text:
    Morgan L. Candee and Edward Scribner, for the use of M. L. Marsh, v. Gilbert Webster, survivor of Benjamin B. Gaylord.
    In attachment proceedings, the garnishee is not, during the pendency of the same, thereby necessarily exempted from an existing liability to pay interest upon his indebtedness to the defendant in attachment.

      A cause of exemption, in suck case, will not be presumed in favor of tke gar- ' niskee, but must be skown to exist like any otker defense.
    ■ In error to the distinct court of Ashtabula county.
    The original action was assumpsit brought to recover the balance of a promissory note made by Webster and Gaylord to Candee and Scribner, and by them assigned to Marsh, for whose use the action was brought.
    *The case reached the district court by appeal, and came to trial and judgment there, in April, 1854, on submission to the court.
    From a bill of exceptions taken on the trial, it appears that on the 15th of December, 1848, there was due to Candee and Scribner, from Webster and Gaylord, the sum of six hundred and forty dollars, and bearing interest at the rate of seven per cent, per annum; that at said date Candee and Scribner assigned the debt to Marsh; that on the 27th of December, 1848, Webster and Gaylord were served with garnishee process from the court of common pleas of Ashtabula county, at the suit, in'attachment, of H. A. Stone against Candee and Scribner, requiring them, said Webster and Gaylord, to appear and answer as to their indebtedness to Candee and Scribner; that on the 30th of December, 1848, and before said Webster and Gaylord were, by the process, required to answer as to their indebtedness to Candee and Scribner, due notice of said assignment of the debt to Marsh was by him given to Webster and Gaylord ; that the suit in attachment was continued, from.time to time, in said court of common pleas, upon a plea to the jurisdiction of the court, until the term held September 23, 1851, when the suit in attachment was settled and discontinued; that on the 2d day of February, 1852, Webster and Gaylord paid to Marsh six hundred and thirty-eight dollars and fifty cents, to apply on their said indebtedness.
    No other evidence was offered by either party; and thereupon the plaintiffs asked the court to assess the damages and render judgment for the sum of one hundred and fifty dollars — that being ■the amount due on the debt, if, by law, the defendants were bound to pay interest on the debt during the time the suit in attachment was pending,, which the court refused to do, but assessed the damages of the plaintiffs at eighteen dollars, the amount due if the defendants were not bound to pay interest during the time the attachment suit was pending; 'to which ruling *and assessment of damages the plaintiffs excepted, and moved the court for a new trial, on the ground that the ruling and assessment of damages were contrary to law; but the court overruled the motion, and entered-judgment for the amount of the damages so assessed; and the plaintiffs excepted.
    To reverse this judgment, the present proceedings in error were brought ;■ and the assignment of errors are, that the district court erred in refusing to allow the plaintiffs interest on the debt during the pendency of the suit in attachment, and in overruling their motion for a new trial.

      Buckland & Everets, and C. Booth, for plaintiffs in error, cited Drake on Attachment, 615; same, chap. 34, sees, 677-691.

      Simonds & Gadwell, for defendant in error, argued:
    That interest stopped from the time garnishee process was served upon the defendants. 4 Mass. 170; 2 Dall. 215; 4 Halsted 3; 9 Wheaton, 738, 749; 9 Barr, 468; 13 Wend. 639.
    That interest was not chargeable during the pendency of the attachment suit, whether the defendant in attachment was the real owner of the debt or not. 9 Barr, 468.
    That the defendants were not compelled to pay the money into court to save themselves from the interest. 4 Halsted, 3; 13 Wend. 639.
   Sutliff, J.

This case presents a question not heretofore, to our knowledge, settled in this state.

The rule which obtains in different states, in relation to an attachment suspending interest upon the sum attached in the hands of the garnishee, is by no means uniform.

In the State of Pennsylvania, it has been held that a garnishee is not chargeable 'with interest upon his indebtedness to the defendant in attachment during the time he *is restrained from paying, by force of the attachment; and this whether the attachment finally terminates in favor of the plaintiff or defendant. The garnishee, however, is only there entitled to the benefit of the rule, upon his standing as a mere stakeholder between the plaintiff and defendant, admitting his liability to pay to the party entitled to receive the money, or, at least, not denying his liability to pay. In that state, the general rule is understood to be that the garnishee is not chargeable with interest during the time he is restrained by the attachment from paying. But if the garnishee is chargeable with fraud or collusion, or occasioning unreasonable delay, he will, in that state, be charged with interest. Fitzgerald v. Caldwell, 2 Hall. 215; Mackey v. Hodgsen, 9 Penn. St. 468.

A similar rule prevails in Maine. The garnishee is there held to be entitled to the benefit of the presumption that he was ready to pay but restrained by the attachment. And the garnishee is only chargeable with interest in that state, upon the proof of facts rebutting such presumption. Norris v. Hall, 18 Maine, 332.

So, too, in Georgia a similar rule obtains. It is there presumed, in the absence of proof of the contrary, that the garnishment restrains the garnishee from paying the money when he would otherwise have paid the same. Georgia Insurance and Trust Company v. Oliver, 1 Georgia, 38.

In Massachusetts a similar rule obtains. The presumption is there, in the absence of any proof upon the subject, that the garnishee is, by the attachment, restrained from paying, and the interest upon a debt otherwise drawing interest, is not chargeable to the garnishee. But if the proof show that the garnishee has, in fact, made use of the money during the pendency of the attachment, the presumption in his favor is thereby overcome, and he is chargeable with interest. Prescott v. Parker, 4 Mass. 170; Adams v. Cordis, 8 Pick. 270. In the latter case-the *court say: “ Prima facie, the service of the trustee writ stays the property in the hands of the trustee, and the law considers that it remains in statu quo until the judgment; but if it appears by the answer that the money is in constant use, or so mixed -up with his general funds as to form part of his trading capital, the reason of the rulo ceases, and so the rule itself ought not to be applied.”

In Virginia the garnishee is charged with interest during .the pendency of the attachment, the same as in any other action for the recovery of money, unless he pay the money into court. Tazewell’s Ex’r v. Barrett & Co., 4 Hen. & Munf. 259.

In Maryland the rule j>revailing in Pennsylvania, that the garnishee shall not bo compelled to pay interest pending the attachment, unless guilty of fraud or collusion, or unreasonable delay, has been rejected. The reason given is thus expressed: “Nothing can appear to be more just and equitable than that when a debtor is positively prohibited from paying his creditor, or is prevented from doing so by the overruling calamity of war, he ought not to ' pay interest. Because in such case he is compelled against his will to become the holder or bailee of the money at his own risk.” . . . . “But in this state a garnishee in an attachment case is not thus absolutely tied up and restricted. He is not bound to hold the money at his own risk and against his consent, or longer than he chooses.” . . . “I take it to be the established law of this state that the defendant, in all actions founded on contract for the recovery of a debt, may have leave, as a matter of course, to bring the sum sued for into court, and thus put a stop to the further accumulation of interest and costs, at least for so much as he brings in.” Chase v. Munhardt, 1 Bland, 333.

It has been held in Missouri that the fact of the garnishee, in his answer, denying his indebtedness, fully rebutted the presumption ■insisted upon in his favor, that he had had the money lying idle by him to pay the indebtedness, and so ought not to be charged interest. And the *court refused to exempt the garnishee from his liability to pay interest in the case during the pendency of the attachment. “ There are cases,” says the court, “ in which the garnishee ought not, in strict justice, to be held liable for interest ; as where he comes forward, admits his indebtedness, and avows a readiness to pay the amount thereof, whenever the court shall determine who is entitled to receive it.” Stephens’ Garnishee, etc. v. Wathney, 9 Missouri, 636.

In this want of uniformity in the decisions of the other states upon the subject, owing in part to the difference in the statutes of the different states, as well as to the different views taken of the subject, wo have in the absence of any previously-established rule in this state, regarded ourselves at liberty to have respect to our own statute and practice, and endeavor to apply to the case such a rule as may, in its general application, seem most in accordance with reason and the rights of the respective parties.

Our statute of June 1, 1824, fixing the rate, and providing for the payment of interest in this state, provides “ that all creditors shall bo entitled to receive interest' on all money after the same shall become due,” . “ until such debt, money, or property shall be paid.”

