text:
    Henry Sharp v. The State.
    Iq an indictment for an assault with intent to murder, it is sufficient to describe the intent in these words: — “ With intent in and upon him, the said John F. Walton, then and there feloniously, willfully, and of his malice aforethought, to commit a murder.”
    Though in the indictment it be averred that the assault was committed with malice aforethought, yet the jury may convict, if the proof satisfy them the assault was committed with intent maliciously and • purposely to Mil, although they should find it was made without malice aforethought.
    If a father wantonly mate an assault upon a third person, and his son come 'into the affray, afterwards, to aid his father in the assault, on an indictment against the son for an assault with intent to murder, the jury cannot consider his relation to his father, nor the circumstances of peril in which his father was placed.
    This is an application for a writ of error to the Court of Common Pleas of Tuscarawas county.
    Thomas Sharp and his son Henry Sharp, were jointly indicted at the November term, 1850, of the court of common pleas of Tuscarawas county, for an assault upon John E. Walton, with the intent, “ feloniously, willfully, and of their malice aforethought,” the said Walton to murder; They were tried at the same term, and Thomas Sharp was found guilty of assault and battery only. Henry was found guilty of assault, with intent to kill, and sentenced to the penitentiary.
    The testimony which is incorporated in the bill of exceptions, though very voluminous, is, in substance, as follows:
    That the plaintiff in error is the son of said Thomas Sharp; that the said Walton, on the 13th and 14th September pre ceding the affray, had assaulted said Thomas, and threaten ed him with violence; that on the 15th Sept, said Thomas and Walton quarreled in reference to the previous assaults •of said Walton; that this quarrel was in the presence of plaintiff in error, and many other persons, in the open street, and in day time; that Thomas Sharp assaulted Walton with an iron poker; that Walton immediately drew a large knife „ and attempted to stab said Thomas Sharp; that plaintiff in error, at the time Walton was thrusting at his father with, the knife, interfered, and struck or caught Walton; that Walton then fled,,having received a knife wound, and that no knife was seen in the affray, except the knife ifl Walton’s hand, which he carried away with him, and retained throughout the affray.
    The counsel for defendants asked the court to charge the jury—
    1. That if they were convinced by the testimony that the said Henry Sharp made said assault and battery, without the. intent purposely, and of malice aforethought, to murder the said Walton, that they should find him guilty of an assault and battery only.
    2. That in inquiring for the intent with which said Henry assaulted said Walton, it was proper for the jury to consider the relation or kindred of said Henry to said Thomas Sharp, in connection with the condition and circumstances of his father, at the time when the assault was made by Henry.
    The court did charge as follows:
    1. That if the jury were convinced by the proof, that the-defendants, or either of them, had assaulted said Walton in the manner set forth in the indictment, with deliberate and premeditated malice, willfully and maliciously, with intent to murder, or had made such assault without premeditation and deliberation or malice aforethought, but willfully and maliciously with intent to murder, then they should find one or both said defendants guilty, as the proof might convince them of the guilt of one or both of them, notwithstanding the statutory distinction between murder in the first and second degree.
    2. That it was true, as a principle of law, that a son might justify an assault in defense of his father, if the father were-not in the wrong; but if said Thomas Sharp had wantonly-made the first assault upon Walton, and this fact should appear from the proof, then Henry, the son, could not avail himself of this relation in his defense, if it appeared from the proof that he came into the conflict for the purpose of aiding his father in an unlawful assault.
    Exceptions were taken to the charge of the court, and because of the refusal to charge as requested.
    Motions were also submitted for a new trial and in arrest of judgment.

      John A. Bingham and J. Q. Sanee, for plaintiff in error.
    We claim that the court of common pleas erred :
    1. In refusing to arrest judgment.
    2. In refusing a new trial, and
    3. In the charge to the jury.
    1. The arrest of judgment. The indictment is defective in this, that it does not charge and allege specifically, an intent to commit a murder, either in the first or second degree, as defined in the statute of Ohio. There are no offenses indictable in Ohio, except such as are made so by statute. An indictment under a statute must follow the statute strictly, and recite it substantially. 2 Hawk. P. C., ch. 25, § 110. The general rule as there stated, is, “ that neither the words contra for-mam statuti, nor any periphrasis, intendment, or conclusion, will make good an indictment which does not bring the fact prohibited in the doing of which the offense consists, within all the material words of the statute.” See also 1 Hale, P. C., 517 and 526; 2 Hale, P. C., 170; Foster 424; 1 Chitty Crim. L. 280, ’82.
    So, an indictment which may apply to either of two definite offenses, and does not specify which, is bad, for the reason that it leaves it uncertain what is really intended to be relied on to support "the accusation. Wharton’s Crim. L. 81; 1 Mood. C. D., 158, Rex v. Marshall.

    Now the words of the statute under which this indictment is framed, are, “ if any person shall- assault another, with intent to commit a murder,” not a murder at common law, for there are no common law offenses here but a murder as defined by the statute of Ohio. The indictment in this case charges an assault with intent “ to commit a murder, willfully, and of their malice aforethought.” This is a charge of murder at common law, but it is not a charge of murder either in the first or second degree, as defined by our statute. The words, “ of malice aforethought,” do not define murder in the first degree under our statute, because they do not necessarily import deliberation, nor do they define the second degree of murder under our statute, for they necessarily import premedi tation, while the statute declares the second degree of murder to be a killing “ without premeditation,” and the first degree to be a killing “ with deliberation.”
    Is it not clear that this indictment would be bad, if the charge were murder, instead of an assault with intent, etc., and if the words in the 17th section, “ a murder,” means a murder as defined by our statute, then, for the same reason, the indictment is bad in this case. We submit that an indictment under the 17th section, should charge either “ an assault with intent, purposely, and of deliberate and premedi tated malice to commit a murder,” or an assault “ with intent, purposely and maliciously, but without deliberation and premeditation to commit a murder.” Nor can the words, “ of malice aforethought,” be rejected as surplusage, for they constitute a substantive charge of premeditated malice, a necessary allegation of an indictment, charging an assault with intent to commit a murder in the first degree, and only defective by-reason of the omission to insert, also, the words, “ and with deliberation.”
    In the case of the Commonwealth v. Atwood, 11 Mass. Rep. 93, the court say, “ a substantive charge not sufficiently alleged in an indictment, can never be rejected as surplusage.”
    If the words be rejected, the indictment remains bad, for the reason that it does not define what degree of murder was intended by the assault. It will not aid this indictment to say, that the defect is immaterial, that the punishment is the same, whether the intent was to commit murder of the first or second degree. The punishment is the same in kind only, not in degree. The court have a discretion as to the term of imprisonment, and we suppose this discretion is given, and is-intended to be exercised, by reason of the fact, that an assault with an attempt to commit murder in the second degree, is less atrocious than an assault with intent, purposely and of deliberate and premeditated malice, to murder.
    2. The refusal to grant a new trial. To sustain this verdict, the testimony must show that, had death ensued from the alleged assault, the offense would have been murder, and the intent, as it forms the whole gist of the offense, must be proved as laid. Wharton’s Crim. Law 316; 2 Term. Rep. 6; State v. Negro Bill, 3 Harrington 571; 2 Stark. 52; 1 East, P. C., 411; Archbold’s Crim. Pld. 432.
    All the evidence in the case, is upon the record, and it leaves-no doubt that this assault was the result of a sudden quarrel between Thomas Sharp and Walton, and that the plaintiff in error engaged in the affray, only when his father was in imminent peril at the hands of Walton. The conclusion cannot well be resisted, that had Walton died of this assault, the offense of the plaintiff in error would, at most, have been manslaughter, a killing upon a sudden quarrel, in heat of blood, and in defense of his father, in peril of life or limb. If, in case of death from this assault, the offense of .plaintiff in error would have been only manslaughter, then, upon all authority, the verdict is wrong, and the court erred in refusing a new trial.
    3. The charge to the jury. The court erred in charging “ that the jury might return a general verdict of guilty, although the proof should convince them that the assault was made without the intent of malice aforethought to commit a murder.” If the allegation of this indictment, that the assault was with intent of malice aforethought to murder Walton, be a substantive allegation, as we have shown it is, the state was bound to prove it as laid, though defectively set forth, and the court erred in charging that the jury might disregard it. In the case of the United States v. Porter, 3 Day’s Cases 283, the court held, that an allegation not impertinent to the cause, must be proved, though the prosecution might have been sujoported without such allegation. We claim that the allegation was “ pertinent to the cause,” though defectively set forth, as a part of the necessary words in a charge of assault with intent to commit a murder in the first degree.
    The court further erred in charging that the jury in determining the intent with which plaintiff in error joined in the affray and assaulted Walton, should not take into consideration the fact that the father of plaintiff in error was, at the time, in imminent peril of great bodily injury or death, at the hand ot Walton. Had Walton commenced this affray, most clearly the plaintiff in error, by reason of his father’s peril at the time, from the assault being made upon him by Walton, would have been justified in killing Walton. 1 Hale, P. C., 484; 4 Black. 182 ; 1 Russell 542.
    As the facts are, however, in this case, although his father commenced an assault upon Walton, without sufficient provocation, yet the plaintiff in error was still bound to interfere for the defense of his father, and if he carried the interference for defense so far as to have killed Walton, it would have been only manslaughter — a killing upon a sudden quarrel, and in heat of blood. It is well said by Hale, “ that in mortal combats, upon sudden quarrels, it mattereth not who gave the first blow.” 1 Hale, P. C., 456; and see Foster 295.
    Hence it was, that on behalf of the plaintiff in- error, we asked the court to charge that, in passing upon the intent with which plaintiff in error assaulted Walton, they should consider the great peril of his father at the time. This the court refused to do, and gave the charge as above stated, adding that “ if the father commenced the assault, (which was not denied) the son, by joining in the affray, would be aiding his father in an unlawful assault.”
    It was a fact clearly proved, that his father was, at the time, in peril, from Walton; was it not the right and duty of the son to interfere — not to aid a further assault upon Wal-ton — but to protect and save his father from great injury— and was it not exclusively the province, and clearly the duty of the jury to determine whether the plaintiff in error joined in that affray to defend his father merely, or with intent to commit a murder, as alleged against him ?
    But if the charge of the court be right, then it follows that, if a father strike the first blow upon a sudden quarrel, and thereby put himself in peril of immediate death from the attack of his adversary, a son, who witnesses the contest, must look on with cool resignation, while his father is being cut to pieces, lest by coming to his father’s relief, in the language of the court, he aid in committing “ an unlawful assault.’’
    If this be law, it contravenes alike the instincts of nature, the duties of humanity, and the deductions of reason.
    This novel ruling of the court has worked a result as novel. The father who commenced the affray is acquitted, while the son, who obeyed the stern mandate of nature, and the holy impulse of filial affection, in coming to his father’s defense, is convicted and sentenced, as guilty of an assault, with intent of malice aforethought, to do a murder.

