author: Judge Wood

text:
    William E. Smith v. The State.
    An indictment designating the accused by initial letters, as a baptismal name, is good after verdict.
    It is no ground for arrest of judgment, that the accused went to trial without a copy of the indictment, no exception being taken until after the verdict.
    Error to the common pleas of the county of Trumbull. The ■plaintiff in error was indicted at the November term, 1837, under section 28 of the act of March 7, 1835. The section is in these words : “ That if any person shall counterfeit any of the coins of gold, silver, or copper, currently passing in this state, or shall utter, or put off counter/eit coin or coins, knowing them to be such, etc., every person so offending shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than fifteen, nor less than three years.
    The indictment contains three several counts, charging the plaintiff in error, substantially in the same terms, with uttering and putting off certain pieces of counterfeit coin, called sixpences, ftps, six and one-fourth cents, and head pistareens, etc., “ of the likeness and similitude of the good, legal, and current money and silver coin, currently passing in the said State of Ohio, etc., then and there knowing them tobe such,” etc. And in each of the counts the plaintiff in error is presented by the name and description *of “ W. E. Smith, late of the township of Youngstown,” 'etc.
    The accused was arraigned at the same term, pleaded not guilty to the indictment, was tried and convicted. His counsel then filed a motion in arrest of judgment, for the following reasons :
    1. Because said indictment is altogether uncertain, and wholly insufficient, in this, that it does not designate the accused by any Christian name,'nor does it state that the accused is a transient person, or that his said Christian name is unknown.

    2. Because said accused was not furnished with a copy of the indictment, at any time, before his said trial by the jury, as appears from his affidavit hereto annexed.
    3. Because in each of the counts of the indictment, it is averred that the said counterfeit coins are counterfeits of the good, legal, and current coin, passing, etc., whereas the same are not counterfeits of the legal and current coin, passing, etc.

      This motion was overruled, the plaintiff in error sentenced to imprisonment in the penitentiary, and judgment rendered against him for the costs of the prosecution.
    Crowell and Tayler, for plaintiff in error.
    10 Pet. C. L. 319; 10 East, 83; 1 Pet. 224; 3 Bac. Abr. 315, 316.
    No argument was offered for the state
   Judge Wood

delivered the opinion of the court'

The errors assigned, upon this record, by the plaintiff’s counsel, are two: 1. The overruling of the motion in arrest. 2. The rendition of judgment and sentence on the verdict of the jury. Both assignments may, however, be consolidated and discussed as a single proposition, or the last may be left untouched, as depending upon the first, or growing out of it as a corollary; for if a motion in arrest be overruled, as a general principle, judgment or sentence follows on the verdict. The whole inquiry, then, resolves itself into this : Did the court below err in overruling the motion ?

It is urged by the plaintiff’s counsel tha't the Christian and surname of the party indicted ought to be accurately stated; and, if the prisoner is a transient person, and refuses to disclose his name, he should be presented as a person to the jurors unknown, but who is brought before the jurors, by the keeper of the prison; that the object of giving an accused a name, is to distinguish him *from others; that Christian names are the means by which one is known from another. That if the Christian name is mistaken, it is fatal to all legal instruments. That a declaration against “W. B. Smith" would be bad, and a judgment rendered upon it would be reversed on error. That in criminal proceedings, greater strictness is required, and the record should be so perfect as to be a bar to a subsequent prosecution for the same crime, and that this record is not of that character.

With deference to the opinions of the learned counsel, we are not able to discover the application of the argument to the case before us. The indictment, it is true, is loosely and unskillfully drawn. The pleader has not adhered to the ordinary forms, which the rules of “ safe precedent ” require to be pursued. A plea in abatement would have been fatal to it; and on such a plea the argument of the plaintiff’s counsel would not have been successfully resisted. But, after verdict, to arrest the judgment for the reason suggested, would overrule the authorities of Coke, Hale, and Hawkins, and a modern, but learned criminal lawyer, Archbold.

In 2 Hawk. P. C. 23, section 125, it is said, if there be no addition or a wrong one, the defendant can take advantage of it by a plea in abatement only; and Hawkins is sustained by Rex v. Warren, 1 Siderfin, 247, and by 2 Inst. 670; and it is further said, if he pleads over, he thereby waives all objections to the indictment, on that account. So, if there be no Christian name, or a wrong one, or no surname, or a wrong one, the defendant can bake advantage of it by plea in abatement only ; and if he plead over, he waives the objection. 2 Hale, 176; also 2 East, 175; and these authorities are cited by Archbold with approbation. Arch. Orim. PI. 30.

It is secondly contended that the court erred in placing the plaintiff in error on his trial before he was furnished with a copy of the indictment. That the law is imperative, and that the prosecution might as well dispense with an indictment, and force the accused to trial on an oral accusation, as to dispense with this requisition of the statute in this particular. , .

WeJ do not accede to this reasoning of the counsel. An indictment, or presentment, is required by the fundamental law of the land for every criminal charge; and it is declared that no person shall be put to answer in any other manner. An indictment or presentment is, therefore, necessary to confer jurisdiction upon the court over the person accused. It can be obtained in no Mother way, not even by consent, but the statute requiring a copy of the indictment to be furnished the accused twelve hours before trial is merely a directory provision. It refers only to the time of trial — it shall not be until twelve hours after the copy; but it has nothing to do with the jurisdiction of the court, that is already acquired by the indictment. And in any other respect, except in relation to jurisdiction, a party may waive provisions in the law intended for his benefit, or make any agreement for the disposition of his case, whether civil or criminal, as a general rule. If the accused insist upon such copy, or rather, if he do not waive his right, in this respect, and is forced to trial without it, and against his own consent, it would most clearly lay the foundation for a motion for a new trial; and if the facts appeared on.the record, a motion in arrest of judgment, or a writ of error, might bo sustained. Such is not the case here. For aught that appears, the plaintiff in error was placed on his trial with his own consent. There was no objection for the want of a copy of the indictment. Such copy, then, must bo considered as waived, and it does not lie in his mouth to say that it was not furnished. To suppose the legislature intended a copy to be delivered when it was not required, but waived, would be to suppose they intended to complete the performance of an act, without any definite object, use, or benefit, and to deprive the accused of the right to agree when his trial should take place.

It is lastly argued, that the indictment does not follow the language of the statute, nor that of any known form; that it is full of senseless verbiage, and repetitions characteristic of the unskillful pleader. That from the description of the coin in the indictment, it is plain the coin there mentioned is not the legal current coin, passing in the State of Ohio ; that although it is not necessary that it should be such coin, to constitute the offense, the averment being made, if must be proved.

The indictment, as we have before said, on another point, is not well drawn. It is not claimed, however, that it does not contain enough to constitute the crime; but that it contains too much. The law is, that an indictment for an offense against the statute, must, with certainty and precision, charge the defendant with having committed, or omitted the acts, under the circumstances, and with the intent mentioned in the statute; and if any one necessary circumstance or ingredient be omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error. The defect will not be aided by verdict. 2 East, 333.

*It is said to be much better to pursue, strictly, the words of the statute, as it precludes all question about equivalent expressions. Arch. Crim. Plead. 52.

The statute, in this case, makes the crime the uttering and putting off the counterfeit coins, knowing them to be such. This is averred in each of the counts, in the words of the statute, to which the pleader has added, that the coins were legal and currently passing in the said State of Ohio.

If it be necessary, as contended by the plaintiff’s counsel, to prove this last averment, it would, after verdict, be presumed that such evidence was given; because the court will make every reasonable intendment to support a verdict where the record furnishes no proof to the contrary. We hold, however, such proof to have been unnecessary, as the indictment combines every ingredient, and circumstance, necessary to constitute the crime, without the words, legal and currently passing in the said State of Ohio, and these words should, therefore, be rejected as surplusage. 4 Coke, 41; 5 Coke, 121; 2 Leach, 593; 3 Stark. 26; 6 Ohio, 437.

