text:
    David Maconnehey v. The State of Ohio.

      Delirium tremens, although the result or consequence of continued drunkenness, is insanity, or a diseased state of the mind, and affects responsibility for crime in the same way as insanity produced by any other cause.
    This is a writ of error to reverse the judgment of the Court of Common Pleas of Muskingum county, on an indictment for the crime of shooting at a person with intent to kill. On the trial in the court below, after evidence had been given on the part of the State tending to sustain the indictment, the plaintiff in error gave evidence tending to prove, that at the time he did the act charged, he was laboring under an attack of delirium tremens. And after the evidence was closed, the plaintiff in error asked the court to charge the jury, that delirium tremens, although a consequence superinduced by antecedent continued drunkenness, is a diseased state of the mind, and exempts the subject from responsibility for crime, like insanity produced by any other cause. But the court refused so to instruct the jury, and the plaintiff in error excepted.

      Stillwell Guille, for plaintiff in error.

      Me GooJe, Attorney General, for the State.
   Bartley, J.

While drunkenness creates no exemption from criminal responsibility, and may even exaggerate the turpitude of guilt in some cases, delirium tremens, although the result or consequence of continued intoxication, is insanity, or a diseased state of the mind, which affects responsibility for crime in the same way as insanity produced from any other cause.

The reason that intoxication creates no exemption from criminal responsibility, does not apply to delirium tremens, which, although like many other kinds of mania, the result of prior vicious indulgence, is always shunned rather than courted by the patient, and is not voluntarily assumed, either as a cloak for guilt, or to nerve the perpetrator to the commission of crime.

Judgment reversed, and cause remanded.


source: Caselaw Access Project

author: Ranney, J.

license: Public Domain

text:
    William Tousley et al. v. Reuben Tousley et al.
    Clerical inaccuracies in the description of a debt, will not affect the lien of a mortgage as against the mortgagor or subsequent judgment creditors of his, provided the debt is clearly identified as the one intended to be secured.
    Under the recording acts in force in this State, a mortgage takes effect upon its delivery to the recorder for record; before that time, it has no effect as against the judgment creditors of the mortgagor; but after it is so delivered, whether correctly recorded or not, the lien of such judgments attaches only to the equity of redemption, and the judgment creditor stands in no better position than the mortgagor.
    A judgment creditor is not a purchaser, nor entitled to the privileges of that position.
    In Chancery. Reserved in the District Court of Logan county.
    The material facts in this case are as follows:
    On the 9th day of September, I860, Reuben Tousley executed, and soon after delivered to the complainants, William Tousley and John F. Heazlit, a mortgage on lot number one, in Colvin’s addition to the town of Belle Centre, in Logan county, in this State. The condition of defeasance reads as follows:

      “ The condition of this deed is such, that whereas the said Reuben Tousley has executed and delivered to the said William Tousley two notes, for four hundred and fifty dollars each, and signed jointly by the said Tousley and Abraham Teachout — the first dated Royalton, August 9th, 1845, for four hundred and fifty dollars, payable Eeb. 9,1847, with indorsements thereon; the second note for four hundred and fifty dollars, and dated as above, and payable the 9th day of August, A. D. 1847 : And whereas the said John Fleming Heazlit has jointly bound himself, with the said Reuben Tousley, in a note of four hundred dollars, dated Royalton, August 28d, 1850, and payable to Henry Sheldon & Co., of New York, at the Sandusky City Bank, 0., and due December 1st, 1850. Now if the said Reuben Tousley, his heirs, assigns, executors or administrators, shall well and truly pay the aforesaid notes, according to the tenor thereof, unto the said William Tousley and John Fleming Heazlit, their heirs or assigns, then the above deed shall be void, otherwise to remain in full force and virtue.”
    The certificate of acknowledgment reads as follows:
    “ The State of Ohio, Cuyahoga county, ss. Royalton, Sept. 9th, 1850. Personally appeared Reuben Tousley, who acknowl edged that he did sign and seal the foregoing instrument, and that the same is his free act and deed. Before me, Joseph Smith, J. P.”
    The mortgage was received by the recorder of Logan county, for record, Sept. 23d, and recorded Sept. 24,1850.
    There are two certified copies of the record of the mortgage among the-files of the case. One of these copies shows that the signature, “Joseph Smith, J. P.,” was so recorded; the other copy shows that it was recorded “ Joseph Smith, J. W.”

    The fao simile of the letter in question, as recorded, looks more like a W than like a P.
    It further appears, that the record of the mortgage was signed by the recorder after the expiration of his term of office.
    At the August term, 1851, of the Logan county common pleas, Dennis Perkins k Co., and Robert C. Wetmore & Co., severally obtained judgments against the mortgagor, Reuben Tousley, and, in November following, caused executions to be issued and levied on the premises described in the mortgage.
    In March, 1852, the complainants filed their bill to foreclose this mortgage, and made these judgment creditors parties.
    The notes produced in evidence, as and for the notes described in the mortgage, are copied as follows:
    [B.]
    “ $450.00.
    “ The ninth day of March, 1847, we, or either of us, promise to pay Tousley & Barnum, or order, four hundred and fifty dollars, for value received, with interest after four months. Royalton, Sept. 9, 1845.
    “ ABRAHAM TEACHOUT, Jr.,
    “ REUBEN TOUSLEY.”
    Indorsed on this note are payments made in June and August, 1847, and July, 1849.
    [c.]
    “ $450.00.
    “ The ninth day of September, 1847, we, or either of us, promise to pay Tousley & Barnum, or order, four hundred and fifty dollars, for value received, with interest after four months. Royalton, Sept. 9, 1845.
    “ ABRAHAM TEACHOUT, Jr.,
    “ REUBEN TOUSLEY.”
    [>]
    “ $400.00. “ Royalton, August 23d, ’50.

      “ On the first day of December next, we, or either of us, promise to pay to Henry Sheldon & Co., or order, four hundred dollars, payable at the Sandusky City Bank, for value received.
    “JOHN E. HEAZLIT,
    “REUBEN TOUSLEY.”
    The mortgagor makes no defense ; but the judgment creditors claim that the mortgage is invalid as against them, even if it is good between the parties, because : First, the official character of the magistrate does not appear in the certificate of acknowledgment ; second, the record of the mortgage does not show his official character, even if it appears in the original certificate of acknowledgment ; third, the record of the mortgage was never signed by the recorder ; fourth, the two notes, “ B ” and “ C,” copied above, are not the notes described in the mortgage, and that the note marked “ D ” was paid.
    It appears that complainant, William Tousley, was the Tousley in the firm of Tousley & Barnum; and that on the dissolution of that firm, and over a year before the execution of the mortgage, an agreement was made between the members of the firm, by which William Tousley became the owner of the partnership notes and accounts, among which were the two notes marked “ B ” and « C.”
    It appears further, that some time before the mortgage was executed, the grantor had agreed with William Tousley to secure the payment of the two notes “ B ” and “ C,” by mortgage on the premises described in the mortgage that was executed; and that, in pursuance of this agreement, the grantor drew the mort gage, and when he came to the condition of defeasance, he sent to William Tousley’s residence for the two notes, or copies of them, in order to get a correct description of them ; but William was not at home, and the notes were not obtained; and the grantor described them, as to date and time of payment, from memory. He knew that they were made payable to Tousley & Barnum, but he described them as having been “ executed and delivered to the said William Tousley,” because of the dissolution agreement by which the latter became their owner.
    The note marked “D ” was paid by Heazlit in January, 1852.

      Hernan & Hubbard, and Walker & West, for complainants, made the following points:
    1. The official character of the magistrate before whom the mortgage was acknowledged, is sufficiently declared by the letters “ J. P.,” and the inveterate practice, among justices of the peace, of using these letters for that purpose, is entitled to great weight in construing the statute under which the certificate of acknowledgment was made. 3 Ohio Rep. 140; 2 Cow. Rep. 567 ; 3 Dana 118,119 ; 5 Cranch 32 ; 1 Serg. & Rawle 102, 106 ; 1 McLean Rep. 524; 4 Wend. Rep. 561, 563 ; 3 A. K. Marsh. 41; Phil, on Ev. (Cow. & Hill’s notes, 3d ed.) Pt. 2, p. 462.

      2. The misdescription of the two notes is not so in any thing where description is essential as to these two judgment creditors. These notes would be good if they had no dates. Bailey on Bills 25 ; Chitty on Bills 169 ; 13 East 517 ; Cowen’s Rep. 337. A note is good if it specifies no time of payment. Thompson on Bills 32 ; Story on Prom. Notes, sec. 29. Therefore, as date and times of payment are not indispensable requisites, it was not necessary, so far as these judgment creditors are concerned, to notice them in the mortgage at all, and as against these creditors, the misdescription as to dates and times of payment may be rejected as surplusage. These creditors were not misled— there was enough upon the record to put them upon inquiry, and that was sufficient. 1 Ohio Rep. 264; 3 Ohio Rep. 60 ; 14 Yerm. R. 14; 10 Ohio Rep. 84; 2 Hilliard on Mort. 164-5, and note.
    3. It was no misdescription to describe the notes as payable to William Tousley ; they belonged to him, and the description is according to th % fact and legal effect. See 2 Hilliard on Mort., chap. 40, p. 164.
    4. It was not indispensably necessary to describe the notes as bearing interest after four months, and these judgment creditors have no right to raise the objection. 2 Ohio R. 343-4; 3 Ohio R. 60. The misdescription of the notes is a mere clerical error.
    5. The payment of the Henry Sheldon & Co. note by Heazlit, instead of extinguishing his mortgage lien, made it absolute .at law; because the note is joint and several, and the mortgagor failed to pay the note as he was bound to do by the condition of the mortgage. 2 Hilliard on Mort. 164.
    6. The record of the mortgage is valid. The law does not require the recorder to sign the record. Swan’s Rev. St. 790, sec. 6 ; also p. 314.
    7. The lien of the mortgage attached when it was filed for record, and the record was notice to all the world. Swan’s St. 311, sec. 13; 1 Ohio St. Rep. 116 ; 2 Hilliard on Mort. 165.

