text:
    James Jones, by his next friend, v. John and Peter Voorhees.
    Proprietors of stage-coaches are common carriers, and their liabilities can. not be limited by actual notice to a traveler that his baggage is at his own risk.
    A watch is part of a traveler’s baggage, and his trunk is a proper place to carry it in.
    This is an action of assumpsit from the county of Hamilton.
    It is averred in the declaration that the defendants were stage proprietors, and the plaintiff took a seat in their coach to be conveyed, with his baggage, safely and securely, from Dayton, in the county of Montgomery, to Springfield, in the county of Clark, for, and in consideration of a certain reasonable reward by the plaintiff then and there paid to the defendants. The declaration lays the breach of the undertaking in the non-delivery. of the plaintiff’s baggage, consisting of a trunk and its contents, at said Springfield.
    . The defendants plead the general issue, and gave notice that at the time the plaintiff took passage, as aforesaid, in the defendants’ coach, he was informed that the defendants would not be answerable for the loss or miscarriage of any baggage, or articles of any description, carried or sent by their coaches, either with or without passengers; and that all such baggage, or property, must be considered at the risk of the owners. The case being submitted to the jury, the following special verdict was returned: That the plaintiff took a seat in the defendants’ stage-coach, at Dayton, Ohio, on ^December 18, 1838, for Springfield., in Clark [146 county; that he paid his fare to the defendants’ agent; that at the time he paid his fare, he took his trunk, containing certain articles of property, of the value of $198, among which was a gold watch of the value of $95 ; that the trunk was taken charge of by the agent of the defendants, and placed in the boot of the stagecoach. The jury further find, that while on the road from Dayton to Springfield, the said trunk, with its contents, was stolen from the said coach, and that, at the time the plaintiff took his seat, and paid his fare, in the said coach, he had notice of the publication referred to, etc., “ that all baggage should be at the risk of the owner.” If, on this statement of the facts in the case, the court shall be of the opinion the law is with the plaintiff, then the jury find for the plaintiff, and assess his damages at $198, and interest since December 18, 1838, but if the law is with the defendants, then the jury find for the said defendants.
    Storer & Fox, for the plaintiff:
    It is a well-established rule that the proprietors of a stage-coach are common carriers. Wheaton’s Selwyn, 301; Robinson v. Dunmore, 2 Bos. & Pul. 419; Orange County Bank v. Brown, 9 Wend. 85, 115 ; Cole v. Goodwin, 19 Wend. 251. And the only doubt as to the defendants’ liability arises from the fact of notice to the plaintiff that his baggage was taken at his own risk. It is not easy to reconcile the English authorities on this point. The subject has lately been fully considered in New York, and the rule is there now definitely settled, that coach proprietors are answerable as common carriers for the baggage of passengers, and that they can not limit their liability by a general notice brought home to the owner. Camden, etc. Co. v. Burke, 13 Wend. 611; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251:
    Wright & Walker, for the defendants:
    We admit the proprietoT of a stage-coach to be a common carrier, so far as relates to baggage, or other goods carried for hire", *and that as a general rule a common carrier is liable for any [147 loss not arising from the act of God, or the public enemy. But we deny that this general liability can not be limited by special contract between the parties. The subject is very fully examined by Judge Story ,íd his Commentary on Bailments, 353, 358, and he comes to the conclusion, that a notice like the one in this case, brought home to the owner, discharges the carrier from liability, except for fraud or gross negligence. Such, too, is the general current of English and American authorities.
    We think there are two reasons why this court will not concur with the rule in New York: 1. Because it is the province of legislation to change the law; and 2. Because it goes far to take away from men the right to make their own bargains.
    The putting a‘ gold watch worth $95 into a trunk, among ordinary baggage, is such a concealment as discharges the carrier. Story on Bailment, 360, 36
   Wood, J.

The first material question which we are called upon to determine is, whether, by a notice brought home to the knowledge of the plaintiff, the defendants can limit their responsibility, or exonerate themselves from it altogether? I know of no question, at the present time, more deeply interesting to the community, and it is of great importance that it should be settled on just and solid principles. There have been, within the last half century, many conflicting opinions amongst the English judges. The current decisions, which prevailed at Westminster, and, in such cases, reduced the defendants’ liability, beyond a certain amount, to that of an ordinary bailee, not chargeable, where he exercises such diligence as a prudent man would take of his own affairs, are utterly abolished by an act of parliament, as an innovation upon the common law. It has, also, there been frequently expressed, as the regret of the English bench, that there had ever been a departure from the rule applicable to common carriers, in general, however rigid it may have been considered,-148] in exacting a compliance *with the terms of their obligations, as imposed by the common law rule, and which is so ably vindicated by Lord Holt. 1 Vin. Ab. 219.

Judge Story, whose authority is entitled to great consideration and respect, gives it, as his opinion, that such a notice, brought .home to the owner of the goods, discharges the carrier from liability, excepting in cases of fraud or gross negligence. Story on Bailments, 355, secs. 554, 559. With his authority, the recent decisions in the Supreme Court of New York are directly at issue. Amidst these conflicts of opinion, the question, for the first time, being before this court for adjudication, we feel ourselves entirely at liberty, to settle the rule, which, in our view, is most consistent with the general analogies of the law, and the best calculated to secure the safety, protect the rights, and promote the interests of the community at large.

It is probable that opposite decisions, on the subject of these notices, have arisen from the fact that stage proprietors were not, formerly, considered as common carriers, whose liability nothing would excuse but the- acts of God or the public enemies of the country. It is admitted by the defendants’ counsel, in argument, however, that the proprietors of stage-coaches are common carriers, so far as relates to baggage, or other goods carried for hire. Such is doubtless the well-settled law on that subject. Wheaton’s Selwyn, 201; Cole v. Goodwin, 19 Wend. 251. And where they are considered in that light, the liabilities, which the common law imposes on the common carrier, should be permitted to follow.

Can, then, a common carrier, limit his responsibility by notice? It is said, if he can not, it is no longer left to parties to make their own contracts, but the law forces upon them obligations to which they never assented. To this it may successfully be answered that all agreements by which a common carrier would limit his responsibility are against public policy, and are therefore void, for such is the rule of the common law, applicable to contracts of this character. Roll v. Raguet, 4 Ohio, 400; 7 Ohio, 77, pt. 2. The people of Great Britain, after trying the experiment of occasional judicial aberrations for*more than half [149 a century, have, by their legislative authority, cut up by the roots, the influence of such decisions, and returned again to the point of departure, as the polar star of the common law. Why, then,, should we not profit by their'experience, when the opportunity is fairly presented? The rule is now understood to be settled in England, that neither a notice brought home to the owner of the-goods, nor a special agreement, however solemn the form in which it may be made, is permitted to restrict the common law liability of the carrier, either by land or water. Nothing excuses, him from the performance of his contract but the act of God, or the acts of the public enemies of the country.

This rule, it appears to us, is with great propriety applied to the owner of a stage-coach, and to the proprietors of public conveyances for passengers, either by land or water. The parties are-not, unfrequently, placed on very unequal terms. Who has traveled through our great western thoroughfares but knows the different proprietors of different sections of the route are as numerous, at least, as the relays of horses on the road. The passenger is sure to find as many different rules and regulations as he pays different prices; and at last, with but a moment’s delay, he is informed his baggage, or his limbs, and perhaps his neck, are “at the risk of the owner” and he must stop among strangers by the way, or submit to these interminable impositions!

In Cole v. Goodwin, 19 Wend. 281, it is said by Cowen, Justice* in a very elaborate and very lucid opinion, in which all the authorities, ancient and modern, are collated and reviewed with great care, that although ordinary bailees may make their own terms with their customers, that it is not so with common carriers and innkeepers. He insists that they, from their public employment, owe duties at common law from which public policy demands that they should not be discharged, even by special agreement. His language is: The traveler is under a sort of moral duress, a necessity of employing the common carrier under those legal arrangements which allow any number of persons to assume that charac150] ter, and thus discourage *and supersede the provision for other modes of conveyance. M.y conclusion is, that he shall not be allowed, in any form, to higgle with his customer and extort one exception and another, not even by express promise or special acceptance any more than by notice. Admitting that the plaintiff acceded in the clearest manner to the proposition in the notice, that his baggage should be carried on the terms mentioned, I think the contract thus made was void on his part, as contrary to the .plainest principles of public policy. In thus holding, we follow the law as it is expressly admitted by the English judges to have ■ stood at the period when our ancestors declared themselves independent. And while we thus fulfill our constitutional duty, we are not, like Westminster Hall, obliged to lament while we en? •force the law.” This was also an action against stage proprietors ■for the loss of a trunk, and is in direct analogy to the case at bar. 'The same principle is reaffirmed in Clark v. Faxton, 21 Wend. ■153. It is, however, sufficient for us to say, in the present case, that common carriers can not limit their responsibility by notice -brought home to the owner, for that is the point raised on the special ■verdict; but any substantial distinction between a notice brought home, and an express special contract to restrict responsibility, is mob easily perceived.

The defendants, then, being responsible to the plaintiff in this, action, the next inquiry is, how far does their liability extend? It is a fundamental principle, laid down in the books, that the common carrier is liable in respect to his reward, which is to be in proportion to the risk. Lord Holt determined that a hackney coachman was not liable for the„loss of a trunk of a passenger, unless a distinct price had been paid for its conveyance. 1 Vin. Ab. 220. But it is now settled that stage coachmen are responsible for the baggage of a passenger, and that the reward for conveying the baggage is included in the passenger’s fare. 1 Wheat. Selwyn, 301, n. 1; 9 Wend. 115.