Judgment affirmed.


source: Caselaw Access Project

author: Judge Lane

license: Public Domain

text:
    Lessee of the City of Cincinnati v. The First Presbyterian Church.
    Statute of limitations runs against a town or city corporation.
    This cause was adjourned from the county of Hamilton, and came before the court, upon a motion, by the defendants, for a new trial. The facts material to the point decided are these. The proprietors of the city of Cincinnati, at the time .of originally laying out the grounds for a town, set apart the ground in controversy for a public use, designating the lots, on the map, with red ink, and indorsing a note in these words: “ The town lots given for public uses are numbered and painted with red ink." The first settlers planted their first church on a part of these grounds, and continued to occupy them from that period, 1790, to the commencement of this suit. As early as 1807, the First Presbyterian Church was incorporated, and from that time exercised exclusive ownership over the grounds in respect to the grave-yard, and other appurtenances. A great deal of other matter was involved in the litigation, which does not affect the decision *of the court. At the trial, the defendants claimed the protection of the statute of limitations. But the court instructed the jury that the statute did not run against the claim of a town or city to property dedicated for public uses. The error of this instruction was one ground alleged for a new trial.
    Fox, for the defendant:
    I insist the court erred in charging the jury that the statute of limitations was no bar, although an uninterrupted adverse possession of the premises should be proved for more than twenty-one years.
    It is not pretended that an individual would not be barred by the like adverse possession, but it is contended that the public, that is, the city of Cincinnati, is not to be affected by the statute of limitations, because she is a sort of sovereign so far as her sphere of operations extends. I admit that statutes of limitations do not bind the sovereign power of a country, unless express provision is made therefor. But I find no case, nor do I believe a case is to be found, where any less a portion than the sovereignty of the whole state has been held exempt from the full operation of the statute. Let us look at the principle on which the exception rests. It is said in some of the books to rest on the supposition that the sovereign is too busy or too much occupied to pay particular attention to his rights, as an individual can. 1 Black. Com. 247. In other cases, it is said the exemption is founded upon public policy, that no negligence or laches can be imputed to the government or sovereignty of the country. 2 Mason, 314. Now the principle, when once admitted, must and does apply to' all actions, real and personal; and if the city of Cincinnati can not be affected by the statute of limitations in an action of ejectment, she is not barred in any action of debt or assumpsit.
    Again, if the city of Cincinnati is not to be affected by the statute, because a portion of the sovereign power is delegated to her in her corporate capacity, the counties and the townships, and all the other subdivisions of delegated power are not embraced. Again, in this very case, we have two portions of the sovereign power delegated. The city claim a portion of the sovereign power, and so does the county; they are both claiming the right of possession to the same identical piece of land. Here we see the sovereign power is divided, and the separate portions are contending against each other — one part of the sovereignty suing the Mother part. Can a ease be found like this, in which a statute has been held not to apply? This exemption, on the part of the sovereign in monarchical countries, is generally admitted to be an attribute of sovereignty. Angeli on Lim. 369; 18 Johns. 229; 5 Bac. Abr. 551-562.
    It is an.attribute of sovereignty, also, to be totally exempt from suits; but surely the city does not claim that she can not be sued. In the case of Paine v. Commissioners of Portage County, the defendants claimed the benefit of this attribute of sovereignty, and contended that the county could not be sued; but the court, consisting of Judges Lane and Wright, say, “their claim of exemption, on account of their sovereign character, can not be recognized. They are but a corporation, performing certain public functions; not lords paramount or sovereign.” Wright, 417.
    But I have said I could find no case where any exemption from the operation of the statute has been sustained, unless the king or state, in other words, the whole sovereign power, was the plaintiff. If such cases can be found, I presume the plaintiff’s counsel will produce them. On the other hand, I do find cases somewhat analogous, in which it has been held that the maxim “nullum tempus,” etc., is not applicable to a claim like this.
    The lord proprietary of Maryland, for instance, can not shield himself under this maxim, nor can a bishop. 2 Harris & McHenry, 132-138. Nor can the king confer his privilege. Ib.
    A corporation can not shield itselt under the maxim, for a corporation may be disseized, and may become a disseizor. Angeli on Cor. 103, 308, 310; 4 Serg. and Rawle, 317.
    If the city is a mere corporation, like unto the counties of our state, it would appear to me these authorities are conclusive.
    Why should not the city of Cincinnati be affected by the statute of limitations in an action of ejectment, as well as in an action of debt or assumpsit? Why should not time heal up and cure defective titles where the city of Cincinnati sets up a claim, as well as where one of her citizens asserts title.
    I can perceive no great reason of public policy calling for the exemption of the city of Cincinnati from the operation of the statute. If the object of the statute is to give repose to the community, why should this city be permitted to interrupt that repose? This church, and those claiming under it, have been in *the peaceable and uninterrupted possession of this property for forty-seven years. The town, as early as 1804, began to assert her rights as to public property. The claim to the common was litigated with Williams in that year. Is it not strange that at that time this claim should have been permitted to rest? I do consider, and always have considered the statute of limitations as a complete bar to the claims set up by the city. Whether we consider the statute as intended to dispense with the production of evidence which has been lost, or whether the lapse of time is considered as conclusive evidence of an abandonment of claim, the reasons for its application are, if possible, much stronger than in ordinary cases. If it is true, as Judge Burnet supposes, and as he was told, that the old inhabitants had agreed that the south half of the block should be occupied by the'Presbyterians fora church and burial ground, and that such agreement would operate as a bar to recovery, as this court instructed the jury, why does not the statute operate ? Why not let the statute operate, as well as to presume a grant?
    Again, it is well settled that the non-use of a highway for twenty years affords a presumption of a release or surrender. If a presumption of a surrender can be made against the public in case of a highway, why not in this case ?
    Hammond and V. Worthington, for the plaintiff:
    The question of .the statute of limitations remains to be considered. No authority or precedent, exactly in point, is found. The decision must therefore now be made upon principle and analogy.
    The original common law doctrine rests on the legal maxim, “nullum tempus oocurrit regí1’ — time does not obstruct the rights of the government. The true principle would seem to be this: the neglect of the public functionaries shall not take away the public rights. And the point of good policy, in this maxim, is, the discouragement of individual cupidity in making efforts to prey upon public property. The case before us presents a salutary admonition of the value of this policy.
    It is argued that this privilege appertains only to absolute sovereignty. It has been held applicable to both the government of the United States and to the government of the states. Neither are absolute sovereignties. The entire sovereign power is divided between them. Both have a portion of political power, of a legislative, judicial, and executive character. With all these, to a ^certain extent, town corporations are invested. They create offenses, levy taxes, impose duties in their legislative character. And all these they enforce in their judicial and executive character. They bear a much stronger analogy to the state governments, in our divisions of powers, than to the boards of commissioners, „or to a lord proprietor, or to a bishop under the ancient regime.
    The convenience of repose is applicable to all cases where the government seeks to assert rights against individuals charged with usurping those rights. The arguments thence derived, by the defendants’ counsel, go to the whole doctrine of exception as strongly as to the case of a town corporation.