      William Lawrence, for Dennis Perkins & Co., made the following points:
    1. The record of the mortgage does not show the official character of 'the person before whom it purports to have been acknowledged, and the certificate of acknowledgment is defective. The judgment creditors are only bound by the record as it is. Swan’s Stat., sec. 7, p. 310 ; Stansell v. Roberts, 13 Ohio Rep. 148 ; Jackson v. Luce, 14 Ohio Rep. 514 ; Holliday v. Franklin Bank, 16 Ohio Rep. 533; Jennings v. Wood, 20 Ohio Rep. 261. Even the letters “ J. P.” are not sufficient. Lessee of Johnson v. Haines, 2 Ohio Rep. 55 ; Smith v. Hunt, 13 Ohio Rep. 260 ; Brown v. Farran, 3 Ohio Rep. 140.
    . 2. The notes are not described correctly in the mortgage — they are not the same notes described in the mortgage, but different in the following particulars: 1. The mortgage describes
    notes dated August 9,1845 : the notes produced in evidence are dated September 9, 1845. 2. One is described as payable Eeb. 9, 1847, and one as payable Aug. 9, 1847 ; but the notes produced are payable March 9, 1847, and Sept. 9,1847. 3. The notes produced bear interest after four months ; the record gives no such description. 4. Two notes described in the mortgage are payable to William Tousley ; those produced are payable to Tousley & Barnum.
    3. The Sheldon & Oo. note was paid, and its mortgage lien is lost.
    4. There is no valid record, because the record was not signed by the recorder.
    5. If in equity these errors could be corrected as between the parties, it cannot be done to the prejudice of intervening judgment creditors. Ohio Life Insurance Oo. v. Urbana Ins. Oo., 13 Ohio Rep. 220 ; White v. Denman, 16 Ohio Rep..59.

      Stanton & Allison, for Robert C. Wetmore & Oo., made the following points:
    1. The instrument claimed to be a mortgage is not such, even between the parties to the instrument, so far, at least, as William Tousley is concerned. 27 Maine Rep. 400, and cited in U. S. Dig., vol. 9, p. 340, sec. 179.
    2. The pretended mortgage was not acknowledged before a proper officer as such. There is nothing in the body of the certifieate, or annexed to the signature of the person taking it, which shows his official character. The initials J. P.” are not sufficient to show that the acknowledgment was before an authorized officer ; this fact should appear in the certificate of the officer himself. Lessee of Johnson v. Saines, 2 Ohio Rep. 278. The initials “ J. P.” would stand as well forjudge of police or judge of probate as for justice of the peace. See Lessee of Shulz v. Moore, 1 McLean 527.
    3. The pretended mortgage was never legally recorded, the record not having been signed by the recorder.
    4. The mortgage did not take effect as against these creditors, from the time of its delivery to the recorder. Such might be the effect whilst it remained in the recorder’s office, or during the twenty days given him in which to record it; but it certainly could not have that effect a year or more after it was taken from the office.
    5. The error alluded to, cannot be corrected as against the judgment liens. White v. Denman, 16 Ohio Rep. 59.
    6. But if the original mortgage was good, as recorded it was not sufficient to give defendants constructive notice, (and there is no pretense that they had actual notice even of the record,) because the record shows the initials to be J. W.
    7. The error in describing the two notes as executed and delivered to William Tousley by the said Reuben Tousley, is not cured by showing that William was the sole owner of the notes.
   Ranney, J.

It is somewhat difficult to discover the “ important and difficult questions” which weighed upon the minds of the district court, in ordering this case to be reserved. There seems to be but one which we could justify ourselves in taking any space in the reports to consider, and that chiefly for the purpose of explaining a difference between this case and other decisions of this court, which the learned counsel for the defendants seem to have overlooked. It is true, that the notes intended to be secured by this mortgage are very inaccurately described. If error, instead of accuracy, had been the object of the draftsman, he could hardly have committed more. But still it is very easy to see how the most material of them occurred, and none of them amount to any thing more than clerical inaccuracies.

That the mortgage was given to secure an honest debt, and that the notes produced are those intended to be described in it, is not denied. We find the mortgage to have been properly executed and recorded long before the judgments were recovered. That these mistakes could be made available to defeat its lien, as between the parties, will hardly be pretended. And if not between the parties, how are the judgment creditors of the mortgagor to stand in any better situation ? Before the recovery of their judgments, the debtor had conveyed the legal title, and had nothing left but an equity of redemption upon which the lien of the judgments could attach. In pursuing this lien, they take his place, stand in his shoes, and can relieve the land from the incumbrance upon no better terms than he could. Indeed, as between these parties, it is wholly immaterial how many mistakes were made in recording the mortgage. The necessity of recording a mortgage, to give it effect as against subsequent incumbrances, arises alone from the statute; and all the decisions that have been made, have involved the construction of the statute. It is unnecessary to refer to them in detail. They simply amount to this: — that, as against third persons afterwards acquiring an interest in, or lien upon the property, a mortgage, until delivered to the recorder for record, is wholly inoperative to convey or incumber the land, either at law or in equity. Some of the earlier cases speak of this delivery to the recorder, as a part of the execution of the instrument; but whether that can be properly said or not, it is certain, that the statute has made it an indispensable condition to the taking effect of the mortgage, as against such third persons. The statute expressly provides when it shall have its full effect against everybody — it “ shall take effect and have preference from the time the same is delivered to the recorder of the proper county, to be by him entered on record.” When this is done the statute is satisfied, and the land is effectually conveyed and incumbered. All judgment liens thereafter attaching are subject to the mortgage, and operate only upon the equity of redemption.

The distinction between such a case and those in which the judgment lien has been preferred, is most apparent. In those cases, either because the mortgage had not been delivered to the recorder, or because it was defectively executed and not entitled to record, the judgment lien attached before it had taken effect as against the creditor; while in this, the judgment was not rendered until after the mortgage had taken effect, by a full compliance with the terms of the statute. Yery different considerations might be presented in a contest with a subsequent bona fide purchaser, in view of the provisions of the eighth section of the act of 1831. It was in reference to these considerations, that the cases of Lessee of Jennings v. Ward, 20 O. R. 261, and Brown v. Kirkman, 1 Ohio St. R. 116, were decided.

In the first of these cases, the recorder had mistaken the name of the grantor, in making the record of the elder deed; and the junior deed had been taken by a bona fide purchaser, without actual notice of the existence of the other. The court held the first deed not duly recorded; and, as a purchaser can only be charged with constructive notice from the record, when the record, if examined, would have furnished actual notice, allowed the title of the subsequent purchaser to prevail. This case -was not overruled, as counsel suppose, in deciding Brown v. Kirkman; nor is the latter in any way, or to any extent, inconsistent with it. That was the case of two mortgages. The elder was properly executed and delivered to the recorder, who made a mistake, in the description of the land, in placing it upon record; but the junior mortgagee had actual notice of its existence, independent of the record. The court held, that the lien of the mortgage, under the statute, was perfected by its delivery to the recorder, and that the junior mortgagee, having notice in fact of its existence, did not occupy the position of a subsequent bona fide purchaser. While the record, in both cases, was held to be insufficient to affect a subsequent purchaser with constructive notice, the important difference between them (and one that might furnish something of an excuse for a different decision) was, that in the one case the purchaser had no notice and was defrauded, and in the other had notice and was not defrauded. The one was, therefore, protected, and the other not.

But this question could never arise between a mortgagee and a subsequent judgment creditor, for the plain reason, that such a creditor is not a purchaser, nor entitled to the privileges of that position.

So far as the statute goes, in giving him a preference over mortgages not perfected by a delivery to the recorder, his rights are absolute, but for every thing else, he is remitted to general principles; and upon general principles, it is very clear, that he acquires a lien only upon the interests of his debtor, and is bound to yield to every claim that could be successfully asserted against him.

This mortgage, having taken effect by a delivery to the recorder, and in fact, as we think, having been duly recorded before the recovery of the defendants’ judgments, and notwithstanding the errors of description, being a good security against the mort gagor, is, in our opinion, equally available against the judgment creditors.

In respect to other questions presented, it is qnly necessary to say, that we find nothing in any of them to defeat or postpone the lien of the mortgage.

A decree will be entered giving the mortgage priority, and ordering a sale of the property.


author: Thurman, C. J.

text:
    Ohio, for the Use of A. H. Burritt and Hannah Burritt his Wife, v. Asa Cowles and Erastus Spencer, impleaded with Ralph Cowles.
    Ia an action of debt on an administrator’s bond, brought under the act of March 1, 1834, 1 Curwen 140, it was necessary to aver in the declaration a demand upon the administrator for payment, or sufficient matter of excuse for not having made such demand.
    The general averment of demand, licet sepius requisitus, is sufficient upon general demurrer, but not upon special demurrer.

      A judgment for a plaintiff upon issues of fact, will not be reversed because the court omitted to pass upon an issue of law made by a demurrer to a plea, if the plea was so bad in substance that the matters thoreof constituted no bar to the action.
    Error to the District Court of Geauga county.
    The original action was debt on an administrator’s bond, executed June 21,1838, conditioned for the faithful performance by said Asa Cowles of his duties as administrator of the estate of Edmund Cowles, deceased.
    Declaration sets up, in assigning breach of said bond, that the intestate left Hannah Cowles, since the wife of A. H. Burritt, his widow; and Caroline and Sybil, infant daughters by the said Hannah, arid sole heirs, entitled to distribution of the personal property; that after the final settlement of said estate, in March, 1843, Caroline, without issue, died intestate, leaving Sybil her heir, and that in April, 1843, Sybil died also, intestate and without issue, leaving no brother or sister of the whole or half blood, whereby, as sole surviving parent, the said Hannah became her heir as to personal property, and would take the whole personal property in the hands of the above administrator on final settlement, etc. Said Hannah intermarried with Burritt in 1844.
    That Asa Cowles, as administrator, made his final settlement, which was duly recorded, etc., in 1841, showing in his hands, subject to distribution to said widow and heirs, f>1,363.87; which sum he did not pay over to said widow and heirs in their lifetime, though often requested so to do ; nor did he pay the same to the said Hannah, or said A. H. Burritt, though often requested so to do, etc.