      James Gray (prosecuting attorney), for the state, submitted the case without argument.
   Avery, J.

This case has been examined upon an application for a writ of error to the court of common pleas for Tuscarawas county.

An indictment was found by the grand jury, at the November term, 1850, of the said court, against Thomas Sharp and said Henry Sharp, for an assault with an attempt to murder John E. Walton.

The defendants were tried at the same term, by a petit jury, who found said Henry guilty, as charged in the indictment, and said Thomas guilty of an assault and battery only.

The counsel, in behalf of Henry Sharp, asked the court upon the trial, to give certain instructions to the jury, which the court refused to give, whereupon the counsel excepted; they excepted also to certain instructions which were given.

The counsel for Henry Sharp, after the verdict was returned, moved the court to grant him a new trial, because the verdict was against the evidence, and because the court erred in their charge to the jury.

The evidence is set out in the bill of exceptions, and a copy given of the instructions asked, as well as of the instructions actually given.

The first- count in the indictment charges the offense in the following words, to wit:

“ That Thomas Sharp,, late of the county of Tuscarawas aforesaid, and Henry Sharp, late of the county of Tuscarawas aforesaid, on the fifteenth day of September, in the year of our Lord one thousand eight hundred and fifty, with force and arms, in the county of Tuscarawas aforesaid, in and upon the body of one John F. Walton, then and there being, unlawfully did make an assault, and him, the said John F. Walton, then and there did beat, wound and ill-treat, with intent in and upon him, the said John F. Walton, then and there feloniously, willfully, and of their own malice aforethought, to commit a murder and other wrongs, etc.”

The intent is described in the second ' count as follows: With intent him, the said John F. Walton, then and there feloniously, willfully, and of their malice aforethought to kill and omurder.”

After an examination of the evidence as shown by the bill of exceptions, the court can find no error in the refusal to grant a new trial on the alleged ground, that the verdict was against the evidence.

The first instruction requested for the jury was this : “ If they were convinced by the testimony, the said Henry Sharp made said assault and battery, without the intent purposely, and of malice aforethought, to murder said Walton, the jury should find said defendant guilty of an assault and battery only.

This instruction the court refused to give, but charged the jury, if they were convinced by the proof, that the defendants, or either of them, had assaulted said Walton, with deliberate and premeditated malice, willfully and maliciously, with intent to murder, or had made such assault without premeditation and deliberation, but wilfully and maliciously, with intent to murder, then the jury should find one or both guilty, as the proof might convince them. This was instructing substantially in the words of the statute, as found in the two sections defining murder in the first and second degrees. Swan’s Statutes 229.

The charge was doubtless right, in holding that by the law, under which -the defendants were prosecuted, the jury might convict them of an assault with intent to murder, whether it was murder in the first or second degree ; and in the opinion of this court, the words used in the indictment to set out the intent, could not limit the power or obligation of the jury so to convict.

There was no error in this charge of the court, nor in the refusal to charge.

The next instruction requested was in these words: “ That in inquiring for the intent with which said defendant, Henry, assaulted said Walton, it was proper for the jury, and they should consider the relation or kindred óf said Henry Sharp to the said Thomas Sharp, in connection with the condition and circumstances of his father, the said Thomas Sharp, at the time when the said assault was made by the said Henry.” Which charge the court refused to give.

A majority of this court find no error in the refusal to give the charge as requested. We do not deny the principle applying to some of the natural and civil relations, which is held to furnish an excuse to persons under certain circumstances, and an exemption from civil punishment, because they are so related. It is conceded that parent and child, husband and wife, master and servant would be excused, should they even kill an assailant in the necessary defense of each other. But not unfrequently it will happen, from the facts proved upon the trial, that this principle can have no application, and therefore in such cases it need not be brought to the notice of the jury: for it could not be allowed properly to influence their verdict.

If a father and son combine to assail another, and commit violence upon his person, they may both stand in the relation of principal offenders, and be held liable in the same manner as if either had combined with any other person to commit similar violence. And in such case no intent to aid or defend each other on account of the relationship subsisting between them, can be inferred by court or jury. '

In the case under examination there was evidence, coming from Walton and others, that Thomas Sharp, the father, ran into the house and came out, bringing in his hands a poker; that he struck Walton several blows with it, one of which, according to the testimony of Walton, broke his arm. There is testimony also, from which an inference may be drawn, that at the time when the blows were inflicted by the father, the son was striking his knife into the body of Walton. It is true, it may be inferred from the evidence, that Walton was flourishing his knife at the same time, and even that he designed to use it against the father. Yet from the manner of the attack upon Walton, as described by the witnesses, the inference is still admissible, that the intent of Henry Sharp was not to defend his father, but in connection with him to make a murderous assault upon Walton. In such a case, their relationship would be a matter of no consequence in determining upon the guilt of either. Henry Sharp was at liberty, no doubt, to give evidence, that his intent really was, to protect his father from violence or imminent danger, and so he was at liberty, if he could find the proof, to show that the act was done with any intent, other than that alleged in the indictment, the intent to commit a murder. But the court, being in possession of all the evidence, may have considered, that there was no foundation for the claim put forth for him on-the trial. Whether, however, they so considered or not, they were not bound, nor at liberty, to assume in their charge, that the relationship ought, as a matter of course, to be taken into account by the jury; that in inquiring for the intent of Henry Sharp, when he made the assault, it was the duty of the jury to consider how he stood related to Thomas Sharp.

Error is not to be presumed, it must be shown. The call upon the court might have been easily put in a shape to secure a charge upon the point of law involved, to wit: the right of one of the prisoners, growing out of his relationship to the other. In such a case it is to be presumed the court would give the charge. A refusal to do so would furnish sufficient ground to reverse their judgment, but there was no error in the refusal to charge as above requested.

The charge which was actually given, after that request,. is as follows:

“ That it was true, as a principle of law, that a son might justify an assault in defense of his father, if the father were not in the wrong. But if Thomas Sharp had wantonly made the first assault upon Walton, and this fact should appear from the proof, then Henry, the son, could not avail himself of this relation, in his defense, if it appeared from the proof that he, Henry, came into the conflict for the purpose of aiding his father in an unlawful assault.”

We are all of the opinion that there was no error in this charge.

The counsel of Henry Sharp having failed in their motion for a new trial, urged before the court below a motion in arrest of judgment, and assigned the following reasons :

“ 1st. The indictment is defective in this, that it sets forth no crime known to the laws of the State..
“ 2d. It charges the assault upon Walton with intent feloniously, willfully, and of their malice aforethought, to commit a murder.
“ 3d. It does not charge a murder either in the first or second degree, as defined by the statute.
“ 4th. The indictment is in other respects illegal.”

We are of the opinion that the indictment is sufficient.

