author: Scott, L

text:
    *The Lessee of Augustus Newell et al. v. Paul Anderson.
    S. and his wife A., jointly executed and acknowledged, in 1815, a deed of conveyance for lands of A., but the certificate of the officer does not show a separate examination of A. In 1829, the coverture still subsisting, A. separately, and upon proper examination, again acknowledged the deed before-a different officer; both the certificates being on the same sheet of paper with the deed. Held, that these acknowledgments were sufficient to perfect the conveyance. Williams v. Robson, 6 Ohio St. 510, approved.
    Ejectment.
    Eeserved in the district court of Hamilton county,
    The case is stated in the opinion of the court.

      Bryant & Probasco, for plaintiff;
    The first acknowledgment is void as to Mrs. Newelljand her heirs,, on the principle that a. deed of husband and wife, .defectively executed as to the wife, and not in accordance with the statute under' which it is made, is, as to the wife, absolutely void. 2 Kent’s Com. 150; Worthington v. Young, 6 Ham. 335; Elliott v. Piersol, 1 Pet. 328; Lefever v. Murdoch, Wright, 205; Morten v. Dwelley, 6 Wend. 9; Brown v. Faran, 3 Ohio, 140; Connell v. Connell, 6 Ib. 358; Good v. Zercher, 12 Ib. 366; Medock v. Williams, 12 Ib. 377; Silleman v. Cummins, 13 Ib. 116.
    A separate examination of a married woman is necessary to support her deed. There is no evidence in the certificate of the first acknowledgment that a separate examination was made; and the-fact can not be supplied by parol proof, upon the principles decided in the following cases: Lessee of Johnson v. Haines, 2 Ham. 53; Watson v. Baily, 1 Bin. 470-490; Jourdon v. Jourdon, 9 Serg. & Rawle, 274.
    *The acknowledgment of 1829, being her sole act during coverture, is void in itself. 2 Greenleaf's Cruise, ch, 32, title, Deed; Dae v. Howland, 8 Cow 277-286; Jourdon v. Jourdon, 9 Serg. & Rawle, 273-277; Miller v. Shackleford, 3 Dana, 290-298; Carter’s Lessee v. Stephen, Cowper, 201.
    But again, the act of 1820 (2 Chase, 1139, sec. 2) was the only act in force authorizing any conveyance or acknowledgment by a married woman; and that required the same officer who took the acknowledgment of the wife, to certify, also the acknowledgment of

      the husband on the same sheet (not another but the same officer), which we regard as fatal to this second acknowledgment. Both by the common law and the terms of the statute, therefore, we insist that the second acknowledgment is bad.
    We may add a further objection to both acknowledgments, as a distinct proposition, though it is in fact embraced in what we have submitted upon the first acknowledgment — the first not showing a ■separate acknowledgment, will be presumed in law to have been procured by coercion of the husband. 12 Pet. C. C. 374. The husband not having been a party to the second, the law will presume in favor of the interests of the wife, that undue influence was exerted upon her.
    See remarks of Judge Birchard in Chestnut v. Shane, 16 Ohio, 602, on the reason of the statutory provisions requiring separate acknowledgments.

      Lord & Wright, for defendant:
    1. The first acknowledgment is sufficient. It was made under the act of 1805. Curwen’s Laws 284, sec. 2.
    Under this statute, the certificate of acknowledgment of a deed to which a married woman is a party; is sufficient, if it state merely that she voluntarily acknowledged, though it contain no statement •of a separate examination, or that she acknowledged without fear ■or coercion of her husband; in other words, a certificate that the husband and wife voluntarily acknowledged the deed, without more, is valid, as well against the wife as the husband. Ruffner v. McLenan, 16 Ohio, 639. *See also Raverty v. Fridge, 3 McLean, 245, 230; Stevens v. Doe ex dem. Henry, 6 Blackf. 475.
    2. The acknowledgment of September 5, 1829, makes the deed perfect as against the wife, if the first certificate is not sufficient.
    That is, supposing this nicety and technical accuracy in the certificate to be indispensable, as required by our opponents, we maintain that the two certificates are a perfect compliance with such a construction of the statute. The statute requires a joint execution to protect the wife from undue influence from strangers in making the deed; and a separate acknowledgment by the wife to protect her against undue influence from her husband; and both these objects being fully accomplished, the purpose of the statute is answered.
   Scott, L

This case comes before us by the reservation of the district court of Hamilton county, upon an agreed statement of facts.

The plaintiff’s lessors claim title to the premises in controversy as the heirs at law of Abigail Newell. The defendant derives his title from a deed of conveyance, executed December 13, 1814, by Samuel Newell and his wife, the said Abigail. The coverture of the said Abigail continued till her death in 1839.

Two certificates of acknowledgment are appended to this deed, and upon the same sheet of paper. The first is dated March 15, 1815, and reads thus :

State of Ohio, Hamilton county, ss.
“ Before me, the undersigned, justice of the peace in and for said county, came personally Samuel Newell and Abigail, his wife, the above-named grantors, who acknowledged the above deed of conveyance to be their voluntary act and deed for the uses and purposes therein mentioned. In testimony whereof I have hereunto set my hand affixed my seal, etc.
“ George Yeatman, J. P. [seal.] ”

The second acknowledgment bears date of September 5,1829, and is as follows:

*“ State of Ohio, Hamilton Oounty, ss.
Before me, president judge of the ninth circuit, within and for said county, personally appeared Abigail, wife of the said Samuel Newell, the above-named grantor, and acknowledged the above deed of conveyance to be her voluntary act and deed, for the uses and purposes therein mentioned; and the said Abigail, wife of the said Samuel, being examined separate and apart from her husband, and the consents of said deed being made known and explained to her, declares that she voluntarily and of her own free will and accord, without any fear or coercion of her husband, did and now doth acknowledge the signing and sealing thereof. In witness whereof, I have hereunto set my hand and seal, this fifth day of September, in the year of our Lord eighteen hundred and twenty-nine.
George P. Torrence, [seal.] ”

The sole question in the case, as presented by the agreed statement of counsel is: Does this deed, jointly executed by Samuel and Abigail Newell, properly attested, and in all other respects formal and sufficient, but thus acknowledged, pass to the grantee therein named, the legal title which the said Abigail at its date held to the premises in controversy?

The first acknowledgment was made under the act of 1805, Cur-wen’s Laws, 284; the second under that of February 24, 1820, 2 ■Chase, 1139.

Assuming that the first is insufficient for the reason that it does not show a separate examination of the wife, is this defect cured or supplied by the second ?

It is claimed, in argument, that the second acknowledgment, being the sole act of the wife during coverture, is void. But this court,'at its last term, held that, under this same act of 1820, in order to divest the wife of her interest in lands, it is not necessary that the deed of conveyance be jointly and simultaneously acknowledged by her husband and herself — that a separate acknowledgment of the husband on one day, and a separate acknowledgment of the wife on a subsequent day, are sufficient. Williams v. Robson, 6 Ohio St. 510. With that decision we are fully satisfied.

It is true, that in this case the two acknowledgments were made before different officers. But it is not denied that each of these officers was competent to receive and certify the acknowl- ■ ■edgment of both husband and wife; and if this might be done at different times, as distinct and separate acts, we do not perceive *why the one officer may not take the acknowledgment of the husband, and the other that of the wife. Were the grantors other than husband and wife, no question could be made as to the necessity of an acknowledgment by both before the same officer. And yet the terms of the statute are, in all material points, identical in both cases.

The present case is, in one respect, a stronger one for the validity of the deed than that of Williams v. Robson; for here we have a joint acknowledgment of husband and wife, as shown by the certificate of Justice Yeatman, as well as a subsequent separate acknowledgment and examination of the wife.

Whether we look to the act of 1805, or that of 1820, these acknowledgments, taken together, show a full compliance with the terms, as well as the spirit and policy of the law.

That the proper influence and protection of the husband was afforded in the transaction, is evidenced not only by the joint execution of the deed, but by its joint acknowledgment, while the absence of all improper influence and constraint by the husband, is ascertained by the separate examination of the wife, and certified in the second acknowledgment.

It does not, therefore, become necessary to decide whether the first acknowledgment alone, would have been sufficient under the act of 1805. We simply say that, if deficient, the defect is supplied, by the subsequent one.

Judgment for defendant.

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


source: Caselaw Access Project

author: J. R. Swan, J.