    To this the defendants plead specially:
    1. Payment of said balance to said Caroline, said Sybil, and said Hannah.
    2. Payment to said Sybil and said Caroline.
    3. By agreement with said Hannah, while sole, all of said money was to be paid to said Sybil and Caroline.
    4. Said Hannah is not entitled to said money.

      5. The plaintiffs have never demanded said sum, of money of the defendant, Asa Qowles ; concluding with, a verification.
    To the above pleas, except the fifth, the plaintiff replied, and to that demurred generally.
    The record shows no disposition of this demurrer; that at the April term, 1850— the case having been commenced in 1848 — trial was had, and judgment for the amount of the bond, with an award of execution for $669.18, the amount found to be due in equity, and costs.
    The case was removed into the district court on error, in September, 1852, and disposed of at. the April term of that court, 1853, by reversing the above judgment of the eommon pleas, for the reason that the court proceeded to try the issues of fact in said case, while said issue of law was undisposed of.
    To reverse this judgment of reversal, the present petition was filed.

      A. 6r. Middle, for plaintiff in error.

      JI. Goodwin, for defendants in error.
   Thurman, C. J.

The common law practice requires issues of law to be disposed of before the trial of issues of fact, and this rule was incorporated into the practice act of 1831.

It is obvious that all the issues, whether of law or fact, should be decided before giving judgment for a plaintiff.

Both these rules were violated in this case. Not only were the issues of fact tried without first deciding the law issue, but the latter was never decided. Without taking the least notice of it, judgment was given for the plaintiff.

That this was erroneous, is not denied ; but it is claimed that it was error that did not prejudice the defendants below, and that, therefore, it furnishes no ground for a reversal of the judgment. It is said that the plea demurred to, was wholly insufficient ; that no valid judgment for the defendants could have been rendered upon it; and that, consequently, it is immaterial that it was not noticed.

Does the doctrine that error not prejudicial .to the party complaining, affords no ground for reversing a judgment, apply to a case like this — namely, to a case where an issue has not been passed upon ? We see no sufficient reason why it should not, and we think it is settled by the authorities that it should. Swank v. The State, 3 O. S. Rep. 429 ; Young v. The State, 6 O. R. 437; Ferrill v. Humphrey, 12 O. R. 112.

Was the plea insufficient in substance ? for mere insufficiency in form would hardly excuse its being unnoticed.

1. It is said that it tendered an immaterial issue, for no demand was necessary before suit brought.

To this, it is replied, that the action was brought under the administration statute of 1840, which expressly requires a previous demand; but that, if it was even governed by the act of 1834, 1 Curwen 140, a demand was necessary, by the terms of that act, and upon general principles.

That the act of 1840 has no application to the case, is settled by McGooney v. The State, 20 O. R. 93, construing the last section of that act. There would be no ambiguity in that section, if it were correctly printed. The last word in it, “ act,” should be read “ acts.”

But the act of 1834, (1 Cur. 140,) is applicable, and it gives the action only where payment is “ withheld.” It would seem clear, therefore, that, in general, a demand is necessary; otherwise it cannot be said that payment is withheld. For it is not the duty of the administrator to go to the distributees to make payment, but their duty to go to him to receive it.

A case can well be conceived where a demand would be excused, because the circumstances, without a demand, sufficiently show a withholding of payment; as when the administrator absconds, or secretes himself. And the case of his removing from the State is expressly provided for by statute.

But, in all these exceptional cases, if there has been no demand, the matter of excuse must be averred, and as there is no such matter of excuse set forth in the present declaration, we must hold that, for aught that appears, a demand was necessary to lay the foundation for the action.

2. It is said that the plea is insufficient, because it does not aver that no demand was made by Caroline and Sybil, (the children.)

We think this objection well founded. The plea undertakes to answer the whole declaration, and, unless it do so, it is bad in substance.

Now, the declaration avers that the portions of Caroline and Sybil became payable in their lifetime, respectively, and were not paid, though the administrator, in their lifetime, was often requested to make payment.

If payment was demanded by Caroline and Sybil, it was not necessary for their heiress, Mrs. Burritt, to repeat it. Hence, the plea, that merely avers that she and her husband never made a demand, does not show that Caroline and Sybil had not done so. All the facts averred in the plea may be true, and yet a perfect right of action exist for the portions of Caroline and Sybil.

But it is said by the defendants in error, that if a demand was necessary, it should have been averred specially in the declaration, which is not done; and hence, even if the plea is bad, the demurrer, reaching back to the first defect, is fatal to the declaration, .and, consequently, to the judgment.

That the demand should have been specially averred in the declaration, is undoubtedly true ; and it is also true that there is no such special averment in it. But there is the general averment of “ though often requested so to do ” — the “ licet sepius requisite ” — and the question is thus presented, whether this general averment is sufficient upon general demurrer. For, if it is, the demurrer does not reach it — as a general demurrer reaches back to defects of substance only, in the previous pleading, and not to mere defects of form.

A majority of the court think the declaration sufficient upon general demurrer.

Before the statute of jeofails, 4 Anne, c. 16, a contrary doctrine was held, and the old cases have sometimes been followed, without attention being paid to the effect of the statute.

But the modern cases and elementary books certainly hold that the general averment is sufficient upon general demurrer. Bowdell v. Parsons, 10 East 359; Baar v. Wilber, 2 Cowan 117 ; 2 Humph. 417 ; 1 Chitty’s Pl., 2d ed., 331; Tidd’s Practice, 9th ed., 439.

Judgment of district court reversed, and that of common pleas affirmed.

Ranney, J,, dissented.


author: Bartley, J.

text:
    Thomas H. Curd v. Vanaken Wunder.
    Where a mortgagor of personal property, hy the express terms of the mortgage, retains the possession of the property until condition broken, such possession being coupled with a beneficial use, the special interest or property of the mortgagor is subject to execution or attachment by his other creditors.
    The right to the immediate possession of the property in controversy, being ’ essential in order to maintain replevin, that action cannot be maintained by the mortgagee of chattels before condition broken, when, by the terms of the mortgage, the mortgagor is entitled to retain the possession and use until the maturity of the debt.

    In such case, if the security of the mortgagee is placed in jeopardy by proceedings on behalf of the other creditors of the mortgagor, the appropriate remedy of the mortgagee is by a proceeding in equity.
    Petition in error to reverse the judgment of the District Court of Hamilton county.
    The original action was replevin, instituted by the defendant in error against the plaintiff in error, in the court of common pleas, for the recovery of certain chattels, constituting the furniture, decanters, glasses and stock of liquor, in a hotel called "The American,” in the city of Cincinnati. After trial in the common pleas, the case was taken to the district court on appeal.
    It appears, from a bill of exceptions taken on the trial in the district court, that Curd, the defendant below, had taken the property in controversy, in the capacity of constable, on an execution in his hands against one Valentine Burk; and that Wunder, the plaintiff below, had replevied the property, claiming it by virtue of a chattel mortgage, taken to secure a debt which Burk owed him, in the sum of twelve hundred dollars, payable in two payments, the last of which was to become due at the expiration of two years after the date of the mortgage. And it was specially stipulated in the mortgage, that Burk was to remain in the possession of the property until default in the last payment; and it appeared that Burk, as the keeper of the hotel, was in the possession and use of the articles, from the time of the mortgage, as he had been before, until the time of the levy. The mortgage was executed February 17th, 1851, and filed with the recorder on the 22d of the same month. And on the first of March, 1851, the judgment was recovered against Burk'; on which, on the same day, the execution was issued, and levy made on the said property, by the plaintiff in error.
    It further appears, from the bill of exceptions, that on the trial, the defendant asked the court to charge the jury as follows, to wit: 1st. That if they were satisfied, from the mortgage given in evidence in the case, that Wunder was not, by its terms, at the time of said levy, entitled to the possession of the property specified in said mortgage, he was not entitled to recover in this suit. 2d. That if the jury were satisfied, from the evidence, that it was the stipulation and understanding, of both the mortgagor and the mortgagee, at the time the mortgage was given, that the mortgagor should consume, or sell and dispose of, in the way of his business, any portion of the property embraced in the mortgage, this was a fraudulent arrangement, which would vitiate the whole instrument, and the plaintiff was not entitled to recover. These charges the court refused to give, but charged the jury, on the first point, that although, by the terms of the mortgage, the mortgagor was to retain possession of the property until default made in the payment of the debt; yet, if his possession was invaded, and the property taken out of his possession by a third person, as in the present case, by a levy, the mortgagee would at once be entitled to the possession, and to maintain replevin for the property. And, on the second point, the court charged the jury, that although a mortgage of personal property, of which the mortgagor retained the possession, with the right to, and understanding between him and the mortgagee, that he might consume it, or sell and dispose of it, was void; yet where articles, in reference to which such an understanding existed, or might be presumed, were embraced in the same mortgage with other articles, in reference to which there was no such understanding, and which were not articles of traffic, but furniture, fixtures, etc., capable of separation, the mortgage as to such articles would, nevertheless, be good; and that such a mortgage would be bad and void, if void at all, only for the articles which were to be used up, or disposed of, and good for the residue. Whereupon the jury returned a verdict in favor of the plaintiff below, on which judgment was rendered. And to reverse this judgment, this petition in error is prosecuted.

      A. H. McGuffey, and Miner & Oliver, for plaintiff in error, made the following points:
    The judgment debtor, at the time of the levy, had a valuable interest or property in the articles mortgaged, and one which the mortgagee could not have deprived him of, until his debt matured and was unpaid. Collins v. Evans, 15 Pick. R. 63; Britt v. Aylett, 6 English (Ark.) R. 475.
    The policy of the law forbids a judgment debtor from securing to himself, beyond the reach of his creditors, a valuable interest of this sort. If he may do so for two years, he may for any number of years.
    The mortgagor’s interest in the property, in this case, was a possession coupled with a beneficial use, and was similar to the interest of a mortgagor of lands before condition broken, and was subject to execution.
    A party cannot maintain replevin against a sheriff or constable, for property taken by the latter on execution from the possession of the judgment debtor. Kellogg v. Churchill, 2 New Hamp. R. 412; Wheeler v. Train, 4 Pick. R. 167; Judd v. Fox, 9 Cow. R. 259; Thompson v. Butler, 14 Johns. R. 84.
    A party, to maintain replevin, must have the property in the goods, and an immediate right to reduce them into possession. Dunham v. Wykoff, 3 Wend. R. 280; McCurdy v. Brown, 1 Duer (N. Y.) R. 101; Collins v. Evans, 15 Pick. R. 63; Britt v. Aylett, 6 English’s R. 475, cited above.