It was framed upon the 17th section of the act providing for the punishment of crimes. Swan’s Statutes 232. The offense embraced in this section is an assault with intent to commit a murder, rape, or robbery. The crime defined in the section, as an assault with intent to murder, is a single offense, and as such may be described in a single count in the indictment. No principle, it is believed, nor any benefit likely to result from the practice, requires the offense to be set out in two counts; one charging the intent to commit a murder in the first degree, and the other in the second degree.

This indictment does not contain the specific allegations requisite in an indictment for murder in the first or second degree under the statute. It copies, in that part which sets out the intent, the common law form for describing such intent, as found in the indictment for an assault with intent to murder. Malice aforethought, as here set out, will be found charged also in the common law indictment for murder. The jury, however, under the indictment for murder, may return a verdict for manslaughter, which excludes the idea of malice aforethought, and the introduction in this case of the words malice aforethought, should not have the effect of restricting the jury to the finding merely of an intent to commit murder in the first degree. Under our statute, when there is but a single count in the indictment, which specifically alleges deliberate and premeditated malice, the prisoner may, notwithstanding, be convicted of the lesser crime of murder in the second dégree, or of manslaughter.

The crime of rape, under our statute, like the crime of murder, “is very different, both in its description and punishment, as found in two separate sections of the statute. Swan’s Stat. 230. Under one of these, the 4th section, a person having carnal knowledge of his daughter or sister, against her will, is deemed guilty of a rape, .and on conviction to be imprisoned in the penitentiary for .life.

By the 5th section, if any person shall have carnal knowledge of any other woman, or a female child,' or if any male person of the age of seventeen years and upwards, shall carnally know and abuse a female child under ten years, with her' consent, such person shall be deemed guilty of a rape, and upon conviction, imprisoned not more than twenty nor less than ten years. The law describing the offense of an assault like that in the 17th section, with intent to commit a rape, came under examination before this court, in the case of Bowles,v. The State of Ohio, 7 Ohio Rep., part 2, 248. There the court allude to a distinction to be taken in passing upon the requisite averments, between an indictment for the crime of rape itself, and one drawn upon the section punishing an assault with intent to commit the crime.. And they decide, that an indictment in this last case, need not specifically characterize the person upon whom the assault was made. The person assaulted was described in the count on which the verdict of guilty had been rendered, as Eliza Johnson, a child. Without the expression, “ a .child,” no one could conjecture to which of the sections defining a rape the count was intended to apply; and yet in the opinion it is 'stated, that this part of the indictment might be regarded as surplusage.

In the case now under consideration, all the requisite allegations are found, we think, in the indictment It is unnecessary, when it is framed to reach the offense in this 17th section, that it should contain all the specific averments required in an indictment for murder under other sections of the statute.

In the opinion of a majority of the court, no one of the errors assigned is sufficient to reverse the judgment.

The application for a writ of error is refused.

Caldwell, J., dissented.


source: Caselaw Access Project

author: Hitchcock, C. J.

license: Public Domain

text:
    Jacob Haynes v. Lewis Colvin and others.
    A bill in chancery by a judgment creditor, against an administrator in another state, cannot be sustained for the recovery of the judgment against the heirs of the decedent in this state, upon the judgment alone, without other circumstances to give the court jurisdiction, especially under the law of 1831, regulating the duties of executors and administrators.
    Under that statute, proceedings against heirs, are the same as against the ancestor; and where the ancestor could not be made liable for the specific claim, the heir cannot be made liable.
    This is a bill in chancery, reserved in Athens county.
    The bill charges that on the 9th day of April, A. D. 1842, the complainant recovered a judgment in the circuit court of Noble county, Indiana, against one John P. Hedges, in his capacity as administrator de bonis non of one Samuel Colvin, for the sum of four hundred and nineteen dollars and cost, which judgment is in full force and entirely unsatisfied. A copy of the record of said judgment .is referred to and made part of the bill.
    It is further charged that the said Colvin emigrated from the county of Athens, Ohio, to the State of Indiana, and resided in said county of Noble at the time of his death, which happened a few years afterwards, and that the said Hedges; was appointed his administrator, according to the law of Indiana That after the affirmance of the aforesaid judgment, which had been removed to the supreme court of Indiana, by writ of error, and the same had been certified back to the circuit court of Noble county, to wit: on the 4th day of October, 1844, upon affidavit filed, an execution issued out of said circuit court, upon said judgment against said Hedges as administrator, which execution was returned on the 4th of October, 1845, “ no goods or chattels, lands or tenements, found whereon to levy.” And it is claimed that by this return it is apparent that there is no property or assets of the estate of Colvin remaining in the hands of his Indiana administrator, to satisfy this judgment.
    It is further stated that Samuel Colvin died seized in fee of the southwest quarter of section No. 20, township 11, range 17, in the county of Athens, and that at the time of his death, he was seized of some personal property in the same county.
    That shortly after his death, administration on his estate was granted by the court of common pleas, of Athens county, to Hiram Ilulbert, of said county; that he left a widow but no children. That Hulbert proceeded to administer upon the-estate in Ohio, and made final settlement of the same before the court, and was ordered and directed by the court to pay over the balance in his hands, amounting to several hundred dollars, to Rachel Colvin, the widow of Samuel, which was done.
    That the defendants are the heirs at law of Samuel Colvin, and as such heirs, five years having transpired since the death of Samuel Colvin, and since his administrator in Ohio had settled up the estate, for the consideration of sixteen hundred dollars in hand, received, sold and conveyed the beforementioned quarter section of land, descended to them from the said Samuel Colvin, and have divided among them the avails of said sale.
    . The bill was filed on the first of February, 1847, and is met by a general demurrer by all the defendants.

      John T. Brazee and John Welch, for complainant, cited the following authorities:

      Mattoon v. Clapp, 8 Ohio Rep. 248 ; 8 Blackf. Rep. 399 ; 2 Ohio Rep. 246 ; Buston v. Dabney, 4 Ohio Rep. 70 ; Piatt v. St. Clair’s Heirs, 5 Ohio Rep. 555 ; S. C. 6 Ohio Rep. 227 ; Stiver v. Stiver, 8 Ohio Rep. 217; Douglas v. Waddle, Ib. 209; Randall v. Craighill, 9 Ohio Rep. 197; 5 Ohio Rep. 313; Bigelow v. Bigelow, 4 Ohio Rep. 138; Brown v. Win
      stanley, 18 Ohio Rep. 66 ; 2 Blackf. Rep. 297 ; 4 Ib. 345 ; 1 Ves. sen. 211; 2 Atk. 360; 3 Ib. 262 ; 4 John. Ch. Rep. 619 ; Ib. 631; Abbott v. Cole, 5 Ohio Rep. 86.

      C. C. Convers and L. Jewett, for defendant, made the fol lowing points, and relied upon the following authorities:
    I. The judgment rendered in Indiana against the administrator de bonis non of Samuel Colvin, deceased, cannot, even as against the administrator appointed in Ohio, much less as against the heirs at law of the intestate, be enforced in the courts of this state. Stacey v. Thrasher, 6 How. Rep. 44; Baker, Ex’r v. Kingsland, 10 Paige Rep. 366; Same v. Douty, 3 Barbour, S. C. R. 535 ; 5 Hill’s N. Y. Rep. 131; Osgood v. Manhattan Co., 3 Cowen’s Rep. 612; Munsen v. Peters, 1 Munford 437; Neal v. McCombs, 2 Yerger 10; Deural v. Stump’s Ex’rs, 8 Peters 528.
    II. But, if the court should hold that the judgment so rendered against the Indiana administrator, constituted a valid debt against the representatives of Samuel Colvin, in Ohio, its payment cannot be enforced by bill in chancery — even if the Ohio administrator were made a party defendant to the bill.
    III. The bill makes no case for subjecting the real estate left by Samuel Colvin to the payment of debts — the personal assets not being exhausted.
    IV. There is no equity in the bill as against the heirs at law of Samuel Colvin.
   Hitchcock, C. J.

In some respects, the bill in this case is very carelessly drawn, or care is taken to exclude from it some facts which it might be necessary for the court to know We are not informed when Samuel Colvin died, nor when letters of administration were taken upon his estate, either in Indiana or Ohio. We are informed that the Ohio administrator settled with the court, but we are not informed When this settlement was made. Whether the administrator in Indiana has ever made any settlement we know not, nor do we know but that he may have now in his hands sufficient assets to satisfy this judgment. The only evidence before us upon this point, as disclosed in the bill is, that an execution issued to enforce the judgment in Indiana, has been returned. “ no goods and chattels,” etc. And the very copy of record, which is made part of the bill and which shows this return, shows, also, that at the time of the judgment, there were assets in the hands of that administrator more than sufficient to satisfy the amount of the judgment, or at least more than sufficient to satisfy the damages recovered. Why ■these assets were not appropriated to the payment of the judg-. ment it is difficult to conjecture, nor is any reason given why it was not done.