license: Public Domain

text:
    In the Matter of the Wells County Road.
    1. The establishment of a county road, by county commissioners, upon the report of two viewers, the third neither qualifying nor acting, is erroneous.
    2. If, on appeal, the court of common pleas establish such road, upon the report of the two viewers, without other proof of the public necessity to condemn the land for public use, their proceedings are also erroneous.
    *3. If the owner of land through which a road'is proposed to be established apply to the county commissioners for damages, and viewers are appointed, who report, and the owner appeals to the court of common pleas, and viewers are there appointed, and report, and the court affirm their report, and establish the road, it is then too late for the owner to object on certiorari in the district court, that the record does not affirmatively show that the freeholders who petitioned for the road were “ of the vicinity,” or that notice of the application for the road was not given. He should have made these objections before the county commissioners.
    4. The owner of lands is entitled to a jury to assess damages sustained by the establishment of a county road. As to whether the constitution operated upon cases pending before legislation — guare.
    This case comes to this court by petition in error to reverse the proceedings of the district court of Hamilton county.
    The original proceedings were upon a petition before the commissioners of Hamilton county to open and establish a county road. George Kluntz, the owner of lands through which the road was established, prosecutes the petition in error; his principal complaint being that he was entitled to damages.
    The record shows the following state of facts:
    March, a. D. 1850, petition for county road by twelve freeholders, presented to the county commissioners, who appointed R. Orr,. George Luckey, and-Bromwell, as viewers.
    March 5, 1850, order issued to the viewers.
    ■Orr and Luckey qualified. Bromwell was not qualified, and did not act.
    May 31, 1850, Orr and Luckey made a report as viewers, to the-county commissioners, that the road would be a public convenience, by facilitating neighborhood intercourse. A survey, etc., accompanied this report.
    June 3, 1850, the report of Orr and Luckey taken up and read-by the commissioners. Kluntz, under date of May 10, 1850, petitioned the commissioners that damages be assessed, in his behalf, on account of the establishing of the road through his land. The-commissioners appointed three freeholders to view and assess the damages, if any, that might accrue to Kluntz, in the opening of the proposed road.
    ^December 4, 1850, the viewer’s reported that, after taking: into consideration the advantages and disadvantages, they were of the opinion, “the advantages are equal to the disadvantages; and,, therefore, declined awarding any damages to Kluntz.”
    From-this award of the viewers, Kluntz appealed to the court of common pleas; and here the action of the commissioners ended.
    September 29, 1851, the court of common pleas, having heard testimony, ordered three freeholders to view and report how much less valuable, if any, the land of Kluntz would be rendered by the-opening of the road.
    October 15, 1851, the freeholders reported to the court that the lands of Kluntz would in nowise be rendered less valuable by the-opening of the road; and that they did not take into account certain buildings found on the line of the road.
    November term, 1851, the court of common pleas confirmed the report of the freeholders, and ordered the road to be opened; and that the plat and survey of the road be certified to the county auditor, to be by him recorded, etc.
    These proceedings were had under the act of March 14, 1831. Swan’s Stat. (old ed.) 796.
    It nowhere appears in the proceedings of the county commissioners that notice was given of the application to open the road, as provided by the third section of the above-mentioned act. The-petition of the twelve persons who asked for the opening of the road, name G-. Kline, instead of G-. Kluntz, as one of the owners of the land through which the proposed road would pass. The fact that the petitioners were freeholders of the vicinity, does not appear in the proceedings. The petitioners, however, describe-themselves in their petition as freeholders.
    Kluntz prosecuted a certiorari, issued by the district court, to the-court of common pleas of Hamilton county, to reverse the order of the court of common pleas.
    The district court affirmed the orders of the court of common* pleas; and a petition in error is now prosecuted in this court, to* reverse the .affirmation of the district court.
    The following objections, among others, are assigned for error:
    *1. In the proceedings before the commissioners, it does not apjiear that notice was given of the application to open the road. This was necessary to give the commissioners jurisdiction.
    2. It does not appear that the twelve persons, by whom the original petition was signed, were “ freeholders of the county,” and residents in “ the vicinity ” of the proposed road.
    3. The route of the road was not truly described. The road was laid out over the land of Kluntz; it was described as running over the land of “ G-. Kline.” This is not in accordance with the statute.
    4. Only two viewers were ever sworn, or ever acted; the statute-requires three.

    5. The appellant was entitled to have his damages assessed by a jury of six citizens.

      George F. Pugh, F. A. Ferguson, and Alexander Fong, for G-eorge-Kluntz, plaintiff in error.

      Isaac C. Collins and John W. Serrón, for defendant in error.
   J. R. Swan, J.

Had the county commissioners any authority to establish a road upon the report of two viewers, when the third viewer did not qualify or act ?

The county commissioners are required to appoint three viewers, and can not establish a road unless the report of the viewers be in favor of establishing it. Swan’s Stat. (old ed.) 797, sec. 4.

But two, in this case, qualified and acted. This was not a compliance with the statute, for the duty required the exercise of discretion and judgment; Young v. Buckingham, 5 Ohio, 485; and if the county commissioners had proceeded to establish the road on «uch report, their proceedings would have been erroneous.

Could the court of common pleas establish the road upon the report of the two viewers, made to the county commissioners?

It will be observed that the county commissioners did not ^establish the road, but simply received the report of the two viewers, entertained the application of Kluntz for damages, and appointed and received the report of the freeholders as to damages. Kluntz then appealed from the. last-mentioned report; and the case went to the court of common pleas, without any action whatever upon the question whether the road should be established. The commissioners were acting in accordance with the statute (Id. sec. 6), in not determining whether the land should be appropriated and the road established, until the question as to the damages of Kluntz should be finally determined. Upon the appeal, the damages of Kluntz might have been determined, under the statute referred to, and the court could have then remanded the whole subject, as to the establishment of the road, to the county commissioners ; or the court could have proceeded, in the place of the commissionex-s, to determine whether the road was of public utility, and ordered the report of the viewers, and the plat and survey, to be recorded by the auditor of the county, and thus establish the road. In the present case, the court appointed viewers to determine the damages of Kluntz, affirmed their report, and then, under the report of the two viewers, who had reported to the county commissioners, ordered the plat and survey to be recorded by the county auditor, and thereby established the road. The power of the court over road appeals is very general. The seventeenth section of the act above mentioned allows appeals, as well from the final decision of the county commissioners upon a petition for a new road, as for damages sustained by the same; and the ■court “ may order another view or review, if justice and the interest of the public require it, or make any other order they may deem just and x’easonable.” Unlimited as this language is, there is a legal discretion beyond which the court can not go. They may direct another view; but if no legal view has in fact beer made, and they direct no view, and establish a road without any legal evidence that the road is of public utility, it is certainly an abuse of legal discretion. The court, in this case had before them the opinion of two viewers. Instead of setting aside this view, they acted upon it. The statute never contemplated the establishment of a road by the ^report of two viewers, the third never qualifying, meeting, or acting with the other viewers. "When the question, whether private property shall be condemned to the public use, is transferred by the state to and vested in a court, the power, so dangerous and easy of abuse, can not be exercised without such proofs of public necessity or public utility as have been prescribed by the state. The .law never intended that the county commissioners, or the court, should condemn lands for a county road on the mere opinion of either tribunal. Yiewers, who are freeholders of the vicinity, must first report, under oath, that the public require the assumption of the property for a road, before the county commissioners or the court can condemn it. We think the court, in the case before us, had not sufficient proof before them to exercise the power of eminent domain.

The objection to the qualifications of the persons who petitioned for the road, as freeholders of the vicinity, and that notice of the application for the road does not affirmatively appear to have been given, comes too late after the appearance of Kduntz before the commissioners, and his omission to make any objections of this kind until the matters were before the district court on certiorari.

Unless it be held that the constitution, relating to the assessment by a jury of the value, etc., of property taken for public use, is not applicable to proceedings pending when the constitution took effect, until the general assembly have had an opportunity to make provision for a jury (see People v. Board of Supervisors, etc., 3 Barb. (S. C.) 332; Graves et al. v. Slaughter, 15 Pet. 449; Rowan et al. v. Runnels, 5 How. 134, 138-139), it is clear that Kluntz, on his appeal from the award of damages, was entitled to a jury. Lamb et al. v. Lane, 4 Ohio St. 167.

The order of affirmation of the district court will be reversed. The order which the district court should have entered, under the law as it now exists relating to the assessment of damages, should have been to set aside all the orders made after the petition was filed before the commissioners, and remanding the whole matter *to the county commissioners for proceedings de novo on the petition.

This court will, therefore, reverse the orders of the district court and the court of common pleas, and the orders of the commissioners made ^fter the petition was filed before them, and remand the matter for further proceedings before the county commissioners.

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


author: *Bowen, J.

text:
    Thomas W. Cooch et al. v. John Irwin, Administrator.
    When a bill of exceptions is taken in the common pleas, which refers to papers as made part of the bill, but in such a manner as not to authorize their being attached to the bill as part of the record, and on error to the district court, no objection is taken, on account of such papers not being made part of the record, by the defendant, in error, who afterward presents a petition in error to this court, he can not here object to such omission.
    An administrator is not chargeable with interest on money which comes into his hands as the representative of a deceased person, unless he employ it in his own business, derive some benefit from the loan of it, or is guilty of unreasonable and unnecessary delay in the settlement of his accounts with the court.
    Petition in error to reverse tbe judgment of tbe district court of Butler county.
    In November, 1843, John Irwin took upon bimself tbe administration, with tbe will annexed, of tbe estate of Tbomas Coocb, deceased.
    Tbe administration accounts of Irwin were settled by tbe probate court, and tbe cause removed, by appeal, to tbe court of common pleas. Tbe latter held the administrator liable for interest on tbe money which came into bis hands, and made an order requiring him to pay it. Tbe proceedings of tbe common pleas *were, by Irwin, brought into tbe district court, by petition in error, and as to tbe item of interest reversed by that court.
    Tbe following bill of exceptions was, at tbe instance of Irwin, signed by the judge of tbe court of common pleas, and made part of tbe record:
    “ This cause came on to be beard upon the report of tbe master, in relation to tbe accounts due, vouchers of tbe said administrator, and tbe exceptions to said report, it appearing in evidence that administration, with tbe will annexed, upon tbe estate of Tbomas Cooch, deceased, was taken out by said Irwin in November, 1843, and that over and above the other assets named in the inventory .and appraisement, he found specie on hand to the amount of eight hundred and forty-three dollars; that at the February term of the court of common pleas, in 1844, a bill was filed by said Owen R. Cooch, Thomas W- Cooch, Abram F. Darr and wife, and Sarah Ann Mclntire, all the heirs of the deceased, against Isabella Cooch, John Irwin, and William P. Cooch, to set aside the will of Thomas Cooch, deceased. An issue was tried by a jury, and a verdict and decree in favor of the will, in February, 1845. The complainants in that behalf appealed to the Supreme Court, where the case was continued until the-May term, 1847, when, by an agreement of the parties, the will was set aside, and a decree entered to that effect at May term, 1847. William P. Cooch brought suit on a note for $2,250, principal, and about two hundred and fifty dollars, interest, which said Irwin defended, and'which resulted in a judgment in favor of defendant, at May term, 1849. At May term for Butler county, in 1848, of the Supreme Court, Thomas W. Cooch filed a bill of review in that court, to reverse the'decree by which the said will was set aside, which bill was still pending until, and was finally disposed of at, the December term of said Supreme Court in bank, in 1849. On the 21st day of March, 1850, the papers were filed for settlement. All of which record and proceedings were before the court in. evidence, and now referred (to) as part of this bill of exceptions, together with all the papers connected with the administration of said estate, (which) are also made part of this bill of exceptions, and hereto attached.