      B. D. & J. H. Handy, for defendant in error, made the following points:
    The mortgagee, by the mortgage, acquired the legal title tthe chattels. The filing the mortgage operated, to all intents and purposes, as a delivery to the mortgagee.
    Before the statute which authorized the filing, it was not the possession' which was subject to levy — the thing itself was levied on, upon the presumption, arising from possession, that the property belonged to the person in whose possession it was found. It was upon the ground, not that the right, or license of the mort gagee to the mortgagor, to keep possession, was subject to levy, but because it was denied that any thing had passed from the mortgagor to the mortgagee.
    In this case, there was no possession coupled with a use — there was no privilege granted to use; the mortgagor’s right was but a mere license, revocable at any moment, and not subject to levy.
    The following authorities sustain the charge of the court below: Bates v. Wiles, 1 Handy 534; 2 Spence’s Eq. Ju. 771; Story on Bail., sec. 346; Kemp v. Westbrook, 2 Caine’s Cases in Error 201; 1 Ves. 278 ; Costligan v. Lansing, 12 Johns. 145 ; Cfarlic v. James, 4 Denio 231; Stearns v. Marsh, 2 Hilliard tn Mortg. 241; Hall v. Snowkill, 2 Green 8; Allen v. Lincoln, 13 Met. 204; Forbes v. Parker, 16 Pick. 462; 5 Barn. & Aid. 826 ; Spriggs v. Camp et al., 2 Spear 181.
    Replevin was sustained against officers, in Pickard v. Low, 3 Shep. (Maine) 52; Waldo v. Sumner, sheriff, 5 Pick. 58; Band v. Jewett, 5 Greenl. 96 — 100; Dunham v. Wickoff, 3 Wend. 280.
    In Shurtleff v. Willard, 19 Pick. 202, 211, 212, it was held, that a mortgage of chattels, though void as to a part of the thing mortgaged, on account of their character, is not void as to those proper to be mortgaged.
   Bartley, J.

It is conceded on behalf of the plaintiff in error, that there was no error in the charge of the court below to the jury, on the second point made in the instructions asked, and which seems to be in accordance with the rule in Shurtleff v. Willard, 19 Pick. R. 202. But it is insisted that the court erred in charging the jury as follows : “ That although, by the terms of the mortgage, the mortgagor was to retain possession of the property until default made in the payment of the debt; yet if his possession was invaded, and the property taken out of his hands by a third person, as in the present case, by levy, the mortgagee would at once be entitled to the possession, and to maintain replevin for the property.”

Where a mortgagor of personal property, by the express terms of the mortgage, retains the possession of the property until condition broken, such possession being coupled with a beneficial use, but not for purposes of consumption, the special interest or property of the mortgagor is subject to execution or attachment by his other creditors.

The right to the immediate possession of the property in controversy, in this case, being essential in order to maintain replevin, that action cannot be maintained by the mortgagee of chattels before condition broken, when, by the terms of the mortgage, the mortgagor is entitled to retain the possession and use until the maturity of the debt.

In such case, if the security of the mortgagee be placed in jeopardy by proceedings on behalf of other creditors of the mortgagor, the appropriate remedy is by a proceeding in equity.

Judgment of the district court reversed, and cause remanded.


author: Kennon, J.,

text:
    Gwin, Reid & Taylor v. Thomas Selby and others.
    Upon a hearing upon bill and answer, the answer will be taken as true in all points; and such answer cannot be contradicted except as provided in section thirty-one of the chancery act.
    When a bona fide sale is made of the property of a firm by its members, before any proceedings either in law or equity are instituted by a creditor of the firm, sucb creditor cannot, by any subsequent proceeding, acquire a lien upon the property thus disposed of.
    As a general rule, a creditor of a firm has no lien upon the partnership property until acquired by process of law.
    Whore one member of a firm purchases goods or borrows money for the firm on his own credit, giving surety for the payment of the money or for the goods, and such money or goods go into and are used by the firm, and the surety has to pay as such, the firm may convey the goods of the firm to such surety in satisfaction for the money thus paid, and a creditor of the firm cannot set aside such conveyance merely because he was, at the time of such conveyance, a creditor of the firm.
    In Chancery. Reserved in the District Court of Gallia county.
    The bill was filed February 1st, 1853, and states, iri substance, that Selby and Shuck, as partners, are indebted to the complainants in the sum of $587.09, on a note of hand dated Nov. 26, 1851, payable to the order of complainants in six months ; that a suit at law had been brought upon said note on or about January 29th, 1853, and was pending; and that Selby and Shuck are possessed of a certain store of goods, and certain notes and accounts due them, and that they threatened to or were about to convey the same to John Frazee, for himself and James Salmonds, in fraud of their creditors, and without consideration.
    The complainants pray for an injunction, discovery and relief.
    The judge of the common pleas granted an injunction as prayed for.
    It appears'from the answers of Shuck, Frazee and Salmonds, that-the latter two purchased the goods on the 26th of January, 1853, and the notes and accounts on the 27th of January, 1853, in payment of debts due them from the firm of Selby and Shuck. That a portion of the indebtedness to Frazee and Salmonds arose in this way: Thomas Selby, in behalf of Selby & Shuck, and Frazee and Salmonds, on 24th of January, 1852, borrowed from the Athens branch of the State Bank of Ohio, $700 ; Frazee received $200, Salmonds $200, and Selby $300 ; that said Selby, John Frazee and Salmonds, to secure said loan, drew their bill on Baltimore with sureties, payable at four months to Crawford, cashier, for $700. The answer of Shuck avers that the $300 was obtained for and went to the use of said firm of Selby & Shuck. John Erazee and Salmonds had to pay the whole of said bill, and Selby never paid any portion thereof. This was done after several renewals, to which Selby was not a party.
    On the 26th of January, 1853, there was due to Erazee and Salmonds, on this bank transaction, the sum of $309, including interest.
    The answers further show that Selby also bought a stock of goods of one Hard, and that the goods came to the use and benefit, and became the property, of said firm of Selby & Shuck, for which Selby, on the 19th day of April, 1851, gave his three notes to Hard, with Erazee and Salmonds as sureties. Erazee was also a co-surety with one Ervin for Selby, on a small note given by him for his individual benefit to one Keenan. In consideration of the indebtedness arising out of the Athens bank loan, and on the said Erazee and Salmonds agreeing to pay the Hard notes and the Keenan note, and in consideration of fifty dollars by them paid to Shuck, these goods, notes and accounts of Selby & Shuck, were, at the dates above stated, transferred by Shuck to Erazee and Salmonds, while Selby was in California, and in ignorance of the transfer.
    Selby did not answer, and the case went to hearing upon bill and answers of Shuck, Erazee and Salmonds.

      Alonzo Cushing, for complainants.
    One partner cannot apply the partnership effects in payment of his individual debts ; and his creditor, to whom such a transfer is made, cannot hold them against the firm, or the creditors of the firm. It is a fraud in both parties, in thus undertaking to misapply the assets of the firm to the benefit of one of its members. Colly. Part. 280 ; Hope v. Crest, 1 East Rep. 53 ; Bourne v. Wooldridge, 10 B. Monroe 492 ; Miner v. Gaw, 11 S. & M. 322 ; 11 U. S. Dig. 356, sec. 40 ; 9 U. S. Dig. 354, sec. 20.
    The following authorities are sufficient to show that not only the note discounted at the Athens bank, but the note given to Hard for the goods purchased of him, bound only Selby, and not the firm of Selby & Shuck. For all these debts, no one but Selby was liable; on none of them could a suit be maintained against the firm of Selby & Shuck, but only against Selby alone. Colly. Part. 868 ; Tijjinv. "Walker, 2 Camp. Rep.' 308; Mrnby v. Tye, 15 East Rep. 7 ; Graeff v. Hitchnan, 5 Watt’s Rep. 454 ; Bevan v. Lewis, Stokes v. Whitaker, 1 Sim. 376, 2 Eng. Chan. Rep. 189; Sefton v. Walker, 1 Camp. Rep. 104 ; Mason v. Ramsey, lb. 384; Green v. Tanner et al., 8 Mete. Rep. 411; Ostrom v. Jacobs et al., Ib. 454 ; Mvans v. Drummond, 4 Esp. Rep. 93 ; Springer v. Shirley §• Hyde, 11 Maine Rep. 204 ; In re Warren, Daw. Rep. 320; 10 U. S. Dig. 344, sec. 12; Griffithv. Baffum, 22 Yerm. (7 Wash.) Rep. 181; 11 U. S. Dig. 356, sec. 43.
    Lord Eldon in Mx parte Mmly, 1 Rose 61, (Collyer on Part, 266, note d,) says that where goods are sold to A & B, and it is a part of the contract that A shall give bills of exchange, there the firm is not bound. So where a creditor having the note of a partnership, gives up that note and takes the note of a single member of the firm, he thus loses his right to look to the firm ; his sole remedy is on the new note against the single partner signing it. Arnold v. Gamp, 12 Johns. Rep. 409; Waugh v. Ganiger, 1 Yerger Rep. 31.
    See also Tom v. Goodrich et al., 2 Johns. Rep. 213 ; Murrill v. Niell, 8 How. Rep. 414; Bartres v. Tisdall, 4 Barb, S. C. Rep. 571. A partner, who is also a creditor of the firm, cannot be paid until all other creditors of the firm are paid. 8 U. S. Dig. 295, sec. 71; Simral v. O’Bunnon, 7 B. Monroe 608 ; 9 U. S. Dig. 356, sec. 53 ; Buchan v. Sumner, 2 Barb. Ch. Reps. 165.