The case made in the bill is simply this: the complainant recovered a judgment against the administrator of Samuel Colvin, in Indiana, and now seeks by bill in equity, to recover the amount of that judgment from the heirs of Samuel Colvin, in Ohio. There is no charge of any fraud or mistake, nor is any trust pretended ip order to give the court jurisdiction, nor are there any circumstances connected with the case, rendering it necessary to resort to a court of chancery. 'The case of Piatt v. St. Clair’s Heirs et al. (6 Ohio R. 227), has been cited as an authority to sustain this proceeding, but the two cases are as much unlike as it is possible for two cases to be. In that case, lands-had been conveyed to defraud creditors — trusts had been created with the same view. All the circumstances were such as to render it utterly impossible for a court of law to do justice to the parties. Resort to equity was indispensably, necessary. The naked question in this case is, whether heirs can be compelled in equity to satisfy a judgment recovered, not against their ancestor, but against the administrator of that ancestor. After the recovery of that judgment, the administrator might have procured an order for the sales of the land descended to the heir, for its satisfaction; provided, there were no assets in his hands with which to make satisfaction. At least this course might have been pursued if the land descended still remained with the heir, and there is nothing in this bill to show that such was not the fact.

Counsel for defendants insist, that the judgment recovered in Indiana, would' not have been competent evidence, in a suit commenced in Ohio, against the administrator in Ohio, or in other words, that no suit could have been sustained upon that judgment against the Ohio administrator, and therefore no suit can be maintained upon that judgment against the heirs of a decedent. In support of this position the case of Stacy v. Thrasher (6th Howard’s Rep. 44), is cited. That case fully sustains counsel in the position assumed. But we do not deem it necessary to dispose of this case upon this principle.

It is a suit against heirs, evidenced, not by. a bond, note, or judgment against their ancestor, but a judgment against his administrator. If it-were for a debt of the ancestor, the question would arise how far the heir is bound for the debt of the ancestor. At common law it would be only where he was-bound by the terms of the contract, or by a Rond, and in such case not beyond the assets or estate descen'ded from that ancestor. But there are now, and have been by our statutes, provisions extending this liability, and authorizing its enforcement, until the property descended is exhausted. No proceedings, however, can be had against the heir, so long as there is-a personal representative, an executor or administrator. At least, if there be a personal representative, he must be joined with the heir in the suit.

By the 232d section of the present act regulating the duties-of executors and administrators (Swan’s Statutes 334), it is provided, “ that after the settlement of any estate'by an executor or an administrator, and after the expiration of the time limited for the commencement of actions against him by the creditors of the deceased, the heirs, next of kin, widow as next of kin, devisees and legatees of the deceased shall be liable, in the manner provided in the following sections, for all debts which could not have been sued for, against the ex ecutor or administrator, and for which provision shall not have been made according to the fourth part of this act.”

It is unnecessary to recite the subsequent sections of the act upon this subject, as it is admitted, and insisted that the act of March 12, 1831, “ defining the duties of executors and administrators” (Chase St. 1775), must control this case, the administration in this state having been granted under that act.

The 42d section of this latter act provides, “ that at the expiration of five years from and after the decease of any person, if the executor or administrator of such decedent shall have made final settlement with the court, and if not, then so soon as such final settlement shall be made, all lien upon the real estate of such decedent, for the payment of any claims against his or her estate, not presented to such executor or administrator before such final settlement, shall cease and determine; and such real estate may then be aliened by the heirs or devisees of such decedent, freed from the incumbrance of such claims.”

The next section is as follows: Nothing in the preceding section contained, shall impair the personal liability of heirs or devisees, for the payment of any claim against the estate of their ancestor or devisor; but such heirs and devisees shall remain liable to the full extent of the assets by them received from the estate of their ancestor or devisor; and any suit which could be brought and sustained against such ancestor or devisor, were he alive, may be brought and sustained against such heirs and devisees, after the executor or administrator of the ancestor or devisor shall have made final settlement with the court, until the assets, so received by such heirs or devisees, shall be exhausted: Provided, always, that such heirs or devisees may make any plea or defense to such suit which their ancestor or devisor could make, were he alive, and such said suit instituted against him,”

These two sections seem principally to refer to claims not-liquidated in the course of administration. So far as claims are liquidated by the executor or administrator, or by judg ment against them, the same act makes ample provision for their payment, if the property of the estate is sufficient for that purpose. The personal property failing, real estate may be sold. And should an executor or administrator neglect to take the proper steps for the sale of real estate for the payment of debts, upon application to the court having jurisdiction of the subject, the proper remedy would be applied. In all cases where the law has prescribed an appropriate remedy, that remedy should be resorted to unless it be merely cumulative.

The 43d section of the act before recited declares, that “ heirs and devisees shall remain liable to the full extent of the assets by them received from the estate of their ancestor or devisor, for the payment of all claims against the estate of such ancestor,” and then goes on to prescribe the remedy or mode of enforcing payment, and this is.by suit. “Any suit which could be brought and sustained against the ancestor, were he alive,” may be brought and sustained against the heir or devisee. From this I understand, that if no suit could have been brought against the ancestor, neither can any suit be brought against the heir. And the appropriate form of action upon any claim against the ancestor, will be the appropriate form against the heir.

.The claim in the case now under consideration is based upon a judgment. The proper form of action in such case is debt. It must be an extraordinary case that will authorize a bill in equity to enforce judgment. Had this judgment been rendered against Samuel Colvin, it would have laid the foundation for an action of debt against him, and a like action, under the before recited section of the act of 1831, might have been sustained against the defendants as his heirs.

But this was not a judgment against the ancestor; ‘it never constituted a claim against him. True, it is a claim against his estate, but not of that character which could be enforced against his heir by action. It is not a case provided for by statute, and this court cannot supply a remedy. *

The consideration of the judgment was of that character that an action-might have-been sustained for it, against Colvin, and had it not been reduced to judgment in an action against his administrator, an action might have been sustained against these heirs, but it would have been an action at law, not a bill in chancery.

If the position assumed by the defendant’s counsel, that in a case where administrators are appointed in two different states, upon the same estate, a judgment recovered against one of them, cannot be given in evidence against the other in a subsequent suit, be correct, perhaps this original cause of action still exists. For if such judgment cannot be given in evidence to sustain an action, it cannot be a defense against an action. But upon this point we express no opinion; it is sufficient for us to say, that the bill does not make such a case as entitles the complainant to relief in a court of equity. The demurrer is therefore sustained, and the bill dismissed with costs.


author: Spalding, J.