    *“V. Chase was sworn as a witness, who stated that he had acted as the attorney of the administrator from the issuing out of the letters to him; that the settlement of the estate had been delayed by reason of the continuous litigation, and that at the nest term of court after the dismissal of the bill of review by the court in bank, Irwin, in the absence of the witness, had procured the papers to be filed for settlement, and at every term thereafter till the papers were transferred to the probate court, he was ready and willing to settle, and did actually attend at each term of the court for that purpose. Sometimes the case was continued for want of time, and at others, in order that the associate judges might get the opinion of the president judge upon a question that arose in the course of the settlement in relation to some of the vouchers, which were resisted by these distributees. Witness stated that there had been two other suits than those mentioned above, one a collection case against Thos. W. Cooch, and the other a litigated case, prosecuted against said Irwin, as administrator, by one William Gray.
    “But it did appear in evidence from admissions of the parties, that said Irwin had not filed an account of his administration, or obtained further time for the settlement of said estate, and that citation was issued against him to compel settlement, to one or more of which it was claimed, and so admitted, that the return would show that said Irwin refused to settle said estate, because the court refused to settle according to law; that such proceedings-were had .between the time of taking out letters as aforesaid and-March, 1850, which proceedings and citation referred to are also-hereto attached and made a part of this bill of exceptions.
    “John Irwin, pursuant to the subpena hereto attached, brought into court a bag of money, and claimed to be sworn as a witness,, to which the appellees or heirs objected, but the court overruled the objection, and the said Irwin was sworn and examined, who-stated in substance that the money he produced in court was the same identical coin which he found on hand belonging to the estate of his testator, Thomas Cooch, deceased, and that he had kept it in the same bags in which he found it, and #now produced in court; that he had not used it or loaned it, or any part of it, nor received any interest or profit from it whatever; that he had not paid it out to the distributees, for the reason that he could not tell to whom to pay it, until the litigation should cease, by which it should be determined whether the distribution should be made under the will or under the statute; nor could he tell whether there would be any thing to distribute,, until the claims presented by the said William P. Cooch had been defeated; and that he had been instructed to resist said claims, by two or three distributees, which turned out to be a forgery. In answer to questions propounded by the counsel for the appellees, he further stated that the money could probably havo been loaned in that neighborhood at from eight.to ten per cent., though he never had an application to borrow this money, except one from said Owen R. Cooch, one of these distributees, who was not regarded as responsible, but that the same might have been loaned to responsible men for eight to ten per cent, per annum; that he had paid voucher number nine in the report of the master, to Thomas W. Cooch in money, at the same time that he held a note made by said Thomas W. Cooch to Isabella Cooch, not indorsed or assigned, though he believed it to belong equitably to the assets of the estate of his said testator, and so collected the most of it; a part of it never was collected; that he did so pay the money, because he knew it to have been the contract between the said Thomas W. Cooch and his father, the testator, that the latter should pay to the former fifty dollars for the building of wood-house, notwithstanding he hold said note; and that the testator had, in his lifetime, paid a part of the said fifty dollars in money, holding the said note at the sametime; and in paying the said sum he was only carrying out in good (faith) what he knew to haye been the contract between the parties. He further stated that from one to two years ago, Thomas Millikin bad asked him on two different occasions for one hundred dollars for Sarah Ann Mclntire, and that the second time, he said to the said Millikin the estate would now soon be settled, and she could have all of it.
    “ William Dodds testified that money might have been loaned in *the neighborhood safely at eight per cent. In consideration of which testimony, the court overruled the exceptions, and confirmed the report of the master, charging said Irwin with interest, thereby holding that it was the duty of the administrator, under all the circumstances, to have either stated the accounts with the probate court, and have obtained an order of investment, or make the money at least remunerative to those interested, at six per cent, per annum, after eighteen months, when he should have filed his first account,” etc.
    It is claimed that the district court erred :
    1. In reversing the judgment of the court of common pleas.
    2. In deciding that said administrator ought not to be charged with interest' on the money of the estate, remaining in his hands.

      Thomas Millikin, and Scott & McFarland, for plaintiffs in error:
    The district court erred in this reversal, and should have dis missed the petition. Because:
    1. Said district court had not (nor has this court) the whole testimony before them. It is stated in the bill of exceptions that various records, proceedings, citations, together with all the papers connected with the administration of said estate, are referred to, hereto attached, and made part of the bill of exceptions, whereas, in truth, no such papers are made part of the bill of exceptions. “ All the evidence before the jury (in this case the court) must be embodied in or made part of the bill of exceptions. It will not do, as is sometimes attempted to be done, to refer to the records of courts or records of deeds, and attempt to make them parts of the bill of exceptions.” Hicks v. Person, 19 Ohio, 446; 1 Ohio St. 412.
    This bill of exceptions does not recite the whole of the evidence given in the cause in the court of common pleas; nor does it pretend to contain it all; but on the contrary, it shows that much evidence was heard which it does not contain. The law in Ohio now requires that all the testimony must be set forth in such cases, and that it must appear from the record, that it all is set forth. 17 Ohio, 498; 21 Ib. 414; 19 Ib. 446.
    *2. Upon the merits. The only question is, shall the administrator be required to pay interest upon money which has been in his hands twelve years ?
    Where administrators have retained money unreasonably, or neglected to account to the court, they are chargeable with interest. 1 Am. Lead. Cas. 363, 364; 1 Johns. Ch. 508, 527, 620.
    If an executor retain money in his hands and neglect to invest it, he is liable for interest. Toller on Executors, 480.
    In 2 McCord’s Ch. 266, it is said, that where trustees refuse to account, the court will adopt the most rigid rule for calculating interest.

      Chase & Vance, for defendant in error
    If the first position of plaintiffs in error be good, it only shows that this court ought to dismiss this petition without disturbing the judgment of the court below. It does not follow that because the records and papers referred to are not before this court, they were not therefore before the district court.
    But we assume the position that the record does contain all the facts in relation to the issue, which is simply whether the administrator ought to be charged with interest upon the funds in his hands.
    The cases of the authorities referred to by counsel on the other side, are motions for new trial, because the verdicts were against evidence. The court very properly say they can not determine whether the verdict be against evidence or not, because only a part of it is before them. But that is not the case here.
    The administrator is not properly chargeable with interest. He has not used the funds himself, nor derived any profit from them.

      The delay in his settlement with the court was necessary and unavoidable, and therefore not unreasonable. 2 Williams on Ex’rs, 1529, note, and 1568, note 1; see also the preceding note; 16 Serg & R. 416; Halst. 145; 1 Marsh. 477; 12 Ves. 386; U. S. Dig., title Executor.
   *Bowen, J.

The counsel for plaintiffs in error claim, in their argument, that the bill of exceptions does not contain the whole of the evidence given in the cause in the court of common pleas; and that the district court ought for that reason to have dismissed the petition.

There was no objection taken by either party in the district court to the sufficiency of the record. No diminution was alleged or motion made to dismiss the petition, nor was there any opposition to the hearing of the cause before the court, on the record which had been returned there by the common pleas. The defendants below, who were interested in sustaining the judgment of the court of common pleas, may have consented to the hearing of the case on the record which was then before the court. There is nothing to the contrary shown, and it seems just to infer that both parties considered the record sufficiently complete to present, satisfactorily, the points relied on by them respectively. Had not this been the ■case, the district court might have been moved to dismiss the case, •or to require the defects in the record to be supplied; and a denial •of such motion, upon proper application by the party prejudiced, would have been the subject of exception there, and of examination .and correction, on error, in this court-. There is no error apparent in the proceedings of the district court. The facts disclosed in the record before us, authorize such a judgment as was rendered. Before any judgment of an inferior tribunal can be reversed, it must be made to appear affirmatively that some error has been committed ; and in many cases that can only be done by taking exceptions to the rulings of the court.

The bill of exceptions appears to set out the facts of the fcase very fully. We doubt whether the absent papers would, if attached, furnish us any additional aid in settling the principle involved; and so, we suppose, the parties viewed the Case in .the district court. But if we were satisfied that some of the exhibits referred to were not contained in the bill of exceptions, yet as the reference made to them will not allow of their being attached to the bill of exceptions, aiid thus to become a part of the record, it is too late now for the plaintiffs in error to object to the action *of the district court in that respect. That court took the record which the parties submitted to it, without objection, and pronounced judgment thereon. The same record, in this proceeding, comes here for our inspection and judgment, and we must be controlled in our decision by it.

The ease of Hicks v. Person, 19 Ohio, 446, refererred to by counsel for plaintiffs in error, determines that where a writ of error is prosecuted in the Supreme Court, to reverse a judgment of the court of common pleas, on the ground that the court erred in overruling a motion for a new trial, because a verdict was against evidence, all the evidence before the jury, on the trial of the cause, must be brought before the Supreme Court by bill of exceptions.

So, in Burly v. Finn, 1 Ohio St. 409, it was held, that to make a paper a part of a bill of exceptions, it must be incorporated in it, or attached to it, or filed with it, and that it must be signed and sealed at the term at which the exception is taken, and can not be amended after that time.

These cases, which we regard as sound law, do not seem to be applicable to the one now under consideration. They relate to a different'principle and rule of practice.

The principal point of controversy in this case is, whether the administrator should be charged with interest on the money which came into his hands from the estate of the deceased, Thomas Cooch ?