■ The rule, however, only includes baggage, and what is signified by the use of that term in the sense in which it is used in the books is perhaps nowhere precisely defined, though many judges *have expressed an opinion what it is not. But it appears [151 to us, that whatever forms the necessary appendages of the traveler may be legitimately considered as baggage, and placed in his trunk for conveyance. In 9 Wend. 117, the opinion is advanced by the court, that money sufficient to defray the expenses of the journey may be considered.as baggage. In other words, the passenger need not keep it about liis person, but may place it in his trunk, and it will be covered by the liability of the carrier. Why not so of a watch ? It is a convenient and necessary appendage of a traveler. If valuable, to avoid a thousand accidents incident to the way, he carefully places it in his trunk, for use at the end of his journey, shall it be said it is not in its proper place, and that such negligence of the owner excuses the carrier for its loss ? Or shall it bo said, that it is such a concealment by the owner of a valuable article, which he ought to have disclosed, as is evidence of fraud, and therefore exonerates the carrier from liability ? We hold the carrier is responsible in either point of view. That the watch was baggage, and in its proper place, if the owner saw fit in his discretion to place it there, a majority of the court are clear in the opinion. And, however valuable an article of baggage may be, it seems now to be well settled by the authorities, that the owner is not bound to disclose such peculiar value to the carrier, unless inquiry be made. If the carrier make no inquiry, and no artifice is made use of to mislead him, he will be answerable for the logs, however great the value may be. Jones on Bailment, 105 ; 2 Kent Com. 468; 5 Bing. 217; 4 Bing. 218. But all the author-itics are agreed, that if any deception is intentionally practiced f the fraud avoids the contract. Story on Bailment, 364. The watch is the only item in this case, the value of which it is claimed should be excepted from the amount of damages, provided the defendants can not limit their responsibility by notice brought to the knowledge of the plaintiff, and it therefore follows, as the result of our opinion, that the plaintiff is entitled to recover for the whole amount, with interest, as found by the jury, and for which judgment will be entered.

Judgment for the plaintiff.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    *Richard Douglas v. William H. Dangerfield and others.
    One in possession of lands claiming title, and in whose name it is listed for taxation, acquires no additional interest by suffering the land to be sold for taxes and purchasing the same himself.
    This is a bill in chancery, from the county of Payette.
    - On October 15, 1797, Theodoric Bland entered 1,333J acres of land, on part of a military warrant, No. 209. No. of entry, 1,122. This entry was surveyed by John O’Bannan, deputy surveyor, on October 20, 1797, and is situated in the county of Fayette. Subsequently, and after the organization of the state government of Ohio, this land, in conformity with the laws of the state, was entered for taxation, but was never patented to Bland. In December, 1829, the taxes for that and the preceding year being unpaid, the land was sold for the taxes and purchased by the complainant. Upon the tax duplicate of that year the land was entered for taxation as follows :

      On the duplicate, between these two entries, there were numerous other names, which it is unnecessary to set forth. After the sale the county auditor gave to the complainant a certificate of purchase, and, on April 26, 1831, conveyed to him the land by deed duly exocuted.
    After this sale the land was transferred to the complainant, on .the auditor’s books, and, in the year 1830, taxed to him as an entire tract upon the duplicate, but the taxes were not paid. It was taxed in the same manner in 1831, and the taxes not being paid, was sold for the taxes of this latter year, together *with [153 the taxes, interest, and penalty for the year 1830, to Joseph Y. Green, who received a certificate of purchase. The proof is abundant, that in making this purchase Green acted as the agent of the complainant, purchased for his benefit, and transferred to him the certificate of purchase. On March 6, 1833, the auditor of the county, by deed duly executed, again conveyed the land to the complainant in pursuance of this last sale. There was also evidence conducing to prove that the complainant, after his first purchase, took possession of the land and exercised acts of ownership over it.
    On March 8,1833, the defendants, claiming to be the owners by assignment of the Bland warrant, withdrew the former entry, and re-entered the warrant upon the same land. This entry is numbered 13,377, and was surveyed on the 12th day of the same month of March. On April 1,1833, it was patented to the defendants. The complainant charges, in his bill, that this withdrawal, re-entry, and survey were done fraudulently, with a view to defeat him in his purchase. This is denied by the defendants, although they admit that they had knowledge of the complainant’s purchase, but they say that they supposed that the original entry was void, as they believed it to have been made after the death of Theodorie Bland.
    The complainant insists that, by his purchase, be acquired a perfect equity in the lands, and that the legal title having been since acquired by the defendants, they must be adjudged to hold the same in trust for him, and he prays that they may be decreed to convey to him. In the event that the court shall be of opinion that he is not entitled to this relief, he insists that, by his purchase, the lien of the state upon the land, for all the taxes due thereon at the time of purchase, is vested in him, and that he is entitled to a decree for that amount, as well as for the amount of taxes by him since paid. He therefore prays that the land may be charged with this lien, and, if the same is not satisfied, that the lands be sold to discharge the same, and that, in the meantime, he e'restored to the possession of the land. There is also a prayer for genei’al relief.
    154] *Written arguments were submitted by Douglas, for the complainant, and by Leonard and Robinson, for the defendants. On the part of the complainant, the following authorities were cited and relied on : Wallace v. Seymour, 7 Ohio, 156, pt. 1; Rennick v. Wallace, 8 Ohio, 539.
   Hitchcock, J.

This is a case of some considerable importance, whether we consider the amount of property in contest, or the principles involved. The amount of property exceeds 1,300 acres of land, which' the complainant claims that he is entitled to, and for which he has paid, or rather originally paid, I17.53J. Having paid this much for the land, he now attempts, in a court of chancery, to force the legal title from the defendants. If there had been, between these partios, a contract of purchase and sale of this land for the same amount of purchase money, had this purchase money been‘paid, and had an application been made in chancery on the part of the vendee to enforce such contract, no court, acting upon the well-known px’ineiples of equity, would hesitate a moment in dismissing the bill, on the ground of inadequacy of consideration. And, upon similar principles, a court of equity would not interfere to relieve a pui’chaser at tax sale, as between him and the owner of the land, except when required to do it in consequence of positive law.

Under the law of January 30, 1822, “ providing for the remission of penalties, and for the sale of land for taxes,” 2 Chase’s L. 1216, it is provided, that a deed made by the county auditor, under that act, “ shall convey to the purchaser all the title, either in law or equity, which the owner had in the lands described in said deed.” This law seemed to contemplate that a purchaser under its provisionsmight acquire an equitable interest in the land so purchased, although he acquired no legal right. And, if the law gave him an equity, it would seem to be the duty of the proper court to enforce this equity. The case of Rennick v. Wallace, 8 Ohio, 539, arose under this law. This case is relied upon as an authority 155] *by the complainant. But, before it can be so considered, it is incumbent upon him to show that the law under which he purchased contains a similar provision. Upon examination, it will be found that it contains no such provision. On the contrary, it enacts that the deed executed by the county auditor “shall convey to the purchaser or purchasers a good title in law and equity to the land or part of town lot so sold.” If the auditor’s deed conveys a good title, both in law and equity, to the purchaser at tax sale, there is no necessity for the interference of a court of equity. There can be no necessity for the interference of this court in the present case; because, if the complainant-has any title, it is such a title as he asks the court to decree to him ; that is, “ a good title in law and equity.”

The complainant charges, it is true, tbat.a'fraud was committed! by the defendants upon his rights, in withdrawing the former entry, and making a re-entry of the same land upon the same warrant, although in a different name. The fact is denied by the answer, but still the circumstances of the case are such as to leave, in my mind, very little, if any, doubt that the real object in all this management was to overreach and avoid the tax sales. And, if such was the object, it was far from being a very worthy one. If the sole design had been to acquire a legal title, this probably might have been secured by a patent upon the original entry and survey. There is certainly not sufficient proof in the case to establish the fact that Bland was dead at the time the entry in his> name was made. But, if a fraud was intended, it could, in reality have no effect upon the complainant, if ho had previously acquired “ a good title in law and equity to the land." It would not defeat such title.

It is foreseen that difficulties may arise between purchasers at tax sales of lands which have been entered and surveyed, but not patented, and the owners of those lands, when subsequently patented. The question must some day bo settled whether the law of the state, which declares that siich purchasers shall have “ a good title in law and equity,” shall govern ; or whether that law, with respect to this class of cases, shall be considered as a dead letter. However it may appear to others, *it seems to me [156 to be a question which will be found to be surrounded by difficulties. And its determination will perhaps depend upon the decision of the question whether the state has the right to tax,any lands within its borders until those lands become the property of individuals, a right which has been exorcised, from the earliest "period of the state government, with respect to all lands except those belonging to the United States, while so held, or for a limited period after the same were sold. If the right to tax exists, and that it does there has not been any serious question for many years at least, it would seem to follow that the right to collect must also exist, although, in making collection, it might become necessary to transfer to a hew proprietor the thing taxed. But, in this case, it is unnecessary to trouble ourselves with this question. When it does arise, it must be a purely legal question, to be settled by a court of law.

There is another view which may be taken of this case, which will show more conclusively, if possible, than the preceding, that the complainant can not have the relief which he seeks, so far as respects a decree for the conveyance of the land. A purchaser at tax sale acquires no title either in law or equity, unless the land has been taxed and the sale conducted according to law. The authority to sell is" construed strictly. The law requires that there should be a pertinent description of the land in the duplicate for taxation and in the advertisement of sale. It should be so described that the owner may know that the tax on his land is unpaid, and that purchasers may know the precise land intended.