text:
    Eunice Buckingham’s Executors v. George Reeve and others.
    The leased lands and water power of the state, upon the canals and rivers, are not subject to judgment liens.
    This is a bill in chancery reserved in Muskingum county.
    The facts material to the decision are as follows:
    On the 10th day of February, 1842, George Reeve and George B. Reeve, two of the defendants named in the bill, being indebted to the complainants’ testatrix (then in full life), in the sum of $22,040, to secure the payment thereof mortgaged to her, by deed duly executed and acknowledged by themselves and their respective wives, certain lots and parcels of land situate in the county of Muskingum. The mortgage was duly recorded in the recorder’s office of that county, on the 11th day of February, 1842.
    At the time of the execution and recording of this mortgage, there were two judgments operating as liens upon the premises embraced therein; one of them being a judgment recovered at the March term, 1840, of the common pleas of Muskingum, by the Franklin Bank of Cincinnati, against George Reeve and George B. Reeve and others, for $3,155 damages and $16.58 costs of suit, and the other a judgment recovered at the June term, 1841, of the same court, by the Bank of Zanesville, against George Reeve and George B. Reeve and others, for $3,575.09, and $19.17 costs of suit.
    Before and at the time of the recovery of these judgments, George Reeve was in the possession and occupancy of two certain other parcels of land, with a grist mill and other buildings thereon, and certain water power, privileges and easements annexed thereto, situate in Muskingum county, and known as the “ Reeve mill property,” and continued in such possession and occupancy thereof up to and at the time of the execution and recording of the mortgage above mentioned, and also after wards, until the filing of the bill in this cause.
    These two parcels of land and water power, constituting the “ mill property,” were not included in the mortgage to the complainants’ testatrix.
    George Reeve acquired title to this “ mill property ” by virtue of a lease thereof made to him by the State of Ohio, by deed of indenture dated the 20th day of December, 1838, duly executed and acknowledged by both parties in the precise form prescribed for a conveyance in law, by the “ act to provide for the proof, execution, acknowledgment and recording of deeds and other instruments of writing.” This deed was afterwards duly recorded in the recorder’s office of Muskingum county.
    By the provisions of this lease, the premises were demised to George Reeve, for “ the term of thirty years, from and after the first day of January, 1889,” at the yearly rent of $1,200, payable semi-annually, on the first day of May and November in each year, with the right of “ renewal ” in the lessees.
    The clause of renewal is as follows: “ And it is further understood and agreed that, at the expiration of this agreement, the party of the second part shall be entitled to a renewal of the lease, for a like term of years, for such annual rent as may be offered by the highest responsible bidder, who shall also agree to purchase of said party of the second part, all permanent and valuable buildings necessarily erected by said party for the convenient use of the water power hereby leased, at such price as such buildings shall be adjudged to be worth by three judicious, disinterested freeholders, to be chosen as hereinbefore specified ; provided, such buildings shall be erected on land belonging to the state, or land which can be purchased by said bidder at a reasonable price, to be determined by said appraisers. And if no such bid shall be made on the terms aforesaid, at a higher rent than is herein specified, such party shall be entitled to such renewal on the terms of this lease.”
    On the 16th day of February, 1848, the Franklin Bank of Cincinnati sued out execution on its judgment, and on the 23d day of February, 1843, the Bank of Zanesville also sued out execution on its judgment ; which two writs of execution, returnable to the February term, 1843, were, on the 24th day of February, 1843, delivered to the sheriff of Muskingum, who, on the 25th of the same month, levied the two writs, at the same time, upon all the several lots and parcels of land included in the mortgage to the complainants’ testatrix, and also levied the same upon one other parcel not included in said mortgage, upon which also the two judgments, from the time of the rendition thereof, were liens; being the parcel mentioned in the bill as conveyed in fee to George Reeve and George B. Reeve by Henry Nash and wife, and called the Nash property, being the same premises included in the mortgage secondly mentioned in the bill dated the 19th day of January, 1830, and duly recorded, and which was a lien thereon prior to the two judgments. No further proceedings were had under these writs for want of time.
    On the 7th day of March, 1845, writs of venditioni exponas were issued on the two judgments respectively, for the sale of the premises levied on as above mentioned, returnable to the May term, 1845, under which the premises were appraised and advertised for sale, but the sale thereof afterward potsponed.
    On the 15th day of May, 1845, the complainants, as subsequent incumbrancers by mortgage in the manner above mentioned, obtained from the Franklin Bank of ■ Cincinnati an assignment of its judgment, and on the first day of July, 1845, as such subsequent incumbrancers, also obtained from the Bank of Zanesville an assignment of its judgment, and the transfers of such judgments were duly made to them as such subsequent incumbrancers, they advancing and paying to the respective banks, for the same, the full amount of the respective damages and costs originally recovered, and also all the interest accrued thereon, with all the accruing costs, up to the respective times of such transfer.
    On the 24th of March, 1848, the complainants, as such assignees of the judgments, caused writs of venditioni exponas, with an ao etiam clause therein, directing a further levy to be issued thereon respectively, returnable to the April term, 1848, and such executions were on that day delivered to the sheriff of Muskingum, who on the same day, in virtue thereof, levied on the “ mill property,” now in controversy, as permanent leasehold estate.
    Neither George Reeve nor George B. Reeve had the legal title to any other real estate upon which the judgments above mentioned, or either of them, operated as a lien at the time of the execution and recording of the mortgage to the complainants’ testatrix.
    The bill was filed on the 26 th day of April, 1848.
    On the 21st day of October, 1842, more than eight months after the execution and recording of the mortgage to the complainants’ testatrix, and while the two judgments were resting as liens binding upon the lands and permanent leasehold estate of George Reeve and George B. Reeve, the Merchants and Mechanics’ Bank of Wheeling, and the Clinton Bank of Columbus, obtained from George Reeve and George B. Reeve a mortgage, executed and acknowledged by George and George B. Reeve and their respective wives, in part security for the payment to these two banks of the sum of $ 63,211, upon all the premises included in the prior mortgage made to the complainants’ testatrix; and at the same time, also in part security for the same indebtment, another mortgage, executed and acknowledged in like manner, upon the “ Nash property” and the “ mill property.”
    These two mortgages were recorded on the 24th day of October, 1842, in the recorder’s office of Muskingum county.
    At the September term, 1848, a decree was rendered in the common pleas, marshaling the liens and declaring the rights and equities of the parties as to all the matters involved in the case, (excepting only as to the lien of the complainants upon the “ mill property,”) and directing a sale of all the other premises described in the bill, reserving for the future consideration and determination of the court, all questions as to the lien or claims of the complainants upon the “ mill property.”
    Under this decree all the premises, (except the “ mill property,”) were sold. At the February term, 1849, the sales were confirmed, and at the same time a decree entered applying the proceeds of such sales according to the rights of the parties as declared by the decree of the former terms.
    The whole proceeds of sale thus appropriated fall short of the payment of the amount due 'to the complainants upon the mortgage of the testatrix, and upon the two assigned judgments by about the sum of $7,000.
    The complainants insist that, as against the Merchants and Manufacturers’ Bank of Wheeling and. the Clinton Bank of Columbus, they have the preferable lien upon the “ mill property and to determine this question the case was reserved for decision in bank.
    C. C. Convers, for complainants.

      C. W Searl, for defendants.
   Spalding, J.

The only question we are called upon to consider, is that which arises from the claim of the complainants, that the judgments obtained by the Zanesvillg Bank, the Franklin Bank of Cincinnati, and assigned to complainants,swere a lien at law upon the leasehold estate • of George Reeve, the judgment debtor.

The act regulating judgments and executions provides, “ that the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term at which judgment shall be rendered, in all cases where such land lies within the county where the judgment is entered.”

The lease in question, from the State of Ohio to George Reeve, is to carry with it the use and occupation of a sufficient water power to drive six run of mill stones, with land sufficient for the erection of mills, for the term of thirty years, at an annual rent of twelve hundred dollars, subject to very many conditions and restrictions.

The indenture is in the ordinary form used by the agents of the state in leasing water power upon its canals and river improvements.

The 2Sd section of the act to provide for 'the protection ot the canals of the State of Ohio, etc., has this provision:

“ Every lease, grant, or conveyance of water power shall contain a reservation and condition that the state, or its authorized agents may, at any time, resume the privilege or right tc use the water, or any portion thereof, whenever it may be deemed necessary for the purposes of navigation,” etc.

It will not be denied that a leasehold interest might be sold as a chattel at common law. 3 Black. Com. 417.

And prior to the act of January, 1821, any title by lease might have been sold in the same way in Ohio.

That act required that the interest of the lessee under a permanent lease, when sold on execution, should be appraised as real estate.

The act of March, 1839, provides “ that permanent leasehold estates, renewable forever, shall be subject to the same law of descent and distribution as estates in fee are or may be subject to; and sales thereof, upon execution, or by order or decree of the court, shall be governed by the same laws that may now or may hereafter govern such sales of estates in fee.”

If called upon to decide the question directly, I should hesitate to say that a judgment at law would have a lien upon any leasehold estate whatever. I think the law regulating permanent leaseholds, now in force. in Ohio, has respect only to the treatment after an order of sale or the levy of an execution.

We have no doubt, however, in regard to the case under consideration. The water-rents upon the canals and river improvements of the state, are not permanent leasehold estates. Although they may run thirty years, and may be renewed at the expiration of that term, if the lessee will pay as much as any other person therefor, they may not endure-for a day. They are made entirely contingent upon the exigencies -of the state, and wholly lack that character for permanency and stability which is requisite to elevate them to the • standard of “ lands and tenements,” which alone are subject to judgment liens at law.

So far as regards this question, the bill will stand dismissed-


author: Caldwell, J.

text:
    William S. Fisher v. John Butcher.
    It is not error to admit a deed in evidence, although the certificate of acknowledgment bears date prior to the time of making the deed, if from the instrument it appears that it was actually made at the time of its acknowledgment, and that the contradiction in dates arises from a mere clerical error.
    This is a writ of error to the Commercial Court of Cincinnati.
    A statement of the case, showing the points decided, will be found in the opinion of the court.

      Thomas J. Strait, for plaintiff in error.

      Ball & Hoadly, for defendant.
   Caldwell, J.

The action below'was covenant upon a warranty contained in a deed from Fisher to Butcher. The declaration alleges the sale of certain lands in Newtown, Hamilton county, by Fisher to Butcher, the covenants of general warranty, freedom from incumbrance, etc., and by tway of breach, eviction, by a title paramount.

On the trial, a- bill of exceptions was taken to the rulings of the court, on which several errors have been assigned. The plaintiff in the court below offered in evidence the deed from Fisher to Butcher. This was objected to by the defendant, on the ground that it was not properly acknowledged. The deed is dated January 6th, 1842, and the certificate of acknowledgment on the 6th of January, 1840. The court overruled the objection, and admitted the deed in evidence, which is assigned for error. It is said that the dates proved that the acknowledgment was taken before the deed was made. If this were true, the acknowledgment wouli necessarily be invalid. We think, however, from an examination of the whole instrument, that it appears that this discrepan cy in dates arises from a clerical mistake.

