thus made capable of perpetuity like a corporation, and it can so hold real or personal property. 2 Potter on Corporations, sec. 624. While the petition does not, in terms, aver that it is impracticable to bring all the shareholders before the court, the impracticability of doing so appears from the allegations as to the nature of the association, and the number of its shareholders. The association is not unlike those English companies referred to in the cases'above cited; and its shares being transferable, like the shares in those companies, the ownership is so liable to change by sale, or death of the owner, as to render it impracticable, within the meaning of that term as derived from the adjudged cases, and as used in section 5008, of the Revised Statutes, to bring all the shareholders before the court; and the suit may, therefore, be prosecuted by the president who is a shareholder of the companj1-, as it has been brought. We see no reason why judgment against the plaintiff will not be binding upon all whom he represents, or judgment in his favor enure to their benefit. Each stockholder, by becoming a member of the association, gave his consent to that rule of its being, that suits in its behalf might be prosecuted according to the law applicable to it, and the judgment in any action so prosecuted, with such consent, must necessarily operate upon all, as if they were named in the suit.

Judgment reversed.