The act allowing and regulating writs of attachment, of June, 1824, under which the attachment proceedings mentioned in the record before us, were conducted, is only to be regarded an action for the recovery of an existing indebtedness. The section under which the garnishment of defendant in error was had, simply authorizes the collection of a debt by a third person, by his creditor, instead of its being collected by the payee, the person himself to whom the same is due.

The real question before us, therefore, seems to be this: Is it incumbent upon the debtor where the general rule of law imposes •interest as an incident to delay in payment, to show a cause for a •suspension of the general rule; or is a cause of suspension to be presumed merely *from the fact of payment being demanded by the creditor of the debtor’s payee.

All the adjudications in other states referred to, seem consentaneous upon the reason for which the garnishee should be exempt from paying interest during his garnishment. And that reason is, that during the pendency of the attachment proceedings, the garnishee is, while so exempt from paying interest, holding the money as a trustee for another, and without using it, or deriving any benefit from so holding it. The exemption is put upon the ground, in Pennsylvania, that the attachment prevents the use, and receipt of profit thereby, of the money by the garnishee, and rests, consequently, upon'the same principle as the question of interest in the case of Osborn and others v. Bank of the United States, 9 Wheat. 738. But that was a case arising under positive proof of the party being put, by law, in the attitute of a stakeholder. Osborn, as the auditor of the State of Ohio, being about to enter the bank, with process, and seize upon $50,000 specie, to satisfy a delinquent tax, the bank procured, in the circuit court of the United States, the allowance of an injunction against his taking the money. But the injunction was only served upon Osborn after he had taken the money from the bank at Chilli eothe, and while on his way to the treasury at Columbus. In that case, the auditor, Osborn, in obedience to the injunction, having retained the money in his possession, in the attitude of a stakeholder between the two claimants, the bank on the one hand and the state on the other, the court very properly held that he ought not to be chargeable with interest while so restrained from using the coin in question, at the instance of the party to which it was decreed to be paid. The court say of the injunction suit in that case: “Its effect and operation were to place it (the coin) in the custody of the law. The defendants could not use it, and consequently can not be charged with interest.”

And it is only upon the fact being proved or presumed that *a garnishee is in like manner restrained from using the amount of money necessary to pay his indebtedness, and that the same was by the attachment proceedings placed in the custody of the law, that the garnishee has been hold exempt from payment of interest, in the State of Pennsylvania and other states, during the attachment proceedings.

The precise question, therefore, before us, is, may such fact be presumed in favor of the debtor, or must it be proved by him, like any other defense, after the proof of his indebtedness and liability by the plaintiff?

It has already been seen that the law subjecting the debtor to the liability of paying interest in this state, continues such liability as an incident to the debt, until such debt, money, or property is paid.” The statute makes no exception in favor of any legal proceedings. And the exemption by reason of an injunction or garnishment seems to rest entirely upon the idea of the money being actually held by the party in readiness to be disposed of as directed by the court; and so being in the custody of the law, to be regarded a quasi payment, as if placed on deposit subject to the order of the court. Nothing short of such a state of facts, we think, should have exempted the defendant in this case from the payment of interest during the pendency of the attachment proceedings. The record shows no proof of such a state of facts in this case. It is not pretended that the defendant, either before or during the attachment, expressed a wish or even willingness to pay his indebtedness. Nor does it appear that he was ready to pay. If, then, the defendant is in law exempt from payment of interest during the time of his garnishment, for the reason that he was actually holding the money ready and willing to pay, but was prevented by the attachment proceedings, such state of facts must be presumed. But a presumption is the supposition of a truth, grounded on circumstantial or probable evidence. It should always be a natural and reasonable deduction from ^pertinent circumstances and relative existing facts, to constitute a legal presumption.

Arc there, then, any circumstances or facts shown in this case from which the defendant may reasonably be presumed to have held the money during the time of his garnishment, in readiness to pay 4he debt, and to have been prevented paying by such attachment jproceedings?

The facts shown by the record are, that the. debt had been due for some time previous to the attachment, and that it remained due for a long time after the attachment was dismissed or terminated, without any offer to pay on the part of the defendant. Add to this the fact that the defendant had it in his power during all the time of the attachment proceedings, whenever ready and desirous of paying, to bring the money into court and pay the same under the order of the court, upon motion or bill of interpleader, and to have released himself from further liability, and the natural presumption would seem to be, that the defendant was not ready and willing to pay.

We do not think that in such cases as the one under consideration, any presumption arises from the fact of the attachment proceedings that should exempt the garnishee from paying interest during the pendency of such proceedings. A party seeking to avail himself of an exemption from his general liability to pay interest on his indebtedness under such circumstances, must show such a state of facts as in equity entitle him to. exemption. No such state of ■facts appears upon the record in this case. We think, therefore, that the district court erred in holding that the defendant was not chargeable with interest during the pendency of the attachment proceedings, and for this cause the judgment of that court must be reversed, with costs.

Brinkerhorr, C. J., and Scott, Peck, and Gholson, JJ., concurred.


source: Caselaw Access Project

author: Gholson, J.

license: Public Domain

text:
    *George C. Gebhart et al. v. Margaret Sorrels, Administratrix of William Sorrels, et al.
    Ar. answer stating a defense under the 5th section of the act to restrain banks from taking usury, which omits to disclose the facts and circumstances showing a reason to believe that the drawers of a bill of exchange discounted would not be prepared to pay the same at the time of payment, is not defective upon general demurrer. If the purpose of justice should so .require, the court would have a discretion, upon a motion for the purpose, to require the facts and circumstances relied on to be disclosed in the pleading.
    'When an answer to an action on a bill of exchange, brought by an indorser, relies on an illegality in the contract between the original parties, ordinarily some statement affecting the title of the plaintiff is required; but when the petition itself discloses facts from which it might be inferred that the plaintiff was not a holder for value in the usual course of trade, the defendant is entitled to the benefit of the admissions in the petition, to sustain his answer against a general demurrer.
    In error to the district court of Pickaway county.
    An action was brought in the common pleas of Pickaway county by William Sorrels against George C. Gebhart, Augustus D. Perrill, .and Peter K. Hull, upon a bill of exchange for $1,400, drawn by them, directed to Geo. S. Coe, New York, and payable to the order of H. R. Lawrence, cashier of the Bank of Circleville, four months .after date, .“ or whenever thereafter presented at the office of the American Exchange Bank in New York.” A copy of the bill witb its indorsement was set out. The bill was connected with a warrant of attorney to confess a judgment, and was sealed by the parties. It contained on its face a waiver of acceptance, and of demand, notice, and protest. The indorsement was as follows: “Pay to Wm..Sorrels, Esq., or order, without recourse. H. K. Lawrence, cashier of Bank of Circleville.” The petition stated that the bill was indorsed before its maturity to the plaintiff, and was held by him as owner.
    To the petition of the plaintiff an answer was filed, which *stated: that the defendants borrowed of the Bank of-Circle- [462 ville, an incorporated bank in Ohio and then doing business, the sum of $2,500, and gave said bank a bill on New York for that sum, payable in ninety days; “ the said Gebhart was principal on said bill, and said Perrill and Hull were sureties, and their suretyship was knowD to the bank. Said Gebhart paid the bank at the time of borrowing said money, as the interest for the same, $38.75 for said bill of $2,500; he received only $2,461.25 of said bank. At that date exchange was in favor of New York and against the ■county of Pickaway, in which county said bank did business, and where said bill was given and said money was borrowed; said •Gebhart gave the bank a bill of exchange because said bank would not lend money on promissory notes, but habitually loaned money on bills of exchange, in order to obtain a greater rate of interest than six per cent. The bill sued on in this case was given to renew the bill first above named, said Gebhart having made payments-thereon to the bank. At the time of said renewal, and at the time-of drawing said original bill, said bank, by its officers, had reason to know and believe that the drawers were not prepared and did not intend to pay said bills, and would not be prepared to pay said bills at New York, and had no funds there, and did not intend to-place any funds there, to meet said bills. The officers of said bank had reason to know this. New York, at which place said bill was-payable, is a place without the State of Ohio. The said bank at Circleville was a banking institution in this state, and said bills of exchange on New York were devices resorted to in order to secure-to said bank a greater rate of interest and profit than it could realize from the discount or purchase of such paper if made payable at its own counter. The said bank charged $1.25 for three days of grace at the time of drawing said bills. The defendants say said bill is void for usury.”
    The plaintiff excepted to the answer of defendants as insufficient; and this exception, upon a hearing by the *court was sustained, and the answer set aside as insufficient; and no further answer being offered, a judgment was rendered in favor of the-plaintiff. An appeal was taken to the district court, and the same question as to the sufficiency of the answer was made in that court, and decided in the same way. To this decision of the district court an exception was taken ; and upon a petition in error, filed in this court, this action of the district court is the error assigned.