      L. Perry, for defendants.
    The sale of the goods to Frazee and Salmonds was absolute and bona fide, and for a consideration sufficient to vest them with the title.
    The facts of the transaction will, in equity, control the form,
      especially where there is a full recognition of the liability 'of the firm by the partners, and an actual payment, as in this case.
    The assumption of the debts by Erazee and Salmonds, for the payment of which they were sureties, was a sufficient consideration for said sale to make it absolute. Said defendants at least had a right to receive said goods, as an indemnity against their liability as sureties. AJdnson et al. v. Tomlinson et al., 1 O. S. Rep. 237.
    The notes and accounts must be treated as security for the excess of said defendants’ liability as sureties over and above the goods, and they would be accountable for the residue, if there should be any. Ib.
    The Athens bank debt and the Hard debt were not the separate debts of Selby; but were recognized and paid by the firm, by the transfer of the firm property, in good faith and without fraud, before any suit was instituted by the complainants.
    Partnership creditors have no lien upon the property by the firm, either at law or in equity, and the preference that is given to them on dissolution grows out of an equity existing in favor of the partners among themselves. 11 Ohio Rep. 394.
    A bona fide transfer of partnership property to a partner, and by him to a stranger, for a valuable consideration, passes both the legal and equitable title to the property against the creditors of the firm. Ib. 394, 411.
    See Story on Part., sec. 358, and cases there cited. Sec. 97, note 1, sec. 326, note 1.
   Kennon, J.,

delivered the opinion of the court.

Upon a hearing upon bill and answer, the answer will be taken as true in all points; and such answer cannot be contradicted, except as provided in section thirty-one of the chancery act.

When a bona fide sale is made of the property of a firm by its members, before any proceedings, either in law or equity, are instituted by a creditor of the firm, such creditor cannot, by any subsequent proceeding, acquire a lien upon the property thus disposed of.

As a general rule, a creditor of a firm has no lien upon the partnership property until acquired by process of law.

Where one member of a firm purchases goods or borrows money for the firm on his own credit, giving surety for the payment of the money, or for the goods, and such money or goods go into and are used by the firm, and the surety has to pay as such, the firm may convey the goods of the firm to such surety in satisfaction for the money thus paid; and a creditor of the firm cannot set aside such conveyance merely because he was, at the time of such conveyance, a creditor of the firm.

The bill must be dismissed with 'costs, saving such rights as the complainants may have to any surplus arising from the assets in the hands of the defendants, Frazee and Salmonds, after fully indemnifying themselves.


text:
    Richard Johnson v. Richard W. Hays.
    L. contracted with H. to deliver to him, on the 24th of January, 258 hogs, with the privilege of increasing the number to 300, L. agreeing to take them back into his possession and keep them till the 1st of October following, and then re-deliver them to H.; the lightest of the hogs to weigh not less than 140 lbs. gross. H. bound himself to pay L. $4.25 per cwt. for the hogs, as follows: $300 on delivery, $200 on the 15 th of March thereafter, $200 more in the spring or summer, as L. needed it, and the balance on the return of the hogs by L. to H., in October. On the 24th of January, L. delivered the hogs, 288 in number, to H., and afterwards took them back into his keeping under the provisions of the contract; and H. at the same time paid L. $300 and subsequently, in different payments, $600 more. In July, L., without the consent of H., and against his directions, sold and delivered the hogs to J. for $850, with notice of the purchase by H. Held :
    That the property in the hogs passed to H. by the sale and delivery on the 24th of January.
    That L., in taking the hogs back into his possession, to keep till October, became a bailee of the property.

    That the provision for the delivery and transfer of the property was not illegal, or against public policy, but a proper precaution for the safety of the vendee, and not irreconcilable with a rational interpretation of the other provisions of the contract.

      That the privilege of increasing the number of hogs to 300, extended only to the time of the delivery, on the 24th of January.
    That the provision, that the lightest of the hogs should weigh at least 140 lbs., was a mere guaranty as to the weight.
    That the provision, that the hogs were to be weighed in October, was merely the mode of ascertaining- the full amount to be paid by H.
    Petition in error to reverse the judgment of the District Court of Madison county.
    The original suit was brought by Hays against Johnson in the common pleas of Madison county, for the recovery of the value of two hundred stock hogs, alleged to be worth nine hundred dollars, which Hays charged belonged to him, but which had wrongfully come into the possession of Johnson, who, on demand, refused to give the same up. The defendant Johnson, by his answer, claimed the property in the hogs, by an alleged valid purchase of the same from one John Lewis. Judgment was rendered in the common pleas for Johnson, which, on petition in error, was reversed by the district court; and Johnson now seeks to reverse the judgment of reversal.
    On the trial in the common pleas, the plaintiff Hays, to maintain the issue on his part, and prove his title to the hogs, gave in evidence a written contract between himself and one John Lewis, as follows, to wit:
    “ An article of agreement, made and entered into this 22d day of January, A. D. 1853, by and between John Lewis of the one part,' and R. W. Hays of the other part, witnesseth : The said John Lewis agrees and binds himself, to sell and deliver to the said Hays, on the 24th day of January, 1853, two hundred and fifty-eight hogs, with the privilege of increasing the number to three hundred. And the said Lewis binds himself to take the hogs into his possession, and keep, and re-deliver to the said Hays, the said hogs, on the first day of next October, the lightest of said hogs not to weigh less than 140 lbs. gross. The said hogs are to be neat, spayed, and trimmed, with the exception of four or five sows; said hogs to be weighed at Fitzgerald’s. And the said Hays agrees and binds himself to pay the said Lewis the sum of four dollars and twenty-five cents gross weight for said hogs, as follows : Three hundred dollars on the first delivery ; two hundred dollars on the 15th day of March, next; and two hundred dollars more in the spring, or summer, as the said Lewis may need it: said Lewis to pay the said Hays interest on the money advanced; the balance of the purchase money to be paid on the first day of October, at the second delivery of said hogs. As witness our hands this day and year above written.”
    The plaintiff further gave evidence tending to prove that the hogs mentioned in said contract, were in the possession of said Lewis at the time said contract was made ; that in pursuance of said contract, and the delivery and re-delivery therein mentioned, the said Lewis, at the time in said contract mentioned, drove said hogs into another corn field, and counted them, (the plaintiff and said Lewis not agreeing as to the number, but the plaintiff agreed to take them at said Lewis’-count, to wit, 288,) and then delivered them to the plaintiff; that the plaintiff thereupon delivered the said hogs back to said Lewis, to be kept by him as in said contract mentioned, until the 1st day of October then next, according to the terms of said contract; that the plaintiff paid said Lewis at the time said contract was made, the sum of $300, and subsequently the further sum of $400, and that he bought pasture and corn for said hogs to the amount of about $200, and charged the same to said Lewis with his consent, making an aggregate of payments of about $900. The plaintiff further gave evidence tending to prove that said Lewis, in June, 1852, applied to the plaintiff for permission to sell about thirty of the smallest of .said hogs, and that such permission was given, and a sale made accordingly. The plaintiff further gave evidence tending to prove that said Lewis, without the knowledge or consent of the plaintiff, and against his directions, in the month of July, 1853, and after the facts above mentioned had occurred, sold the residue of said hogs to the defendant for the sum of $850, and converted the proceeds of said sale to his own use ; and also that the defendant, when he bought the hogs, had a knowledge of the plaintiff’s rights in relation thereto. Upon this state of facts the defendant by his counsel asked the court to instruct the jury that, according to the terms of said contract, the title to said hogs did not vest, and could not vest, in the plaintiff, until it was ascertained what portion of them weighed 140 lbs. at the time said hogs were to be re-delivered to the plaintiff, on the first day of October, 1853. That the plaintiff would then have a right, and be bound to take only such of said hogs as should weigh 140 lbs. gross weight, and therefore the ownership could not pass to the plaintiff until said weighing. The counsel for the plaintiff objected to the instruction asked for by the defendant, and insisted that the title to the hogs vested in the plaintiff at the time they were delivered to him as aforesaid by said Lewis ; that the provisions in said contract as to the weight of said hogs, amounted to a warranty that the hogs should, at the time specified, "weigh each not less than 140 lbs. gross weight; and that the weighing was only a mode of ascertaining the amount to be paid ; and that whether the title to said hogs had passed to 'the plaintiff, was a question of intention between the parties; and that whether such intention had existed, was a matter of fact to be determined by the jury from the evidence in the case. And the court thereupon instructed the jury in accordance with the views of the counsel for the defendant, and directed the jury to return a verdict for the defendant. Thereupon the plaintiff by his counsel, excepted to said instruction and directions to the jury.

      Z. T. Fisher, and John W. Andrews, for plaintiff in error.

      Mr. Fisher cited Story on Sales, secs. 232, 313, 422; 2 Black. Com. 443 ; Moore’s L. Gram. 338 ; McDonald v. Eewet, 15 Johns. Rep. 349 ; Eallet v. Wylie, 3 Johns. Rep. 44 ; JacJcson ex dem. Ludlow et al. v. Myers, lb. 388 ; lb. 424 ; 5 Johns. Rep. 74 ; Jaclcson ex dem. Livingston v. Kisselbaclc, 10 Johns. Rep. 336 ; Scott v. Wells, 6 Watts & Serg. 367 ; Long on Sales, 267-275 ; Bush et al. v. Davis, 2 Maulé & Selw. 397 ; Shipley v. Davis, 5 Taunt. Rep. 621; JRugg et al. v. Minett, 11 East 210.