Where an administrator receives money from an estate which he undertakes to settle, and employs it in his own business, or where he loans it out, and receives interest for the use of it, or where he delays for an unreasonable time, and without any satisfactory excuse, to close up the affairs of the estate, it is just that he should make good to the heirs, in the form of interest, any advantage he derives from the use or investment of the money, as well as any loss which results to them by the neglect of the administrator to perform his duty, within a reasonable and proper time.

In the case before us, the evidence does not show that Irwin used the money in any way, except to retain it in hand. The *same specie which came to his hands, from the estate, he produced before the court. He made no loans, nor any personal use of it. He was prevented, by litigation, from an earlier settlement of his accounts than he effected. No benefit accrued to him by the retention of the money in his hands, and no fault of his occasioned the delay in the settlement of his accounts with the court, preparatory to a distribution among the heirs.

We think, therefore, that the district court committed no error in the order which it made.

Judgment of the district court affirmed.

Bartley, C. J., and Swan, and Brinkerhoee, JJ., concurred. Scott, J., having been of counsel, did not sit.


author: Bartlett, C. J.

text:
    Mary Walden v. James L. Chambers, Administrator of James Walden, deceased.
    While, by the common law, the husband becomes liable for the debts of the wife, contracted previous to marriage, as well as for the support of the wife during coverture, the wife’s choses in action, reduced to possession by the-husband during coverture, as well as her personal chattels at the time of the marriage, or which comes to her, in her own right', during coverture, vest absolutely in the husband.
    Although the husband’s possession and control of the separate property of the-wife, in the capacity of trustee, is not such a reduction to possession by the husband as to vest the right of property in him, and extinguish the wife’s-right by survivorship, yet where the husband, after final settlement with the court as executor of the wife’s ancestor, and after an order of distribution of the assets in his hands (a part of which was coming as a legacy to the wife), retained the wife’s money in his hands, there is such a reduction to possession as to vest the property absolutely in the husband.
    Petition in error to reverse the judgment of the district court of Butler county.
    The original proceeding was a suit instituted in the common pleas of Butler county, by Mary Walden, against James L. ^Chambers, as administrator of James Walden, her late husband, to recover on an account containing the following several charges, to wit:

      1. Amount of money remaining in the hands of James Walden, as executor of Nancy Telfer, coming to . Mary Walden, ascertained on final settlement made in the court of common pleas, at May term, A. d. 1849. $152 38
    Int. from May, 1849, to May, 1853....................... 36 56
    2. Amount due to Mary Walden, upon decree on petition for alimony by her, against said James Walden, at February term of the common pleas, for 1853 ........ 75 00
    3. The value of two bedsteads and beds, which the appraisers of the estate appraised at $16, but which were not set off to the widow, but sold by the administrator.......................................'.................. 16 00
    Total.......................................................... $279 94
    In the common pleas, the plaintiff recovered the full amount of the account, and the defendant appealed to the district court. And at the May term of the district court of Butler county, for the year 1855,'a jury having been waived, the court, on submission, found against the plaintiff below on the first item in the account, and rendered judgment for the plaintiff on the last two charges, which do not appear to have been controverted. To the finding and ruling of the court, in regard to the first charge,' the plaintiff below excepted.
    The bill of exceptions shows that, during the year 1849, James Walden was the executor of Nancy Telfer, deceased; that Mary Walden was the daughter and residuary legatee of Nancy Telfer; and that James Walden, as such executor, at May term, 1849, settled said estate with the court of common pleas, by which settlement it appeared that, after paying debts, etc., there remained in his hands, as such executor, $152.38; which amount, by the order of distribution made by the court, and in accordance with the will of Nancy Telfer, said James Walden was directed to pay *over to said Mary Walden, she being at that time the wife of said James Walden. In the summer of 1853 James Walden died, without having paid over to Mary Walden said amount of $152.38.

      Thomas Millihin, for plaintiff:

      First. Well-settled principles forbid that the husband, while acting as trustee for his wife, should do any act that would change or impair the title to the property in his possession. No act of a trustee shall prejudice a cestui que trust. 1 Story’s Eq. 317. When a trustee purchases trust property, the sale is set aside as a matter of course. Ib. 318. Whatever acts are done by a trustee, are presumed to be done for the benefit of the cestui que trust, and not for the benefit of the trustee. 4 Kent, sec. 61; 2 Johns. Ch. 252. He can not represent two opposite and conflicting interests. Wormley v. Wormley, 8 Wheat. 441. If a trustee wishes to invest himself with the trust property, he must first surrender his office. These principles apply to all persons standing in a fiduciary relation. 2 McLean, 314.

      Second. James Walden did not (admitting he had the power) so reduce to possession the legacy due to his wife, as to make it his own. 2 Kent’s Com. 136, 138; Dixon’s Adm’r v. Dixon, 18 Ohio, 114; Estate of Hinds, 5 Whart. 138; Reeve’s Domestic Rel. 3; 1 Williams’ Ex’rs, 734; Gochenaur’s Estate, Am. Law Reg. for June, 1855, 492; Baker v. Hall, 12 Ves. 497; Hall v. Tomlinson, 16 Ves. 413; Wood v. Warden, Adm’r, 20 Ohio, 518: Huber v. Huber, 10 Ohio, 371.

      Joel W. Harris and Thomas Moore, for defendant:
    When the settlement was made with the court, and distribution ordered in accordance with the will, James Walden, in his individual capacity, became indebted and obligated to pay to each of the distributees the amount due to each of them by the will; and any one of the distributees could have maintained assumpsit therefor. Waldsmith v. Waldsmith, 2 Ohio, 156. Mary *Walden, being one of the distributees and the wife of James Walden, the mai’ital relation canceled the debt. Reeve’s Dom. Rel. 60, chap. 3; Ib. 86, chap. 7; Pierce v. Thompson, 17 Pick. 395.
   Bartlett, C. J.

The single question presented in this case is whether the separate right of the plaintiff, Mary Walden, to the amount of the bequest from her mother’s estate, found on final settlement of the executor with the court to be in the hands of the executor, who was then her husband, became extinguished by the marital relation. It appears that James Walden, as the executor, of Nancy Telfer, deceased, settled the estate, at the'May term of the common pleas of Butler county, for the year 1849, and that, upon such settlement, there was found remaining in his hands as such executor the sum of one hundred and fifty-two dollars and thirty-eight cents, which, by the order of distribution made.by the court, the executor was directed to pay to Mary Walden as the residuary legatee of the testator. And James Walden, although he lived till some time in the summer of 1853, never paid over, or set apart, or invested in any manner, for the separate use of his wife, this amount which became due to her under the order of distribution.

In the contemplation of the law, husband and wife, in many respects, constitute but one person, and all the rights and duties which were the wife’s at the period of the marriage, become the husband’s during the continuance of the marital relation. And while, by the common law, the husband becomes liable for the debts of the wife contracted previous to the marriage, and also liable for the support of the wife during coverture, the personal chattels of the wife, at the time of the marriage, or which come into her possession in her own right during the coverture, whether by gift, bequest, or otherwise, vest absolutely is the husband; also the wife’s choses in action, consisting of rights arising from contracts, and which must be asserted at law for the purpose of being reduced to possession, become the absolute property of the husband, if reduced to possession by him during the marriage. And according to Reeve on the law of the domestic relations, *page 60, chap. 4: “If personal property be given to the wife, as a legacy by will, or if given to her in any other manner, and there are no words indicative of the intention of the donor that it shall be to her separate use, such property belongs absolutely to the husband, and does not go as choses in action, which the wife owned at the time of her marriage.” And again, on page 86, chap. 7, of the same work: “ By the marriage, all debts due from husband to wife which may become due during the coverture, are annulled. These, like all other choses, are at the disposal of the husband; and by the marriage they are reduced to such possession of the husband as they are capable of.” In accordance with this doctrine, the Supreme Court of Massachusetts, in deciding the case of Pierce v. Thompson, 17 Pick. 393, said: “Thompson was indebted to Tinkham, his wife’s father, on several notes; Tinkham by his will bequeathed this debt to the wife and died, leaving property more than sufficient to pay all his debts. By this bequest, the property vested presently in the husband (Commonwealth v. Manley, 12 Pick. 173), and therefore was the same in legal effect as if the bequest had been in terms to the husband. Such a bequest by the creditor to the debtor, if there are assets without it for payment of debts, is an extinguishment. Hobart v. Stone.”

The application of this view of the law to the case before us removes all ground for controversy. When James Walden settled the estate of Nancy Telfer, and distribution of the assets remaining in his hands was ordered to be made to the legatees under the will, he became indebted and obligated in his individual capacity to pay to the several distributees the amount coming to each, upon such ground as would lay the foundation for an action for money had and received. Mary Walden, as residuary legatee, being one of the distributees, and the wife of James Walden, the executor, who failed to pay over, or set apart and invest for her separate use, the money coming to her, the' right of the wife became extinguished by the operation of the marital relation.

It is claimed by the plaintiff in error that James Walden was in possession in the character of trustee, and not of husband, and that such possession would not extinguish the right of the wife *to the property, if she survive the husband. It is very true, that the husband may have the possession or control of the separate property ■of the wile, for certain purposes, in a fiduciary capacity, so as to clearly show that he does not hold it as his individual property. The cases of Baker v. Hall, 12 Ves. 497, and Wall v. Tomlinson, 16 Ves. 413, are to this effect.

In the first case, Hall was the executor and trustee of the will of Wright, and while such executor and trustee, he married one of the residuary devisees, and afterward died, leaving her surviving him; she died subsequently, leaving. a daughter. The question was, whether the possession by Hall of the real and personal estate of the testator, as only acting executor and trustee, under the will, and disposing of part, had sufficiently reduced into possession his wife’s share, so as to give him an absolute title, transmissible to his personal representatives. The master of the rolls said : “ The husband must be considered to have entered into possession only as trustee and executor of the will, and not as husband, and therefore his wife’s share of the residue could not be sufficiently reduced into possession, so as to prevent its surviving to her upon her decease, and of course going upon her death to her representative.”