It is only necessary that the acknowledgment should be taken after the deed is executed. It is not important that it should be taken at any specified time. If it were made at any time between the making of the deed and the bringing of the suit, it would be good. It appears from the certificate, that the deed was made at the time; it refers to it as the above conveyance, and certifies to an acknowledgment of the signing and sealing thereof. The paper itself sufficiently shows an acknowledgment of the deed after its execution, and that the contradiction of dates arises from a clerical mistake. An examination of the certificate will show how the mistake occurred. It is a printed form, with a blank after the word forty, for the insertion of the units. This blank was omitted to be filled, and makes the date read, eighteen hundred and forty.

It being, then, a mere clerical mistake, which the instrument itself sufficiently corrects, the court were right in admitting the deed in evidence. The bill of exceptions states that the plaintiff also offered the “ depositions of Samuel Wiggins, John Brockhart and Uriah Burdsall, taken by consent of parties, saving only the competency thereof.” These depositions were objected to by the defendant, on the ground that they were incompetent, inasmuch as they tended to prove a breach of seizin, not warranty.

These depositions are referred to as marked (C). They are not made a part of the bill of exceptions, nor do they purport to be attached to it, nor do we find any paper on file that would answer the description given in the bill of exceptions. There are no depositions of these persons named, on file. We find a paper marked (C), indorsed on the back, agreed facts,” which contains a memorandum of what Wiggins and the others state in reference to the matter, which it is agreed by counsel may be read to the jury, -reserving the right to all objections to competency. This is the only paper marked (0), on file. It does not answer the description of .the paper referred to in the bill of exceptions; it is not made a part of the record. What the testimony was that was objected to, we cannot judicially know, and, therefore, cannot determine whether the court erred or not; the question is not before us.

The other errors assigned, depend on the alleged admission of this evidence. We cannot, from the bill of exceptions, determine that the commercial court committed any error, and, therefore, affirm the judgment.


text:
    Loyal Wilcox, survivor, etc. v. Samuel May and another.
    When two or more judgments are entered at the same term, at the suit of different creditors against the same defendant, and executions are issued during the term, or within ten days thereafter, and levied upon land in another county, the money made upon the sale, if not sufficient to satisfy all the executions, must be distributed, pro rata, among the several judgment creditors.
    This is a writ of certiorari to the Court of Common Pleas of Fairfield county.
    The writ is prosecuted to review and reverse an order of the court of common pleas of Fairfield county, for the distribution of monej/made by sale on execution among judgment creditors.
    The transcript of the record shows, that at the March term of the court of common pleas of Fairfield county, 1846, and on the 23d day of the same month of March, Samuel May recovered a judgment by confession, against Reed Armstrong, for six hundred six dollars damages, and costs of suit. Execution was issued upon the judgment on the 27th day of the same month, directed to the sheriff of Ross county, and levied the same day, on certain real estate in Kingston, in said county of Ross.

      During the same term of the court, and on the 28th day of March, another judgment by confession was recovered against the said Armstrong, in favor of Dixon Fullerton, for eight hundred seventy-one dollars twenty-two cents, and costs of suit. On the same day an execution was issued, upon this judgment, also directed to the sheriff of Ross county, and by him levied, on the day of its date, upon the same real estate.
    On the second day of April, and during the same term of the court, another judgment by confession was recovered at the suit of Wilcox and Reed, for fourteen hundred sixteen dol-. lars nine cents, and cost of suit. On the same day execution was issued upon this latter judgment, directed to the same sheriff, and by him levied on the same real estate. The land levied upon was sold by virtue of a vendí, on the 28th day of April, 1849, for $1,333.34, and the money brought into court.
    On motion, the court, ordered that the money should be first paid to the creditor making the first levy, and this order is claimed to be erroneous, and contrary to the statute.

      William T. McClintick, for plaintiff in certiorari.

      H. H. Hunter, for Samuel May.

      Thwrman & Sherer, for Dixon Fullerton.
   Hitchcock, C. J.

From the record it appears that the three judgments were all rendered at the same term of the same court, although on different days in the term. As they were all judgments by confession, and as such judgments operate as liens only from the day of rendition, had there been land in the county of Fairfield, the judgment first rendered' would have had the preferable lien upon such land.

It further appears, that during the same term of the court in which these judgments were entered, executions were* issued upon them, directed to the sheriff of an adjoining: county, to wit, the county of Ross, and 'by him levied upon the same real estate. These executions have different dates, and were levied on different days, but they were issued during the same term of the court at which the judgments were entered, and although levied on different days, were still levied before the term of the court was closed.

The real property, so as aforesaid levied upon, was sold under vendi, on the 28th April, 1849, for $1,383.34, and the money brought into court.

The money thus made not being sufficient to satisfy the several judgments, the court of common pleas ordered that the judgment of May, it having been first rendered, and the execution thereon first levied, should be first satisfied in full, and that the balance of the money, after such satisfaction, should be applied to the judgment of Fullerton.

To reverse this order, this writ of certiorari is prosecuted. The errors assigned ra'ise the question, whether the money thus made should be distributed or appropriated to the several judgments, in proportion to their respective amounts, or whether it should be appropriated to the satisfaction of those judgments in the order in which they were rendered, and the executions thereon levied.

The determination _ of these questions depends upon the construction of the “ act regulating judgments and executions,” more especially the second and fourth sections of that act.

But, before proceeding to the examination of this act, it is necessary to dispose of a preliminary question raised by the defendants in certiorari. It is alleged by them, that before the writ of certiorari was allowed, the sheriff had paid over the money, in pursuance of the order of the court. If there is error in the action of the court of common pleas, it is difficult to perceive how that error is cured by any act of a sheriff. Whether, of how far, the payment of the money by him, in pursuance of the order of the court, will exonerate him from any further liability, it is not necessary now to decide. A party to a suit, against whom an error has been committed in the rendition of a judgment, may release that error, and such release may be pleaded in bar to the protection of a writ of error by him to reverse the judgment. The error still remains, but by his release he has precluded himself from- taking advantage’ of it. This ground of defense cannot avail the defendants.

There is some apparent discrepancy between the second and fourth sections of the “ act regulating judgments and executions,” but none in reality, when they are rightly understood, and the proper force' given to each. They are relative to one and the same matter, the fourth operating as a qualification to the second. It is, in its operation, in the nature of a proviso to the second section, and being so treated, many of the difficulties suggested by defendant’s counsel in this ease will be removed.

The third section is very inopportunely introduced between the second and fourth. It had much better have preceded the second or followed the fourth. The manner adopted in the collocation of the sections, however, ought not and cannot make any difference in the construction which they must receive.

Considering the fourth section as in the nature of a proviso to the second, and the whole ought to be read as follows:

“ The lands and tenements of the debtor shall be bound for' the satisfaction of any judgment against such debtor, from the first day of the term at which judgment shall be rendered, in all cases where such land lies within the county where the judgment is entered; and all other lands, as well as goods and chattels of the debtor, shall be bound from the time they shall be seized in execution: Provided, when two or more writs of execution against the same debtor shall be sued out during the term in which judgment was rendered, or within ten days thereafter, and when two or more writs of execution against the same debtor shall be delivered to the officer on the same day, no preference shall be given to either of said writs ; but if a sufficient sum of money is not ma,de to satisfy all the executions, the amount made shall be distributed to the several creditors, in proportion to the amount of their respective demands. In all other cases, the writ of execution first delivered to the officer shall be first satisfied; and it shall be the duty of the officer to indorse on every writ of execution the time when he received the same: Provided, nothing herein contained shall be so construed as to affect any preferable lien, which one or more of the judgments, on which such execution issued, may have on the lands of the judgment debtor.”

The section, so construed, provides that judgments shall operate as a lien upon the lands of the debtor within the county where the judgment is rendered, from the first day of the term in which such judgment is rendered. Subsequent enactments have so changed this provision, that judgments by confession shall operate as liens, from the day of their rendition. It is next provided, “ that all other lands, as well as goods and chattels, shall be bound from the time they are seized in execution.” The other lands here referred to are, undoubtedly, lands in other counties than the one where the judgment is entered; and such lands, as to the binding force of the judgment, are placed upon precisely the same footing with- goods and chattels. The substance of the section thus far, is, that lands .within the county are bound by the judgment from the first day of the term; lands in other counties, as well as goods- and chattels, are bound from the time of the levy of execution.

Having made this general provision, the proviso, or rather the fourth section, is introduced to limit or restrain the general language before used. This provides, in the first part of it, that if two or more writs of execution against the same debtor shall be sued out during the term in which judgment was rendered, or within ten days thereafter, no preference shall be given to either of such writs;” but the money made upon the same, if not sufficient to, satisfy all the executions, “ shall be distributed to the several creditors, in proportion to their several demands.” The object of the general assembly, in making this provision, undoubtedly was, to give the several judgment creditors ample time, after the rendition of their judgment, to sue out executions and place them in the hands of the sheriff or other proper officer, and to prevent any advantage that might, by hasty action, be gained by one creditor over another.