In the case before the court, there was an entire survey of 1,333^ acres. Of this survey 485 acres .were charged on the duplicate with taxes as the property of Theodoric Bland, and was so advertised for sale. In what part of the survey was this 485 Acres located? Wo are not informed either by the duplicate or ay the advertisement. It is altogether uncertain. The same remark may be made with respect to the. 846 acres taxed in the dame of Dangerfield. The complainant attempts to avoid this 157] difficulty by assuming that this'defect is cured *by the sale ; alleging that, as both tracts constitute the whole survey, and as both were sold to one person, there can be no difficulty about the location. If, however, there was error in the duplicate and advertisements, that can not be cured by a subsequent sale and purchase. The two parcels must have been sold separately, or the sale would be void, and the case must be decided as it would have been had the sales been made to different individuals. This case is like the case of Laffeity v. Byers, 5 Ohio, 458, in which the sale was held to bo void, and, upon the authority of that case, we hold this sale to be void.

The foregoing remarks apply to the sale of 1829; and the question then arises, whether the complainant acquired any additional right under the sale of 1831. After the sale of 1829, both tracts of land were transferred by the county auditor to the complainant, and upon the duplicate of 1830, the entire entry and survey, consisting of 1,333J acres, was listed to him, and charged with a tax. The complainant, as he insists, took possession of the land and claimed the ownership of it, but he did not pay this tax, nor was it paid by any one else. Again, in 1831, the land was in the same manner placed upon the duplicate, charged with the tax, interest, and penalty of 1830, and the tax of 1831, amounting, in the whole, to $15.50.7. The tax not being paid, the land was isold in conformity with the law, and purchased by an agent of the complainant for his use, and eventually conveyed to him. This purchase must be considered the same as if made by the complainant in person. So far as respects the manner of taxing and advertising, I do not see that any objection can be made to this sale, nor but that the sale would have conferred title had it been made to a stranger. But it was made to the individual in whose name the land was taxed, who had it in possession, and who claimed to be the owner — to the individual who, under the circumstances, was bound to pay the tax, and who did in feet pay it. Why the tax of 1830 was not paid in time; why that, together with the tax of 1831, was not paid without the sale of the land, we know not. If the complainant *was doubtful [158 of the validity of his first purchase, and intended by this course of proceeding to cure a defective title, he certainly does not present a case for equitable interference, especially as the sale was in consequence of his own neglect of duty.

If, by this proceeding, he could be considered as having procured a strictly legal title, the circumstances are such as might induce a court of equity to interpose to divest him of that title at the suit of the former owner of the land. But, in our view, the complainant acquired no additional right by this purchase, and must be held to be in the same situation that he would have been had he paid the taxes before the sale.

The complainant insists, that if not entitled to a decree for the land, he is entitled to a decree for the amount of taxes which he has paid, and that the same shall be held to be a chargo upon the land. This claim is based upon section 42 of the act of March 12,1831, prescribing the duties of county auditors. In this section it is provided, “that upon the sale of any land or town lot for delinquent taxes, the lien which the state has thereon for taxes then due shall be transferred to the purchaser at such sale; and if such sale shall prove to be invalid, on account of any irregularity in the proceedings of any officer, having any duty to perform, in relation thereto, the purchaser at such sale shall be entitled to receive from the proprietor of such land or town lot the amount of the taxes, interest, and penalty legally due thereon, at the time of such sale, and the amount of taxes paid thereon by the purchaser subsequent to such sale, and such land or lot shall be bound for the payment thereof.” This is certainly a most equitable provision, and where a purchaser brings himself within its principles, this court would secure to him his rights acquired under it. It was upon this principle that this court, in the case of Nowler v. Coit, 1 Ohio, 519, held that taxes paid by a purchaser shall be refunded, with interest and expense of payment, when the owner of the land comes into equity to disincumber the title. It is equitable, and in such case the principle applies, that he who would -159] have equity must *do equity. But in no case have the taxes been refunded on the application of the purchaser. For such a .case the statute provides.

It will be seen that by the first .clause in the section, all the rights of the state to the land in consequence,of liens for taxes are .vested in the purchaser. In other words, after the state has sold the land for one particular tax and conferred upon the pui’chaser “ a good title-in law and equity,” she shall not be permitted to defeat this title by setting up a lien for a tax accruing previously. Probably without this statute, the same principle would have been sustained by this court. The last clause provides a remedy for the purchaser, where the sale shall prove to bo invalid in consequence of any irregularity committed by an officer of the government. In such case the purchaser is entitled to receive from the owner of the land the amount legally due for taxes at the time of sale, and also such sums of money as he shall have subsequently paid for taxes on the same land, and for the payment of these several sums the land itself is bound. The mode of recovery is not specified, -whether by action or otherwise. Possibly a court of chancery might restrain the rightful owner from taking possession of the land until payment was made.

This law, however, can have no effect in this case. It was not enacted until 1831, long after the first purchase of the complainant. It can not apply to the second purchase, because that purchase is not “invalid in consequence of any irregularity in the proceedings of any officer” of the.government.

The bill will be dismissed at the costs of the complainant.

Bill dismissed.


author: Lane, C. J.

text:
    George W. Rhodes v. The City of Cleveland.
    Corporations are liable like individuals for injuries done, although the act was not beyond their lawful powers.
    This is a writ of error to the common pleas of the county of Cuyahoga.
    *The suit in the court below was an action on the case, for [160 cutting ditches and water-courses in such’ a manner as to cause the water to overflow and wash away the plaintiff’s land.
    At the trial, the court charged the jury :
    That the plaintiff could not sustain his action, unless he showed them, either that the city acted illegally, or if within the scope of authority, that they acted maliciously.

    Under this charge, the jury found for the defendants, and a judgment was entered against the plaintiff, to reverse which, fbr the supposed misdirection of the court, this writ of error is prosecuted.
    D. Parish, for the plaintiff.
    H. B. Payne, for the defendant.
   Lane, C. J.

The question arising from the record is, whether a corporation is liable to repair damages, for a consequential injury, arising from the exercise of its ordinary powers.

In the elder cases, while courts were hampered by the notion that corporate acts were to be performed undor the authority of their seals, no suits like the present were held to be maintainable, but the agents only were regarded as responsible to persons injured. Since the great increase of corporations, and since so much of the business of the world is transacted through their agency, it becomes necessary that courts should meet their expanding powers by an extension of the limits of their liability. And one of the peculiar benefits which our system of jurisprudence possesses, is its capacity of enlargement and adaptation to the exigencies of the varying forms of social life.

That the rights of one should be so used as not to impair the rights of another, is a principle of morals, which, from very remote ages, has been recognized as a maxim of law. If an individual, exercising his lawful powers, commit an injury, the action on the case is the familiar remedy; if a corporation, 161] ^acting within the scope of its authority, should work wrong to another, the same principle of ethics demands of them to repair it, and no reason occurs to the court why the same remedy should not be applied to compel justice from them.

In a ease like the present, I do not look so much for precedents as to the following out of incontestable principles; for the current of decisions, for a long time, has been to increase the liabilities of corporations. Every year furnishes new examples, of the extension of remedies against them, where an injury is done, and remedies are applicable. It does not, therefore, appear to me to be a sufficient reason, against sustaining this suit, that in other states the remedy is not extended so far. But no decision of our own state goes to deny the right to the present action. In the two cases reported in 4 Ohio, 500, 514, we held the corporation of Cincinnati liable for injury done by grading, either illegally or maliciously. This was regarded as carrying the law beyond decided cases. In Scovil v. Giddings, 7 Ohio, 211, we held the agents of the trustees of the town not liable, because they were acting within their jurisdiction. In Hickox v. City of Cleveland, 8 Ohio, 543, we hold the city not liable by action, for an injury by grading, because the statute conferring the power prescribed a form of assessing damages, by which compensation might be made.

Upon the whole, then, we believe that justice and good morals require that a corporation should repair a consequential injury, which ensues from the exercise of its functions, and that if we go further than adjudicated cases have yet gone, we do not transcend the line to which we are conducted by acknowledged principles.

We hold, therefore, that corporations are liable like individuals, for injuries done, although the act was not beyond their lawful powers.

Judgment reversed.


author: Wood, J.

text:
    *The Lessee of Richard Douglas v. James Dunlap and others.
    A judgment against a grantee, in a deed made to defraud creditors, binds the estate, and a purchaser under such judgment, whether he has notice of the fraud or not, acquires a good title as against the fraudulent grantor, or a subsequent purchaser from him.
    A deed made to defraud creditors is void only as against creditors.
    This is an action of ejectment from the county of Fayette.
    A verdict was taken for the defendant, and the plaintiff moves for a new trial.
    The plaintiff’s lessor claimed title to the premises, under a conveyance from Adam Funk, and the defendants, as the heirs at law of Adam Stewart.
    The facts are these: Adam Funk, being insolvent, executed a deed to his son, Absalom, admitted by both grantor and grantee to defraud the creditors of the grantor. A judgment was afterward obtained against Absalom, execution issued, and the land so conveyed levied on and sold in satisfaction of the judgment of Stewart, to whom the sheriff executed a conveyance. The plaintiff’s lessor then purchased of Adam Funk, and obtained his deed for the land. It appears from the certificate of reservation, that the court, on the trial, charged the jury that the defendants had the legal title, unless notice of the fraud in the conveyance from the father to the son was carried home, by the proof, to the sheriff, before he sold the premises, and to the defendant’s ancestor before his purchase; and in the charge so given, the plaintiff’s counsel claim the court misdirected the jury.
    Douglas & Leonard, for the plaintiff.
    Robinson, for the defendant.
   Wood, J.