In the case of Wall v. Tomlinson, the stock of the wife was transferred into the joint names of the husband and defendant, Tomlin-son, upon an agreement that there should be a further transfer of it to the trustees in trust for the separate use of the wife for life and if there should be no children, then to survivor of husband and! wife absolutely. No settlement was made, and the wife having survived, and afterward died, arid there being no children living, the question arose between the executors of the husband and the legatees of the wife. And the master of the rolls said: “ That the transfer of the stock to the husband, merely as a trustee, could not be represented as a reduction into possession, that would entitle his representatives.”

In these cases, the person received and hold the possession distinctly and clearly as trustees, for the benefit and use of others, and died before the duties of the trust were fully discharged, *andi before any became liable individually to pay it over to the beneficiaries of the trust.

The Supreme Court of Pennsylvania held, in the case of Ellis v. Baldwin, 2 Watts. & Serg. 253, that “if an administrator de bonis non with the will annexed, whose wife is a legatee in the will, receive assets of the estate sufficient to pay the legacies, and die without settling any account of the administration, leaving his wife surviving Mm, it is such a reducing to the possession of the choses in action of the wife as will preclude a recovery by her after his death.” And the judge in the decision of the case said: “And had he retained it in his possession, without using it, until Ms death, or had he put it out on interest expressly for the use of his wife, I would not say but her right to receive the money in such case would survive. But the money was not retained by the husband in the present case, nor put out by him to interest for the use of his wife; nor anything of the sort done by him, from which it is possible to infer that he did not intend to bar her thereafter from asserting her right to it by survivorship. On the contrary, he appropriated the whole of the money to his own use ; and, in truth, used and treated it as his own in every respect.”

And the more recent case of G-ochenaur’s estate, decided by the Supreme Court of Pennsylvania, reported in 3 Amer. Law Reg. 486, is not in principle inconsistent with the case of Ellis v. Baldwin, for it is expressly placed upon the ground that the husband, by express language, declared his intention to hold the money in his fiduciary capacity for the benefit of his wife.

It is also insisted on the part of the plaintiff in error, that her right of recovery was sustained by the cases of Huber v. Huber, 10 Ohio, 371, and Wood v. Warden, Adm’r, 20 Ohio, 518. But these cases go no further than to show that the husband may set apart property for the wife’s separate use; and that where a post-nuptial agreement is made between husband and wife, by which property is set apart for her separate use, the agreement, athough void in law, will be sustained in equity, where the rights of creditors do not interfere.

None of these cases referred to, on the part of the plaintiff in terror, are analogous to the ease before us. Here the exeeutor had made final settlement of the estate, and was ordered to distribute the assets, and, therefore, had no right to retain longer the-funds in his hands coming to his wife, in his fiduciary capacity. And his retaining the money in his hands until his death, some four years after the order of distribution, was an extinguishment of the-wife’s contingent right by survivorship.

Judgment of the district court affirmed.

Swan, Brinkerhorr, Bowén, and Scott, JJ., concurred.


author: Brinkerhoff, J.

text:
    The City of Cincinnati v. The Lessee of the Heirs of Samuel, and Abigail Newell.
    Where, in a deed of conveyance, the premises are described as follows: “ All that lot or parcel of ground, in the county and state aforesaid, being part of fractional section No. 12, in the fourth township and first fractional range, beginning at the south side of a two-pole street, and corner of lots Nos. 10 and 11; thence south 40 deg. east 82J- feet to a stake; thence south 40 deg. west 29 74-100 poles to a stake; thence north 45 deg. west 82J feet to the south side of a two-pole street; thence north 45 deg. east 29 74-100 poles to the beginning, excepting and reserving a 33-feet street, in the north or upper side of the southern line of said lot, for the use of the public, in lieu of a two-pole street, north of lots 9 and 10, formerly owned by Stephen Wheeler and John S. Gano, agreeably to the plat of land as sold by Ethan Stone, containing three roods and twenty-eight poles:” Held—
    1. The title in fee simple to the whole tract, so far as the same existed in the-grantor, passed to the grantee, subject only to a right of way for a street over the thirty-three feet.
    2. Where the wife of the grantor is the owner, in her own right, of one-fifth of tie premises covered by the conveyance, and she joins her husband only in the testatum clause, and in the execution of the deed, the husband’s title alone is passed to the grantee.
    In error to the district court of Hamilton county.
    The facts are these: Stephen Wheeler died seized of a large tract of land in the city of Cincinnati, of which the premises in controversy are part, leaving six children and heirs at law, four of whom, on the 13th of December, 1814, conveyed their undivided *interests in the estate to Samuel Newell, husband of Abigail Newell, who was a fifth heir. The other one-sixth originally descended to Polly, wife of Hanson L. Reeder, and at her decease was inherited by her minor children, Stephen W., Abigail, Eden B., and Eliza J. Reeder.
    In 1816, Samuel Newell, claiming four-sixths under the conveyances above described, and one-sixth in right of his wife, filed a petition for partition in the Hamilton common pleas, against the heirs of Polly Reeder, and thereupon such proceedings were had that the premises in controversy, with other property (among the rest the land directly south of and adjoining the land in controversy), were set apart to Samuel Newell, as and for the five-sixths of said estate owned by himself and his wife. To these proceedings Mrs. Newell was not a party. In the year 1815, and previous to the partition, a deed, under which the controversy in this case has -.arisen, was executed by Samuel Newell and his wife to Jacob Wheeler. Mrs. Newell joins in this deed only in the testatum clause (wherein she relinquishes dower) and in the execution; Samuel Newell alone grants and covenants. The covenants are of •seizin, right to convey, and general warranty. The consideration named is the sum of three hundred dollars. The property conveyed is described in the following words: “All that lot or parcel of ground in the county and state aforesaid, being part of fractional section No. 12, in the fourth township and first fractional range, beginning .-at the south side of a two-pole street, and corner of lots Nos. 10 and 11, thence south 40 deg. east, 82J feet, to a stake; thence south 40 deg. west, 29poles, to a stake; thence north 45 deg. west, 821-feet, to the south side of a two-pole street; thence north 45 deg. east, 29-^¡- poles, to the beginning; excepting and reserving a 33-feet street in the north or upper side of the southern line of said lot, for ithe use of the public, in lieu of a two-pole street north of lots 9 and 10, formerly owned by Stephen Wheeler and John S. Gano, agreeably to the plat of land as sold by Ethan Stone, containing three roods and twenty-eight poles.” The plaintiff in error claims under this deed, by virtue of intermediate conveyances fromjacob Wheeler to Samuel W. Davies, from Samuel *W. Davies to the Cincinnati Water Company, and from the Cincinnati Water Company to the city of Cincinnati, and has been in possession of the premises in controversy since 1839, using them for a reservoir of water, in connection with the water-works of the city.
    The lessors of the defendant in error claim in right of their mother, Abigail Newell, an undivided one-fifth of the whole lot described in the deed, and in right of their father, Samuel Newell, four-fifths of the reserved “thirty-three feet.” Or in other words, in right of their mother one-fifth of the whole lot, less the reservation, and in right of their father and mother, the whole of the reservation.
    The only other fact necessary to a proper understanding of the case is, that the two-pole street north of lots 10 and 11, in lieu of which the street described in the reservation in the deed to Jacob Wheeler appears to have been intended, has never been abandoned, but is still used as a street, and known as High street, in the city •of Cincinnati, and as such was widened by ordinance of the city council, passed August 18, 1841, by taking a strip off the northern part of the premises in dispute.
    The action was originally commenced March 13. 1851, in the (former) Superior Court of Cincinnati, where a judgment was rendered in favor of the lessors of the defendant in error for one-fifth of the whole tract conveyed to Jacob Wheeler. From this judgment the city appealed, and a judgment was rendered in the district court for the whole of the reserved street, being thirty-three feet in width, and one-sixth of the residue, being forty-nine and one-half feet in width. To reverse this judgment the present petition in •error is brought.

      Mills & Soadly, and Sart, for plaintiff in error.

      Bryant & Prolasco, and Purlin Ward, for defendant in error.
   Brinkerhoff, J.

The only question in this case, which, in the view we take of it, it is necessary for us to pass upon, is this: *What is the legal effect of the concluding portion of the description of the premises in the deed of Samuel Newell and wife to-Jacob Wheeler, under which the city of Cincinnati, plaintiff in error, claims title? These are words of exception and reservation following after a general description which embraces the part excepted and reserved, and followed by a designation of quantity, which also embraces the part excepted and reserved.

The words of exception and reservation are these:

“ Excepting and reserving a thirty-three feet street, in the north. or upper side of the southern line of said lot, for the use of the public, in lieu of a two-pole street, north of lots 9 and 10, formerly owned by Stephen Whéeler and John S. Gano, agreeably to-the plat of land as sold by Ethan Stone, containing three rods’and twenty-eight polds.”