      Swayne & Baber, and R. A. Harrison, for defendant in error, made the following points:

      1. Theíacts show that it was the intention of the parties that the title to the hogs should vest in Hays when they were counted and delivered to him. It did so vest. The weighing to be done at the time of the second delivery, was merely to ascertain the amount to be paid. In all such cases, the title passes at the time of the contract and delivery. Hays chose thus to secure himself for the large amounts he- was to pay, according to contract, before the weighing and final delivery of the hogs. There was nothing illegal in such an agreement. If it were the intention of the parties that the title should pass at the time the seller counted and delivered the hogs, the law will uphold and give effect to that intention. Hilliard on Sales, secs. 4, 5,10,14,17 ; 6 Watts & Serg. 357 ; 13 Pick. 182; 20 Pick. 280 ; 2 Com-stock 258 ; 11 Humphrey 207.
    2. Lewis was estopped by matter in pais from denying that the title to the hogs was in Hays. Johnson could buy of Lewis no better right than he himself possessed. 1 Greenlf. Ev., sec. 207 ; 8 Wend. 483 ; 23 Wend. 230 ; 5 Denio 158.
    3. The provision in the contract as to the weight of the hogs on the first of October, was a guaranty and warranty that the hogs should then each weigh not less than one hundred and forty pounds gross weight. This provision no more affects the question of title than the same agreement with another person would.
    4. The common pleas erred in taking the case from the jury, and directing them to find a verdict for the defendant. There was evidence before the jury upon which they should have been allowed to pass. For this, if for no other reason, it was proper • to reverse the judgment of the common pleas. 13 Johns. Rep. 294 ; 1 Selden 41; 2 Gill 150 ; 20 Vermont (15 Shep.) 624; 2 Grattan 333 ; 17 Howard 85, 184,185, 186, 196.

      John W. Andrews, in reply, made the following points:
    1. The title to the hogs did not- vest in Hays at what counsel call the first delivery. The weighing of the property on the first of October, the exclusion of all hogs under 140 lbs. gross weight and the payment for the hogs according to weight, all remained to be done by fhe parties, before a perfect and full delivery thereof could be made. The law, upon grounds of public policy and right, requires these acts to be consummated, before the vesting of the title, under a contract of this character. Story on Sales, secs. 296, 297, 298 ; Sanson v. Meyer, 6 East 614 ; Sowe v. Palmer, 8 Earn. & Aid. 821; Long on Sales, 265. A mere formal, technical delivery, such as this “ first delivery ” was, cannot change or evade a well settled rule of law.
    2. The provision that the lightest of the hogs should weigh not less than 140 lbs. gross, is not merely a guaranty. Such a construction is inconsistent with other parts of the contract. When the vendor retains possession of goods, as in this case, the construction of the contract is against the vendee as a matter of public policy. Sornbeek v. Vanmetre, 9 Ohio Rep. 153.
   Bartley, J.

It appears that on the 22d day of January, 1853, Hays, the defendant in error, entered into a written contract with one John Lewis, whereby Lewis bound himself to sell and deliver to Hays, on the 24th day of the same month, 258 hogs, with the privilege of increasing the number to 300, Lewis agreeing to take them back into his possession, and keep them till the first of October following, and then re-deliver them to Hays ; the lightest of the hogs not to weigh less than 140 lbs. gross. And Hays bound himself to pay Lewis $4.25 per cwt. for the hogs, as follows: $300 on delivery, $200 on the 15th of March thereafter, $200 more in spring or summer, as Lewis needed it, and the balance to be paid on the return of the hogs by Lewis to Hays, in October. On the 24th of January, 1853, Lewis delivered the hogs, being 288 in number, to Hays, and afterwards took them into his keeping under the provisions of the contract; and Hays, at the same time, paid Lewis $300, and subsequently, in different payments, $600 more. In July of that year, Lewis, without the consent of Hays, and contrary to his directions, sold and delivered the hogs to Johnson, the plaintiff in error, for $850, with notice of the purchase by Hays.

This contract must be so construed as to carry out the manifest intention of the parties, apparent from the language, context and subject matter of the instrument, and the interpretation or understanding of the parties, to be gathered from their acts. Giving full effect to each of the provisions of the contract, the property, in the hogs passed to Hays by the sale and delivery on the 24th day of January; and Lewis, in taking the hogs back into his possession to keep till October, became the bailee of the property. This provision for the delivery and transfer of the property was not illegal, or against public policy, but a proper precaution for the safety of the vendee, and not irreconcilable with a rational interpretation of the other provisions of the contract — the privilege of increasing the number of hogs to 800, extending only to the time of the delivery on the 24th of January ; the stipulation that the lightest of the hogs should weigh at least 140 lbs. being a mere guaranty as to the weight; and the provision that the hogs were to be weighed in October, and Lewis to be entitled to $4.25 per cwt., being the mere mode of ascertaining the full amount to be paid by Hays, making it thereby the interest of Lewis to keep the hogs well, and to return the whole number.

Judgment of the district court affirmed, and cause remanded to the common pleas for further proceedings.

Swan, J., having formerly been of counsel, did not sit in this case.


text:
    The Medina County Mutual Fire Insurance Company v. Jefferson Palm, Administrator of Frederick Bollmeyer, deceased, et al.
    A decree, like a verdict, will not be set aside on the ground of an erroneous finding, unless it is clearly against the weight of the evidence, or clearly unsupported by it.
    Where there is no evidence at all to support a decree, it will be reversed for that reason.
    The decision in Bollmeyer’s Administrator v. The Medina Co. Mutual Fire Insurance Company, 20 Ohio Rep. 529, is not entirely satisfactory.
    Bill of review. Reserved in Summit county.

      McClure & McKinney, for complainants in review.

      Birchard & J. S. Ranney, for Bollmeyer’s administrator.
   Thurman, C. J.

This is a bill of review, praying a reversal of a decree pronounced by the late Court in Bank, upon a bill exhibited by Boilmeyer’s administrator against the Insurance Company. Most of the facts of the case are stated in the report of it, in 20 O. R. 529 ; though not very clearly. The bill averred the making of a contract to insure Bollmeyer against -loss by fire, a loss by that means, and a failure of the company to issue a policy pursuant to its contract; and prayed for a decree for the amount of the loss covered by the contract. The answer put in issue the making of the contract and the amount of the loss. A replication was filed, and testimony taken. The Court in Bank found for the complainant, and decreed that the company pay him $777, with costs of suit.

It is now assigned for error, that the court erred in rendering the decree, because:

1. There was no testimony before it showing the amount of the loss.

2. The testimony did not show the existence of the alleged contract.

We are clear that the decree must be reversed for the first of these reasons. We hold to the doctrine that a decree, like a verdict, will not be set aside on the ground of an erroneous finding, unless it is clearly against the weight of the evidence, or clearly unsupported by it. But here, there was no evidence at all of the value of the property destroyed; so the decree is clearly unsupported.

As it is desired that, in the event of a reversal, the cause may be remanded, in order that further testimony may be taken, it is perhaps proper that we should not, at this time, pass conclusively upon the point made by the second assignment of error. We will, therefore, merely say — for the information of the court below, and in order that it may not be concluded by the decision in 20 O. R.—that we are not entirely satisfied with that decision, and think that the question whether a contract was made, binding on the company, is yet an open question.

Ranney, J., having been of counsel in the original-cause, did not sit.


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    Charles K. Ferris et al. v. Ayres L. Bramble et al.
    In May, 1851, tbe court of common pleas had jurisdiction to revise, on certiorari, the proceedings of township trustees in establishing and opening a township road. The remedial statute conferring this jurisdiction, was entitled to a liberal construction.
    It is essential to the validity of the proceedings of township trustees, ordering a view and the establishment of a township road, that the record should show either that the notice of the application required by the statute was duly given, or that the trustees, before ordering the view, were satisfied that such notice had been given, the notice being a step which is essential and precedent to the exercise of the power.
    In case of the assessment of damages for laying out a road over the lands of any person, the damages or compensation for the land necessary to be taken, must be paid or tendered in money, or secured to be paid to the acceptance of the owner, before the opening of the road can be ordered.
    A township road, in this State, is a public highway, and subject to the use of all having occasion to travel it, and may be highly necessary to enable the person or persons most immediately and directly interested in it, to discharge properly, and without trespassing on their neighbors premises, many of the public duties enjoined upon them as citizens of the State. In the establishment of such roads, therefore, by the exercise of the right of eminent domain, private property may be made subservient to the public welfare, on payment of a compensation therefor in money.
    Writ of certiorari to tbe Court of Common Pleas of Hamilton county. Reserved in tbe District Court.
    Tbe following are tbe material facts in the case :
    On the first day of April, 1850, Ayres L. Bramble, the defendant in certiorari, petitioned tbe trustees of Columbia township to establish a road from the south line of his farm, on which he lived, southerly, through the lands of the heirs of Joseph Ferris, deceased, to intersect the Cincinnati, Columbus and Wooster turnpike road. The petition was signed by Bramble alone.
    On the second day of April, I860, two of the trustees directed an order to three viewers, to report as to the opening of said road, etc. The viewers reported in favor of establishing the road, and assessed the damages of Joseph Ferris and Charles Ferris, two of several heirs of Joseph Ferris, deceased, at one hundred and sixty dollars each.
    On the 18th of April, 1850, Bramble and another executed a bond to secure to the heirs of Joseph Ferris, the damages assessed by the viewers in favor of Joseph and Charles.
    On the same day, two of said trustees issued an order to open said road, the third trustee not being present.
    A writ of certiorari was allowed by the court of common pleas to reverse the proceedings of the trustees, and at May term, 1851, said writ was dismissed by the court for want of jurisdiction.
    A writ of certiorari was then allowed to the common pleas by the supreme court in Hamilton county, which was subsequently transferred to the district court, as its successor, and was reserved for decision in this court.
    Among the errors assigned by plaintiffs in certiorari, are the following :
    1st. The court of common pleas erred in dismissing the writ of certiorari for want of jurisdiction.
    2d. The proceedings do not show that any notice was given of the application for the road.
    3d. The giving bond for damages was not such a compensation in money as the constitution requires.
    4th. The appropriation was authorized because the proposed road is not one for public use, but merely for the private convenience of said Bramble, and is not such an appropriation to public use as the constitution contemplates.

      Woodruff & Hopkins, for plaintiffs in certiorari.
    Upon the question of notice, see 3 Green’s Ch. Rep. 57 ; 6 Paige’s Ch. Rep. 83; 1 Green’s Ch. Rep. 157.