      The statute of limitations is a fair defense where it is strictly applicable, but before it can avail, a case must be brought fully and clearly within its provisions.
    The first available statute, in Ohio, was enacted January, 1804. 1 Chase, 393. The law of 1795, even if of obligation, did not embrace the action of ejectment. This law of 1804 provides for ejectments in section 2, and employs this phraseology: “No person or persons shall hereafter sue, have, or maintain any writ of ejectment,” etc. The act of January 25, 1810 (1 Chase, 655), uses the same terms in respect to ejectments. And such were the statutory provisions until the act of February 25, 1824. 2 Chase, 1403. This latter act is differently worded. It runs thus: “All actions hereinafter mentioned shall be commenced within the several times hereinafter limited after the cause of such action shall have accrued, and not after : first, actions of ejectment,” etc. Can the statutes of 1804 or 1810 be construed to embrace the case of the city? Was the city a person, within the meaning of the terms employed? Our judgment would be that the case of the city is not embraced, even if a more general phraseology would embrace it. There was, then, no statute to affect the rights of the city until 1824, and the period of that act has not run.
    Again, in a legal point of view, was it proper to consider the church a disseizor, under all the circumstances of the case, until' the transactions of 1821, when she made private sales, in perpetuity, and disinterred the dead?
    J. C. Weight, on the same side:
    1. As to the statute of limitations. Against the public, lapse *of time works no destruction of right. That, I suppose, is beyond dispute. But it is claimed that the city is a mere corporation, subject, as natural persons, to the operation of the statute of limitations. Even if the court should hold this true, in respect of absolute rights in corporations, we think the case in hearing not within its principle. In cases where the corporation has absolute property, with complete power to use and alienate, it may be true that the right is subject to the same rules as affect and control the rights of natural persons. But where the right of the corporation is merely supervisory and preservative, without the power to convey away, change, or alienate, the beneficial use being in the whole public, the statute will not affect the right. The neglect of the public officer, who is only clothed with author■ity to preserve the public use, will not work a forfeiture of the ■right in his case. He can not directly convey or dispose of the right; neither can he indirectly, by mere neglect or omission, ■pass away or destroy the estate. The city, in this ease, does not •own the fee of this land; it is not the owner of the estate; it has the right to possess, control, and secure the public in the free use and enjoyment of it.
    2. It is claimed that the use by the church is in accordance ■with the dedication, and conclusive of the design of it. Suppose it should be held that the mere occupation’of a portion of this ground by a church is a us'e consistent with the dedication, that ■only covers the ground so used, as to which the verdict is for the defendants, with a mere right of ingress and egress. This is no .ground for disturbing the verdict. A publiesquare in atownmay possibly be used as the site of a public church, school, or market-house. The right so to use does not necessarily include the power •of converting the property so used. On the contrary, such occupant is precluded from any step tending to the destruction of the right under which he'enjoys the use. Like the tenant, he is required first to surrender the possession he received, before he can question the right of his landlord.
    No length of time, connected with such mere use, can change the relation of the parties to the subject, or enable the occupant of the right of another, by mere volition, to become an occupant in his own right to the exclusion of the person under whom he entered. Suppose the county to have erected a court-house in the street of a town, and, without objection, to have used the house ■ for half a century, until it became decayed and useless, or it is destroyed by accident, or it is removed to promote the convenience *of the public, would such use give the county a title to the fee, and right to dispose of the ground so used as private property ? No one can pretend so. In the ease of the town of Gallipolis, this court decided that such claim could not be sustained, even when the legislature of-the state had stepped in to aid them.
    Storer, in reply, for the defendants :
    The argument we have already presented, on the statute of limitations, we believed at the time-it was made, furnished a full answer to the plaintiff’s claim, and all the reflection we have since given to the subject has strengthened our conviction.
    We assume, that the rule of “ nullum tempus,” as relied on by the plaintiffs, is resolved at last into a question of prerogative, and ■can therefore attach alone to the sovereign power of the country. And it is no useless inquiry in the application of the principle, to ascertain why it is that prerogative is thus held to be unaffected by the lapse of time; to say nothing of the disposition to limit the exercise of this attribute in all constitutional governments, or of the disastrous affects which have followed its application to the monarch as well as the people, it is sufficient for our purpose to exhibit the ground upon which it is claimed.
    Mr. Gwillim, in his notes to Bacon’s Abridgment, title Prerogative, vol. 5, page 489, defines the power to be “ the special pre-eminence which the king hath over and above all other persons, and out of the ordinary course of the common law, in right of his royal dignity.” Hence he is the universal occupant, as all property is presumed to have been originally in the crown; wherefore all derelicts and escheats, the right of dominion in ail seas and great rivers, ports and havens, appertain to him. Being thus the superior power of the state, “ he is presumed from the dignity of his office and person to be incapable of doing wrong, and even, where an injury is done by any of his officers, he is under the happy inability of doing wrong, because in his political capacity, he acts by those whose powers are limited by law.” . 5 Bac. 550-•So where the king’s right and that of the subject meet at one and the same time, the king’s shall be preferred, as the rule is “ detur digniori.” Wooodward v. Fox, 2 Tent. 268, ed. 1726; the case of the Abbott of Strata Mercella, 6 Co. 24.
    On this prerogative right, it is held, that the king is not bound by acts of parliament, except in those cases to which we have referred in our former argument.
    *While, therefore, “ vigilantibus et non dormientibus jura .subveniant ” is a rule for the subject, “nullum tempus occurrit regí” is the king’s plea, for there is no reason that the negligence of his officers, or their compact or combination with the adverse party, should cause him to suffer. Adm’rs Sheffield v. Radeliffo, Hobart, 347. It is also said his interests are certain and permanent, and no laches can be therefore imputed to him; hence there can be no occupant against the king, Co. Lit. 41, 46; nor yet a tenant at sufferance, nor can he be disseized. 5 Bac. 563.
    Thus far the origin and extent of the principle; but the principle itself, as we have heretofore remarked, has from time to timo been limited by statute, and prescription is now pleadable against the crown, by Sir George Sackville’s act of 9 Geo. 3, e. 16, and-statute 32 Geo. 3, c. 58.
    While, therefore, the king thus protected may sue in any form of action the subject, he is liable to no process in his public capacity; the remedy of the subject is not by suit, but by petition to the crown’or to parliament, as the circumstances of the case-may indicate.
    It is believed that in England no case can be found where the grant of a charter to a municipal corporation by the king, or the claim of a charter by prescription, has ever been supposed to attach to either body the attribute of prerogative; on the contrary, the power is confined to the king alone, and can not be imparted to another. Such bodies are but legal- entities, artificial in their organization, but really possessing the attributes of private persons; they are, therefore, liable to all legal process themselves, while they are at liberty to use it against others. They may hold land, and the privileges arising from it, and they may lose-their right by misuser or non-user; they may disseize, and are, therefore, liable to ejectment or trespass for their acts. They may appropriate private property for public use; but if they refuse an equivalent, they are liable to the party injured at law, and can not compel him to ask for indemnity by petition to those who represent the corporation in an executive or legislative capacity.
    The doctrine thus examined, as applicable to our jurisprudence, must be taken with much caution, and subject to all proper limitation, in a country where an effort to extend the rule would endanger its existence for such purposes that it might be just to retain it.
    The principle, to a certain extent, has been acted upon in the United ^States, and we will again examine the cases where it has been adopted to prove not only how carefully it has been guarded by the courts, but to show more especially that it never was suffered to attach to the government in any other right than that of sovereignty.

    In Staughton et al. v. Baker et al., the action was brought by the inhabitants of several towns in Massachusetts against several individuals to recover for certain alterations, which, by vote of those towns, had been directed to be made in a mill-dam owned by the defendants. The reason of the alteration was, that the public right of fishing was interrupted by the obstruction, and it therefore became necessary to protect it. On the trial, it was urged that the defendants held title by grant in 1633, which was confirmed by the legislature in 1634, and therefore the plaintiffs could not recover. The court, however, decided that the grant was made subject to several implied limitations, one of which was to protect the rights of the public to the fishery, and that every owner of a mill-dam held it under the condition that such public .right shall not be interrupted by his water privilege. And in conclusion the court further say, “That this limitation, being for the benefit of the public, is not extinguished by any inattention or neglect in compelling the owner to comply with it, for no laches can be imputed to the government, and against it no time runs so as to bar its rights.” 4 Mass. 528.
    Here the point is resolved into a question of sovereignty alone, as the government represents the same power in this case as the king would under similar circumstances in England, for the reasons already given. It can not be supposed that a grant can not be presumed even against a town or city from long possession; and yet if the rule we contend for is not the sound one, no estate can ever pass from a municipal corporation except by deed. But .such is not the law, for Judge Parsons says, in the ease just cited, page 528: “The ancient grants by towns are very loosely expressed, and when a fee was intended, words of inheritance were seldom used. When a long possession by the grantee, his heirs or assigns, has followed, the original grant has uniformly been eon.sidered as a grant of the fee.”
    The opinion of Judge Story in United States v. Hoar, 2 Mason, 314, is predicated upon the same ground which is assumed by Judge Parsons; “for,” says he, “the prerogative right of the king, in relation to acts of limitation in England, is, in fact, nothing more than a reservation or exception introduced *for the public benefit, and is equally applicable to all gov.ernments; and thus the general words of a statute ought not to include the government, or affect its rights, unless the construction ■be clear and indisputable upon the text of the act.”
    In Kemp v. Commonwealth, 1 H. & M. 84, the rule was confined to the State of Yirginia, nor was it contended in argument that it could include any other representative or sovereignty.