Counsel have argued elaborately on the legal effect of words of' exception and words of reservation, respectively, and the distinctive-effect of each. But with these questions, we think we have really nothing to do in the present case. If Newell and wife, in their deed, had excepted and reserved a thirty-three feet strip of land, or-a thirty-three feet strip of ground, or simply thirty-three feet from off the premises described, or had used any other terms of like import, we have no doubt that the words “ excepting and reserving ” would have been amply sufficient to retain in themselves' whatever-title they had to the part thus reserved. But this, we think, they failed to do. They excepted and reserved no land, no ground, and-nothing legally equivalent to their former estate in any portion of the premises comprehended in the preceding general description. Whatever they did not except and reserve out of what was included in their general description, they conveyed. Now, looking at the distinct and natural import of the words they have employed, what did they not convey? — or, in other words, what did they except and reserve ? The answer is, in their own words — “ a thirty-three feet street,” “for the use of the public,” and “in lieu of” a certain other street then existing, and which has never been vacated, but has since been widened and improved. For themselves, in j)articular, these grantors excepted and reserved nothing; but *“for the use of the public ” they reserved a street in a place where no street then was, or has since been, and in lieu of another street, then and still existing. This, it seems clear to us, was but the-exception in favor of the public — should the public ever desire it — of an easement in, or right of way over, the thirty-three feet mentioned in the reserving clause, and to be exercised on the vacating of the two-pole street. Subject alone to this easement, all else was conveyed ; and the title, in fee simple, to the whole premises, as far as Samuel Newell could convey it, passed to his grantee; and, by intermediate conveyances, vested in the city of Cincinnati. And as no one has ever demanded this thirty-three feet of ground for a street; as the public, for whose use the exception was made, has never taken measures to establish a street there; and as the “ two-pole street,” in lieu of which the right to the new street was reserved, was never vacated or abandoned, the defendant in error has not, and the plaintiff in error has, a right to the possession of that part of the whole premises of which Samuel Newell was the owner.

We are strengthened in this conclusion by the facts that while the general description is by courses and distances — affording some presumption at least of a recent survey — both that general descrip- and the quantity of land designated, include the thirty-three feet in question, and by the consideration that if the grantor had intended to except and reserve the land, it would have been so easy for him to say so in terms at once brief and explicit; and we are further confirmed in it by the rule that “ a deed shall be construed most strongly against the grantors.”

Samuel Newell, however, had title to but four-fifths of the premises described in the deed, his wife being the owner, in her own right, of the remaining fifth; and as she joined only in the testatum clause, and in the execution of the deed, the title to her fifth did not pass by the deed.

The judgment of the district court will therefore be reversed, and the ease remanded for further proceedings.

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


author: Scott, J. Bartley, C. J.,

text:
    *The Champaign County Bank v. William Smith.
    Where the president and cashier of a banking company make out and return to the auditor of their county, under oath, a statement of the assets of such banking company subject to taxation, which statement is accepted by the auditor, and made the basis of assessment and taxation upon the duplicate; and the auditor discovers, after the duplicate has been placed in the hands of the county treasurer for collection, that such statement is erroneous and-defective, and does not embrace all the assets of such bank subject to taxation under the general tax law of 1852, such auditor may proceed, under the 46th section of said law, at any time before the final settlement with the county treasurer, to correct the duplicate, and charge the bank the proper amount of taxes.
    But such statement and tax can not be increased, without first giving notice to the bank, and affording it an'opportunity of showing that the statement of its officers was correct.
    The county treasurer, in the collection of the tax charged upon his duplicate, acts as a ministerial officer, and is protected by his duplicate, in an action of trespass, for acts done in its collection, under the same circumstances which would enable a ministerial officer to justify by virtue of process.
    The rule in such case is, that if a ministeral officer executes any process, upon the face of which it appears that the court which issued it had not jurisdiction of the subject-matter, or of the person against whom it is directed, such process will afford him no protection for acts done under it. But if' the subject-matter of a suit is within the jurisdiction of a court, but there is a want of jurisdiction as to the person or place, the officer who executes process issued in such suit is no trespasser, unless the want of jurisdiction appears by such process.
    Therefore, where a county auditor places property which is subject to taxation-upon the duplicate within proper time, and assesses the same with a tax, in pursuance^of the provisions of the 46th section of the tax law of 1852, but without notice to the party interested, the treasurer is" not a trespasser in the collection of said tax, by reason of such want of notice, unless the-same is disclosed by the duplicate, or is otherwise personally known to the treasurer.
    State stocks, or bonds of this state, which are not expressly exempted from taxation, either by their own terms or by the provisions of the laws under which they have been issued, maybe subjected to taxation by the legislature.
    The power of the state to tax them equally with other property, having never been expressly surrendered, exists in full force, and the exercise of such power involves no violation of a contract
    The right of a county treasurer to justify his collection of taxes due from a bank, in the mode required by the act of March 14,1853, is not affected by *the fact that, at the time of such collection, a proceeding was pending in the court of common pleas, which he had previously instituted for the collection of the same taxes, under the 51st section of the tax law of 1852, and that the bank had filed its answer in said proceeding.
    Demurrer to petition.
    Reserved in tbe district court of Champaign county.

      The plaintiff is a corporation, duly organized as a banking company, under the act of March 21, 1851, “to authorize free banking,” and commenced business August 31, 1851. On the 31st day of May, 1852, the president and cashier of said company made out and returned under oath, to the auditor of Champaign county, a statement of its taxable property and effects, but not including its-bonds and stocks of the State of Ohio, on deposit in the office of the auditor of state, as security for the circulating notes of said company.
    The amount so returned to the county auditor was placed on the tax duplicate of the county, and taxes were thereon assessed against said company for the year 1852, at the yearly rate for that year; and the treasurer of said county having received his copy of the duplicate, the company, on the 1st day of November, 1852, paid to him the taxes so assessed.
    Some time after November 20, 1852, the county auditor, under the instructions of the state auditor, added to the return so made by said company, the. sum of $22,000, as the average monthly amount of its state bonds and stocks in the custody of the state auditor during the six months ending May, 1852, and placed said sum upon the duplicate, and assessed thereon the further tax of $441.20, without the knowledge or consent of the company.
    When said additional amount and tax were placed on the treasurer’s copy of the duplicate, the county auditor informed him that they were for the said state bonds and stocks, and that they were placed there upon the sole authority and evidence of a letter from the state auditor.
    The company having refused to pay said additional tax, the defendant, as county treasurer, on the 4th of March, 1853, instituted *a proceeding in the Champaign common pleas against said company, under the 51st section of the tax law of 1852, and the company filed its answer in the case.
    On the 18th of May, 1853, said action still pending, and the company still refusing to pay said additional tax, the defendant, as treasurer, forcibly took and carried away from said company banknotes and money to the amount and in satisfaction of said tax.
    To recover from the treasurer the amount so taken, the company filed in the court below a petition setting up in substance the facts above stated; and to this petition the defendant demurred; and the questions of law thus presented were reserved for decision by this court.

      William Lawrence, for plaintiff:
    - The plaintiff is entitled to recover, as will appear from the following propositions:
    1. The tax in controversy was put on the tax duplicate after November 20, 1852, when the law required the duplicate to be made out by the 15th August, and delivered to the treasurer. 1 Curwen, 634-636, secs. 18, 23. I know these sections are marked as- superseded (Swan’s Stat. 65), but as to the time of delivering duplicate to treasurer, they are not superseded, there being no repealing or inconsistent statute, except that section 16 of 2 Curwen, 1359, fixed the time at September 15th, but this was repealed (3 Curwen, 1790), and so the original time restored.
    2. But if the law does not fix a time when the auditor shall deliver the duplicate to the treasurer, this tax was put on without notice to the bank, without authority, and so was void. This tax was put on duplicate long after the duplicate had been in the treasurer’s hands. The law gives the auditor no power to alter it. Whenever it is placed in the treasurer's hands the auditor is functus officio. 2 Bouv. Inst.. 52; 1 Bouv. Dic. 680; 3 U. S. Dig. 71; Story on Agency, sec. 2 Kent, 643; 2 Sup. U. S. Dig. 464; 12 Ann. U. S. Dig. 454; Ohio St. 235. This principle is not touched, even if thejsij^tutory time is directory.

    *No kp^autkorizes the state auditor to require the county auditor to alter the duplicate.
    The tax was put on duplicate without notice to the bank, and so was void. 3 Curwen, 1781, sec. 46; 20 Ohio, 171. As the duplicate was altered while in the treasurer's hands, he was bound to know if a the auditor had authority to alter it. 2 C. & H. Notes, 193. By law the bank made its return, not to the assessor, but to the auditor directly, and that was conclusive, if accepted. 3 Curwen, 1771, sec. 19; 1779, sec. 41; 1782, sec. 51.
    The county auditor had no power to alter the duplicate as to banks, because as to them the law gave another remedy, (3 Curwen, 1779, sec. 41), while as to persons who made returns to assessors, the law gave a different remedy. 3 Curwen, 1781, sec. 46. Section 46 does not apply to banks, because its language only applies to returns made to assessors, to whom banks did' not return (see sec. 19), and because section 41 gave a full remedy. No injury can result to the treasurer, if judgment goes against him, for he is indemnified by law. Swan’s Stat. 933, sec. 97.
    3. The treasurer’s receipt in full for taxes of 1852, was a settlement and satisfaction, and was such evidence of it as the law authorized to bo given.
    4. The tax law of 1852 does not tax state stocks. 3 Curwen, 1771-They are not named in section 19 or 20. They are named in section 15. The free banking law vests the title of stocks in the state .auditor. Stocks are not “used,or employed” within the meaning ■of section 20.
    5. A law taxing stocks is unconstitutional. State bonds are contracts, and their obligation is impaired, if the state takes back in taxes any portion of its liability. The whole interest could thus be .absorbed.
    6. The tax law is unequal and unconstitutional. Ohio Const., art. 12, sec. 3. See argument of H. H. Hunter, in Logan branch bank ■case, in Supreme Court, in 1853.
    7. At the time the defendant distrained the taxes illegally assessed, he had a proceeding pending under section 51 of the tax law. 3 Cur-wen, 1782. He could not, pending that proceeding, *even by force of the act of March 14, 1853 (Swan, 928), forcibly take taxes. The legislature can not constitutionally interfere with a right in litigation, and take even .justice in their own hands. Griffith v. Commissioners Crawford Co., 20 Ohio, 609; 1 N. H. 199.
    The plaintiff is entitled to recover the amount of money taken by •defendant, and he is not protected by a void duplicate. 2 Greenl. Ev. 276 ; 14 Pick. 356; 8 Adol. & Ell. 489 ; 15 East, 615, note e; 2 'Conn. 700 ; 9 lb. 141; 11 Mass. 500; 3 S. & 139; 12 Johns. 257 ; 2 Lit. 234.
    When the auditor - altered the duplicate with the treasurer’s 'knowledge, at a time long after it had passed from the auditor, and his power over it ceased, the treasurer was bound to ascertain his authority.