      Page & Benick, for plaintiffs in error.

      G. N. Olds, for defendant in error.
   Gholson, J.

No point has been made in this court as to the-form in which the court below passed upon the sufficiency of the-answer. The exception to the answer appears to have been regarded by the parties as a proper substitute for a demurrer, which-was not then allowed by the code, but which, by a now provision,, is now permitted. We-shall proceed to consider the case as if a. general demurrer had then been allowed and had been filed.

It is claimed by the counsel for the defendant in error that the-answer was framed to make out a defense under the fifth section of an act of the 19th of March, 1850, “to restrain banks from ■taking usury,” and that its sufficiency must be determined in view of that section. The fifth section of the act provides that “the kliscount or purchase by any banking institution in this state of any note or bill of exchange on time, or other evidence of debt on time, payable at a place without the state, when the officer or agent of such bank knows, or has reason to believe, that the partios to such paper will not bo prepared, or do not intend to pay the same at the place of payment, or when any device is resorted to in order to secure to said bank a greater profit than it could realize from the discount or purchase of such paper if made payable at its own counter, *shall be deemed usurious and unlawful within the meaning of this act.”

It is argued that to bring a defense within this section, there must be a positive averment that the parties, at the time of the discount, were not prepared, and did not intend to pay.. Now, as to the preparation for payment, wo do not think the language sustains this argument. It is “will not be prepared,” and contemplates a ■state of preparation at the time and place of payment, and not at the time and place of discount. Thus understood, the fact that the parties were not prepared to pay is sufficiently clear from the pleadings. In an action upon the bill, which they certainly did not pay, a formal allegation that they were not prepared to pay at the time and place of payment can hardly be deemed proper, much less essential.

It is stated in the language of the statute that the officers of the bank had reason to believe that the parties would not be prepared to pay the bill. It is claimed that the facts or circumstances showing this reason to believe, must be disclosed and set forth in the .answer, or it is fatally defective upon a general demurrer. The facts and circumstances, from a which a reason to believe that the parties would not be prepared to pay the bill might be infei’red, must necessarily be such as were known to the officers of the bank. Facts or circumstances not known could furnish no reason to believe. The general allegation points to the subject-matter as to which a belief is to be entertained, and as the facts and circumstances might verjr probably be numerous and more or less minute and detailed, the rule which dispenses, in many instances, with the setting forth such facts and circumstances, when in the knowledge of the other party, may properly apply in this case. The defendants may know all the facts and circumstances bearing upon their preparation to pay the bill, bnt they can not be supposed, to know as well as the officers of the bank which of them had come to the knowledge of those officers. In ordinary cases, no surprise would(be likely *to result from a general allegation; and in particular cases, if the purposes of justice should so require, the court would have a discretion, upon a motion for the purpose, to require-the facts and circumstances relied on to be disclosed in the pleading..

It is also claimed that the bank, having been incorporated previous to the act of the 19th of M.arch, 1850, can not be affected by that act; that it had the right to discount bills of exchange upon-banking principles and usages, subject only to the restriction, that,, on such discounting, it shall not take more-than six per cent, interest in advance. Admitting this position to be otherwise tenable,, it necessarily assumes that the transaction- disclosed in the answer was a discounting upon banking principles and usages, and not, as is alleged, a device to exact usurious interest. The statements in the answer are quite general and indefinite, and a motion to make them definite and certain ought, probably, to bo sustained. But being liberally and favorably construed, and taken in connection with the form of the instrument upon which the action is brought,, and particularly in view of the stipulation that a judgment might, be entered for statutory damages at the rate of six per cent., on the failure to pay, an event shown to be in the contemplation of the parties, we do not think the assumption upon which the argument is based can be sustained.

The statements in the answer showing a defense as against the-Bank of Circleville, is any further statement required to constitute-a defense against the claim of the plaintiff, as indorsee of the bill of exchange? Where the illegality alleged affects both the consideration and the security, and there is no saving of the rights of an innocent holder of the security, the statements of a defense-need go no further than to show such illegality. But, if the holder of the security may recover in an action upon it, notwithstanding an illegality in the consideration, the statements might be true and yet show no defense; and, ^according to the established rules of pleading, there must be some averment affecting the title-of the the plaintiff. This averment is sometimes negative in its character, as a want of consideration, and does not affect the order or burden of proof. A party may thus be required to allege, in his pleading, a fact as to which the order of proof would require evidence to be first adduced on the other side.

It is not necessary to decide whether the illegal act of a bank in taking more than six per cent, interest, contrary to its charter, affects both the contract of loan and the negotiable security taken as the evidence of indebtedness. Eor, considered either way, we are satisfied that, although the answer is silent as to the title of the plaintiff, and the mode in which it was acquired, there is enough in the petition itself to authorize an inference that the plaintiff was not the holder of a bill of exchange, taken for value and in the usual course of trade, and that of this inference the defendants may avail themselves to sustain their answer against a general demurrer.

The instrument upon which the action is brought is not in the ordinary form of a bill of exchange, intended for negotiation in the market. It is under seal — it embodies a power of attorney to confess a judgment, in itself not negotiable, and on the face of the instrument there is not only a waiver of acceptance, but an agreement to dispense with demand, notice, and protest. And this instrument is indorsed to the plaintiff by a bank without recourse. We think these circumstances shown by the petition, being taken in connection with the statements in the answer, a court or a jury might well say that the plaintiff was not a holder for value in the usual course of trade. Roxborough v. Messick, 6 Ohio St. 448-458. And, therefore, a court would not be able to say, with the clearness and certainty required to strike out an answer for insufficiency, or to sustain a general demurrer, that, in no view of the statement in the pleadings was there a defense to the action.

*It has been suggested that since the petition in error was filed, and during its pendency in this court, the defendant in error, the administratrix of William Sorrels, has married, and her powers as administratrix have ceased, and. that one of the plaintiffs in error, A. P. Perrill, has been appointed administrator de bonis non of William Sorrels, and now represents his estate. We do not think this change of parties precludes a disposition of the petition in error. A. P. Perrill is a party in the case, and the position he has taken during its pendency ought not to affect the right of the other plaintiffs in error to the judgment of the court. The judgment of the court below being reversed, and the case remanded for further proceedings, what effect the present position of A. P. Perrill will have on the further prosecution of the case, we need not decide.

The judgment must be reversed.

Biiinkerhoee, C. J., and Scott, Sutliee, and Peck, JJ., concurred.


author: Brinkerhoff, C. J.

text:
    David Wilson v. John Stilwell.
    Where S., a retiring member of a firm, took from bis late partner, T., a bond, with W. as surety thereon, conditioned that T. would pay all the debts of the late firm, which condition was broken: Held—
    1. That S., without having first paid any of said debts, or been otherwise specifically damnified, is entitled to recover on said bond, against, the obligors therein, to the amount of such debts remaining unpaid.
    2. In such action, it is proper that the creditors of the firm should be made parties, and that the court should, in the judgment, authorize the application of the amount recovered to the payment of the debts of the firm in discharge of the judgment.
    In error to the Superior Court of Cincinnati.
    The defendant in error, being plaintiff below, filed his *petition upon a bond executed to him by plaintiff in 'error and one John M. Tooker.
    The petition in the court below sets forth that defendant in error, John Stilwell, and said John M. Tooker, were partners under the firm of J. M. Tooker & Co.; that they dissolved their partnership, and Stilwell sold to Tooker all his interest in the assets of the firm, in consideration that Tooker assumed to pay all the liabilities of the firm, and that he should give to Stilwell bond, with good security, conditioned for the faithful payment of the debts of the firm; that the bond was accordingly given, with plaintiff in error, David Wilson, as security, and the books and assets of the firm were surrendered to said Tooker; that Tooker did not pay all the debts of the firm, but certain debts in the petition enumerated were left unpaid, and judgments thereon had been rendered against both Stilwell and Tooker, of which Stilwell had given written notice to Tooker and Wilson, and had made formal demand upon them that they should pay them, but they had refused to do so.