The instruction given the jury was at the request of 163] counsel, and with the view to raise the question, *wh ether, if notice of the fraud, between the Funks, was carried home to the sheriff and Adam Stewart before the sale and purchase, such notice would invalidate Stewart’s title. It is the opinion of the whole court, as it was the opinion of the judges before whom the trial was had on the circuit, that such notice, if carried home to both sheriff and purchaser, is of no consequence in its effect upon the title of Stewart. The charge, therefore, if erroneous, was in favor of the plaintiff, and he can not avail himself of any objection to it, so far as the question of notice is involved. It was urged, however, by the plaintiff’s counsel, and is again insisted, that the deed from the elder to the younger Funk, being made to defraud creditors, was void, and the title to the property never passed by it, bub remained in Adam Funk, until conveyed by his subsequent deed to the plaintiff’s lessor.

This position can not be sustained. A deed made to defraud creditors is only void as against creditors. Such was the construction given to the statute by this court, in Burgett v. Burgett, 1 Ohio, 469; and the plaintiff’s lessor stands before us as a purchaser and not as a creditor. Such fraudulent conveyances are valid as between the parties. As between them, the title passed to Absalom was bound by the judgment, and the sheriff’s sale and deed conveyed it to the ancestor of the defendants. Of this sale no one, it is clear to us, unless he be a bona fide creditor, has any right to complain, whether the sheriff and Adam Stewart had or had not notice of the fraudulent intent which existed between the Funks. The motion must be overruled and judgment entered on the verdict.

Motion overruled.


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    William H. Dodge v. John Gridley.
    The limitation in the estray act, which restrains the operation of town ordinances to animals owned by the citizens of the town, applies to town charters granted after the passage of the estray act.
    Two statutes in pari materia shall stand together, and both have effect if possible, for the law does not favor repeals by implication.
    This is a writ of error to the common pleas of the county of Washington.
    The original suit was an action of trespass for taking the plaintiff’s hogs.
    The defendant justifies under the authority of a by-law of the town of Harmar, by which swine running at large are to be taken up impounded and sold, if not redeemed by the owner within five days.
    The plaintiff, in his replication, avers that he was not a resident or citizen of the town of Harmar; and so seeks to avoid the justification under the act regulating estrays.
    The court of common pleas held the replication insufficient, and gave judgment for the defendant, to reverse which this writ of error is brought.
    The charter of the town of Harmar? 35 Ohio L. 323, sec. 4, 1837, enacts:
    *“ That the said town council shall have full power and au- [174 thority to prevent any description of animals from running at large in the streets, lanes, alleys, and commpns within the town, if, in their opinion, the interest, convenience, or safety of the inhabitants shall require such prohibition.”
    It is not doubted that the by-law of the town of Harmar is authorized by this provision of the charter.

      The act of 1831, regulating estrays, 29 Ohio L. 471, sec. 17) declares:

      “ That nothing in the act to provide for the incorporation of towns, and nothing in any special act for the incorporation of any town .or village in this state, shall be so construed as to authorize the making of any by-laws or ordinances, or to enforce the same, of any town or village, which shall subject any animals, the property of any person not residing within the limits of such town or village, to be taken up and dealt with in any other manner than is provided for in this act.”
    The by-law of the town of Harmar does subject such animals to be taken up and dealt with in another manner than is provided for in this act; 'and the question is :
    Does the charter of 1837, in this respect, repeal the estray act of 1831?
    Mr. Vinton, for the plaintiff:
    That the language of the charter is broa'd enough to confer on the town council of Harmar power to malee this by-law, will not be denied' on the part of the plaintiff. Two questions then remain :
    I. Was it the intention of the legislature, in the act of 1837, to repeal the act of 1831 ? If not:
    II. Can the two acts, by'any known rules óf interpretation, be made to stand together.
    The intention of the legislature may be drawn from prior statutes on the same subject. In 1819, the town of Gallipolis, under a charter similar to that of Harmar, undertook to prevent animals, both of the citizens and of those who were not citizens, 175] from running at large within the limits of the ’•'corporation. This gave rise to a town and country party, and the election of a representative to the legislature from that county, in the year 1819, turned on that point. The town party was defeated; and at the next session of the legislature the exercise of all such power was prohibited by a special amendment of the estray act. 2 Chase’s L. 1181. In the revision of the estray act in 1824 (2 Chase’s D. 1410) and in 1831 (29 Ohio L. 476), the same prohibition, verbatim, was re-enacted; and so the law stood when this suit arose under the by-law of the town of Harmar.
    Thus it is manifest that for a long series of years, the prohibition of the power now claimed to be exercised by the town of Harmar has been regarded by the legislature as a matter of public policy, and from the absence of any direct reference to the act of 1831, the inference fairly arises that the legislature, in 1837, did not intend to change this policy, and so, by implication, repeal the act of 1831.
    Can the two laws then stand together? It is a rule, that private statutes, made for the accommodation of private citizens or corporations, ought not to be construed to affect the rights or privileges of others, unless such construction results from express words, or from necessary implication. Coolidge v. Williams, 4 Mass. 140; Wales v. Stetson, 2 Mass. 143.
    Repeals by implication are things disfavored by the law, and never allowed of but where inconsistency and repugnancy are plain and unavoidable, for these repeals carry along with them a tacit reflection upon the legislators, that they should ignorantly, and without knowing it, make one act repugnant to and inconsistent with another. 19 Vin. Ab. 525 : Warder v. Arell 2 Wash, 381.
    The principle laid down in McCarter v. Orphan Asylum Society, 9 Cow. 437, seems decisive of the present case. In New York a devise to a corporation is declared void by the statute of wills. A charter subsequently incorporating the orphan asylum gave them a right to purchase real estate. The court held that the two statutes ought to be construed together, and that the word purchase should be understood in a ^restricted .sense, and as so intended by [176 the legislature. Thus, the statute of wills had full operation, and the term purchase was confined to such qiodes of acquiring real estate as do not include a devise. The legislature was considered as granting to the asylum a right to purchase subject to other existing statutes, and as not conferring a right to purchase without restraint.
    The application of this principle to the present case subjects all animals to the restraints of the town ordinance whose owners live in Harmar, while all other animals are left to go at large under the protection of the estray act.
    •Goddard and Converse, for the defendant:
    The case of Marietta v. Fearing, 4 Ohio, 427, bears a closer resemblance to the one now under consideration than.any of those cited against us. It was there held that the estray act restricted the operation of an ordinance of the town of Marietta forbidding animals running at large, to those owned by its own citizens. But, between that case and this, there are three essential points of difference:
    1. The charter gave the town of Marietta no power to restrain animals except so far as might be derived from the general authority to pass ordinances for the interest, safety, comfort, and convenience of its citizens.
    The town of Harmar has “full power and authority” to pass laws “ to prevent any description of animals from running at large in the streets,” etc.
    2. The estray act relied upon' to defeat the ordinance in the Marietta case was passed after the act of incorporation, and the court, page 432, held that it repealed the charter pro tanto.

    The estray act, relied on by the plaintiff, was passed before the act incorporating the town of Harmar.
    3. When the case of Marietta v. Fearing was decided, there was a public law in force prohibiting such interpretation of town, charters as would authorize the taking up stray animals in any 177] other manner than that pointed out in the estray *act; thus indicating, at least, the public policy of the state.
    Now there is no such law in force. It was repealed last winter. 38 Local L. 131.
    We think the counsel for the plaintiff mistakes the fact, when he says the charter of Gallipolis is similar to that of Harmar. It is similar to that of Marietta, which gives a general power to pass ordinances “necessary and proper for the interest, comfort, safety, and convenience of the town and its inhabitants.” 6 Ohio L. 12; 16 Ohio L. 80. We think this distinction very material-The estray act declares that the statutes therein named shall not be so construed as to authorize the making of by-laws forbidding animals to run at large. It is believed that no statute named in the estray act gave, in terms, the powers so prohibited. Such powers were perhaps inferable, the result of construction, but in the Harmar charter the power is expressly given, to make an ordinance forbidding animals to run at large within the limits of that com poration. In other words, the charter of the town of Harmar, in express terms, gives power to do what the estray act says shall not be done. The rule for the interpretation of statutes then applies : That which comes last shall repeal what went before.

      Mr. A. Nye, on the same side, cited Marietta v. Fearing, 4 Ohio, 431; Cuddon v. Eastwick, 1 Salk. 153; Moore v. Vance, 1 Ohio, 10; 2 Barn & Adol. 818; S. C., 22 Eng. Com. Law, 190.
   Lane, C. J.

In 1831, the case of the town of Marietta v. Fearing, 4 Ohio, 431, was decided in this court, in which it was held, that, since towns are public corporations, the provision in the estray act restrains the operation of their ordinances forbidding animals running at large to those owned by the citizens.

The defendant attempts to place this case on a different footing, because the charter of the town of Harmar, being dated ■ subsequently to the estray act, he infers it works a repeal of the latter, so far as it extends to that town.

^Repeals by implication are not favored. "Wnere two [178 affirmative statutes exist, one is not to be construed to repeal the other by implication, unless they can be reconciled by no mode of interpretation. If they admit of being applied to different subjects, there is no necessity of supposing an implied repeal. There are many cases illustrative of this principle; especially that reported in 9 Cowen, 437, 506. The statute of wills, in New York, prohibits a devise to a corporation. A subsequent act incorporating the Orphan Asylum Society declares that they may purchase real estate. The court held, that the statute of wills was not repealed by the act of incorporation; for although the word purchase, in its most extensive signification includes a devise, yet inasmuch as the right claimed is, by the statute of wills, expressly denied, it would seem to be more congenial to the spirit of both acts, so understand the word purchase in a restricted sense, and as so intended by the legislature.

We feel this to be an analogous case; and that it was not intended by the legislature to give the corporation of Harmar extraordinary corporate powers, since their authority over animals, as expressed by their act of incorporation, well admits being limited to their own citizens.