      John JB.. Young, for defendant:
    The plaintiff is not entitled to recover.
    1. The bonds and stocks were taxable, and should have been returned by the bank for taxation. Ohio Const., art. 12, secs. 2, 3; Tax Law of April 13,1852, (Swan’s Rev. Stat. 905, see. 13 ;. 906, sec. 17); Exchange Bank of Columbus v. Hines, 3 Ohio St. 1.
    2. The tax was placed on the duplicate in proper time. Tax law of March, 1840, Swan’s Stat. (old ed.) 109,110, secs. 18, 23, required the duplicate to be made by August 15th; but these sections were superseded by tax law of April 13, 1852. Swan’s Rev. Stat. 920, sec. 59; 921, sec. 61; 917, sec. 45. Section 23 of former act repealed by tax law of 1852. Swan’s Rev. Stat. 923, sec. 71.
    3. The additional tax was properly put on the duplicate.' Swan’s-Rev. Stat. 915, sec. 38; 916, sec. 43.
    4. The treasurer’s receipt was for the taxes then charged on the-duplicate; it went to that extent only, and could go no further.
    5. The bank was not overtaxed — not taxed unequally.
    6. It was the treasurer’s duty to proceed to collect this additional tax immediately: he had no discretion. Although *the-act of 1852, section 51, authorized the treasurer to institute proceedings in court, his duty was changed by the act of March 14, 1853. Swan’s Rev. Stat. 928. The rights of the parties were not. changed at all as to the questions at issue.
   Scott, J.

This action is brought against the treasurer of Champaign county for proceeding under the act of March 14, 1853, to-collect from the plaintiff a tax which is said to have been improperly and wrongfully assessed.

In determining upon the sufficiency of the petition it becomes-necessary to inquire into the alleged irregularities in the assessment of the tax.

The -petition shows that the tax now in controversy was not charged on the duplicate, as originally made out by the auditor of the county and delivered to the treasurer for collection ; but was, by the auditor, subsequently placed on the duplicate whilst in the-hands of the treasurer, and after the taxes which had been assessed upon the property returned by the bank for taxation, for the same-year, had been fully paid. By this additional entrjq which was-made upon the duplicate about the 20th of November, 1852, the plaintiff was charged with a tax upon $22,000 of stocks or bonds of this state, which the auditor claimed to have then ascertained, for the first time, were owned by the bank and subject to taxation, and which were not included in the written statement of taxable-property and effects returned by the bank to the auditor. The first question then is, had the auditor power to correct the statement returned to him by the proper bank officers, under oath, after having received and so far acted upon it ?

The 19th and 20th sections of the tax law of 1852, made it the duty of the president and cashier of the bank to make out and return, under oath, a statement of its taxable resources, which are fully specified in the same actions ; and in case of their neglect or refusal to furnish such statement, the 41st section of the same law gave the auditor full power, and made it his duty, to ascertain the-amount with which the bank should be taxed, upon the basis provided by the 19th and 20th sections, to add ^thereto fifty per cent., and enter the aggregate sum'on the duplicate for taxation.

But in this case a statement had, in fact, been returned ; the auditor, relying upon the oath of the proper parties, and supposing it to be accurate, had accepted and treatod it as such. The bank had been taxed accordingly, and the tax had been paid. It was, clearly, too late to proceed under the 4'lst section, as though no-statement had been made.

But if, whilst the duplicate was still in the hands of the treasurer, and in a course of collection, the return made by the bank officers was found to be false or imperfect, does the law furnish no-means of correcting it ?

The 46th section of the same act provides as follows: The-county auditor, if he shall have reason to believe or be informed, that any person has given to the assessor a false statement of the-personal property, moneys, or credits, investments in bonds, stocks, joint stock companies, or otherwise, or that the assessor has not returned the full amount required to be listed in his township, or has-omitted or made an erroneous return of any property, moneys, or credits, investments in bonds, stocks, joint stock companies, or otherwise, which are by law subject to taxation, shall proceed, at any time before the final settlement with the county treasurer, to-correct the return of the assessor, and to charge such person on the duplicate with the proper amount of taxes; to enable him to do which, he shall be invested with all the powers conferred on township assessors by this act; and it shall be the duty of the auditor, in all such cases, to notify every such person before making the entry upon the duplicate, that he may have an opportunity of showing that his statement, or return of the assessor, was correct,” etc.

By this section all statements of property liable to taxation, made under oath to the assessor, are subject to correction ; but its provisions are not expressly made applicable to statements returned by banks directly to the auditor.

But in giving a construction to this section, we may well look to the spirit and intention of the whole act; which clearly is, to subject all projDerty in the state to taxation, and to let none escape *from its proper share of the burden. This appears from its title. To effect this purpose, every person owning property, not specially exempted, is required to make out, and verify by affidavit, a full statement of the same. These statements are returnable generally to the assessor. In framing the 46th section, this circumstance may well be supposed to have been in the mind of the draughtsman, and hence the statements are referred to as being made to the assessor. But the intention of the whole section, the purpose of its insertion, clearly is, to declare that the oath of an interested party shall not be conclusive of the correctness of the statement; but that fraud or mistake therein shall, if discovered in proper time by the auditor, be corrected. No reason can be imagined why the conclusive verity of a written statement should be made to depend upon the person or officer to whom it is delivered. We are satisfied, therefore, that we give effect to the legislative intent, when we hold that this section includes statements made to the auditor, under the 19th section of the act; and that such statements, if false or defective, may be corrected accordingly

But, it is said, this state stock was put upon the duplicate, and subjected to taxation, without notice to the bank; that such assessment is therefore invalid, and can furnish no defense to the treasurer in this action.

This question is not free from difficulty. We can not regard the provision of the statute requiring notice, as directory merely. It is not matter of form only, but of substance. Where a statement of property subject to taxation has been made out, and verified by the oath of the party, returned to the proper officer, and by him accepted as such, and the amount therein stated is entared upon the duplicate for taxatidn, it can not be that the legislaure intended to put it in the power of the auditor to increase this amount without notice to the party interested. We apprehend the provisions of the statute, as to the issuing and service of a summons, to bring a defendant into court, in a civil action, are not simply directory; and that a substantial compliance with them, is essential to the validity of the subsequent judgment.

*But the assessment of a tax affects, as vitally, the rights and interests of the party assessed, as the rendition of a judgment against him.

Indeed, the collection of the former is much more summary in its mode, under the law of 1853, than the ordinary process of execution upon the latter. The language of the statute is : It shall be the duty of the auditor, in all such cases, to notify every such person, before making the entry upon the duplicate, that he may have an opportunity of showing that his statement, or return of the assessor, was correct.” Until this notice be given, the auditor has no jurisdiction of the party, and can therefore make no valid assessment against him, however perfect and full may be his jurisdiction of the subject-matter.

The party interested has a clear right to a hearing, and a daypn court, as well by the express terms of the statute, as by the plainest principles of justice.

What then is the effect of this nullity of the assessment upon the liability of the treasurer in the present action ? If we regard it as an equitable action, brought to recover, as for money had and received by the defendant for the use of the plaintiff, a recovery must be had, if at all, upon equitable principles. The plaintiff must show a case in which, ex osquo et bono,'the amount of the tax should be repaid to him; and the question would then arise: Were these state stocks properly taxable ? Were they property which, by law, should have been returned, by the plaintiff, to the county auditor for assessment ? The equities of the plaintiff depend upon the answers to these questions.

But if we place the petition in this case on the footing of a declaration in trespass, under the former practice (which we suppose, from its form, to have been the intention of the pleader), the right of recovery must be determined by the rules applicable to such action.

The authorities are not uniform, as to the circumstances under which a ministerial officer can justify, in trespass, by showing that the alleged tortious acts were done.by virtue of process. In Savacool v. Boughton (5 Wend. 170), upon a full review of the authorities, Judge Marcy lavs down the following propositons, as sustained by reason and authority: If a mere ministerial •officer executes any process, upon the face of which it appears that the court which issued it had not jurisdiction of the subject-matter, or of the person against whom it is directed, such process will afford him no protection for acts done under it. But if the subject-matter of a suit is within the jurisdiction of a court, but there is want of jurisdiction as to the person or place, the officer who executes process issued in such suit is no trespasser, unless the want of jurisdiction appears by such process.” We regard this ,as the true rule, and as applicable by analogy to the case before us. The duties of a county treasurer, in the collection of taxes, are ministerial; his duplicate is the process, for the execution of which, by the prompt collection of the taxes assessed thereon, the law holds him responsible.

Thus situated, and with the severe penalties of the law of 1853 ■suspended over his head, he is at least entitled, in an action of trespass, to the full benefit of the rule we have quoted. How, then, stands the case?

It is averred in the petition that the tax, in the collection of which the alleged acts of trespass were committed by the defend.ants, was placed upon the duplicate by the county auditor after the 20th day of November, 1852, and whilst the duplicate was in defendant’s hands, and that defendant was informed by said auditor ,at the time, that the property upon which said tax was assessed ■“ was stocks of the State of Ohio, and that said stocks and tax were •by him so placed on said duplicate upon the sole authority of a ■letter from the auditor of state, and upon no other evidence;” and it is further averred that the defendant then read said letter, a copy •of which is appended.

But it is not alleged that the defendant had knowledge that no ■previous notice had been given to the bank, or that its officers had not been afforded a full opportunity of showing that the statement .given by them to the auditor was correct. We do Dot supj>ose it to have been within- the province of the treasurer to determine upon the sufficiency of the evidence upon which the auditor acted. But were it so, an official statement of the state *auditor, as to facts evidenced by the files and records of his office, would be, at least, prima facie evidence of such facts, and in the absence of any proof to the contrary might well warrant the county auditor in •correcting the duplicate accordingly.