      The petition makes the holders of the said debts parties defendant, and requires them to set up their claims in that action, which they accordingly do, by their separate answers.
    Tooker makes default; but Wilson, the plaintiff in error, answers, .admitting the execution of the bond, but claiming that the agreement between Stilwell and Tooker had been represented to him to have been that Tooker should faithfully apply the assets of the firm to the payment of its liabilities, so far as they would go, and that it had also fraudulently been represented to him that the bond was so drawn.
    The proof in regard to the agreement between Stilwell and Tooker was conflicting; but the weight of evidence was that the agreement was that Tooker was to pay all the debts, without any reference to the value of the assets, and that Stilwell not only was not a party to any misrepresentations *made to Wilson, but was not present when any were made, nor aware that any wore made, if, indeed, any there wore.
    The bond was for $3,000, and the condition is in these words :
    “ The condition of this obligation is such that whereas the .above-bounden John M. Tooker has agreed to pay all the liabilities of the late firm of J. M. Tooker & Co. If the said John M. Tooker shall settle up and liquidate all the just claims against said firm of J. M. Tooker & Co., then this obligation is to be void and of no effect; otherwise to remain in full force and virtue.”
    The court rendered judgment on the bond in favor of Stilwell, and against Tooker and Wilson, for $1,750.16, the aggregate amount of the claims set up in the petition, and with consent of Stilwell, the obligee in the bond, ordered that Tooker and Wilson might, at their option, see to the application of the money, by themselves paying to the different claimants the amounts found in the judgment to be due to them: any such payment to be credited, when •made, upon the judgment, in favor of Stilwell.
    The giving of this judgment is assigned for error.

      Gollins & Serrón, for plaintiff in error,
    cited Adams v. Hansborough et al., 1 Freeman Ch. 533; Foote v. Garland et al., 1 Smedes & Marsh. 95; Sedgwick Meas. Damages, 307-318; Dabney v. Cattell, 12 Leigh, 383; Aberdeen v. Blackman, 6 Hill, 324; Chace v. Hinman, 8 Wend. 456; Waters v. Riley, 2 Harris & Gill, 305.

      J. Burnet, for defendant in error,
    cited Port v. Jackson, 17 Johns. 239, 479; Thomas v. Allen, 1 Hill, 145; Ex parte Negus, 7 Wend. 499; Lethbridge v. Mytton, 2 Barn. & Adol. 772; Sedgwick Meas. Damages, 309, 310.
   Brinkerhoff, C. J.

The phrase “ settle up and liquidate,” in the condition of this bond, taken in connection *with the accompanying recital, is equivalent to the word pay, and imposes the obligation to pay all the debts of the late firm of J. M. Tooker 6 Co., and is readily distinguishable from an obligation to indemnify against a liability to pay. And the doctrine seems to be now well established, by a current of decisions both in this country and in England, that if there be a contract to indemnify simply, and nothing more, then damage must be shown before the party indemnified is entitled to recover; but if there be an affirmative contract to do a certain act, or to pay a certain sum or sums of money, then it is no defense to say that the plaintiff has not been damnified; and that the measure of damages in such case is the amount agreed to be paid, or the proper expense of doing the act agreed to be done. Port v. Jackson, 17 Johns. 239; S. C., in error Ib. 479; Mann v. Eckford’s Ex’rs, 15 Wend. 502; Ex parte Negus, 7 Wend. 499; Loosemore v. Radford, 9 Mees. & Wels. 657; Lathrop v. Atwood, 21 Conn. 117.

But it is argued with great force by Waite, J., dissenting, in the case last above cited, and by Mr. Sedgwick, in his work on the Measure of Damages (p. 30G),t-hat the doctrine thus settled in favor of the right to recover at law, in a case like this, to the full amount agreed to be paid, is wrong in principle; because, it is said, a court of law, having no power to direct and control the application of the amount recovered, the obligor, if he be primarily liable, as Tooker was in this case, might be compelled to pay the same debt in substance twice — once to the obligee of the bond, and again to the original creditor; and that the same principle ought to operate in favor of the surety, whose liability in law can not be extended beyond that of his principal. It must be confessed, that these considerations, as applied to a recovery in a court, and in an action, at law .strictly, are entitled to very great weight; and, as Mr. Sedgwick remarks, serve to illustrate “ the inconvenience and serious hardships that often flow from the separation *of the jurisdictions ” at law and in equity. But the objection thus forcibly .urged to the doctrine as applied in eases at law, . by courts destitute of equity jurisdiction, has no application to the case before us. This being a ease under the code, and the court below exercising jurisdiction in equity as well as at law, and competent to administer equitable as well as legal remedies, very prop-1 erly saved the rights of the obligors of the bond and defendants in| the judgment, by ordering the creditors of the firm to be made' parties, and permitting the obligors to pay off the creditors of the-plaintiff, and to have the amount thus paid credited upon the judgment. And this, we think, ought always to be done where anyparty in interest, whether creditor or obligor, demands it.

Judgment affirmed-

Scott, Sutliee, Peck, and Gholson, JJ., concurred.


author: Peck, J.

text:
    George Bryant v. Caleb S. Goodwin and John H. Faxon.
    Where, prior to the school law of March 14, 1853 (Swan’s Stat. 836), a school-district had been duly organized, consisting of parts of two adjoining townships, such district was not severed by the operation of section one of that law, but still continued a sub-district under that act, until thereafter dissolved, altered, or changed, as provided in the 16th section of the same law.
    Whether such sub-district could thereafter be dissolved, altered, or changed, prior to the amendatory and supplemental act of April 17, 1857 (54 Ohio-L. 236, sec. 10), by the board of education of one township, without the-concurrence of the board of education for the other township — qucere.
    Prior to the passage of said amendatory and supplemental act, no tax could be imposed upon the portion of the sub-district lying without the township in which the school-house was located, for the purpose of purchasing the site- or erecting such school-house.
    The board of education, in certifying the amount to be paid or borne exclusively by the sub-district, under section 23, of the estimated cost of purchasing the *site and erecting the school-house, may impose the entire estimate and not merely a “portion” of it, if, in their opinion, the entire amount is no more than its reasonable share of the burden of taxation for such purposes, in comparison with the other sub-districts of the township..
    In error to the district court of Lorain county.

      On the 14th of February, 1855, George Biyant filed his petition -in the court of common pleas of Lorain county, against Caleb S. ■Goodwin, as treasurer of said county, and John H. Faxon, his ■deputy, to enjoin them from the collection of a certain school-house tax, claimed to have been unlawfully assessed upon his property.
    The case was taken to the district court by appeal upon petition and answer; and, at the September term, 1856, came to trial on submission to the court upon an agreed statement of facts, including the records of the board of education, and the testimony •of Alexander II. Redington.
    The case may be stated as follows: In the year 1854 the plaintiff was a resident tax-payer of sub-school-district number one, in Amherst township, Lorain county. There were eight sub-districts in ■said township, besides No. 1. There was a large amount of property subject to taxation in said eight sub-districts. The schoolhouse tax in question was levied for the purpose of building a •school-house in said sub-district No. 1. From the year 1825 to the time the tax was levied sub-district number one was composed mostly of land in Amherst township, but embracing four lots •of land in Russia township, adjoining, unless by the first section of the school law of March 14,1853 (Swan’s Stat. 836), it was divided •so as to make that part of said sub-district in Amherst a sub-district by itself, independent of the four lots in Russia.
    On the 17th of April, 1854, the following action was had in relation to separating these four lots in Russia from the sub-district, as is shown by an exhibit of the records of the board of education of .Amherst, to wit:
    *“ Amherst, April 17, 1854. The board of education met .and appointed Orimel Barney chairman.
    “ On motion, voted that that part of sub-district No. 1 in Amherst township, situate in Russia township, be set off to Russia township.
    “ On motion, voted to raise one-half mill on the dollar valuation, for repairs, wood, etc., for school-houses in said township, to be ■divided to the several districts in proportion to the valuation of each.
    “ On motion, voted to adjourn to South Amherst on the 3d day • of May next. Albert J. Harris, clerk; O. Barney, chairman.”
    Those proceedings were had by the board of education of Amherst township alone. Neither the board of education nor the ^trustees of Russia township participated in the meeting.