      So in Nimmo’s Ex’rs v. Commonwealth, 4 H. & M. 71, Judge Roane cautiously observes, “I will merely say at present that-within my observation the state is not in general, and from the nature of the case, can not be on an equal footing with private suitors in respect of diligence, attention, etc., however vigilant and faithful its officers may be, and that, therefore, the reason of this pre-eminence may be in some measure as applicable to the present government as to the former.”
    Judge Tilghman, in Johnston v. Irwin, 3 Serg. & Rawle, 291, follows up the same decision, “ that the commonwealth could not be affected by acts of limitation.”
    And(the superior court of South Carolina, in Lessee of Allston v. Saunders, 1 Bay, 30, decide that “no time or length of possession runs against the state.”

    In New York, it is held that the people are not bound by the statute of limitations, unless specially included in its provisions. The People v. Gilbert, 18 Johns. 227.
    In the case of the United States v. Kirkpatrick, 9 Wheat. 735, Judge Story adopts the principle, but limits it entirely to the government.

    It will be seen with what caution our judicial tribunals have admitted the rule, how clearly they have defined it, how scrupulously they have guarded it.. On the other hand, whenever the-maxim alluded to has been asked to be applied in other cases, so far as we can find, the effort has always been unavailing. As in Kelly’s Lessee v. Greenfield, 2 Har. & McH. 137, the point was-made, whether the lord proprietor had the same rights with respect to Maryland, that the king had in England, in consequence of the charter to him by Charles I, as lord of the fee; but the court then decided, as early as 1785, “that the maxim ‘nullum tempusoccurrit regi,’ had never been applied, that we can find, to any but the king himself. And it is a prerogative maxim, which it must cease to be, whenever applicable to the subject.” And again : “ In the hands of the crown it *is an inconvenient rule, but being placed there, it is still permitted to continue.” It will be recollected that Lord Baltimore held directly from the crown, with all the rights, regalities, and prerogatives, which the Bishop of Denham enjoyed in that palatinate, to be held of the crown, as of Windsor Castle in the county of Berks, in free and common sockage, and not in capite; he was further authorized to make all laws for the province, and held full executive power therein; yet he was denied the benefit of the principle, and placed on the same footing with the subject; and this when he embodied in his own person the property by grant, the whole territory, and the exclusive authority over it.
    The same point is also decided in Russell v. Baker, 1 Har. & J. 91. So in Birch v. Alexander, 1 Wash. 37, where it is said by the court, “that either the reason of the rule extends, or the rule itself was ever applied to .preserve the title of a lord, we do not admit.” In the case before the court, a corporate right strictly is only involved, for the claim is to the square for the public use of the city, and it is to be ascertained whether the corporation who sue, possess a different character quoad this particular subject, than they would hold where the action in debt, case, or simple trespass, for if in one state of fact, they are concluded by the lapse of time, the rule we regard as equally applicable to every possible ease. The criterion can not be the nature of the claim, but the character of the parties.
    It has already been decided by the court, in the case of Paine v. Commissioners of Portage County, “that their claim of exemption on account of their sovereign character could not be recognized — they are but a corporation, performing certain public functions, not lords, paramount or sovereign; ” and yet those defendants were, to every legal intent, in the same relation to the inhabitants of the county for whom they acted, as the present plaintiffs are to the people of Cincinnati. Wright, 417.
    So in New York, in North Hempstead v. Hempstead, 2 Wend. 137, a claim was interposed by one township against the other for certain lands, which it was insisted belonged to both in common. It appeared there had been a division of the townships, and that part of the property in dispute was situated in each of the portions set off for the original township; it was proved also that each township had regulated the several portions of property within its limits, and had not interfered with that in the other. On a review of the case, Judge Savage decided that *the portions of land in each township must be solely controlled,by the body within whose limits it was situated, and that even if it was not thus to be regarded, and a right existed in the original town after the division, “ that that right was barred by lapse of

      time.” Here is a clear recognition of the principle, that municipal corporations are within the statute of limitations.
    The argument, from inconvenience, never applies to corporate bodies, however extensive, where their existence depends upon an exertion of the sovereign power of the state. The neglect of municipal officers to perform their duties, and the consequent loss of the public revenue, or injury to the public interest, furnishes no excuse for the corporate body itself. That body was created with limited powers, but nevertheless to supervise and protect the public rights, and as those who legislate, or carry that legislation into effect, are elected by the public, they are, to all legal purposes, the agentsof that public, who must be responsible for their acts, whether of commission or omission.

      We have already said the power is confined to the state, as an incident of sovereignty merely, and can not be .imparted to, or conferred upon a subordinate body. Whenever the corporation is created, and its franchises attach, it is the creature of the law which gave it birth, having the privilege o'f mere municipal government, for the purpose, so far as the health, safety, and general prosperity of the city are concerned, of legislative action. But the body corporate has no legal exemptions; it is bound for all its excess of authority, and may be sued in any form of action that the right sought to be redressed may require for its satisfaction. But the government is without the rule, and can not bo subjected to suits, nor controlled in her acts, but by the interposition of the legislativo power, which alone can limit her pretensions. We conclude, then, that the plea of the statute of limitations furnishes a complete answer to the claim of the plaintiffs.
   Judge Lane

delivered the opinion of the court:

The principle, that the sovereign power of a state is not bound by statutes of limitation, without express words, obtained in the earliest stages of the common law, and has descended to this day. This rule is sometimes of odious application; but it is adopted as incidental to sovereignty and necessary to preserve against neg-ligence *or cupidity, those rights which the state has acquired or retained.

This immunity, however, seems to be an attribute of sovereignty -only. No ease is found in the books which exempts any other description of person, whether natural or artificial, from the oper.ations of the laws; and none of the reasons for the exemption, apply with much force to municipal corporations. The law imposes upon them the duty of defending the interests which they are created to hold, and has conferred every power necessary to this end. 'When the property is their own, the statute has been always held as binding; when their land, or franchises are of public character, $Tie public which they represent, are principally members of their own body, sufficiently vigilant to watch their own interests, and sufficiently powerful to defend them. The rights of the corporation, therefore, seem well enough protected without invading the 'letter of the statute. And the very loose and indefinite character of some of these rights renders the protection of the law peculiarly -necessary for the security of occupants.

New trial granted without costs.

      By the new French code, this prerogative is expressly renounced. “L’Etat les Etablissements Publics, et les Communes, sontsoumis aux memes prescriptions que les parliculiers, etpeuvent egalement lesopposer.” Code Civ., sec. 2227.