This whole difficulty is now removed by the act of last winter, by which the restriction upon town corporations is omitted; and no reasons appear why town ordinances now in force do not extend to all animals at large, as well those of non-residents as of citizens.

Judgment reversed.


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    Thomas L. Hawkins, Administrator of Cyrus Hulburd v. Jaques Hulburd, Administrator of H. J. Harman and others.
    Land scrip issued to the heir under the act of Congress of 1828 is liable, in equity, to the debts of the ancestor.
    This is a bill in chancery from the county of Sandusky.
    The object of the suit is, to compel the heir at law of Cyrus Hulburd, deceased, to account to the administrator upon his 179] Restate, for the amount of about $1,400, received for forfeited land stock, under an act of Congress, passed May 23, 1828, entitled “ an act for the relief of purchasers of public lands that have reverted for non-payment of the purchase money."
    The entries, in this case, were made under the act of 1800, by which the credit system was especially provided for. By section 5 it is enacted, “ That the minimum price of the public lands shall be two dollars per acre, and payable in installments.” Where the conditions of the sale were not complied with, relief was extended, with various modifications, up to April, 1820, when the credit system was abolished. By the act of 1821, persons holding certificates of purchase were authorized to file a relinquishment, in writing, of any legal subdivision of tracts of land entered, and have the money paid on the parts so relinquished applied on those retained, toward completing payment. This act also provides for the forfeiture of the lands, if not so paid for, within a limited period, after the transfer of the payments, and the expiration of the extended time. These enactments, in favor of purchasers, in different forms, and by subsequent statutes, were continued until July 4, 1829. '
    Cyrus Hulburd,
    the intestate; died on May 22, 1828. On that day, he had not completed the payments for the entries so by him made. On May 23, 1828, and one day after his death, Congress passed the act, declaring that whero lands had reverted, or were liable to revert, to the United States, for non-compliance with the terms of the act, under which such reversion would accrue, etc., it should be the duty of the register of the land office, where the purchase or deposit was made, to issue, upon the application of the person legally entitled to the benefit of such payment, etc., his ’ or their legal representatives or assigns, a certificate for the amount so paid and not refunded, which should be received and credited, as cash, in payment of any of the public lands, etc. Under the provisions of this act, the heirreceived the scrip, which was afterward converted into money..
    Boalt, for the plaintiff.
    *Harris & Spink, for the defendant.
   Wood, J.

It is admitted, in this case, that Cyrus Hulburd, the intestate, died in May, 1828. At his death, he had an incontestable equity in the lands entered by him, which, under the provisions of the acts of Congress, had he lived, he might have made available, until July 4, 1829. By the act of May 23, 1828, passed one day after Hulburd’s death, that right was made available in scrip. This scrip was to be issued to the person, or persons, legally entitled to the benefit of” the provisions contained in the act, “ his, her, or their legal representatives or assigns.” Harriet Hulburd, the heir at law, availed herself of these enactments, and the scrip was issued to her, which was afterward converted into money. She received it, not as an original right, conferred upon her by the act of Congress, but as a right conferred upon the estate to which she stood in the relation of heir at law. In other words, it is clear that she is in possession not by purchase, but by descent. It follows, then, that the scrip, though issued to the heir, is assets which belongs to the estate. It has descended, liable to the payment of debts of the ancestor, and the heir must account to the administrator for the avails; for the heir holds property descended, in trust, for the benefit of creditors, as far as the liabilities of the ancestor extends

Decree for the complainant.


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    Albert S. Case v. Samuel T. Heffner.
    Every indorsement of’a bill of exchange is a new contract, and each indorser becomes to the subsequent holder a new drawer.
    Where a bill is drawn in New York upon a person residing in that state, and is subsequently indorsed in Ohio to a resident of Ohio, and suit is brought by the holder against the indorser, the plaintiff is entitled to six per cent. damages; and-in such ease a protest is necessary, and is competent to prove a demand.
    Where such bill is not protested, the principal and interest without the statute damages is recoverable on proof, aliunde, of demand and notice.
    This is an action of assumpsit from the'comity of Franklin.
    The suit was brought upon a bill of exchange by the holder 181] *against an indorser. The bill was made in New York, and all the original parties to it are, and were at the-time, citizens and residents of that state. The bill was indorsed before maturity by the defendant in the State of Ohio, and both the parties to the record are, and were at the time of indorsement, citizens of this state.
    On the day tne hill fell due, it was protested in the city of New York for non-payment, of which notice was duly given to the indorser. On the trial of the case this protest was offered in evidence by the plaintiff, and was objected to by the defendant, but the objection was overruled by the court. No other evidence of demand was offered.
    The jury returned a verdict for the plaintiff, subject to the opinion of the court whether the plaintiff, in addition to the principal and interest of the bill, is entitled to six per cent, damages under the statute.
    After verdict, the defendant, by his counsel, moved for a new trial, on the ground that the court erred in admitting the protest as evidence of demand.
    This motion was reserved for decision here, as well as the question of damages.
    G. Swan, for the defendant,
    in support of the motion for a new trial, insisted that there are but two kinds of bills of exchange, foreign and inland. Foreign bills are those drawn upon a person or persons residing without the jurisdiction of the United States; inland, those drawn upon a person within the jurisdiction of the United States. Our statute makes a difference between bills drawn upon persons residing without the jurisdiction of the state and within the jurisdiction of the United States, and those drawn upon persons without the jurisdiction of the United States. In either case a protest is necessary in order to entitle th¿ holder to damages under the statute. But such protest is not evidence of a demand unless the bill be foreign-

      To show that no protest was necessary in case of an inland bill, and that the same could not be received as evidence of a demand, he cited Crisson v. Williamson, 1 Marsh. (Ky.) 454; *Chitty [182 on Bills, 9 ed. 499, 500; Union Bank v. Hyde, 6 Wheat. 572; Nichols v. Webb, 8 Wheat. 326.
    To sustain the position that a bill drawn in one state upon a person residing in another, is an inland bill, he cited Miller v. Hackley, 5 Johns. 375 ; Winthrop v. Pepoon, 1 Bay, 468; 2 Hay. 280 1 Robinson v. Johnson, 1 Missouri, 434.
    But he further argued that should the court be of opinion that such a bill is a foreign bill, that the bill in the ease before the court must be considered as inland. It was drawn in New York upon a person residing in that state, and was strictly an inland bill. The subsequent indorsement in Ohio could not change its character. And to sustain this position he referred to the cases already cited. Being at its inception an inland bill, and being governed by the law of the place where drawn, no damages over and above the principal and interest can be assessed.
    N. H. Swayne, for the plaintiff,
    insisted that this bill as between the parties to the record must be considered as a foreign bill,* and that of course the protest was competent evidence. Although as between the original parties the bill was inland, and as between those parties the rule of damages must be according to the law of the state where the contract was made, yet every indorsement is a new contract, each indorser becoming as a new drawer to all subsequent holders. And as between such holder and indorser; the law of the place where the indorsement is made must govern in the assessment of damages. Story’s Conflict of Laws, 261; 1 Kent’s Com. 459 ; Slocum v. Pomeroy, 6 Cranch, 221; Aymar v. Sheldon, 12 Wend. 439; Heylyn v. Adamson, 2 Burr. 669; Chitty on Bills, 142 ; Ballingalls v. Gloster, 3 East, 480 ; Townsley v. Sumrall, 2 Pet. 170
   Hitchcock, J.

Two questions are raised for the consideration of the court in this case.

1. Whether the protest was properly admitted in evidence.

2. Whether, under the circumstances of the case, the plaintiff is entitled to six per cent, damages.

*These two questions are intimately connected, and the [183 decision of one must operate, in a great measure, to decide the other. If the protest was competent evidence, it is because the bill is considered as a foreign bill, and, if a foreign bill, then the plaintiff is entitled, under our statute, to the damages claimed. This statute makes a distinction between bills drawn upon persons residing without the jurisdiction of this state, but within the jurisdiction of the United States, and those drawn upon persons without the jurisdiction of the United States. It#is as follows: “When any bill of exchange shall be drawn for the payment of any sum of money, and such bill shall be legally protested for nonpayment or non-acceptance, the drawer or drawers, indorser or indorsers, shall be subject to the payment of twelve per cent, damages thereon, if drawn on any person or persons, or body corporate, without the jurisdiction of the United States; and six per cent, damages thereon if drawn on any person or persons, or body corporate, within the jurisdiction of the United States, and without the jurisdiction of this state.” In either case a protest is necessary to entitle the holder to the damages specified. This statute, it is true, does not, in terms, determine the character of a bill, but, it may, in connection with the general principles of law, aid us in fixing that character.

Bills are either foreign or inland. As it respects foreign bills, there is no controversy but that a protest is competent evidence of a demand. Indeed, it seems to be the only proper evidence. Such bills, if not accepted, or if not paid, must be protested in order to charge the drawer or an indorser. It is equally well settled that in the case of an inland bill no protest is necessary; and, not being necessary, the protest, if one be made, can, not be given in evidence, but the notary himself must be called as a witness. If not protested, the appropriate demand may be proven by any disinterested witness. 3 Kent’s Com. 93, 2 ed.; Rogers v. Stevens, 2 Term, 713; Leftley v. Mills, 4 Term, 170; Union Bank v. Hyde, 6 Wheat. 572; Townsley v. Sumrall, 2 Pet. 170.