      Alexander H. Redington, a witness offered by the defendants,. “ testified that he took a notice from the clerk of Amherst township- and served the same on six of the seven members of the board of education of said Russia township, to appear at a meeting of the board of education of Amherst township on the 3d day of May, 1854, being the same meeting appearing on the records of the proceedings of the board of education of said Amherst township, a copy of which is as follows, to wit
    “At an adjourned meeting of the township board of education for-Amherst township, met at the house of A. H. Redington, Esq.— Present, E. Plumb, N. Bryant, A. Crandal, R. N. Blair, J. B. Robertson.
    “ On motion, A. Crandal was chosen chairman, and J. B. Robertson clerk.
    “ On motion, it was voted that sub-district No. 1, in Amherst township, be changed so as to be composed of the territory of which said sub-district is now composed, lying in the township of Amherst only.
    “ On motion, the meeting adjourned to meet at the office *of [474 J. Harris, Esq., on the 13th inst., at 2 o’clock p. m. J. B. Robertson, clerk pro tern.; A. Crandal, chairman.”
    Redington further testified, that some of the members of the-board of education of Russia township said they should not attend the meeting; that they had nothing to do with it. That two of them did attend, but took no part in the meeting.
    TJp to the time the plaintiff commenced this action Russia township had made no disposition of said four lots therein, except that a small part of two of the lots had been annexed to another district in Russia, but no sub-district had been made of the four lots by Russia.
    The following appears upon the records of the board of education, aud was offered by defendants:
    “ Meeting of the board of education of Amherst township, May ■ 27, 1854.
    “ Motioned that G. W". Quigly act as chairman. Carried.
    “Motioned and seconded that they raise a tax of five hundred dollars on the taxable property of sub-district No. 1 in Amherst, to - build a school-house in said sub-district. Carried.
    “ Motioned and seconded that J. B. Robinson, Asael Crandal, and. N. Bryant act as a committee to locate or procure a site and deed for a school-house in sub-district No. 1 in Amherst. Carried.
    “ It is the opinion of the board that sub-district No. 1 has not paid an equal share of taxes for building school-houses in said district No. 1 heretofore.
    “ Motioned and seconded that we do now adjourn sine die. Attest, -J'osiah Harris, clerk; G. W. Quigly, chairman.”
    All of the tax for building the school-house was levied upon the tax-payors and property situate in that part of said sub-district No. 1, which was within Amherst township, and only upon such property as was within the limits *of the sub-district, .so that none of the four lots in Russia and none of the lands in Amherst lying without the limits of said sub-district No. 1 were taxed for the purpose of building the school-house. Said four lots in Russia and said lands in Amherst lying without the sub-district were not exempt from, but subject to taxation, generally, and stood upon the duplicate for that purpose. •
    The county auditor placed this school-house tax upon the dupli-cate by virtue of the following authority received by him from the -clerk of Amherst township on some day after the 27th of May, - 1854, to wit:
    ■“ To the Auditor of Lorain County:

    “ At a meeting of the board of education of Amherst township, •on the 27th day of May, 1854, it was voted to raise a tax of five hundred dollars on the taxable property in sub-district No. 1 in . Amherst township, to build a school-house in said sub-district.
    “I do hereby certify the above to be an abstract from the pro-ceedings had by said board on that day.
    (Signed,) . “ Jo siah Harris,
    “ Clerk of said Board.”

    “ Note. — The list hereto attached contains the names of the resident tax-payers in said sub-district No. 1, as made out by Alexander H. Redington, at my request.
    (Signed,) “Josiah Harris.”
    “List of residents and tax-payers in sub-district No. 1 in Amherst.” [Here follows the names, and among them is that of ■“ George Bryant.”]
    Upon the plaintiff’s land and' personal property listed for taxation in the spring of 1845, the sum of $27.45 was levied as his portion of the school-house tax. The plaintiff refused to pay it, but tendered to the defendant, ’Goodwin, as treasurer, the full ¡amount of all taxes charged against him except thi9 school-house tax. Goodwin refused to receive any of the tax unless it all was paid, and ^proceeded by Eaxon, his deputy, to distrain and [47(j advertise for sale the plaintiff’s sheep and cows, to satisfy his taxes. To enjoin such sale the plaintiff filed his petition. .,
    The district court found in favor of the defendants, dissolved the provisional injunction, and, after overruling the plaintiff’s motion for a now trial, rendered judgment against him for $31.70 .and costs.
    To reverse this judgment is the object of this proceeding in error. And it is claimed that the judgment is erroneous because the school tax was illegal in this : 1. That the law does not-allow the entire tax to be levied on the -sub-district; 2. That the certificate of the township clerk to the auditor did not authorize him so to levy the tax; 3. That the tax was wholly levied on only a part of the sub-district.
    Three questions are made upon the agreed ease, and are stated in the opinion of the court.

      S. D. Clark, for plaintiff.

      J. M. Vincent, for defendants.
   Peck, J.

Three questions are made upon the agreed statement •of facts :

1. Was the fractional part of school district No. 1, in Amherst township, separated by the school law of March 14, 1853 (Swan’s Stat. 83G, see. 1), from that portion of said district, lying within Russia township, which, before that time had been attached to it, or was some further action required to perfect a separation ? Prior to 1853 the trustees of the several townships were required, by the 'laws in force, to lay off their respective townships into school-districts, in the manner best calculated for convenience and the promotion of the interests of common schools, describing their boundaries, and giving to each a number to designate and distinguish it. And whenever the public interest and convenience required it, such district might be laid off from parts of two or more townships, *by the united action of the trustees of the respective townships. It appears from the agreed statement, that as early as 1824 or 1825, four tracts of land situate in Russia township, under the laws then in force, and by the mutual act of the trustees of both townships, had been attached to -the fractional district in¡ Amherst, thereby forming said school-district No. 1. This connection continued up to the passage of the law of 1853, with the exception, perhaps, of a small part of two of the tracts, which at some time, but when does not distinctly appear, had been attached to other districts in Eussia township.

"What effect did the school law of 1853 have upon this district?' Was the district, as the defendants insist, thereby separated, and the fractional parts of which it was composed restored to the townships from which they were taken, as so many sub-districts of those-townships ; or did it, as is claimed by the plaintiff, remain as it was-originally established, subject to be changed thereafter, under the-provisions of section 16 of that act? That part of section 1 which bears upon the question is as follows: “That hereafter each and every organized township in the state shall compose but one school-district, for all purposes connected with the general intei’ests of education in the township, and shall be confined to the management and control of a board of education ; and the several school-dis'ricts, and fractional parts thereof, which now are, or may hereafter bo, established in the several organized townships of this state, shall be regarded as sub-districts, and be confided to the-management and control of local directors, as hereinafter provided.” The words “and fractional parts thereof” undoubtedly refer to school-districts formed, or to be formed, from parts of different townships. At the first glance, it would seem that the view of the counsel for defendants is correct; but a careful perusal shows, we think, that such a construction not only leads to absurd consequences, but is inconsistent with the literal interpretation of the act itself. The section, thus construed, would *ereatemany sub-districts too small to be operated under the law, thereby rendering it necessary to remodel the other districts, and in other instances, the public interest and convenience still requiring it, the-same district would have to be reconstructed in the same way,, under section 16 of that act. Again, section 1, above quoted, provides not only that the fractional parts which now are, but also the fractional parts which shall hereafter bo, established, shall be regarded as sub-districts. If, then, a district should be formed under the provisions of the law of 1853, out of two adjoining townships, and this construction was true, the district thus created would be two sub-districts — oue -belonging to each township — yet-section 16 denominates it one sub-district. Again, it is the fractional parts (plural) of a district, and not the fractional part, that are to be regarded as a sub-district — parts of two or more, and not part of one township. We are therefore of the opinion that this part of the section merely provides that what had been districts under the old system should thereafter be regarded as sub-districts. Under the old law, they were under the management and control of a local directory, and under the new law, they were to be under the general management of the township board of education, and the particular control of a local directory. Upon a careful examination of the act of 1853, we are therefore of the opinion that sub-district No. 1, in Amherst township, was not dismembered by the operation of that act.