      The giving bond for the damages was not a compliance with the constitutional requisition that compensation should be made in money. 6 Paige Ch. Rep. 83 ; 14 Ohio Rep. 174.
    All three trustees ought to have been present to make a legal order to open the road. 4 Denio 126 ; 23 Wend. 324; 21 Wend. 178 ; 6 Serg. and Rawle 170.
    The road was not one for public use, and the appropriation of the road-way was not for such public use as the constitution contemplates. 6 Paige’s Ch. Rep. 83 ; 5 Paige’s Ch. Rep. 5,159; 11 Wend. 149; 1 Domat Civ. L., b. 1, tit. 2, sec. 13; Tho. U. J. 171. Eor case precisely in point, see 4 Hill 140. See also 2 Pet. 657 ; 18 Wend. 59 ; Art. 8, sec. 4, Const.; '4 Ohio Rep. 287; 5 Ohio Rep. 118,139,393,485 ; 7 Ohio Rep.,Pt. 2, 114 ; Wright’s Rep. 132; 3 Yerg. Rep. 41, 51; 10 Watt’s Rep. 63 ; 6 Hill 47 ; 3 Comst. 517 ; 2 Kent’s Com.; 5th ed., 13, note C, 340 ; 19 Wend. 659 ; 2 Swan’s Rep. (Tenn.) 540 ; 4 Dev. R. 15 ; 5 Barb. 483.
    The common pleas had jurisdiction. 3 Ohio Rep. 383 ; 7 Ohio Rep., Pt. 2, 138 ; 9 Ohio Rep. 142.

      Charles Fox, for defendants in certiorari.
    The court will not presume that the board of trustees opened, or ordered this road to be opened, without first having the necessary proof of notice that application would be made therefor; the presumption should be the other way.
    All the preliminary steps need not appear in the record of the proceedings of such local boards. 4 Ohio Rep. 82; 5 Ohio Rep. 489; 17 Serg. & Rawle 388; 4 Gilman 499; 7 Dana 480 ; 5 Burney 484; 5 Wharton 445 ; 21 Maine 408.
    The appropriation of the road-way was to the public use, and was authorized by the constitution.
    The New York cases about private roads have nothing to do with this case. There, a local road is a private road, and can only be used by the party who applies for and makes the road ; but in Ohio, a township road, when open, is open for the public to travel upon.
   Bartley, J.

This case originated under the former constitution of the State, and, after the present constitution took effect, was transferred from the supreme court of Hamilton county to the district court of that county, from which court it came here by reservation.

The proceeding in the common pleas was certiorari, to revise the proceedings of township trustees, in the establishment of a township road. That court dismissed the case for want of jurisdiction, and it is alleged that there was error in this.

The court of common pleas had jurisdiction, by certiorari, to revise the proceedings of inferior tribunals, and jurisdiction of all other writs necessary for the due administration of justice. The remedial statute conferring this jurisdiction was entitled to a liberal construction. In Burrows v. Arthur, Vandevier and others, 3 Ohio Rep. 383, the Supreme Court entertained jurisdiction, by certiorari directed to the county commissioners, to review their proceedings on an application for the establishment of a county road. By the rule of interpretation adopted in that case, certiorari would lie in the common pleas, to correct the' errors of township trustees, as well as county commissioners, and all inferior tribunals authorized by law to pronounce judgment upon „any matter before them. The common pleas, therefore, erred in dismissing the certiorari in this case, for want of jurisdiction.

Numerous other errors are assigned, some of which it is deemed proper to decide in this case.

1st. That the proceedings of the township trustees do not show that any notice was given of the application for the road. It is essential to the validity of the proceedings of township trustees, ordering a view and the establishment of a township road, that the record should show, either that the notice of the application required by the statute was duly given, or that the trustees, before ordering the view, were satisfied that such notice had been given, the notice being a step which is essential and precedent to the exercise of the power.

2d. That the giving bond for damages occasioned by the road, was not such a compensation in money as the constitution required, and that tender of payment, or a deposit long after the action of the trustees, could not cure the defect in the original proceedings. In case of the assessment of damages for laying out a road over the lands .of any person, the damages or compensation for the land necessary to be taken must be paid, or tendered in money, or secured to be paid, to the acceptance of the owner, before the opening of the road can be ordered.

3d. That the proposed road was not for the public use, but merely the private convenience of the petitioner, and that, therefore, the land taken for it was not such an appropriation to the public use as the constitution authorized. A township road in this State is a public highway, and subject to the use of all persons having occasion to use it; and it may be highly necessary to enable the person or persons most immediately and directly interested in it, to discharge properly, and without trespassing on their neighbor’s premises, many of the public duties enjoined upon them as citizens of the State. In the establishment of such roads, therefore, by the exercise of the right of eminent domain, private property may be made subservient to the public welfare, on payment of a compensation therefor in money.

Judgment of the common pleas reversed, and the proceedings of the trustees of Columbia township, Hamilton county, set aside.


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    The Town Council of the Town of Newark v. Benjamin Elliott, Gilbert Brady and Samuel Winegarner.
    By an act of the Legislature of 1849, the town council of the town of Newark was authorized to subscribe to the stock of the Newark Plank Road Company not more than S10,000, and to issue bonds in payment of the slock, payable at such times, not exceeding ten years, and for such amounts, as the council might determine, bearing interest, payable annually, at the rate of seven per cent, per annum; and the town council was authorized to sell and transfer the stock, so soon as could be, at par. Hold:
    That the par value of the stock is an amount equal to the amount of stock subscribed.
    That a sale of such stock, by which the purchaser is bound to pay the bonds of $10,000 and interest, given by the town of Newark for the $10,000 stock, is a sale of such stock at its par value.
    'That when there is no restraining clause in the charter of a corporation, it may dispose of any property which it has the right to acquire.
    That the town council of the town of Newark is restrained from selling the plank road stock for less than the par value ; but it may sell the stock on credit, provided the sales amount to the par value of the stock.
    Where a corporation issues its own bonds, payable at a future day, with seven per cent, interest thereon, payable semi-annually, when by law it -was authorized to make the interest payable annually only, the person who contracts with the corporation, for a valuable consideration, to redeem such bonds, cannot avoid his own contract upon the ground that the corporation exceeded its authority in making the interest on such bonds payable semiannually instead of annually.
    If the object of the purchaser of this stock was to obtain the control of the stock of the plank road company, and thereby improperly use the provisions of the charter of the plank road company for the purpose of issuing and putting in circulation, as money and currency, the notes of the company payable to bearer, in violation of law, and such fact at the time of sale -was know'n to the town council of the town of Newark, and it made the sale for the purpose of enabling the purchaser to carry out such illegal purpose, and the purchaser was, by such sale, enabled more effectually to carry out his intention, and he did in fact do so, the sale of the stock was illegal and void.
    Action of debt on penal bond. Reserved in the District Court of Licking county.
    This is an action upon a bond in the penal sum of $20,000 given to the plaintiff on the 3d of May; 1851, by A. J. Smith, as principal, and the defendants as his sureties, conditioned that said Smith should pay the principal and interest thereafter to become due on certain bonds that had been issued by the plaintiff, by virtue of the authority contained in the act of March 14, 1849, (47 Ohio Local Laws 26,) sections one, two, and three of which read as follows:
    “ Section 1. Be it enacted ly the Gteneral Assembly of the State of Ohio, That the town of Newark, in its corporate capacity, may subscribe to the capital stock of the Newark Plank Road Company any sum not less than three nor more than ten thousand dollars, under the provisions hereinafter contained, and the town council of the town of Newark are hereby empowered to issue bonds in payment of the stock so subscribed, payable at such times as said council may deem expedient, not exceeding ten years, and for such amounts as said council may in its discretion determine for each bond.
    “ Sec. 2. Whenever twenty or more of the legal voters of said town shall petition the mayor thereof for that purpose, it shall be his duty to give notice to the electors of said town, by publication in the newspapers printed therein, at least twenty days prior to the day specified, to meet at the usual place of holding the elections in said town, and determine by ballot whether the said town council shall make said subscriptions ; at which time and place those in favor of said subscription shall vote ‘ for subscription,’ and those against it ‘ no subscription ’; and if, on the counting of said ballots, a majority be found in favor of the same, the said town council shall make said subscription as provided in the first section of this act, and shall cause bonds, bearing interest payable annually at the rate of seven per cent, per annum, to be issued, signed by the mayor, and countersigned by the recorder, for an aggregate sum equal to said subscription.