author: Judge G-rimke

text:
    William Greene et al. v. The State, for the use of Licking County.
    Contract for building a court-house in a workmanlike manner, recites that the county commissioners would superintend the work, such superintendence is not a matter precedent to the progress of the work. Nor does the appointment of a superintending agent, and the fact of his approbation, dispense with the obligation of the contract for executing the work.
    Error to the commou pleas of Licking. The defendant in error brought debt, in the common pleas, against Greene and six others. The declaration is in four counts, the third of which sets out the case fully as follows: That the defendants, on June 11, 1832, made their joint and several writing obligatory to the plaintiff, in the penal sum of $19,980, which was upon condition, reciting that said William Greene had, on that day, June 11, 1832, been declared by the commissioners of Licking county, contractor for the erection of a court-house and fire-proof offices, and that, on May 4,1832, the -commissioners adopted a plan therefor, which, with the drawings, was thereby referred to; and that the commissioners agreed to superintend the erection of said court-house; and if the said Greene should commence, carry on, and complete the said building at the-several *times and in the manner specified in the condition annexed to said plan, and in all respects according to said drawings, to the acceptance of said commissioners and their successors, then the bond to be void. The plan referred to in the condition is next set out, by which it was provided that the building should be commenced in April, 1833, and be put under cover in November, 1833; the stone work to be built of certain dimensions and materials specified, for the foundation; the walls above ground to be of cut stone, and range work, etc.; all the materials to be approved by the county commissioners or their superintendent; payment to be made as follows: $1,000, August 1, 1832; $2,000, Feb" ruary 15, 1833, etc. The declaration then avers the payment of the $1,000 and $2,000 to Greene at the days stipulated, and general performance by the commissioners ; general non-performance by Greene and special breaches, among others that the stone wall for the foundation was not built of proper materials, or in a workmanlike or proper manner, etc.
    Greene, and ail the other defendants, except Holmes, pleaded non est factum, and gave notice of special matter, upon which issue-was taken. Holmes pleaded specially as follows, after obtaining oyer of the bond and condition : 1. That the commissioners-did not superintend the erection of the court-house. 2. That Greene, in pursuance of said plan, did commence the said work on April 15, 1833, and after he had nearly completed the foundation and long before the time limited for finishing or putting the same under cover, the commissioners vacated his contract, and forbid him from further prosecuting the work. 3. Thát at the time the commissioners vacated the contract, Greene had been guilty of no default for want of attention or competent knowledge to carry on the work agreeably to contract, and all the materials and workmanship were approved by one James Bramble, who was appointed by said commissioners as superintendent and agent, expressly for the purpose of superintending the same. Those pleas-were specially demurred to.
    At April term, 1826, the issue upon the plea and notices of Greene, and the other defendants, except Holmes, came before a jury, and verdict was given, finding the deed that of the defendant, and assessing damag.es at $3,555. During the trial, a bill of exceptions, in substance following, was tendered by the defendants and sealed by the court:
    That on the trial it was proved by the defendants that James *Bramble, one of the commissioners, during the whole time from the making to the vacation of the contract, was, prior to the giving the contract to Greene, appointed by the commissioners to-superintend the building of the court-house and ofljices, but said appointment was subsequently erased from their journal by order of the commissioners; and that after Greene entered into his contract, and before the time for' the commencement of his work, Bramble (who lived in town) was directed or verbally appointed by the other two commissioners to attend to the erection of the building, and to give the said two commissioners notice to meet-whenever in his opinion the work was not properly progressing, and that Bramble did give the commissioners notice for that purpose, before the contract was rescinded. It was further proved by another witness for defendants, that he (the witness) was employed by Greene to put up the foundation, and to follow the directions of said Bramble in doing the same; that Bramble superintended the work until within a few days of the time the contract was vacated, and all the work was done in conformity with the advice and direction of Bramble, and Bramble approved the work as well as the materials. The commissioners vacated the contract before the foundation was completed, and the plaintiff claimed to recover in consequence alone of the badness of the-work done on the foundation.
    The court instructed the jury that inasmuch as no entry was-made, on the record of said commissioners, of the appointment of Bramble as superintendent, no act of his could bind the county of Licking, or prejudice the right of the plaintiff to recover.
    And further, that the condition in the bond providing for the-superintendence of the commissioners, was not a condition precedent; but that the plaintiff, if the jury should believe that defendants had not complied with their contract, was entitled to a verdict, even if the jury should believe that the commissioners-wholly,neglected to superintend or to appoint a superintendent.
    At May term, 1837, the court sustained the demurrers to Holmes'’ pleas, and assessed the plaintiff's damages to $3,789.63, the sum found by the jury on the issue with the other defendants, with» interest, and rendered judgment for $19,980, the penalty of the bond, with leave to take execution for the damages assessed, as the sum due in equity.
    J. R. Stanbery, for the plaintiff in error,
    urged three grounds for reversing the judgment:
    *1. That the superintendence of the work, by the commis.sioners, was a condition precedent, and their failure to superintend, .a bar to the suit.
    2. That the appointment of Bramble, even by parol, was binding upon the commissioners.
    3. His approval of the work and materials, binds the county, and excuses a performance according to the terms of the condition. He cited 2 Kent’s C. 232, 233 ; 7 Cranch, 299 ; 3 Wils. 530-540; 3 Chase’s Stat. 1829.
    Dille and H. Stanbery, for the county, insisted:
    1. That no agent or superintendent, appointed by the commissioners, could prejudice the public interest by the approval of in.sufficient work, not done according to the contract.
    2. That no agent, with such power, had been appointed in fact, .and no appointment of a superintendent in the mode shown in the bill of exceptions is valid.
    3. That no authority to receive any other work than that stipulated for in the contract was ever, in fact, given to the agent, Bramble. They cited 29 Ohio L. 267, 281, 315; 4 Bing. 283; Bro. Ab. Corp. 56 ; 1 Vent. 47; 2 Lutw. 1497 ; Vin. Ab. Corp. K, 7, 21; 3 Leon. 107.
   Judge G-rimke

delivered the opinion of the court:

We suppose the judgment on the demurrer to Holmes’ pleas, by the court of common pleas, correct. The first plea avers that the commissioners did not superintend the erection of the building. The word agree in this clause of the condition of the bond, “the commissioners agree to superintend the erection of said courthouse,” may have the effect, at first, of perplexing the judgment with regard to this part of the case. It may be supposed to create an express covenant between the parties, when, in reality, it is only a recital of something to be done for the benefit or advantage ■of the plaintiffs themselves. The second plea is defective for the •very reason which is assigned, that no state of facts is averred by which the court cau find that the vacation of the contract was unauthorized.

As to the third plea which sets up a defense that the materials and workmanship were approved by James Bramble, there is certainly great force in the objection that his appointment was-only by parol. The case of the Bank of Columbia v. Patterson, *7 Cranch, 299, shows that the rule which required the sanetion of the corporate seal to every act of a corporation has been very much relaxed ; perhaps the case of King v. Briggs, 3 P. Wms. 419, proves that the rule never existed in the universality with which it has been stated. The exceptions to the rule are summed up by Chief Justice Best, in the East London Water Works v. Bailey, 4 Bing. 283. But it is unnecessary to decide that point. The mere appointment of a person to superintend the work, could, not possibly dispense with the faithful execution of it, and compel the county to accept a building which was not erected in conformity with the agreement. If it did, what would be the meaning of the solemn covenant which the defendants entered into, securing the exact execution of the work, and even referring to the plan upon which the building was to be erected. All the substantial parts of the covenant would be superseded and put aside, by a matter which, even if it concerned the defendants, and not merely the plaintiff, was collateral to the principal object to be attained. If such were the consequence, we should have to look to the power of the county commissioners, and I apprehend we should find that they do not possess the authority to appoint an agent with the power which is claimed for him. They are mere agents of the public themselves, and the case would not form an-exception to the general rule that delegated power can not itself be delegated. But suffice it to say, that there is nothing in the appointment of a mere superintendent which can dispenso with, the faithful performance of the contract.

These reasons dispose of the questions arising also on the bill: of exceptions, and the judgment must be affirmed.


author: Judge Hitchcock:

text:
    *James Hampson and John S. Parkinson v. The State of Ohio.
    A bill in chancery may he filed in court, under a special act of the legislature for taking an account upon a public contract; the accounts for work and labor may he investigated, and a decree rendered against the state for the amount found due.
    This bill was filed in this court by the complainants in persuance of an act of the general assembly of the State of Ohio, entitled “.an act to carry into effect the acts heretofore passed for the relief of James Hampson and John S. Parkinson,” enacted on March 5, 1838. 36 Ohio L. L. 170. The case, so far as is necessary for the proper understanding of it, is stated in the opinion of the court.
    It was argued by H. Stanbery and H. Curtis, for complainants, and by Yinton for the state.
   Opinion of the court, by

Judge Hitchcock:

In September, 1826, the State of Ohio, by her agents, the canal commissioners, entered into contract with Hatheway and Scovil, for the excavation of section No. 1 of the deep cut of the Ohio canal, on the Licking summit, lor which the said Hatheway and Scovil were to receive fifteen cents per cubic yard. A similar contract and upon the same terms was entered into with Osborn, Williams & Co., for the construction of section No. 2.