This brings us to consider the second proposition: Was such a separation effected by the acts and proceedings of the board of education for Amherst township, set forth in the agreed statement? The proceedings for this purpose, as set forth in the agreed statement, are as follows: On the third Monday (being the 17th day) of April, 1854, the board of education for Amherst township held1 a regular session, and, among other things, “ voted ” “ that that part of sub-district No. l,in Amherst township, situate in Russia township, be set off to Russia township,” and adjourned *to meet again at South Amherst, on the 3d of May, 1854. On the 3d of May, 1854, the same board met at the house of A. IT. Redington, and the record produced and proved, describes it to have been “ an adjourned meeting of the township board of education for Amherst township,”' and at which it was voted “ that sub-district No. 1, in Amherst township be changed so as to be composed of the territory of which said sub-district is now composed, lying in the township of Amherst only.” The members of the board of education of Russia seem to have been notified of this meeting by the clerk of Amherst, but only two of them attended, and they took no part in the meeting. The plaintiff in error insists that these proceedings did not in law effect a separation of the sub-disdriet: 1. Because they were not done or attempted at a proper time and place; 2. Because such severance could only be effected by the concurrence of both townships. The 12th section of the act of 1853, by inference, prohibits any change or alteration o’f sub-districts, except at a regular session of the board of education. The board, by section 12, are authorized to hold regular sessions on the third Mondays of April and Septerdber of each year, at the usual place of holding elections, or some other place , in the immediate neighborhood, convenient for the ■transaction of business relating to the schools, with power to adjourn from time to time, besides providing for special sessions. 'The first of the sessions above stated, was held on the day fixed by law for holding regular sessions of the board, and the second was .■an adjournment from the regular session. It was competent for the board, under sections 12 and 14, to alter or change the sub-districts at either of these sessions. In regard to the objections to this latter meeting, that it is without date, and purports to have been held at the house of A. H. Redington, when the adjournment was to meet at South Amherst, we have to observe that the record shows that the meeting was held in pursuance of an adjournment, and is proved to have been in fact held on the *3d day of May. In the absence of all proof to the contrary, we must presume that it was held in conformity to the order of adjournment, and at a proper and suitable place. Every reasonable intendment should always be made to sustain such proceedings, the conduct of wdiieh are ordinarily confided to persons altogether unskilled in forms and technicalities. We are therefore of opinion that the action of the board of education of Amherst township, as shown by the agreed case, in changing sub-district No. 1, did separate it from the portion situate in Russia township, provided such a separation could legally be made without the concurrence of the board of education of Russia township. Whether such concurrence on the part of Russia township was, in law, necessary to a valid separation, presents a question of much difficulty, and as to which much may be said upon both sides, .arising out of the nature, object, and purpose.of the. connection; the interest, privileges, and obligations of the several parts, while that •connection continues,and the results which ensue upon its termination. The question is not of much practical importance since the amendatory and supplemental act of April 17, 1857, and we forbear to decide the question at this time, because it is not necessary that we ■.should do so, as we are satisfied that in no event and under no cir■cumstanees, as the law then was, could the board of education for Amherst have imposed, by way of tax or assessment, upon the resident tax-payers of Russia township, any portion of the cost of ’building the school-house. The statute provides that the sehool,’house, when erected, shall be the property, and when disused, sold jfor the benefit, of the township in which it is located, and while express provision is made for the imposition of taxes through the agency of the board of the adjoining township, for the biro •of teachers and the maintenance of the school in such, sub-district, none whatever is made for taxing those without the lines of the township in which the house is to be located, for the cost of its erection. Nor is it equitable or proper that ■*there should have been any such provision. The connection is only temporary, and so long as persons without the township participate in the benefits of the school, they are required to contribute to-its maintenance and support; but they ought not to be required to pay for a house which is property of the other town■ship, and to continue their property when the connection is terminated. The statute of 1853, then, docs not confer upon the board ■of education the right to assess taxes or impositions upon persons .and property without the lines of their township, nor does it confer the power upon the board of the adjoining township, to estimate the cost of a school-house to be located in another township, and much less, to apportion any part of its cost upon the persons or property in their township. The sub-district referred to in said section 23, must be limited to that portion of the sub-district over which the board of education have such power. We hold, therefore, that the board of education of Amherst, in 1854, in limiting the ■special imposition to the land lying within that township, did not err, even if the sub-district still covered a part of the township of Russia.

The supplemental act of April 17,1857 (54 Ohio L. 236, sec. 10), passed nearly three years after these transactions occurred, prohibiting the dissolution, change, or alteration of such sub-districts, without the concurrence of the board of education of the several townships that had territory included within it, and authorizing taxation co-extensive with the sub-district, for all moneys expended therein, can not affect these questions, for the reason, that the law is prospective in its terms, and were it otherwise, would be obnoxious to the constitutional inhibition of retroactive laws. It may be regarded, however, as a legislative admission, that the law of 1853, did not require the concurrence of all the townships interested, to a dissolution of the connection; nor authorize taxation without the township, for a school-house situate within it.

This brings us to a consideration of last question propounded Nn the agreed statement: “ Did the certificate sent by the town clerk of Amherst township to the auditor warrant him im levying the tax in question, and of doing it wholly upon property-lying within so much of said district as lies in Amherst townshij)?” The objections urged to the sufficiency of the certificate, do not seem to regard its form so much as its substance. It is intimated in. the argument, that the vote certified, was passed at a meeting held! on the 27th of May, and the certificate does not contain any statement. that the board deemed it equitable and just to assess that amount against the sub-d.strict. The board, in estimating tbeamounts to be raised annually for school praiqmses, are not restricted to the regular session of the board; but may discharge that duty at either a regular, adjourned, or special session, and the' only limitation seems to be, that the several amounts to be raised for school purposes, shall be certified to the auditor on or before the-first Monday in June, of the same year. Nor need-the certificate contain a statement, that the board deemed the amount certified, a-just and equitable imposition uj>on the sub-district. The statute-(sec. 23) merely requires that the amount shall be certified, with a-map of the lands and names of the tax-payers of the sub-district. The amount was certified with a list of the taxpayers, prior to the-first Monday in June, 1854, and we hold this a substantial compliance with the statute. But the objections mainly relied on are, that the certificate purports, on its face, to impose the burden upon-only a part of the sub-district, and also that it casts the whole estimated cost instead of only a part of the estimate, upon the sub-district. The objection that it imposes the burden upon only a part of the sub-district has boon noticed already. As the law then, was, it could only have been imposed upon that part of the district, which lay within the limits of Amherst township. But it is also-said that the certificate assesses the entire instead of only a part of the estimated cost of the school-house against the sub-district, and; the argument *is, that section 23 merely authorizes the board to assess such portion of as they may deem just and equitable, but not the whole cost, upon the sub-district. The power conferred upon the board is purely discretionary, and to be exercised by them with a view to equalize the burdens of taxation among the various sub-districts, up to the time when the amount is so certified. The-board, in this case, have said that in their opiinion, it is but just and equitable for the sub-district to pay the entire cost, but upon, what grounds is not disclosed, nor is it material that it should be'Cuses may be supposed in which such a determination would be just and equitable, and we are bound to presume that such a case was before them. The argument drawn from the expression “ such ;portion as they may deem equitable,” etc , needs but little comment from us. It admits that the board, in their discretion, may apportion to the sub-district all but the last cent, and if that cent is left to be paid by the township at large, the restriction is satisfied. •Such a construction leads to absurd and insignificant results, and is not to be countenanced. Where, in the opinion of the board, a ■sub-district in which a school-house is to bo erected, has not therefore borne a reasonable share of the burden of taxation for such purposes, in comparison with other sub-districts in the township, they may, say section 23, certify such portion of the amount as they may deem just and equitable to the county auditor, to be as•sessed upon the duplicate against the property in the sub-district; and we hold that if the board, in such case, think it just and equitable to estimate and certify the whole, they need not stop a cent or two short, on account of the words “ such portion of the amount.”

Judgment affirmed.