Now, it will be seen that these provisions are general, and refer not to the character of the property which is to be subject to those executions. It may be land in the county, it may be goods and chattels, it may be lands out of the county. No matter what the property is, or where it is, if there is not sufficient to satisfy all the executions, it must be distributed to the creditors in proportion to the amount of their respective judgments. But it might so happen, that the property levied upon would be land' in the county where the judgments were rendered,'and upon which they would operate as liens; and some of them, in this respect, have the preference over others, although the executions were issued within the term, or within ten days thereafter, or delivered to the officer on the same day. Ample provision, however, is made to secure the interest of lien-holders in such case. A proviso is attached to the section in these words —" Provided, that nothing herein contained shall be so construed as to affect any preferable lien, which one or Inore of the judgments on which such executions issued may have on the lands of the judgment debtor.”

In all cases, where the executions are not issued within ten days after the term, or delivered to the officer on the same day, the section under consideration prescribes, “ that the writ of execution, first delivered to the officer, shall be first satisfied.” This, however, is also limited by the proviso before referred to, saving the rights of preferable lienholders.

In Patton v. The Sheriff of Pickaway County, (2 Ohio Rep. 395,) this court, in giving a construction of this fourth section of the judgment and execution law, say, “ they,” that is, the general assembly, “ intended to provide for cases where there were two or more judgment creditors, having equal rights, and where there is no priority of lien, as when the judgments are rendered in the same term; for cases where the judgment does not operate as a lien, but the property is bound only from the time when seized in execution, as goods and chattels, or lands not situate in the county where the judgment is recovered; for cases where the creditor, in consequence of not having " an execution levied within one year from the date of his judgment, has lost the benefit of his lien so far, that it shall not operate to the prejudice of any other bona fide judgment creditor.”

Now, in the case before us, the several judgments were entered at the same term of the court, in Fairfield county, and executions were sued out and delivered to the officer within the same term. That officer was the sheriff of Ross county, the judgment having been entered in Fairfield. If there had been lands of the judgment debtor in Fairfield, those lands would have been bound from the date of the respective judgments. This rule, however, would not apply to lands subsequently acquired by the debtor; such lands would only be bound from the time of execution levied. But the lands levied upon, in the case under consideration, were in Ross county, and were not bound until the levy of the executions. True, the execution on May’s judgment was first levied, but this gave his judgment no preference over those of Fullerton, and of Wilcox and Reed; at least it gave his judgment no preference, unless we disregard both the letter and the spirit of the statute.

It is claimed that by this levy the judgment of May gained the preferable lien. But not so. The three judgments having been rendered at the same term, and the executions having been issued within the same term, the judgments are upon an equal footing, and if the money made is not sufficient to satisfy all, it must be distributed to the creditors in proportion to the amount of their respective judgments.

It is admitted by defendant’s counsel, that this rule must have prevailed, had the levy been upon goods and chattels within the county of Fairfield; but as the levy was upon land in another county, they insist that a different rule should prevail. The statute makes no difference in this respect, and it is impossible for me to see how this court can do it. Cases may possibly arise where it -would be difficult to carryout this rule, but this is not one of that character. In order to give it effect, the judgments must be in the same court, and the executions issued to the same officer. Where this is the case, I do not preceive there can be any difficulty.

In the opinion of the court, the money made in the case under consideration should have been distributed to the creditors in proportion to the amount of their respective judgment, and in ordering otherwise, the. court of common pleas erred, and the order of that court is, therefore, reversed, with costs.


text:
    John Tillson, Jr. v. The Commissioners of Putnam County.
    Under the act of 1835, a rule for a mandamus will not be granted; an alternate mandamus first issues.
    A peremptory mandamus will not be awarded to compel the commissioners of a county to levy a tax for the satisfaction of a judgment, when there has been no unreasonable or vexatious delay.
    This is a rule for a mandamus reserved in Putnam county.
   Spalding, J.

At a term of the supreme court held in the county of Allen, on the twenty-sixth day of June, A. D. 1850, a rule was taken on the defendants to appear at the July term of the supreme court in and for the county of Putnam, and show . cause why a peremptory mandamus should not issue, requiring them to levy a tax for the payment of a certain judgment obtained by the said Tillson, against the county of Putnam, in the court of common pleas of said county, at the April term, A. D. 1850.

At the July term of the supreme court for Putnam county, A. D. 1850, the defendants appeared and placed on file their reasons for declining to levy a tax, etc.

They say, in substance, that by the provisions of the act to erect the county of Auglaize, passed February 14th, 1848, it was made the duty of the county of Allen to pay to the county of Putnam, such a sum, annually, in proportion to the whole amount, of said claim, as the value of the taxable lands taken from Putnam and attached to the county of Allen, bears to the taxable lands remaining in the county of Putnam, which amount, thus to be paid to the county of Putnam by the county of Allen, is two thousand two hundred and sixty-one dollars and fifty-seven cents; and the county commissioners have at all times been ready and willing, and still are ready and willing, to pay the plaintiff the' proportion of said claim, which the said county of Putnam of right ought to pay, etc. Other reasons are assigned, but it is unnecessary to notice them further.

It is the opinion of this court, that the rule in this case was improvidently granted on the circuit.

The old practice was to apply, in the first instance, for a rule on the defendant to show cause why a mandamus should not issue, but since the passage of the act of March 9, 1835, entitled “ an act to amend the act entitled an act to regulate, the practice of the judicial courts,” a different course has been pursued. The tenth section of this act provides “ that whenever any writ of mandamus shall be issued out of the supreme court, the person, body, or tribunal to whom the same shall be directed and delivered, shall make return to the first writ of mandamus, and for neglect so to do, shall be proceeded against as for a contempt.

Under-this law the first step to be taken is, to make appli cation to the court for an alternative mandamus, when the party complained against will either perform the duty sought to be enforced, or show cause to the contrary.

J. S. Conklin, for relator.

Metcalf and McKenzie, for defendants.

If the reasons assigned for non-performance be insufficient, the writ will be made peremptory.

If, however, the case be regarded as properly before the court, the result will be the same..

The power of this court, in a proper case, to compel by man damus the commissioners of a county to perform their duty, is not to be questioned.

“ The object of the remedy by mandamus,” says Wright, Judge, in 6 Hammond 447, “is to compel public officers and private individuals, in matters relating to the public, to perform their public duties.”

This power is not, however, to be called into action on every trivial occasion.

In the case under consideration, it would seem, although we have no evidence of the fact before us, that the relator recovered a judgment against the county of Putnam, at the April term of the court, A. D. 1850. Eor what amount we are not informed. But we have reason to believe, from the answer of the commissioners, that a share of the burthen, whatever it may be, should rest upon the county of Allen, and that they are disposed to perform their duty in good faith and with reasonable diligence. At all events, the judgment has not been in existence a sufficient length of time to satisfy our minds, in the absence of other proof, that the commissioners of Putnam eoun - ty have any desire to withhold payment unreasonably and improperly.

The peremptory mandamus is refused.


text:
    Thomas Bonsall and Wide v. The Mayor, Recorder and Trustees of the Town of Lebanon..
    It is no violation of the constitution for the general assembly to provide, in the charter of a town, that the town council may impose the duty of making side-walks upon the lot owners; and if any one neglect to perform the duty, the counsel may cause the work to be done for him, and assess the amount expended as tax upon the lot.
    This is a bill of review reserved in Warren county.
    The original bill sets forth that the complainants, Thomas Bonsall and Elizabeth Bonsall, his wife, in right of said Elizabeth, are the non-resident proprietors of in-lot No. 120, in the town of Lebanon, situate at the corner of Mechanic and Warren streets, in said town, and within the recorded limits of the same, as described in the charter, bearing date February 14, 1846.
    That on the 22d day of May, 1847, the mayor, recorder and trustees of the town of Lebanon, passed an ordinance,' by which they assessed on said in-lot No. 120, a tax of eighty-two dollars and sixty-one cents, for costs and expenses incurred by the town council in grading, curbing and paving the side-walks and gutters in front of said lot. That the imposition of said tax was without authority, etc.
    The supreme court for Warren county, at the June term, 1849, dismissed the bill, and it is that decision the complainants seek to review.

      Smith and Probasco, for complainants.

      A. G. McBurney, for defendants.
   Spalding, J.

We have carefully read the bill, answer, exhibits and testimony in this case, and have considered the arguments of counsel. The action of the court upon the circuit meets with our approbation. There are some questions of minor importance, raised by counsel for complainants, which will not be noticed further than to say that, in our opinion, they were properly ruled against the complainants.

The great objection presented, to us is, that the assessment of eighty-two dollars and sixty-one cents, as a tax upon lot No. 120, in Lebanon, by the mayor, recorder and trustees of that town, was not authorized by law; or, if sanctioned by legislative enactment, was in violation of the constitution, and therefore void.