The bill, which is now the subject matter of controversy, 184] *when drawn, was clearly an inland bill, and, if it must be so considered as between the present parties to the record, the coui't unquestionably erred in receiving the protest in evidence. This leads us to inquire into the operation and effect of the indorsement by the defendants to the plaintiff, which-was made in the State of Ohio, previous to the time the bill fell due. In settling this question, it may be as well at once to refer to authorities. In the case of Slocum v. Pomeroy, 6 Cranch, 221, it is said by the court, in speaking of the indorsement of the bill, “that the indorsement is understood to be not simply the transfer of the paper, but a new and substantive contract.!’ In the case of Aymar v. Sheldon, 10 Wend. 439, the Supreme Court of New York say, “No principle seems more fully settled, or better understood in commercial law, than that the contract of the indorser is a new and independent contract, and that the extent of his obligation is determined by it. The transfer by indorsement is equivalent in effect to the drawing of a bill, the indorser being, in almost every respect, as a new drawer.” And, it is added, “ on this ground the rate of damages in an action against the indorser, is governed by the law of the place where the indorsement is made, being regulated by the lex loci contractus.” In the case of Ballingalls v. Gloster, 3 East, 481, Lord Ellenborough says, “ There is no distinguishing the case of an indorsor from that of the drawer, it having been long ago decided that every indorser is in the nature of a new drawer. Every indorsement is a new bill, and the indorser stands as to his indorsee in the law merchant the same as the drawer.” In the case of Heylin v. Adamson, 2 Burr. 674, Lord Mansfield said, when a bill of exchange is indorsed, “ as between the indorser and indorsee, it is a new bill of exchange, and the indorser stands in the place of the drawer.” Justice Story, in his treatise upon the Conflict of Laws, 261, says, “ Suppose a negotiable bill of exchange is drawn in Massachusetts on England, and is indorsed in New York, and again by the first indorsee in Pennsylvania, and by the second in Maryland, and the bill is dishonored; what damages will the holder be entitled to? The law as to damages *in those states is different'; what [185 rule, then, is to govern? The answer is, that in each case, the lex loci contractus. The drawer is liable, according to the law of the place where the bill was drawn; and the successive indorsers according to the law of the place of their indorsement, every indorsement being treated as a new and substantive contract. The consequence is, that the indorser may render himself liable, upon a dishonor of the bill, for a much higher rate of damages than he can recover from the drawer. But this results from his own voluntary contract; and hot from any collision arising from the nature of the original contract.” Without citing further authorities, these are sufficient to show that every indorsement is a new and substantive contract,. and must be governed by the law of the state where made. When, therefore, this bill was indorsed by the defendant, he became as a new drawer to the plaintiff, and, as between them, it is the same as would have been a bill drawn by the defendant upon a person . “ within the jurisdiction of the United States and without the jurisdiction of this state.”

The next question arising is, whether the bill so drawn is a foreign bill.

Upon this point, the decisions of the courts in the different states have not been uniform, and some of these decisions are at variance with the decisions of the Supreme Court of the United States. In the case of Miller v. Hachley, 5 Johns. 375, it was held by the Supreme Court of New York, that a bill drawn in that state on Charleston, or any place in the United States, is an inland bill, on which a protest for non-payment or non-accoptance is not necessary. Upon the authority of this case the same prin. ciple was decided in the case of Robinson v. Johnson, 1 Mo. 434. In this latter case, however, it was holden that the bill must be protested in order to entitle the holder to statutory damages, and that this must be proven on the trial. In South Carolina and Pennsylvania, such bills are considered in the light of foreign bills, requiring protest. In the case of the Phenix Bank v. Hassoy, 12 Pick. 433, it was decided, “ that a bill of exchange, drawn 186] *by a person residing in one of the United States, upon a person residing in another, is a foreign bill.” In the case of Townsley v. Sumrall, 2 Pet. 170, this question was agitated, but does not seem to have been definitely settled. Justice Story, in giving the opinion of the court, at page 178, says, 11 We do not think it necessary in this case to decide whether a bill drawn in one state upon persons residing in another state within the Union, is to be deemed a foreign or inland bill of exchange. Foreign it ■certainly is not, if by such appellation is understood a bill drawn upon a country under a totally distinct and independent sovereignty and allegiance. Inland it is not, if by that appellation is understood a bill drawn in one part of the territory, on another part, exclusively under the same municipal laws, and exclusively governed by the samo sovereign power. It would seem to constitute an intermediate case.” At page 180, he adds, “ It is not disputed, that by the general custom of merchants in the United ■States, bills of exchange drawn in one state on another state, are, if dishonored, protested by a notary, and the production of such protest is the customary document of the dishonor. It is a practice founded in general convenience, and has been adopted for the same reasons which .apply to foreign bills, in the strictest sense. The distance between some of these states, and the difficulty of obtaining other evidence, is far greater than between England and France, or between the continental nations of Europe, where the general rule prevails. We think, upon this ground alone the reason for admitting foreign protests would apply to eases like the present, and furnish a just analogy to govern it.” The same question was again piresented to the Supreme Court of the United States, in the case of Buckner v. Finley, 2 Pet. 586, and, after full argument, it was decided, that bills of exchange, drawn in one state of the Union on persons living in another state, partake of the character of foreign bills, and ought to be so treated in the courts of the United States. From all these cases there can be no question that the weight of authority in the United States is, that a bill thus drawn is to be considered a foreign bill, at [187 least thus far, that a protest is good evidence of the facts it contain.

In the determination of this question, it is proper that wo take into consideration our own statute upon the subject. This statute, it will be seen, makes a difference between bills drawn on persons residing without the state, but within the United States, and those residing without the United States. In the former case the holder is entitled to six per cent, damages over and above the principal and interest of the bill;.in the latter he is entitled to twelve percent. But in either case, in order to lay the foundation for these damages, it seems to bo necessary that there should be a protest. At least no provision is made for damages, unless “such bill shall be legally protested for non-acceptance or non-payment.” Before these damages are recovered, then, this protest must be proven, and how shall it be proven except by the notarial seal? It is admitted by counsel, that for the purpose of recovering the statutory damages, it is competent evidence, but it is insisted that it furnishes no competent evidence of demand, and such seems to have been the opinion of the court in.the case cited from Missouri. But we entertain the opinion that the legislature, in making the protest necessary, intended to give it the same effect, as, by the custom of merchants, is given to protest of foreign bills of exchange. Upon the whole, whether we adopt the principles settled by the authorities cited, or depend alone upon the construction of our statute, we believe the protest in the case under consideration was properly received in evidence.

We might perhaps, with propriety stop hero, but there is another question growing out of the statute which we have considered, and upon which we all concur in opinion. It is this : Is a protest necessary in every case of non-acceptance or non-payment of a bill of exchange, drawn in this state upon a person residing in another state of the Union, in order to entitle the holder to recover against the drawer or indorser? If such bill be, strictly speaking, foreign, a protest would be necessary. But the statute, 188] discriminating as it does between *bills drawn on persons without and within the United States, it is believed the legislature intended that the former should be considered as foreign bills, but that as to the latter it was left to the option of the holder, to treat them as foreign by procuring them to be protested, or as inland by making demand and giving notice of the dishonor, in the same manner as if drawn upon a person residing within the state. If, then, a bill is drawn in this state on a person resident in another state, the drawer or indorser will be charged, upon proof of demand in due time made upon the drawer or acceptor, and notice. This ])roof may be made by the introduction of the protest, if the bill has been protested, and in such case the holder will be entitled to the six per cent, damages. Or it may be made by the introduction of any other evidence which conduces to prove the fact. But if there has been no protest, the holder can recover no damages beyond the principal and interest of the bill.

The motion for a new trial will be overruled, and the plaintiff may take judgment for the principal and interest of the bill, with six per cent, damages and the costs of the protest, together with costs of suit.

Motion overruled.


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    The Lessee of De Segond and Warden v. Culver and Burk.
    The record of a deed, purporting to be acknowledged before an officer not known to our laws, is not admissible in evidence, unless his authority bo shown.

      This is a motion for a new trial, in an action of ejectment from, the county of Knox.
    The plaintiff offered, as a part of his title, a copy of the records of deeds of the county, which contains a document, purporting to be a deed, by General De Segond, executed in *the pres- [189 once of two witnesses, and bearing the following acknowledg ment:
    “On June 11, 1804, came personally before me, De General Segond, of Paris, in the kingdom of' France, and to me known to be the person described in, and who executed the within conveyance, and he duly acknowledged before me, that he executed the same”' — what follows is'obscure; if read correct, it is, “per fait Donegle Bannati.
    “ Onze day June, 1804. “ Bebigny, Public Auditor.”