Brtnkerhorr, C. J., and Scott, Sutlier, and G-holson, JJ., concurred.


author: Scott, J.

text:
    *George Puterbaugh v. Christopher Reasor.
    Where P., pursuant to contract, furnished J. R. a team, to be used in the farming of lands of P., for the joint benefit of the parties; and J. R., whilst using the team accordingly, carelessly left it unfastened, whilst he engaged in a noisy affray with C. R., near to the horses, by which they were frightened and ran off, and one of them was killed: Seld, that the want of ordinary care of the team on the part of J. R., being a proximate cause of the injury, will prevent a recovery therefor, in an action brought by P., the owner, against C. R.
    In error to the district court of Montgomery county.
    The plaintiff in error brought suit against the defendant in error ■and one John Beddick, before a justice of the peace, charging the defendants with having unlawfully caused the death of his bay mare, on the 12th of September, 1853. Upon the trial, he recovered a'judgment against both the defendants for $96 and costs.
    The case was appealed by the defendant Reasor, and the plaintiff ( filed his petition in the court of common pleas, stating substantially the same cause of action — that, on the 12th of September, 1853, the defendants caused the death of his gray mare by their negligence- and by their willful and unlawful misconduct; that she was at that time worth $96, for which sum, with interest and costs of suit, he-asked judgment.
    The defendant Reasor answered, denying that he had either by himself, or in connection with said John Reddick, or any other person, caused the death of plaintiff’s bay mare, by negligence, willful,, and unlawful misconduct, or in any other way.
    The issue thus joined between the parties was tried by a jury, and a verdict rendered in favor of the defendant Reasor. The: plaintiff moved for a new trial, on the ground that the verdict was-contrary to law and the evidence, and that the charge of the court was contrary *to law. This motion was overruled, and judgment entered on the verdict.
    A bill of exceptions was taken on the trial, embodying the evidence, which shows substantially the following state of facts :
    John Reddick, who was sued jointly with Reasor, was, in 1853,. engaged in farming a portion of the plaintiff’s farm, on the shares. Puterbaugh, the plaintiff, found the grain, farming implements, and team, and Reddick raised the crops, and gave Puterbaugh a. certain share of the produce. On the 12th of September, when, the mare was killed, Reddick was harrowing in the plaintiff’s field,, with this mare, and another horse, both belonging to the plaintiff. The defendant, Reasor, was plowing in a neighboring field, which, was separated from the plaintiff’s field, by a lane, along which ran a country road. Reasor went over into plaintiff’s field, where-a quarrel took place between him and Reddick, which resulted in Reasor’s going over the fence, and inviting Reddick to come out on the road, if he thought himself the better man of the two. Red-dick accepted the challenge, and leaving his team unfastened,, crossed the fence, and after some preliminary “jawing,” the parties joined battle on the road. In the course of the affray, the parties came into contact with the fence, and the noise frightened -Red-dick’s team, which he had left standing about three rods distant from the scene of action. The horses ran a short distance with the harrow, when the “ bay mare ” was killed by striking against a tree.
    The court thereupon charged the jury as follows : “ The plaintiff alleges that a valuable mare, owned by himself, has been killed; through the instrumentality of the defendant, Reasor, and his co-defendant in the court below, Reddick. That the said Reasor and Reddick engaged in an affray, or fight at fisticuffs, near where the plaintiff’s team was standing, and made so much noise and confusion that the horses took fright and ran off; and in the act of running =*=off, the mare struck her breast against a sappling, or something of the kind, and killed herself; and the owner of the-mare asks a verdict, at your hand, for the value. If the defendant, Reasor, engaged in a fight at fisticuffs, with Reddick, by agreement, that is, if Reasor and Reddick fought, by agreement, so near to-the team of the plaintiff as to frighten them and cause them to run off, the defendant, Reasor, will be liable, unless you should find the running away of the team, in some degree, attributable to the negligence of the plaintiff himself. It is maintained by the defendant, Reasor, that Reddick was the agent of the plaintiff in his-custody and control of the mare, and that this appears from the proof. That it was no fault of him, Reasor, that the horses were left standing, unhitched in the field, whilst Reddick came out in the road to fight him ; that the act of Reddick, in thus leaviijg the team unhitched, was an act of gross negligence, contributing powerfully to the accident for which suit is brought; and, that, under the circumstances, the defendant, Reasor, ought not to be held liable, in law, to pay Puterbaugh for the mare. If Reddick had the custody of Puterbaugh’s mare, as the agent of Puterbaugh, and left her in the team, standing, unhitched, in the field, whilst he, Reddick, went out into the road to fight; if he then engaged in a fight, and whilst fighting, the horses ran off, the plaintiff can not recover, providing you should be of opiniori that such leaving of the team, unhitched, was an act of negligence, and that it was one of the causes of the horses running off, which it would be, if the noise of the fight occasioned them to run.”
    To this charge of the court, and to the overruling of the motion for a new trial, the plaintiff excepted.
    The plaintiff also moved the court to render judgment against Reddick by default, but “ the court having examined the papers, and heard the testimony, found that said Reddick did not appeal, nor authorize an appeal, in his *behalf, and was not in court,” and therefore overruled the motion.
    . The plaintiff thereupon filed his petition in error, in the district court, asking for a reversal of the judgment of the court of common pleas for sundry errors in the charge of the court as given to the jury, and for error in not charging what was necessary to constitute said Beddick the agent of the plaintiff, in so far as the custody of said mare and the cause of her being killed is concerned ; and also for error in overruling the motion for judgment by default against Beddick.
    The district court affirmed the judgment of the common pleas, and this judgment of affirmance the plaintiff now seeks to reverse.

      Lowe & Booth, for plaintiff in error.

      Conover & Craighead, for defendant in error.
   Scott, J.

Counsel have discussed at length the question as to the relation which Beddick sustained to Puterbaugh, in the possession and use of the team, at the time when the injury complained of took place. It is claimed for the plaintiff, that Beddick was a lessee of Puterbaugh’s field, and a bailee for hire of his team; while, od behalf of defendant, it is claimed that the evidence shows Beddick to have been working for Puterbaugh under a contract of hiring, by which he became the servant and agent of the plaintiff in the custody and care of the team. It is, perhaps, not essential in this case to determine the precise character of the relation created by the contract between Puterbaugh and Beddick. Whatever that relation may have been, it is not, and can not be, questioned but that under and in pursuance of their contract, Beddick was intrusted by Puterbaugh with the possession, custody, and care of his team, and was responsible to him for ordinary care of the horses, while under his charge. But *the defendant, Beasor, was no party to this contract, and it imposed no obligations upon him. As against him, and all other strangers, the possession of the team by Beddick was the possession of Puterbaugh. And the duties and liabilities of strangers, in respect to the horses, would be the same, whether their owner or his agent or bailee might have the actual custody of them at the time. Third parties would have a right to expect and require the same care from the one as the other.

It can not be claimed in this case, looking to the evidence, that the defendants willfully, or by an act of direct trespass, caused the dealh o£ the plaintiff’s mare. The plaintiff can only complain that they negligently and improperly made such a noise, in their fighting upon the highway, as to frighten ,his horses and cause them to run, whereby the injury to him was occasioned. For such a wrong, no doubt, the defendant, Reasor, would be liable, unless the negligence of the plaintiff, or of the person whom he had placed in charge of the team, contributed, proximately, to the injury. But if Reddick was guilty of such negligence in the care of the team as would preclude him, if he had been its owner, from maintaining an action against Reasor, this negligence must be equally fatal in an action brought by this plaintiff, who confided the team to Red-dick’s care. It is true that the plaintiff was not responsible for the unlawful act of Reddick in accepting the challenge and fighting with Reasor. But for leaving the team loose and uncared for while this noisy affray was occurring in close proximity, he was responsible, so far as others were concerned, if he intrusted the custody of the horses to Reddick; and his remedy, in such case, must be against Reddick alone. The charge of the court below can not be understood as going further than this, and gives to the plaintiff, as we think, no just ground of complaint.

We think the jury were justified, by the evidence, in finding that with ordinary care on the part of the person in charge of the team at the time, the injury complained *of would not have oc■curred; and that, as between the present parties, the plaintiff was chargeable with this want of care, and was therefore not entitled to recover against the defendant, Reasor. The same want of proper care which would give the plaintiff a cause of action against Red-•dick, must prevent a recovery against Reasor.

It is said the court erred 11 in not charging what was necessary to constitute said Reddick the agent of the plaintiff, in so far as the custody of said mare and the cause of her being killed is concerned.” But no instructions appear to have been asked or refused •on this point; nor, under the evidence, could any correct instructions on this subject have warranted a different verdict.

As to alleged error of the court in overruling the motion for the entry of judgment against Reddick, it is sufficient to say that this proceeding in error is prosecuted against Reasor alone. The petition filed is against him only. No summons in error appears to have been issued against Beddick, and he is not in this court. It will be time enough to determine whether judgment should have been rendered against him in the common pleas, when the.plaintiff in error shall have brought him into court.