On Octo’ber 31, 1826, the complainants contracted with the said Hatheway and Scovil, and the said Osborn, Williams & Co., to perform the greater part of said work, at and for the" price of thirteen cents per cubic yard.

In pursuance of .this contract, the complainants commenced operations, expended considerable sums of money in fixtures, etc.^ and carried on the work until September, 1828, when they abandoned it altogether.

The contracts proved unfavorable both to the original and subcontractors, and was not completed upon the terms originally agreed upon. These were abandoned and new contracts made, and for some of the last of the work the state paid for excavation as high as fifty cents per cubic yard.

Hampson and Parkinson, claiming that'they had sustained loss by their subcontracts, applied to the general assembly for relief. And on March 7, 1835, that body passed an act as follows:

'• Seo. 1. Be it enacted by the general assembly of the State of •Ohio, that the claim of James Hampson and John S. Parkinson against the State of Ohio, be, and the same is hereby *referred to the board of canal commissioners, who shall proceed to make or cause to be made, as soon as practicable, a full and impartial examination and estimate of the labor done in the construction of sections one and two of the Licking summit, by said Hampson and Parkinson; which estimate shall be made on fair •and equitable principles, between the parties.”

“Sec. 2. The canal commissioners^are hereby authorized and directed to pay to the said Hampson and Parkinson out of the canal funds, as in other cases, the amount of such estimate and damages, found due said Hampson and Parkinson.” 33 Ohio L. L. 309.

The decision of the board of canal commissoners under this law not being satisfactory to the complainants, they again memorialized the general assembly, which body, on March 14, 1836, passed the following joint resolution: “Resolved, by the general -assembly of the State of Ohio, That the board of public works be, and they are hereby required, to reinvestigate the claim of James Hampson and John S. Parkinson, for compensation for work and labor done by them upon the Ohio canal. The investigation shall be made upon the principles prescribed in the act entitled an act for the relief of James Hampson and John S. Parkinson, passed February 7, 1835; said board shall have power to send for persons and papers, and it shall be their duty to carefully re-examine all the books, papers, reports, and testimonials relative to said claim. They shall ascertain the amount of labor done by the claimants .and make a fair estimate of the value thereof; they shall deduct from said estimate the amount already paid the claimants, and strike the balance, if any, due in equity and justice to said Hampson and Parkinson. They shall add to said balance the interest rightfully due thereon, and certify the aggregate to the canal fund commissioners. Upon receiving such certificate, the canal fund commissioners are hereby authorized and required immediately to cause the amount so certified to be paid to said Hampson and Parkinson out of the canal fund. It shall be the duty of said board of public works to perform the duties enjoined upon them by this resolution prior to the next session of the general assembly.”

In pursuance of this resolution, the board of public works investigated the claim of the complainants, and made a report on the subject. With this report, however, the complainants were no better satisfied than with the decision of the canal commissioners. Another application for relief'was made to the genei’al ^assembly, and on March 5, 1838, an act was passed, entitled “ an act to carry into effect the acts heretofore passed for-the relief of James Hampson and John S. Parkinson.” This act is in the following words:

“Sec. 1. Be it enacted, by the general assembly of the State of Ohio, That James Hampson and John S. Parkinson,-of the-county of Muskingum be, and they are hereby authorized to prefer, institute, or file in the Supreme Court of this state, at or to any term thereof, in the county of Franklin or in - bank, an amicable suit in chancery against the State of Ohio, for such claim as they may have against the state, on account of labor done or the services performed on sections numbered one and two, on the deep cut of the Licking summit of the Ohio canal; which suit or action shall be set down for hearing at the first term of said court after its institution, unless for good cause shown it shall-be continued; and shall be heard, considered, and decided as other causes are, by law or the rules of said court, heard and decided; and notice of the pendency of suit or action shall be given-by a copy of the proper process being left with or served upon the governor of this state, at least sixty days before the sitting of said court in which said suit or action shall have been insti-' tuted; and the governor is hereby authorized to employ counsel to appear and attend to said suit or action on behalf of and for the State of Ohio.

“ Seo. 2. That in determining said cause no objection shall betaken to the right of said Hampson and Parkinson to prosecute the same for the reason they were subcontractors; and in adjudicating the same, the court shallbe governed by the principles contained in the act of March 7, 1835, entitled ‘an act for the relief of Hampson and Parkinson,’ and the joint resolution on the same subject, passed March 14, 1836, having reference to the several contracts heretofore made with contractors and subcontractors and the payments made and allowed under them, so-far as they may deem such reference necessary to subserve the ends of justice, according to the principle of said act and resolution.

“Sec. 3. On the final hearing of said suit, if a decree should be rendered in favor of the claimants, the amount of said decree of said court shall be certified by the clerk of said court, under the seal thereof, and upon presentation thereof to the auditor of state, it shall be his duty to give to said claimants, plaintiffs as aforesaid, an order upon the treasurer of state for the amount of such *final judgment and decree so entered and rendered by the said court, with costs to be paid out of the canal fund of this state. But should the court be of opinion that the said Hamjison and Parkinson have no valid claim, as set out by them in said suit or action, in law or equity, on account of performance of work done by them on said sections numbered one and two, in said deep cut, or the act and resolutions of the general assembly in relation thereto, the said court shall dismiss such suit or action at the costs of the said Hampson and Parkinson.”

Under the provisions of this last-recited act the bill is presented, and an answer has been filed by the attorney for the state. The object of the complainants is to obtain compensation for work which they have done upon the canal, and for which they have not, as they claim, been fully paid. The case is one out of the ordinary jurisdiction of the court, and we are called upon to act rather as commissioners to liquidate a claim against the state, upon principles settled by the law conferring the power, than as a judicial tribunal deciding a case upon the ordinary principles of law and equity. If the case was presented to us for decision upon the known and established rules of law and equity, it is manifest that the complainants’ bill must at once be dismissed.

There was no privity of contract between the State of-Ohio and these complainants. The work by them performed was not, strictly speaking, performed for the State of Ohio. It was performed for the benefit of Hatheway and Scovil, and of Osborn, Williams & Co. And to these latter individuals the state was holdcn to make payment. And, according to the testimony in the case, to these individuals payment was actually made, and beyond the price stipulated in their contracts. If these contractors failed to pay over to the complainants, their subcontractors, it was not the fault of the state. The courts were open, and they might, at any time, have enforced their legal claims against those who employed them. At least such would be the law where ’individuals were contracting parties. Should A. employ B. to build lor him a house for a stipulated price, and should B. employ C. to do a part of the work at another stipulated price, will it be pretended that C., upon the failure of B. to make payment, could have his action against A. for the work and labor? And more especially after A. had made compensation to B., in full, according to his agreement. I am not aware that it makes any difference that the state is one of the contracting parties.

But we are not to consider this case upon the known principles *of law and equity alone, but upon those principles taken in connection with and measurably controlled by the special legislation before referred to. There is some difficulty in fully comprehending what was intended by this legislation. It seems to me, however, that the object was to make to the complainants a compensation for the balance due on the work performed by them, after deducting all payments made on that work. And in ascertaining this balance it was designed to have this work estimated, not at the contract price, but at its intrinsic value. In other words, they intended to place the complainant in the same situation with a plaintiff prosecuting a suit upon a quantum meruit. In the resolution of March 14, 1836, the board of public works are directed to “ ascertain the amount of labor done by the claimants, and make a fair estimate of the value thereof," and then deduct the amount paid, etc.

If this be the proper construction of this legislation, and we think it is, then the court have first to ascertain the amount of labor performed by the complainants on the two sections of the canal referred to.

On this point, however, there is no difficulty. It is agreed that the work performed, consisted'of excavation, and that the excavation on section numbered one amounted to 212,910 cubic yards; on No. 2, 171,000. In the whole, 389,910 cubic yards.