    This record was objected to, but admitted, and a verdict having been rendered for the plaintiff, this motion is made for a new trial.
    H. Delano and C. B. Goddard, for the motion;'
    The laws of Ohio have uniformily held all deeds to be valid which were executed according to the laws and usages of the state or country where made. 1 Chase’s L, 342, 484 ; 2 Chase’s L. 1041, 1149; 3 Chase’s L. 1843.
    Was, then, the deed admitted in evidence, executed according to the laws and usages of France? The laws and usages of any country are matters of fact, capable of proof, and the party who offers a foreign deed in evidence ought to show what such laws and usages are, that the court may see whether they have been complied with or not. In this case no such evidence was offered. Of our own laws the court will take notice ex officio, but not so of the laws of foreign states.
    Nor does the act of 1831 (3 Chase’s L. 1843) dispense with the necessity of this proof. That statute provides, “that all copies from the records of deeds,” etc. “shall b q prima facie evidence of the existence of such deeds.”
    This act makes a copy from the record evidence that an original deed did exist, but it by no means declares that such copy shall carry with it the evidence of the due execution of the original. The copy is received in place of the original, and he who offers the copy is still to prove that the original *was exe- [190 eiited according to the lavvs of the country where made. The statute, at best, is liable to abuse, and the court will hesitate to give it an interpretation which will permit any instrument in ie shape of a deed to be put on record, and then make a copy of the record evidence of its conformity to the laws of the country where it purports to be executed.
    H. Stanbery and M. A. Sayre, contra:
    The certificate of the officer taking the acknowledgment, where it appears he acts in his official capacity, is prima facie evidence that he is duly authorized, and that it is in conformity with the laws of the country where made. In Johnson v. Haines, 2 Ohio, 55, this court held, that “ the acknowledgment or proof is nothing, unless it be taken by an -authorized officer, and whether the person be authorized or not, is a fact which ought to appear in the certificate of the officer himself. This, prima facie, would be sufficient to authorize the record, and throw the proof on the person impeaching tho deed.”
    The burden then lies upon the defendants to show that tho deed was not made in conformity with the laws of France.
    The certificate contains all the requirements demanded by our law. If, therefore, the deed has been duly admitted to record, agreeably to the requisitions of law, there can be no question but what it was properly admitted in evidence.
    That this construction of the different acts, respecting the acknowledgment and recording of deeds, is correct, is clearly illustrated from the fact, that it has been the uniform practice to admit deeds thus proved or acknowledged to record in all parts of tho state. To adopt a different rule at this time would create infinite mischief; and jeopardize nearly one-half of the titles to real estate in Ohio. Many patents have been issued by the general government, as in this instance, to foreigners or citizens of other states, for services rendered in the revolution, who had no design of occupying the land thus conveyed. They have conveyed them to others, according to the laws and usages of the country or state 191] where they resided. It is not ^presumed that they were familiar with our laws. Hence, there has been a disposition, at all times, by our laws and usages, to provide against the difficulties that might arise, if any other construction should be given to our statutes upon that subject.
   Lane, C. J.

If I should indulge my conjectures as to this paper, I should take it that the acknowledgment was written in French, and was translated for the record. If this be so, the record is not a true copy of the deed, and should be rejected. But waiving all inquiry upon this point, we must look to see if it carries with it the legal marks of authentication. It is acknowledged, before a “public auditor.” The deed is said to be made by the General do Segond, of Paris, in the kingdom of Prance; but the place where either deed or acknowledgment are made, are nowhere stated, and nowhere discoverable from the paper or proof. A public auditor is the designation of an officer not known to our laws, and I am ignorant of the country to which he belongs.

The statutes of Ohio have always recognized deeds as valid which were executed according to the laws of the place where made. This deed has no locality on its face, and we know not the country to whose laws we should recur for proof of its proper execution. But if the laws of France are to prescribe its forms, and those different from such as our own laws direct, we must look to the person introducing the deed for information and proof that they have been duly pursued. It is not enough that the acknowledgment should have been made before some one who assumes some official capacity to receive it. If the officer be not one, to whom, in the ordinary scope of official duty, the authentication of such instruments belongs, we can not presume any such authority without proof. The case in 9 Ohio, 168, does not conflict with this.

We think the court erred in admitting the deed.

Now trial granted.


text:
    *The City of Cincinnati v. David Gwynne.
    An ordinance of the city council requiring the mayor to enforce the collection of a special tax by suit, in the nature of an action of debt, does not violate the city charter, or the general law of the land.
    This is a certiorari to the court of common pleas of the county county of Hamilton.
    It brings into this court a record of certain proceedings before the mayor of the city of Cincinnati, to enforce the collection of a special tax, assessed upon a lot of ground lying on Tine street, owned by the defendant Gwynne, for the purpose of improving said street. It being reported to the mayor that the tax was unpaid, he issued a summons against Gwynne, dated October 2, 1838, returnable' on the 6th day of the same month, which was returned served. The case was laid over until the 8th, when the defendant appeared by counsel, and no proof being made that the tax assessed had been paid, judgment was rendered against him for $69.81, the amount of tax and costs. On the docket of the mayor, the city of Cincinnati is named as plaintiff, and the action is called an action of debt.
    The case was removed into the court of common pleas, by writ of certiorari, and it was assigned for error, that-the mayor of Cincinnati had not by law jurisdiction of the case in the record, and proceedings set out. For this error the court of common pleas reversed the judgment of the mayor, and to reverse the judgment of the court of common pleas this writ of certiorari is prosecuted.
    E. Woodruff, for the plaintiff.
    N. Wright, Thompson and Chase, for the defendant.
   Hitchcock, J.

The exception which is taken to the jurisdiction of the mayor of the city of Cincinnati in the present 193] *case is, that by the act incorporating the city, no civil jurisdiction is conferred on that officer, and that it appears from the record that ho has attempted to exercise such jurisdiction.

In order to a correct determination of the case, it is necessary that wo ascertain the true nature and character of the whole transaction, and in attempting to do this, we ought rather to look to the substance than to the form of words made use of. It- is true the record shows that in form, a judgment as in debt is rendered, but still the true character of the whole proceeding is to enforce the collection of a tax assessed by the competent authority of the city for the purpose of paving a public street. Whether there was power to assess the tax, and power to collect it, are important questions, far more important than is the question as to the particular mode of collection. Still, in prescribing the mode of assessing or collecting, the-city authorities can not be permitted to contravene the laws of the state. Their powers are prescribed by tho act of incorporation under which, they exist, and when they transcend these powers their acts are void. This act of incorporation then, and the ordinances made in pursuance thereof, constitute the law of the case, and if from these, the powers exercise.d by the mayor can not bo fairly deduced, the court of common pleas correctly decided that he had no jurisdiction of the subject matter before him. '

This act of incorporation was passed on March 1,1834. 32 Ohio L. 245. In section 1, it is provided that, “for the better ordering and go'verning said city, the exercise of the corporate powers of the same, heroin and hereby granted, and the administration of its fiscal, prudential, and municipal concerns, with the conduct, direction, and government thereof, shall be vested in one principal officer to be styled the mayor, a board.of trustees consisting of three members of each ward, to be denominated the city council, together with such other officers as are hereinafter mentioned and provided for.” The city council is vested with the legislative power of the city, and are authorized “to impose fines, forfeitures, and penalties on all persons offending against the laws *and ordinances of said-city, and provide for the prosecu- [194 tion, recovery, and collection thereof.” To defray the current expenses of the city, the council is further authorized to levy and collect taxes upon the real and personal property within its limits, as the same is or shall be appraised and returned on the grand levy of the state, and upon other enumerated articles which are. not included in the general list of taxable property. The council have further power, “ to be caused to be opened, paved, repaved, or improved any street, lane, alley, market space, or public landing,” on certain conditions, and “to levy and collect a special tax, for the costs and expenses of the same, by an equal assessment of the feet front bounding or abutting ” on such street, lane, alley j etc.

This last clause removes all doubt as to the power of the city authorities to levy a special tax of the character of the one in the case under consideration. The power is expressly conferred, and so is the power to collect. The particular mode of collecting, however, not having been prescribed in the act of incorporation, must be prescribed by ordinance of the city council, and if such ordinance is not contrary to, or does not violate any law of the United States or of this state, it will bo binding.

In section 4 of the act of incorporation, the powers and duties of the mayor are defined. Among other things, it is prescribed that, “he shall perform such duties, and exercise such powers as from time to time may devolve upon him by the ordinances of said city, not inconsistent with the provisions of this act, and the ■character and dignity of his office.” “He shall, in his judicial capacitj7, have exclusive original jurisdiction of all cases for the violation of the ordinances of' said city, and criminal jurisdiction in all cases where, by the laws of this state, justices of the peace within the township of Cincinnati shall be authorized to hear and determine, or in any manner have j>ower to act; and for the due and efficient exercise of.the power heroin and hereby vested in him, he shall have power, and it shall bo lawful for him, to award all such process, and issue such writs as may be necessary,” etc. 195] *In a proviso to this section, the right of appeal is secured, where a defendant brought before the mayor shall be adjudged to pay a fine of more than ten dollars for the breach of any ordinance of the cit3:r.

In pursuance of tho power vested in the city council of levying and collecting special taxes, to deft^ the expenses of paving, etc.,' that body on November 5, 1834, passed a general ordinance on the subject, in which it is provided that if the owner or owners, occupant or occupants, of any real estate subject to any taxes for opening, paving, etc., “shall neglect or refuse to pay such tax when duo, it shall be the duty' of tho city collector forthwith to report every such delinquent to the ma3’or, who shall immediately issue a summons as in an action of debt in favor of the city of Cincinnati,” against such owner, which summons shall be served and returned “by the marshal as in other cases, and if upon the return of such summons served, it shall appear to the satisfaction of the mayor that such tax has not been paid, he shall enter judgment therefor, against such delinquent owner, with interest from tho date of the assessment, and costs, and issue execution as in other cases.”

It was in pursuance of these provisions that the proceedings in the case before us were had. A tax had been assessed upon a lot or part of a lot owned or occupied by the defendant, abutting on Vine street, for the purpose of paving that street. This tax he relused to pa.3’', which tact was reported by the city collector. Now tho question arises whether there is an37thing in that part of the ordinance, relative to the mode of collecting a special tax, which conflicts with the act of incorporation or .with the general law of the land. If not, then it is obligatory on the mayor and ho is bound to enforce it. Ho is bound to “periorm such duties and exercise such powers as may from time to time devolve upon him by the ordinances of said city.” And as a judicial officer, he has “exclusive original jurisdiction of all cases for the violation of the ordinances of the city.” Has not here been a violation of an ordinance of the city? Such an ordinance required that a tax should be paid. It was *not paid. The ordinance, then, [196 was not complied with. If a penalty had boon imposed for such non-payment, it seems to bo conceded that the mayor would have had jurisdiction, because it would have been somewhat in the nature of a criminal proceeding; but inasmuch as nothing more is required than the tax with interest, it is said to be in the nature of a civil proceeding.