This correction might.well be made after the 20th of November, ¡the statute permitting it to he done “ at any time before final settlement with the county treasurer.” The duplicate then not showing upon its face the want of jurisdiction of the person, and there being no averment in the petition that such want of jurisdiction was otherwise known to the treasurer, he must be protected, if the •county auditor had jurisdiction of the subject-matter. This was a tax upon stocks, or bonds of this state, and this fact was known to the defendant. If such bonds were not subject to taxation, the ■auditor had no jurisdiction of the subject-matter; and his assessment of them on the duplicate furnishes no defense to the treasurer. We are thus brought to the main question: Were these state bonds subject to taxation?

The petition does not state under what law or laws these bonds were issued; and even if it were averred that they were issued under a law which expressly exempted them from taxation, yet there is nothing in the case to charge the treasurer with knowledge of that fact. Neither is it claimed that the bonds are by their own terms exempted from taxation. But there is enough in the petition to show that they were issued .before the adoption of our present state constitution, if that fact be important.

Assuming, then, that there is nothing'in the terms of the bonds, nor in the laws under which they were issued, expressly exempting them from or subjecting them to taxation, was it competent for the state legislature to make them the subject of taxation?

Our present state constitution, art. 12, provides: Sec. 2. “Laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stock, joint stock companies, or otherwise,” etc. See. 3. “The general assembly shall provide by law for taxing the notes and bills discounted or purchased, money loaned, and all ether property, effects, and dues of every description (without deduction), of all banks now existing, or hereafter created,” etc. Under these requirements of the constitution, *the general tax law of 1852 was passed, which, in the nineteenth section, makes it the duty of all banks of circulation in the state, annually to return to the auditor of their county for taxation: “ 1. The average amount of notes and bills discounted,” etc. “ 2. The average amount of all other moneys, effects, or dues, of every description, belonging to such bank or banking company, loaned, invested, or otherwise used or employed, with a view to profit, or upon which such bank or banking company receives, or is entitled to receive,, interest.”

The language of these constitutional and legislative provisions is so explicit and comprehensive, as to exclude all doubt of the intention to subject the stocks in question to taxation. In other words, if the subject-matter be within the taxing power of the state, that, power has been exorcised.

It is not claimed that any special provision of the state constitution, in force when these bonds were issued, and which is not embodied in the present constitution, created the exemption now demanded ; nor that such exemption arises from the terms of the-act of 1851, to “authorize free banking,” under which the plaintiff' was organized.

But it is claimed, that this is a tax tlpon a contract, and impairs-its obligations; that its effect is to lessen the amount of interest which the holdex*s of the bonds are entitled, by the terms of their-contract,'to demand of the state.

How far is the question here presented affected by the' fact, that, the state is a party to the contract, evidenced by the bonds ?

In the imposition of taxes, as in all legislation, a state exercises-an attribute of sovereignty. But the ’ making of a contract does-not necessarily bring into exercise any such attribute. Private, individuals are generally competent to make contracts.

Admitting, as we do, that a state may, by the express terms of her contract, limit to some extent the future exercise of her sovereignty ; and that she may, from considerations of policy, or interest, bind herself not to exercise the taxing power over a specified subject-matter; or to exercise this power only in a specified mode, and that the power so to biixd herself results from, and caxx only be exercised in virtue of, her sovereignty; yet it is very *clear that the simple contract of borrowing money has no relation to-her sovereign chax’acter or power, and leaves them wholly unimpaired. By such a contract, it is true, a state and an individual are equally bound. The State of Ohio can not, by virtue of berso vereignty, cancel or modify a contract to which she is a party; not because it is her contract, but because it is a contract. The lawful coixtracts of her humblest citizens are equally sacred. Shecaxx not constitutionally impair the obligations of either.

One man invests capital in state stocks, as a source of .income and profit to himself. From the same motives of interest, othexcapital, is invested in the bonds of a private corporation, or the-notes of individuals. These investments are equally taxed, as-property; as sources of profit and income. The consequence is, that the profit is diminished in both cases. This is an effect, but not the object of the law imposing the taxation. It contemplates no such purpose. As between the parties, the contract is left in full force ;■ but the property invested, or acquired by the contract, is taxed, not by way of interference with the rights of the parties, as borrower and lender, but for the support of government, and the consequent, protection and welfare of the whole community.

No one doubts the power of the state to tax land within its territorial limits, whether held by direct grant from the state, or by title from a different quarter. And if the taxation of capital invested in State bonds, impairs the obligation of a contract which contains no stipulation for exemption, upon what principle shall the taxation of bank-bills, or corporation bonds, or the notes of individuals, be justified?

The principle that, in the absence of any stipulation to the contrary, a sovereign state possesses the power óf taxing all property held under it, and within its jurisdiction, is fundamental, and essential to the very being of government. Property can only be-acquired and held subject to this condition ; and this infirmity of tenure, if it be one, furnishes the only adequate means for its protection.

¥e readily concede, that the state can not affect the obligations of a contract to which she is a party, further or otherwise than *in the case of a contract between other parties. But the claim here is, that the state shall confer a bonus on her bondholders. For an exemption of moneys invested in her bonds from the burden of taxation, common to ,all other property within the state, would be a substantial and valuable bonus. In the absence of any such express stipulation in the contract, I do not perceive-an equitable foundation upon which to rest a claim to an exclusive-privilege, so directly interfering with the sovereign power of the state.

We would be wholly unwilling to sanction the least breach of good faith on the part of the state. It is her duty, as well as her interest, to set an example of honesty and fair-dealing in all her transactions. But it is proper to say, that the circumstances preceding and attending the issuing of these bonds, were not such as bo warrant the inference or belief, on the part of those who became their purchasers, that they were to be exempted from taxation. •Other bonds had been previously issued by the state, under laws ■expressly exempting them from taxation. It was then thought necessary, in order to create such exemption, that it should be made matter of express stipulation; and that her power of taxation •could not be limited or modified without her express consent. The ■bonds now in question, were subsequently issued, under other laws, providing for no such exemption.

The inference is fair, that it was not intended. Ho purchaser bad a right to assume, that she did not intend to retain the power, with which she did not, as before, expressly part.

The question we have been examining, is ¡^resented in several ether cases now before us, and in the argument of those eases reference is made to the case of Weston v. The City Council of Charleston, 2 Pet. 449.

In that case, a majority of the judges of the Supreme Court of the United States held that a tax imposed by a law of any state of the Union, or under the authority of such a law, on stocks issued for loans made to the general government, is unconstitutional. That decision throws but little light on the question now before us. The determination of that question was controlled by considera» tions growing out of the supremacy of the ^general government, within its constitutional sphere, and the subordinate relations which the several states sustain to it within that sphere.

Rut we have been referred to no authority, nor am I aware of any, which denies to a state the power of taxing capital invested by its ■citizens in its own bonds. On the contrary, the unqualified general power of taxation, which includes this particular one, would ■seem to be everywhere recognized.

In Prov. Bank v. Billings, (4 Pet. 514), Chief Justice Marshall isays: “ The power of legislation, and consequently of taxation, rests and operates on all the persons and property belonging to the body poolitic. This is an original principle which lies at the foundation of society itself. It is granted by all for the benefit of all. It resides in the government as a part of itself, and need not be reserved, when property of any description, or the right to use it in .any manner, is granted to individuals or corporate bodies. Again, It is said, in the same case, speaking of the taxing power : “ As the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a ease in which the deliberate purpose of the state to abandon it does not appear.”

To the same effect is the language of the court in McCulloch v. Maryland, 4 Wheat. 428, and in Nathan v. Louisiana, 8 How. 82.

In Phil. & Wil. R. R. Co. v. Maryland, 10 Bow. 393, Chief Justice Taney says, in delivering the opinion of the court: “ This coui’t on several occasions has held that the taxing power of a state is never presumed to be relinquished unless the intention to relinquish is declared in clear and unambigious terms.”

The position that the tax in question does not violate the contract of the state to pay interest at a given rate upon the bonds, and the views we have expressed on that subject, are strengthened by the case of Commissioners etc. v. Chapman, 2 Rawle, 77, where it was held by the Supreme Court of Pennsylvania, that a tax imposed under the authority of the legislature, upon a judge’s salary, was not in violation of a provision, in the state constitution which prohibited the diminishing of such salary during the term of office. The court, per Gibson, C. J., says : “ The*prohibitionin question is tobe restrained to laws which have a reduction of the salary for their object, and not for their consequence. • • • • For the bona ■fide purpose of contribution, a reasonable portion of the salary, like any other part of his property, may be applied to the public exigencies.”

Without further reference to authorities, which we think are nearly, if not quite, uniform on the subject, we hold that the taxation of the bonds in question involves no violation of a contract, and that the power of the state to tax them, equally with other property, having never been expressly surrendered, still exists in full force.

The objection made by the petition to the constitutionality of the tax law of 1852, in respect to the basis which it provides for the taxation of banks, is fully met by the decision of this court in Exchange Bank of Columbus v. Hines, 3 Ohio St. 1.

Nor does it affect the defendant’s justification, that at the time he took the summary measures complained of, another proceeding instituted by him for the collection of the same taxes, under the fifty-first section of the tax law, was pending in the court of common pleas, and that the bank had filed its answer therein. For the law of 1853 took from the defendant the power of proceeding farther under the said fifty-first section, and substituted for that; process a much more summary one, which it imperatively required him to adopt. If this law was valid, obedience to it became his. duty.

Demurrer sustained, and cause remanded.

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

Bartley, C. J.,

concurred in the judgment, upon the ground’, not only that the power of taxation was not in this instance surrendered by mere implication, but he denied that the legislature-had the authority to surrender the power of taxation to any extent by express exemption, whether in the nature of a contract or otherwise.

Bowen, J., dissented.