The next inquiry is as to the fair value of the work. Upon this point a number of depositions have been taken, and the witnesses differ very much in their estimates. The complainants, in one of their memorials to the legislature, and which they have introduced as evidence in this case, say that “they performed their work with a skill unsurpassed in the line of canal, and as energetically and economically as any other contractors, and actually expended, for the benefit of state, on said work, $41,439.33. It is reasonable to suppose that the complainants themselves would be better acquainted with the costs of the work than those less intimately connected with it, and probably.this allegation is not far from the truth.

David Ruffner, one of the witnesses for complainants, says the ■excavation performed by the complainants was worth sixteen cents per yard. Estimating it at this price, we should find the whole work to be worth $61,425.60, or $19,931.67 more than it actually cost.

*David Shaw, another witness for complainants, says that it was worth eighteen and three-fourth cents per yard. By this ■estimate the value of the work would amount to $71,983.12J, or $30,489.19J more than its actual cost,

Anthony Butler, another of complainants’ witnesses, says that it was worth twenty cents per cubic yard. This would make the whole work worth $76,782, or nearly one hundred per cent, more than its actual cost.

These estimates would give to canal contractors immense profits on their work — more, we believe, than what has been usual. And ■a comparison of the estimates of the value of the work, with the actual cost of that work, convinces us that these estimates are too high. It is right and proper that a reasonable profit should be made, but a profit of from fifty to one hundred per cent, is rather extravagant.

¥e next have the testimony of Micajah T. Williams, Alfred Kelley, and John Creed. These are witnesses of candor, and the two former, at least, are well acquainted with the value of this kind of work. They differ in their estimate from ten to thirteen cents per cubic yard, making the average about eleven and a half cents. It would, perhaps, be safe to take the estimate of these witnesses in establishing the rule of compensation. But inasmuch as Messrs. Kelly and Williams were the agents of the state in putting this work under contract, and in superintending its construction, it will, perhaps, be more satisfactory to all concerned to place their testimony out of the case.

On the whole, we incline to take the opinion of Joseph Ridgway, jr., as that by which we are governed in putting a value on this work. We do this because all concerned appear to put full confidence in his integrity and ability. Besides, he was well acquainted with the work as it progressed; and as an engineer, has been accustomed to estimate the value of this description of work Mr. Kidgway says that taking into view the expense incurred by' the complainants in their fixtures and arrangements, made with reference to the completion of the job, the excavation done by them on section No. 1, was worth thirteen cents per yard, and that on section No. 2, eleven cents.

The value of the work, according to the testimony of this witness, is as follows:

212,910 yards on section No. 1, at 13 cts, per yard, $27,678 30

171,000 yards on section No. 2, at 11 cts. per yard, 18,810 00'

Amounting in the whole to...........................$46,488 30

*Being an advance of $4,994.37 upon its actual cost.

This amount is to be reduced by all payments made by the state toward this particular work. Complainants admit that they have received $25,183.68, but deny that they have received anything beyond this, and claim the balance, after having deducted the amount thus received. On the other hand, it is claimed, on the part of the state, that more than $40,000 was paid to the original contractors for this work, and it is denied that the state could, in any manner, be held answerable for the faithful payment by these contractors to their subcontractors. It is, therefore, insisted that a credit should be allowed to the state equal in amount to what she has paid. This is an important question, so far as respects these complainants and the people of the state. But that we may properly settle it, let us, for a moment, lay the parties to this case out of view, and examine the principles applicable to the hypothetical case before stated. That case is, A. contracts with B. to build for him a bouse of specified dimensions, and for a specified price. B. contracts with O. to do the whole or a part of the work, likewise at a specified price, and at a price less than that which he himself is to receive from A. as the work progresses. A., from time to time, makes payments to B. according to his contract, and when the work is completed, pays him off in full. Afterward it is lound, however, that B. has not fully paid C., who has done the work, or a part of it, and C. files his bill, or commences his action against A., claiming payment from him for his labor, on the ground that “ the laborer is worthy of his hire,” and that A. has been benefited by his (C.’s) labor. True, when he performed this labor, he did it, not for, or on, the credit of A. With him he had no contract; with him he kept no account; his contract is with B., and •so far as he has received payment, it has been from the hands of B. But still, inasmuch as the house, when completed, is the house of A., and is of some benefit to him, he insists that, although A. has once paid for this house, he shall pay for it again. What court would, for a moment, entertain such a claim ? What lawyer would •commence such a suit?

Still the case before the court is precisely the same in principle as this hypothetical case. The agents of the state had no contract with Hampson and Parkinson; they made no payments to them, they kept no accounts with them. And in what situation, I ask, would the state be placed in the attempt to prove the ^amount of payments made by Hatheway and Scovil, and by Osborn, Williams & Co. to Hampson and Parkinson? If called upon to do this, she would be called upon to do that, about which neither she nor her agents had or could, in the ordinary course of things, have any knowledge. I know that it is sometimes said, that it is beneath the dignity of a great state to resist claims brought against her upon principles like these, that is, the principles of law and equity! Such language may be addressed to a legislative body, to induce the allowance of a claim that is unfounded in law or equity, but ought not to be addressed to a judicial tribunal. In truth, there is not the least foundation in the ordinary principles of either law •or equity, for the pretense of the complainants’ counsel, that the state should not be credited to the extent of the payments made to the original contractors for this work. The injustice of such claim seems to have been manifest to the complainants themselves; for Hampson, in his memorial to the legislature, which induced the passage of the law authorizing the institution of this suit, says : “Tour memorialist does not ask that the state shall pay a second time for any work which has been paid for, to them, or the •original contractors. But he does ask the privilege of showing: 1. The amount of labor performed. 2. That this labor has not been paid for at its fair value, to them, or anybody else,” etc.

This memorial is one of the documents submitted to the court by the complainants in this case; for what reason we know not, unless it be intended as a guide to direct us in the construction -of the law.

But suppose the claim submitted by the counsel for complainants should be admitted to be correct, and the state should receive no credit beyond the amount which the complainants admit, they'have received from the original contractors, what would be the consequence ? The state, then, would be compelled to pay a. second time for this work ?

It is probable that Hampson and Parkinson had laborers under them who performed this work, and to whom they were to pay stipulated prices, and it is possible that these laborers may not-have been entirely paid. If such be the fact, and the principle insisted upon by the complainants’ counsel be correct, these laborers have a claim, equally founded in justice, with that of Hampson and Parkinson, against the state for a compensation for the labor by them actually performed. And carrying the principle out, the state having once paid for the work to the contractors, *and having paid for it again to the subcontractors, must in the end pay over again, and the third time-to the manual-operatives who actually performed the work. Such would be the practical operation of the system advocated by those who hold that it is “ beneath the dignity of a great state ” to require of those with whom it deals, that they should be bound by their contracts.

The ground assumed by the complainants’ counsel in advocating the position that the complainants are entitled to compensation,, exclusive of payments made to the original contractors, is not,, however, based upon the supposition that such position is founded upon the abstract principles of law and - equity, but that it is sustained by the special legislation having reference to this particular case. Before examining the subject in this point of view, it may not be improper to remark that it is hardly to be supposed that the legislature would pass an act so impolitic as well as unjust, as would be one which would compel the .people whom they repreresent, to pay a second time for labor performed in constructing the internal improvements of the country, after they had once in good faith paid for the same work, and paid, too, .to the persons entitled to receive payment. It must be remembered, too, that the-complainants, in asking for this special legislation, admitted the propriety of the state’s having a credit for the full amount which had been paid to the original contractors, and it can not be supposed that it was the intention of the legislature to give them anything over and above what they required.

Having made these remarks, let us examine this special legislation. The act of March 7, 1835, merely authorizes and requires the canal commissioners to make “a full and impartial examination and estimate of the labor done in the'construction of sections one and two of the Licking summit,” by Hampson and Parkinson, “ on fair and equitable principles,” between the “ parties,” and to pay to them the amount of such estimate which should be found due. Whether in making this estimate, reference was to be had to the contracts under which the work was done, is not prescribed. But inasmuch as the law was silent upon this subject, I suppose that the commissioners, in acting under it, must be controlled by those contracts.