The position assumed by the counsel for the defendant is, that the mayor, as a judicial officer, has no jurisdiction except in cases of a criminal nature, and as the ordinance requires an action in the nature of an action of debt to be commenced, he can not have jurisdiction, because an action of debt is a civil action. But although debt is a civil action, it is not unfrcqucntly brought to recover penalties for the violation of statutes. And under the power of the city council of Cincinnati, to “impose fines, forfeitures, and penalties, on all persons offending against the laws and ordinances of said city, and provide for the prosecution, recovery, and collection thereof,” it is believed the council might provide that a penalty so imposed, if of a certain amount should be recovered in an action of debt. If so, the suit must bo prosecuted before the mayor, for he alone shall have “ original jurisdiction of all cases for the violation of the ordinances of the city.” It does no.t follow, then, that if', in a given case, this form of remedy is pursued, there is of necessity a want of jurisdiction.

But what is the nature of this proceeding for the collection of a special tax? True, the ordinance requires that if the tax bo not paid, the mayor shall, upon being informed of the fact, issue process as in debt. But what is the fact to be tried? Hot whether the tax was properly assessed, but simply whether it has been paid. This is the only question which the mayor has to determine. Had the ordinance required that the city collector should, upon the neglect or refusal to pay the tax, proceed to sell the lot or part of lot, or .to levy upon other property of the owner to make the tax, there could have been no objection to it. Or had it required the mayor, upon report made to him by the city collector 197] that the tax was unpaid, *forthwitb. to issue his warrant to the city marshal, directing him to collect by levy upon and sale of property, would have been equally unobjectionable. But inasmuch as the ordinance gives to the owner or occupier of the lot upon which the tax is assessed an opportunity to appear befare the mayor, and contradict the report of the collector by showing that the tax has actually been paid, it is claimed that that part of the ordinance, at least,.which gives this privilege is void. A majority of the court can not see it in that light. And we find nothing in the act of incorporation, or in the general law of the land, which is infringed by this ordinance.

The judgment of the court of common pleas is reversed, and the case remanded for further proceedings.

Judgment reversed.


author: Grimke, J.

text:
    William Moore, for the use of another, v. Augustus H. Brown.
    The docket of a coui’t is no part of its record.
    A notice of appeal marked by the court on its docket, but not'carried into the journals, is not a compliance with the statute requiring such notice to be entered on the record; nor can the omission be cured by a nunc pro tuno order at a subsequent term.
    This is a motion to quash an appeal from the county of Sandusky.
    At the February term of the common pleas, 1840, the plaintiff recovered a judgment against the defendant, and the presiding judge marked on his docket, “ notice of appeal by def’t.”
    This notice was not carried into the journals of the court, but the defendant, within the thirty days after the term, filed his bond for an appeal.
    At the next term the defendant obtained an order nunc pro tunc, directing the notice of appeal to be entered on the journals as of the last term.

      *At the July term of the Supreme Court, the plaintiff [198 moved to quash the appeal because no notice was entered on the records of the court at the term when the judgment was rendered.
    Parish & Sadler, for the motion :
    The right of appeal is a statutory right, and he who would avail himself of it, must comply "with the requisitions of the statute at his peril. Section 109 of the practice act, 29 Ohio L. 78, requires the party desirous of appealing his cause, at the term when judgment is rendered, to enter notice of his intention on the records of the court. A memorandum of such notice on the docket of the court is not a compliance with the act. The court docket is no part of the record. Harvey v. Brown, 1 Ohio, 268 ; Mygatt v. Ingham, Wright, 176 ; Bradley v. Sneath, 6 Ohio, 491; Wilson v. Holeman, 2 Ohio, 253.
    Nor can the nunc pro. tunc order avail the defendant. The law requires, not that notice of appeal shall be given, but that an entry of that notice shall be made on the record at the term when the judgment was rendered. Here, no entry was in fact made. How, then, can an order of a subsequent term do that which was really not done at the former term? In fact, the notice of appeal nowhere appeared on the record until it was put there as a part of the nunc pro tunc order. .
    It is the 'office of a nunc pro tunc order to supply record evidence of what was done at a former term, and not do at a subsequent term what ought to have been done at a former term. Tarbet v. Coffin, 6 Ohio, 34; Botkin v. Pickaway County, 1 Ohio, 375; Green v. Dodge, 3 Ohio, 486; Ludlow v. Johnson, 3 Ohio, 553; Bradford v. Watts, Wright, 496; Jackson v. Wiseburn, 5 Wend. 136.
    C. L. Boalt, contra:
    The presiding judge is the organ of the court in delivering its opinions and entering its orders on the court docket. It is the duty of the clerk truly to “ enter and record all the orders, *de[1.99 crees, judgments, and proceedings ” of the court. If these orders are not “entered” in the journal by the clerk, it is the clerk’s omission — not the party’s. The party has no control over that officer. The ease of Bradford v. Watts, Wright, 496, cited by the plaintiff’s counsel, evidently proceeds on this ground. In that case it appeared that the notice was not entered either on the docket of the court or on the journal, and the party attempted to supply the deficiency bjT satisfying the common pleas that he gave parol notice, and by entering, at a subsequent term, an order to that effect, mine pro tunc. The order having been obtained, a motion was submitted in tho Supremo Court to dismiss tho appeal. The court say, “It is competent tor courts, where things, have been done by the court, that can only be evidenced by the record, and by the omission of the clerk the entry has not been made, to supply the proof, by a nunc pro tunc entry.” Again : “The attorney of the party desirous of appealing, satisfied the court that instead of giving notice on the minutes of the court, or records, under tho law, he had given oral notice of his intention to appeal, which was omitted to be entered on the minutes.”
    The presiding judge’s entries upon the court docket are, emphatically, “the minutes of the court.” Neither of them are, strictly, records. The journal contains the orders of the court drawn out more at length ; but in doing this, the clerk acts as the amanuensis of the court, whether dictated to orally or by the court’s minutes. They are both within the statute requiring the entry of the notice on the records to be made; but the evidence of that entry must be carried upon the journals at the time; or if the clerk omit it, the party must supply the evidence, by a nunc pro tunc order. In tho case in Wright’s Reports, there was-nothing to amend by.
    The case of Bradley v. Sneath, 6 Ohio, 491, was a case of appeal to the Supreme Court, from a judgment of nonsuit, without giving the reason upon which the nonsuit was entered. , As the judgment appeared in the journal entry, it was voluntary on the part of the 200] appellant; but by the judge’s minutes *it appeared that the plaintiff’s testimony was overruled by the court, for a reason which, had it appeared in tho journal entry, would have sustained the appeal.
    One question was, whether if the court were to allow the case to' stand over, it were competent for tho court below to correct the orror. Judge Wright delivered the opinion of tho court. He says : “ We see no impropriety in the court’s correcting tho mistakes of their clerk in transcribing their minutes, correcting them by the original entries. It would be strange if the law prohibited such correction.” The journal entry in that case was subsequently corrected, and the court rendered judgment on the verdict.
    It will be observed that, in this last case cited, there was an omission of the clerk that was fatal to the right of appeal,and that the defendant in that case was as liable to bo misled by the journal entry as the plaintiff was in this. He could only have sustained the appeal by availing himself of theofficeof st nunc pro tunc order.
   Grimke, J.

Section 109 of the practice act declares, that the party desirous of appealing his cause to the Supreme Court shall, at the term of the court of common pleas in which judgment is rendered, enter on the records of the court notice of such intention.

It is evident that the docket of the court is not, in any sense of the word, a record. It is a list of the causes made out for the convenience of the judges, and in which, on the other hand, memorandums are made for the convenience of the clerk. These memorandums are abbreviated as much as possible, because they are intended as mere hints to the recollection of the clerk, so that a decree in chancery which would fill several pages may be signified by only three words. This docket is not required by law to be preserved as a record, nor is it in fact actually so preserved. It might fall into the hands of any private individual after the adjournment of the court, and entries might then be made upon it, which it might be difficult, perhaps impossible, to distinguish from such as were *made during the term. What infinite mis- [201 chief might be produced, if' a memorandum appearing upon this docket at a subsequent term should be considered as a compliance with the law. We might commit general injustice in an attempt to remedy a private inconvenience. Nothing is more common than for a party to give notice of appeal with only a faint intention to cany the same into execution, or having formed the resolution he may have abandoned it almost immediately. The fact that notice of his intention appears on the docket, and yet not on the journal, may be evidence that he has countermanded the notice if he ever gave one; for it will bo observed, that the journals of the court are read every morning, for the very purpose of correctingall mistakes and supplying all omissions which may have been made. If not then done; the presumption is that the party interested did not intend that it should bed'me.

A party who has recovered a judgment may listen every morning to the reading of the journal, or he may, on the adjournment oí the court, cause the journal to bo examined, and, finding that no notice of appeal has been given, he may well consider the cause as finally disposed of, and never make any preparation for a future trial of which he has never obtained information. He may be a non-resident, may leave the state immediately on the termination of the suit in the common pleas, and may not, for years, be in a situatio.n to receive notice. Unless the court making an order affecting his interests, nunc pro tunc, are also bound to carry information of the fact home to him, he may bo irreparably injured. I hold it is the duty of every court so to administer the law as to promote the substantial interests of the litigants, and even, if possible, to cure the errors and help out the mistakes of a party; but this is not possible where, by its interference, the interests of another may be injuriously'affected. The order which was made in this case must be regarded as void and not merely erroneous, and the motion to dismiss the appeal must prevail.

Motion granted. .