Judgment of the district court affirmed. .

Brinkerhoee, C. J., and Sutliee, Peck, and Gholson, JJ., concurred.


author: Sutliff, J.

text:
    Robert Bentley v. William Newlon.
    “Virginia military district school-lands, held under a lease for ninety-nine years, renewable forever, are subject to the operation of the statute of limitations during the continuance of the leasehold estate, as well as after the same has been merged in an estate in fee under the act of January 28, 1828, “to provide for the sale of lands granted by Congress for the use of schools within the *'Virginia military district, and to authorize the lessees of said land to surrender their leases and receive certificates of purchase.”
    “Where a judgment debtor holds turn sections of said lands under leases, and assigns the same in fraud of his judgment creditor, who has the fraud declared in chancery so far as regards the amount of such creditor’s judgment, and one of the sections is sold under a decree, and satisfies the judgment and costs, such decree and declaration of fraud do not prevent the statute of limitations from running in favor of such assignee of the two sections, and those claiming under him, as it regards the section not sold under the decree, and not needed to satisfy such judgment.
    This is a petition in error to reverse the judgment of the court of common pleas of Bichland county. Beserved in the district court.
    The original action was brought by Bentley against Newlon, in October, 1853, under the code, to recover possession of, and damages for withholding, a small strip of land lying along the line between the northwest quarter of section 2, owned by Bentley, and the northeast quarter of section 3, owned by Newlon; said strip being in the one or the other of the quarter sections, as the true section line might be determined.
    Newlon, in his first defense, insisted that the disputed strip was in his quarter section, and, in his second defense, that at the time the action was brought, he and those under whom he claimed had,' been in the peaceable and adverse occupancy of the strip in controversy for more than twenty-one years.
    From the bill of exceptions taken on the trial in the common pleas, it appears that the two quarter sections above mentioned/ and in one of which the land in controversy is situated, were Virginia military district school-lands, and were, in the year 1814, leased by separate leases for ninety-nine years, renewable forever, to Thomas Taylor, who assigned his leases to Alexander McGaffick, and that the latter, under the assignment, took possession of the-quarter sections some time prior to the year 1823.
    McGaffick conveyed to Garret Crusen both quarters.
    *Newlon holds his northeast quarter of section 3 under said Crusen by mesne conveyances.
    Prior to August, 1823, Crusen conveyed thirty acres in the north-cast corner of said northwest quarter of section 2 to Moses iápicer.
    Bentley first became the owner of the lease of said northwest quarter of section 2, except the thirty acres above described, by virtue of a conveyance from a master in chancery under a decree-of the late Supreme Court, rendered in Richland county in 1836, at the suit of Riddle and Pollock against said McGaffick, Crusen, and others, declaring the conveyance made by McGaffick to Crusen to-be fraudulent and void as against said Riddle and Pollock to the extent of their judgment. But said decree and the sale thereunder did not finally affect the quarter section owned by Newlon, as the sale of the section bought by Bentley satisfied the decree.
    On the 25th of July, 1853, Bentley procured from the governor of Ohio a deed for said northwest quarter of section 2 executed under and in accordance with the act of January 28, 1828, “to-provide for the sale of lands granted by Congress for the use of schools within the Virginia military land district, and to authorize the lessees of said land to surrender their leases and receive certificates'of purchase and on the trial introduced said deed in-evidence.
    Bentley did not at the trial claim to own any land in said .north-cast quarter of section 3 nor did Newlon claim any right in. said northwest quarter of section 2.
    Bentley gave evidence tending to show that the disputed strip was in the quarter embraced in his deed. Newlon gave evidence tending: to show that said strip was in the quarter he owned. An d it was ad■mitted bythe parties that said Newlon and those under whom he held ■had been in the continuous and adverse occupancy of the disputed slrip for more than twenty-o'ne years, claiming title thereto.
    It further appeared in evidence that Newlon, and those under
    *whom he held, while the land was in the woods, in 1827, built and kept up thence continuously down to the time of trial, a fence on what was claimed to be the true line between the sections, inclosing the disputed strip, and that said fence was ac•quiesced in by Bentley and those in possession before him, as the boundary line, or that no objection was made until within sis months before suit brought.
    The testimony being closed, Bentley, by his counsel, requested -the court to instruct the jury that his right of recovei*y was not barred by the statute of limitations : First, because the fee of the land was, prior to July 25, 1853, the date of the governor’s deed, in the State of Ohio, or in the United States, and that in neither case was his right barred by the statute. Second, because the statute •did not begin to run against him until the date of his purchase at judicial sale, the decree having found that said sale by MeGaffic to Crusen was void as against the complainants in the chancery suit.
    The court refused so to instruct the jury, but said to them that what was the true line between the quarter sections was a question of tact for them to find from the evidence; that the lessees of Virginia military district school-lands could maintain ejectment to remover possession of the lands leased upon their title by lease, and could, in like manner, defend their possession and title under said lease, against any one not having a superior legal or possessory title. That said lands were subject to be hold adversely for a period twenty-one years against a similar lessee and against the plaintiff claiming under a lessee, notwithstanding the plaintiff had within •such twenty-one years surrendered his lease and obtained a deed in fee from the governor of the state; that the plaintiff’s deed from the state did not prevent the statute of limitations from running against him in favor of the defendant, or as against the defendant remove the bar interposed by it, and that said deed could not, under the circumstances of this case, ^operate against the defendant to give a new period of time in favor of the plaintiff from which the ■statute would commence to run; that the decree in the chancery suit in the Supreme Court of the county, and the sale under it, made •no difference as to the running of the statute; that if it had previously commenced to run against those under whom the plaintiff holds or held as lessee, it would continue, notwithstanding the decree and sale to plaintiff under it; that if the parties had acquiesced in a line as the division and boundary line between them for a. period of twenty-one years prior to the commencement of this action, occupation and possession being in accordance thereto, they would-, not be at liberty now to dispute it or abandon it, unless by mutual consent, or the like.
    To which instructions as given, and refusals of the court to instruct the jury as requested, the plaintiff excepted, and now assigns the same for error.

      Young, for plaintiff.

      Kirkwood & Burnes, for defendant.
   Sutliff, J.

It appears from the record that the defendant has-had continuous adverse possession of the land of which recovery was sought for more than twenty-one years previous to the commencement of the suit. His claim of possession had been indicated ever since some time in 1827, by a fence defining the boundary of the premises. The possession is therefore shown to have been actual, adverse, and notorious on the part of the defendant for' more than a quarter of a century.

The statute of limitations of this state under which such possession was held provided as follows: “That all actions hereinafter mentioned shall be commenced within the several times hereinafter-limited and not after. First, actions of ejectment, or any other-action brought for the recovery of the title or possession of lands, tenements, or hereditaments ^within twenty-one years; pro- ' vided, that actions of forcible entry and detainer or forcible detainer only, shall not be commenced after two years from the time such right of action accrued.”

But it is urged by counsel for plaintiff that the court erred im not instructing the jury that the statute did not apply in this case,_ “ because the fee of the land was, prior to July 25,1853, in the State of Ohio, or in the United States,” and that the statute did not begin to run against the plaintiff until the date of his deed.

This action was one for the possession of land. The defendant’s-lease was a deed as operative to give the right of possession during' the term for which it extends and continues operative, as is the- ■ deed of jdaintiff conveying a title in fee. It was the right of pos- ■ session only that was in issue between the parties.

Both plaintiff and defendant, previous to July 25,1853, held their possessions under similar leases; and their relative rights, under the •statute of limitations as existing on the 25th of July, 1853, could not be changed by any amendment of plaintiff’s lease, or by its renewal, or exchange for an absolute deed of conveyance in fee simple.

Nor do wo perceive any error in the-charge of the court in relation to the decree finding the sale of the land by McGaffick to Crusen void as against the complainants. In order to give any effect to that decree the plaintiff should have shown his right of posses.sion to have been derived and held under and by virtue of it, as ..against the defendant. And this is not shown by the record, nor pretended by counsel to be the fact.

We perceive no error in the record. The judgment of the court of common pleas must therefore be affirmed, and the petition in -error dismissed at plaintiff’s cost.

Judgment accordingly.

Scott, Peck, and Gholson, JJ., concurred.

Brinkerhoee, C. J., having formerly been of counsel, did not sit.