Next comes the joint resolution of March 14, 1836. This required the board of public works to reinvestigate the claim of the complainants, upon the principles prescribed in the act above ^referred to. They are directed to “ ascertain the amount of labor done by the claimants, and make a fair estimate of the value thereof.” By this, I understand that the board of public works were required to ascertain the intrinsic value of the work, without reference to contract price. After having ascertained this value, they are required to “ deduct from said estimate the amount already paid the claimants, and strike the balance.” This clause would seem to favor the construction contended for by the complainants’ counsel, and possibly, was there nothing further in this special legislation, we might so decide. To this balance, interest was to be added.

By the act of March 5, 1838, the duty previously required to be performed in the first instance by the canal commissioners, and in the second by the board of public works, is transferred to this court. And the court are required “in adjudicating the same” (that is the ease Instituted in pursuance of the act), to “be governed by the principles contained” in the before-recited act and resolution, “having reference to the several contracts heretofore made with the contractors and subcontractors, and the payments made and allowed under them, so far as they may deem such reference necessary to subserve the ends of justice, according to the principles of said act and resolution.” In neither the previous act or resolution is any reference had “ to the several contracts.” But by this act the court are required, “if necessary to subserve the ends of justice,” to have reference to these contracts, “and the payments made and allowed under them.” No payments have ever been made by the state to these complainants, but payments have been made to the original contractors under these contracts. And “the ends of justice” can not be subserved without having reference to those payments. It seems to me, therefore, that it must have been the intention of the legislature that these payments should be deducted from the real value of the work. This was the proposition made to that body by Hampson, one of the complainants, and this last special act was passed to meet that proposition.

"We find, then, that the value of the work was $16,488.30. From this must be deducted the amount paid by the agents of the state on their contracts with Hatheway and Scovil, and with Osborn, Williams & Co., for the same work. For the balance, together with the interest from January 1, 1829, the complainants are entitled to a decree.


text:
    *Kelly and Kilborn v. Mills, impleaded with Wildman.
    Where a written contract is, in its terms, ambiguous and perplexed, mixing different stipulations so as to present niceties as to precedent undertakings, the court should endeavor to ascertain the real intention of the parties, and so interpret the writing as may best promote a just decision upon their rights.
    Covenant reserved in Hui’on. The defendant being in default for want of plea, a jury was impaneled to assess the damages, and upon the return of their verdict, the counsel for the defendants moved in arrest of judgment; the questions arising upon that motion were reserved for decision here. The state of the case upon which the decision of the court rests, is fully stated in the opinion of the judge.
    F. Parish and Saylor, for defendant:
    Contended that contracts are to be construed in accordance with the intention of the parties, gathered from the structure and fair interpretation of the whole instrument. By this rule, the question whether the covenants are dependent or independent, is to be settled. 5 Ohio, 492; Wright’s S. C. 474; 10 Johns. 203; 1 Wend 228; 5 Wend. 496; 1 Term, 645; 6 Term, 668; 7 Term, 130; 1 Saund. 320, n. 4.

      Bo alt, Beecher and Campbell, for plaintiffs, submitted no argument.
   Judge Wood

delivered the opinion of the court:

The writing on which the plaintiffs declare, is between Cahoon of the first part, Kelly- and Kilborn of the second part, and Wildman and Mills of the third part. So much of it as it seems material to notice, recites that Cahoon had determined to build in 'Sandusky a mill, of stone, to be propelled by steam, of four stories in height, and sixty by forty feet on the ground. The plaintiffs covenanted to do the work; Cahoon to furnish certain portions of the materials, and to pay the plaintiffs in the manner expressed : one dollar for each perch of stone in the walls, without deduction for doors, windows, etc. The defendant and Wildman then covenanted as follows, viz:

“ That to aid the said first and second parties in the work of •erecting the walls of said stone mill, they will pay the plaintiffs for laying up said walls, at and after the rate or price before stated, in the manner and at the times following: $150 whenever and as soon as the walls of the lower story shall be completed; a like sum as soon as the second story shall be completed; a like *sum when the third story shall be completed; and a like sum whenever or as soon as the fourth story shall be completed, including the gable ends and battlements.”

It is then stipulated that such sum as Kelly, one of the plaintiffs, shall be owing the defendants upon a land contract (supposed about $150), shall be applied in part payment of said work; and the said Kilborn, the other plaintiff, shall take the same amount in a lot in the city of Sandusky, or in cash obligations at the election of the defendants. It was further stipulated, that those two last payments should be made, although such payment should curtail the other payments mentioned. And when the whole amount shall have been paid to said Kelly and Kilborn, at the rate of one dollar per perch, as aforesaid, it shall be in full of all their claims, unless damages have been sustained by the non-performance of their contract; and is an advancement made by said third party to said first party, in aid of his aforesaid undertaking. Then follows the covenant in these words:

“ Said second party is to lay eight stone piers in the body of ■said building, as foundations for an equal number of posts, and to be paid for in the same manner as the solid walls of said building.”' Upon the inquiry of damages'the court instructed the jury that the covenants of the defendants were collateral to and independent of the covenants of Cahoon; and, in the language of the covenant, were intended as an advancement to Cahoon, to aid both parties, and secure the progress of the work; that the defendants had undertaken for the performance of Cahoon,.and were liable for his non-performance to the same extent he would be if the suit were against him. The jury were further instructed to find the items of the damages found for the plaintiffs. The verdict assessed damages for the three following items:

1. For digging the foundation of the building and piers, $209.45.

2. For laying the foundation and piers, $620.

3. For the walls of the first and second stories, $700.40.

Total damages, $1,529.85.

Upon a motion in arrest, the objections to the judgment must appear on the record. In this case, if the declaration fail to deduce from the covenants set forth a legal liability to respond in damages, or does not show a legal right in the plaintiffs to recover, the motion in arrest will prevail. The contract is very unskillfully *drawn, and owing to the numerous contradictions and equivocal expressions in it, there is certainly some difficulty in comprehending its legal import, or the intention of the parties to-it. It is our duty to search for the meaning and intention of these parties from the whole instrument taken together.

As the case is presented, it appears to us the only question is,, to what extent are the defendants liable on their covenants ? In one place they agree to pay at the rate of one dollar a perch for laying up the walls of the mill, in the same manner stipulated by Cahoon. This would render them liable to the whole sum found by the jury. In another place, it is stated that when payments shall be made to the plaintiffs at the rate of one dollar per perch, etc., it will be in full of all their claims, unless damages-shall be sustained by the non-performance. Take this part, by itself, and the defendants are not only liable for the amount found by the jury, but for additional damages for Cahoon’s nonperformance.

Again, it is stated that the defendants will lift any orders for the payment of the bond which the plaintiffs might give apon the stores in Sandusky, without any limit as to the amount. In one sentence, the defendant’s undertaking is stated to be an advancement to Cahoon; in another, to aid both him and the plaintiffs. Scanning the whole agreement, we will endeavor to extract the intention of the parties. There seems but one sensible clause in the first four pages of the contract, and from this we gather, as-near as we can, the liabilities of the defendants. By this the defendants covenant to pay $150 when each of the four stories of the mill are completed, in all $600, to be satisfied in part by the sum due defendants by Kelly on a land contract, and by like amount to Kilborn in a city lot or cash obligations, at the option of defendants, though such payment may curtail the particular payments stipulated. We think this clause manifests the intention-of the parties to limit the liabilities of the defendants to $600 in-all. When, therefore, the defendants covenanted to pay for the work at a dollar a perch, we think the parties intended they should so pay only to the amount of $600, for which’ they were security for Cahoon, and for any sum beyond that the plaintiffs should look to him for remuneration. If we are correct in this construction, the verdict finds damages to the amount of $929.85 beyond the liability of the defendants, and can not, therefore, be-sustained.

The cause is remanded to the county for a venire de novo.