The 15th section of the act to incorporate the town of Lebanon, passed Eeb. 14, 1846, provides, that “ the town council shall have power by ordinance or ordinances, duly published, to require all owners of a lot, lots, or part of a lot in said town, to make pavements or side-walks, of such width, and on such streets, and in conformity with such grade, as the town council shall direct, and with good and substantial curbing thereto; and also to make such suitable and substantial gutters in front of such pavements or side-walks, as said town council may direct ; and also to alter, amend or repair such pavements, sidewalks, curbing and gutters, as now are or hereafter may be made or constructed.”

Section 16 contains the following provision:

“ If any owner or owners of a lot, lots, or part of a lot, as aforesaid, within said town, shall neglect or refuse to construct or make a pavement, side-walk, or gutter, with the necessary curbing, or to alter, amend, or repair the same, when required so to do in accordance with the preceding section of this act, and within the time prescribed by the town council, the said town council may then proceed to construct and make such pavement, side-walk, or gutter, with the necessary curbing, or to alter, amend, or repair the same, and may recover the costs and expenses thereof against the proprietor, if a resident, by action of assumpsit, in any court having cognizance thereof, with costs of suit; and if the proprietor be a non-resident, the costs and expenses thereof shall be assessed as a tax on the premises, and the amount thereof certified to the auditor of Warren county, who shall charge the same on the duplicate to such non- resident proprietor,” etc., etc.

On the 27th of May, 1846, the council adopted an ordinance entitled “ an ordinance further to improve the side-walks in the town of Lebanon,” the first section of which ordained that “ the owners of lots in said town, who had not, previous to the passage of said ordinance, curbed and paved their respective side-walks, should, before the 20th day of August next thereafter, substantially improve their respective side-walks and gutters in the manner therein specified.”

And it was prescribed that, on “ Warren street, the walks should be curbed, graveled and gutter-paved, from Broadway, east to High street, on both sides,” * * * and that “ Mechanic street should be guttered, curbed, and the walks paved, either with stone or brick, on both sides, from Main to Warren.” *****

In section 2, it was made the duty of the marshal of the town to'superintend the work, and to see that it was done in a workmanlike manner, and with good materials.

In section 3, it was provided that if the owner of' any lot should refuse or neglect to have the work done within the time specified, the marshal should immediately proceed to have said work done, and the owner of said lot should be charged with the cost of the same, etc.

It appeared that the complainants having neglected to make the necessary pavement on the west and north sides of lot No. 120, the same was done by the marshal, at an expense of eighty-two dollars and sixty-one cents, which sum was paid by the town council on the 14th of December, 1846.

On the 22d of May, 1849, the mayor, recorder and trustees passed an ordinance laying a tax of one mill on the' dollar, on the real and personal property within the corporation.

They further ordained, in the second section of the same ordinance, “ that the sum of eighty-two dollars and sixty-one cents be assessed as a tax on lot. No. 120, in the town of Leb anon, the property of Elizabeth Bonsall, a non-resident; said sum being the costs and expenses incurred by the town .council of said town in grading, curbing and paving the side-walks and gutters fronting said lot, which said Elizabeth neglected to do, as required by an ordinance of said town council, entitled ‘ an ordinance further to improve the side-walks in the town of Lebanon, passed May 27, 1846.’ ”

This was certified to the auditor, and the amount was charged on the duplicate to Elizabeth Bonsall.

We see nothing wrong in this proceeding. It will take a' bold man to say that all our municipal corporations are unconstitutional. If they are to exist at all, it seems indispensably necessary that they exercise, to a limited extent, the sovereign power of taxation. Especially is it necessary that they have power to grade and pave their streets and alleys. The least onerous way in which these improvements can be made, in our small towns, is to impose upon the proprietors of lots, more immediately benefited by the work, the duty of grading and paying the walks, etc., contiguous to their own premises. .

There is nothing in this which partakes of the character of a “ special” or “ discriminating” tax.

The duty is a general one, imposed upon all the citizens and proprietors of lots alike. It is only when the individual fails to perform his duty under the general ordinance, and neglects to make the pavement in front of his lot, that the proceeding has the appearance of becoming “ speeiccl” and peculiar.

And here it is where the counsel for complainants seem to have become bewildered.

They are astonished that a special tax of $82.61 can be levied on lot No. 120. It is the same, they urge to us, as enacting “ that Gr. Swan shall pay, as a tax on his property, the sum of $10,000 to construct the Central Railroad.

It is like the case of Titius,” say the counsel, “ as we find it made in Blackstone.” Therefore, a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law, for the operation of the act is spent upon Titius only, and has no relation to community in general; it is rather a “ sentence” than a law.”

Yery well; let the act of levying the sum of $82.61 upon the lot be called a “ sentence” upon the proprietors of the property. In one sense, the term will be very significant and highly appropriate.

Under their charter, the town council of Lebanon passed a general law or ordinance, that all proprietors of lots situate on Mechanic, and some other streets, should, within a stated period, make side-walks in front of their own premises. All the proprietors of lots interested complied with this ordinance, we may suppose, except the complainants.

What was to be done ? It surely would not answer to leave the side-walk in an unfinished state on account of the neglect of one proprietor. That contingency was foreseen and provided for in the charter. The town council were empowered to perform the necessary work for the lot owner in default, and as a “ sentence ” upon him, and a remuneration to themselves, they were authorized to assess the amount of their expenditure as a tax upon his lot, and to collect the same by means of the county duplicate.

So far from being a law or ordinance bearing upon a single individual, it was simply the means devised by legislative wisdom to compel the individual to an observance of a law operating upon all the citizens alike ; and thus to equalize its burdens.

It is still more preposterous to claim that the proceeding is a violation of the fourth section of the eighth article of the constitution. There is here no appropriation of the property of the citizen to the use of the public. If so, it should surely be paid for. The public, however, have expend ed money to improve the property of the citizen, and it is equally right that the property itself should be held for its reimbursement. The demurrer is sustained, and the bill dismissed with costs.


text:
    Samuel Price v. The State.
    In a criminal proceeding, it is not necessary to insert the middle letter in a person’s name ; but if inserted, it must be proved as laid.
    On a plea of duteafois acquit, the true test to determine whether the accused has been put in jeopardy for the same offense, is whether the facts alleged in the .second indictment, if proven to be true, would have warranted a conviction on the first indictment.
    This is a writ of error to the Court of Common Pleas of Hocking county.
    The plaintiff in error was indicted for burglary and larceny, in breaking and entering the mill of Horace B. Westerhaven, and stealing the goods of said Horace B. Westerhaven.
    The defendant plead a former acquittal. The record • set forth in the plea, shows a trial and acquittal of a charge of burglary, in the mill of Horace E. Westerhaven, and a larceny of the goods of said Horace E. Westerhaven. The plea also avers that the said Samuel Price, indicted and acquitted, is the same Samuel Price charged in the indictment to which the plea is interposed; that said Horace B. Westerhaven, in whose house the burglary in the last indictment is alleged to have been committed, is the same person who, in the other and first indictment, was named Horace E. Westerhaven, and that the burglary and larceny charged in the first indictment is the same burglary and larceny charged in the second.
    To this plea the counsel for the state demurred. The demurrer was sustained, and the defendant required to plead over, and on trial was found guilty and sentenced to the penitentiary.
    It is alleged that the court erred in sustaining the demurrer to the plea.

      Brazee & Tallmadge, for plaintiff in error.

      Henry Stanbery (attorney general), for defendant.
   Caldwell, J.

The question to be decided is, whether the record plead, and the averments of the plea, show that the defendant had been once put in jeopardy for the same offense.

A person can only be said to have been in jeopardy for an offense, when he has been put on his trial, on an indictment which would have warranted a conviction, if the criminal act had been proved.

In Archbold’s Criminal Pleading, page 87, the rule is laid down thus: “ When a man is indicted for an offense and acquitted, he cannot afterward be convicted for the same offense, provided the first indictment were such that he could have been lawfully convicted on it; and if he be thus indicted a second time, he may plead auterfois acquit, and it will be a good bar to the indictment.”

The true test by which the question, whether such a plea is a sufficient bar in any particular case, may be tried, is, whether the evidence necessary to support the second indictment would have been sufficient to prove a legal conviction in the first.”

The same rule is laid down in Roscoe’s Criminal Evidence, page 331. The first question arising in the application of this principle to the case in hand, is, whether the name Horace B. Westerhaven and Horace E. Westerhaven is the same name, or whether they designate different persons. It is not necessary in giving a person’s name to insert a middle letter which may form a part of his name, but when inserted it becomes an important part of the name, and must be proved as laid. Horace B. Westerhaven and Horace E. Westerhaven are different names, designating different persons. The facts necessary to sustain the second indictment could not have warranted a legal conviction on the first. Take the facts alleged in the second indictment to he true, and they could not have-put the defendant in jeopardy of a legal conviction in the first. In order to have made the plea good, it would have been necessary, in addition to the allegations made, to have averred that Westerhaven was known as well by the name of Horace-E, Westerhaven as Horace B. Westerhaven. We think the court decided correctly in sustaining the demurrer.

Judgment affirmed.