      “ Sec. 8. That said town council are hereby' authorized to sell and transfer the stock so subscribed, so soon as it can be sold at par, or at any time after, provided it can be sold at its par value.”
    The declaration sets forth the making of the bond and the recitals contained therein, whereby it is alleged that said Smith had purchased of the plaintiff two hundred shares of fifty dollars each of the Newark Plank Road Company at par, and which had at even date with the bond been transferred to said Smith, and that in consideration thereof, Smith had agreed to pay and indemnify plaintiff against its liability to pay nine bonds given by plaintiff to the Newark Plank Road Company for $1,000 each, dated May 1, 1850, and payable to bearer, January 1, 1860, at the office of the Ohio Life Insurance and Trust Company in New York, with seven per cent, interest, payable semi-annually; and also two hundred other bonds, for five dollars each, issued by plaintiff, dated May 1, 1850, and payable to bearer, part in five, part in six, and part in seven years from date, with seven per cent., interest, payable annually; that the interest had been paid on the nine $1,000 bonds to the first day of January, and the¡ two hundred $5 bonds to the first day of May next preceding the said sale ; that all said bonds had been given by plaintiff to said plank road company in payment for said stock ; and that it was thereby provided that if Smith should pay all said bonds and the interest thereafter to become due, according to the tenor of the bonds, and should also indemnify plaintiff against its liability therefor, and against all costs, charges and troubles which might arise from his (Smith’s) failure to pay, then said bond to be void, etc. The breaches are assigned in the declaration, and are the non-payment of the interest due in January and July, 1852, on the nine $1,000 bonds.
    To this declaration, defendants Elliott and Brady plead separately.
    No defense is made by defendant Winegarner.
    Elliott pleads non est factum, and nine special pleas.
    Elliott’s second plea (being his first special plea) alleges that plaintiff is the municipal authority of the town of Newark — that at the date of the bond in suit, and ever since, the Newark Plank Road Company has been a body corporate in the county of Licking — that by an act of the General Assembly, passed March 14, 1849, plaintiff was authorized to subscribe for $10,000 of the stock of said plank road company, for and on behalf of said town, provided a majority of the voters of the town should vote in favor thereof, and “ to sell and transfer the stock so subscribed, so soon as it could be sold at par, or at any time after, provided it could be sold at its par value,” — that plaintiff subscribed for the $10,-000 of stock, and the town became owners thereof — that plaintiff sold the stock to Smith in consideration of the bond in suit, and executed and delivered to him a paper purporting to transfer the stock, and which was apparently sufficient therefor — that plaintiff had no power to sell for that consideration, and that therefore the bond in suit is void, for want of consideration.
    The third plea of Elliott is similar to the second, except that it alleges that the bond in suit was delivered by defendants to Smith to be delivered to plaintiff upon the transfer by plaintiff to Smith of the title to the stock, of which condition the plaintiff had notice — that Smith delivered the bond without having obtained the title, because plaintiff had no power, for such a consideration, to sell the stock, and that therefore plaintiff wrongfully obtained the bond.
    The ninth plea of Elliott alleges that the two hundred shares of stock named in the declaration, are the same which were subscribed by plaintiff under the act of March 14, 1849 — that the par value of the stock was fifty dollars per share, amounting to $10,000 — that the value of the said ten thousand dollars of bonds which Smith agreed to pay, was less than the said par value of said stock, not being worth more than ninety cents on the dollar, or $9,000 — that, therefore, plaintiff had no power to make the said sale, and that the bond in suit is therefore void, for want of consideration.
    To each of these pleas the plaintiff demurs, for the following causes:
    1. That no cause is shown why the sale is not valid.
    2. That the pleas disclose a sale at par.
    3. That plaintiff had authority to sell, irrespective of the act of March 14,1849.
    4. That the sale ivas good, and the bond valid, even if plaintiff did not pursue the directions of the statute.
    5. That it is not averred that Smith lost or had tendered back the stock, although the declaration and plea aver that it had been' delivered to him.
    The fourth plea of Elliott avers that the person who acted as agent for the plaintiff, in effecting the transfer, was not authorized.
    ' This plea is said to be defective, because the declaration shows that the transfer was ratified by the plaintiff, and the question of •authority in the agent is, therefore, an immaterial issue. It is also said to be defective in not alleging a restoration or eviction of the stock.
    The fifth plea of Elliott alleges that the said town of Newark made the two hundred bonds of five dollars each, named in the declaration, in the form and similitude of bank bills, and put the same in circulation as money and currency, without authority of law, and contrary to the restraining act of 1845.
    The sixth is the same, except that it alleges an attempt to put in circulation, instead of an actual putting in circulation.
    The seventh plea alleges, in substance, that said town of Newark, the plaintiff, and said plank road company, being incorporated companies, yet none of them having banking powers, it was agreed by and between the plaintiff and said company, that the plaintiff should be suffered to subscribe to and take said stock, for which the plaintiff on its part should, in addition to making and delivering to plaintiff five $1,000 bonds like those described in the declaration, also make and deliver one thousand $5 bonds like those described in the declaration, and which plaintiff should cause to be made in the similitude of bank notes — it being the design of said company to put or attempt to put the same in circulation as such — which said agreement was carried dut by plaintiff, thus obtaining said stock, and making and delivering as agreed said $1,000 and $5 bonds, which last the plaintiff thereupon attempted to circulate as money. And- it is also charged that the plaintiff had notice of such design of said company, and so made said five dollar bonds in order to enable said company to carry out its design. It is then alleged that this contract was in violation of the act of 1845 prohibiting unauthorized banking, and therefore illegal and void ; and the bond in suit, being made in aid and in execution of said 'illegal contract, is itself illegal and void.
    These pleas are also demurred to, and for the following causes:
    1. That the bond in suit is wholly disconnected from the illegal act set forth, founded on distinct considerations, and not intended or calculated to carry out any illegal purpose.
    2. That even if the five dollar bonds were put, or attempted to be put in circulation, contrary to the restraining act of 1845, still plaintiff is bound to pay them, and might lawfully provide therefor.-
    3. That the defendants being third persons and strangers to the alleged illegal transaction, can not set it up as a defense to their contract.
    4. That the pleas do not disclose a defense to the whole bond in suit, if they do to any part of it; and do not at all answer the breaches set forth in the declaration.
    The eighth plea of Elliott alleges that the nine bonds for one thousand dollars each, mentioned in the declaration, were issued by plaintiff under the authority conferred by the second section of the act of March 14,1849, which provided that plaintiff might subscribe to the stock, and pay therefor by issuing its bonds bearing seven per cent, interest, payable annually ; whereas the bonds are in fact made to bear that rate of interest payable semi-annually.
    'This plea is also demurred to, and for the following causes:
    1. That the facts set forth do not show the bonds to be void.
    2. That if void in their inception, they would be valid in the hands of innocent holders, and plaintiff might provide for their payment.
    3. That no third person can collaterally set up their invalidity.
    Brady pleads non est factum, and ten special pleas in bar. His second plea is in substance the same as the second plea of Elliott, except that, in addition to the alleged defects of that, it is demurred to for duplicity. The third, fourth and fifth, are demurred to, for the same reasons as the fourth plea of Elliott. The sixth and seventh are the same as the fifth and sixth of Elliott. The eighth is substantially like the seventh of Elliott. The ninth alleges that the sole consideration of the bond in suit, was the sale to Smith of the stock aforesaid; 'that the sole intention of Smith, who already owned most of the stock, in making the purchase, was to obtain the control of the Newark Plank Road Company, and under pretense of its powers, and illegally using it as a bank, to issue and put in circulation as money, in violation of the laws of the State, notes payable to bearer, etc.; that at the time of the transfer of the stock, plaintiff knew of such illegal design of Smith, and made the transfer to enable Smith to effect the same, and that, after obtaining control, Smith did issue and put in circulation in this State, notes, etc.

      To this ninth plea, the plaintiff demurs, and for causes assigns the following:
    1. The unlawful intent is stated to have been with Smith only.
    2. It is not averred that plaintiff’s sole or chief object was to aid Smith to carry out his unlawful design, or that the sale was collusively made for that purpose.
    3. It is not averred that Smith’s intent was to “ make and put in circulation,” etc.
    4. It is not averred that plaintiff’s intent was to “ aid and assist” Smith in the unlawful act.
    5. It is not averred in what way Smith intended to act as a bank.
    6. It is not averred that the intent was to act as a bank, or issue and circulate, etc., in this State.
    The tenth is a plea of non damnijicatus. To this plea the plaintiff demurs, because it does not answer the breach that defendants have not paid the interest on the $1,000 bonds.
    Brady’s eleventh plea is like the eighth of Elliott.

      Buckingham & White, for plaintiff.

      L. Case, and H. H. Hunter, for defendant Elliot.

      Charles Follett, for defendant Brady.
   Kennon, J.,

delivered the opinion of the court.

By an act of the Legislature of 1849, the town council of the town of Newark was authorized to subscribe to the stock of the Newark Plank Road Company not more than $10,000, and to issue bonds in payment of the stock, payable at such times, not exceeding ten years, and for such amounts, as the council might determine, bearing interest payable annually, at the rate of seven per cent, per annum; and the town council was authorized to sell and transfer the stock, so soon as it could be sold at par. Held:

That the par value of the stock is an amount equal to the amount of stock subscribed.

That a sale of such stock, by which the purchaser is bound to pay the bonds of $10,000, and interest, given by the town of Newark for the $10,000 stock, is a sale of such stock at its par value.

That where there is no restraining clause in the charter of a corporation, it may dispose of any property which it has the right to acquire. That the town council of the town of Newark is restrained from selling the plank road stock for less than the par value, but it may sell the stock on credit, provided the sales amount to the par value of the stock.

Where a corporation issues its own bonds, payable at a future day, with seven per cent, interest thereon, payable semi-annually, when by law it was authorized to make the interest payable annually only, the person who contracts with the corporation for a valuable consideration to redeem such bonds, cannot avoid his contract upon the ground that the corporation exceeded its authority in making the interest on such bonds payable semi-annually instead of annually.

If the object of the purchaser of this stock was, to obtain the control of the plank road company, and thereby improperly use the provisions of the charter of the plank road company for the purpose of issuing and putting in circulation, as money and currency, the notes of the company payable to bearer, in violation of law, and such fact at the time of sale was known to the town council of the town of Newark, and it made the sale for the purpose of enabling the purchaser to carry out such illegal purpose, and the purchaser was, by such sale, enabled more effectually to carry out his intention, and he did in fact do so, the sale of the stock was illegal and void.

The demurrers to all the pleas of Elliott are sustained, and also the demurrers to all the pleas of Brady, except the ninth, as to which the demurrer is overruled, and the cause remanded to the district court for further proceedings.


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    Henry Philips v. The State of Ohio, ex rel. Henry H. Harter and his wife Sarah Harter.
    The power of proceeding by citation or attachment against an administrator or executor, lor neglect to file his settlement accounts, is a necessary incident to the proper exorcise of the jurisdiction of a court of probate.
    And such proceeding- is barred by such lapse of time, after the default of an administrator to file his settlement accounts, as would be sufficient to bar an action on the administration bond.
    The rule, that a technical or direct trust is not barred by lapse of time, is subject to several important qualifications, one of which, arises, where circumstances exist calculated to raise a presumption, from lapse of time, of a discharge or extinguishment of the trust.
    This is a writ of error to reverse the judgment of the Court of Common Pleas of Preble county, reserved in the District Court for decision here.
    The original proceeding was a citation issued at the instance of the relators, against.the plaintiff in error, by the probate court of Preble county, March 1, 1852, calling upon the plaintiff in error, as surviving administrator of the estate of Hezeldah Philips, deceased, to show cause why he had neglected to make settlement of his administration of said estate. To this citation the plaintiff in error filed an answer, denying the right of the relators to call upon him for a settlement of his administration of said estate or to show cause why his settlement -accounts had not been filed, upon the following grounds, to wit: 1st. That the letters of administration on said estate were issued to him and his brother David Philips, (now deceased,) on the 25th day of August, 1818, more than thirty-eight years ago; and about thirty-eight years since, by the conditions of the administration bond, settlement of the administration was required, and more than twenty-one years since the relator, Sarah Harter, in whose right the proceedings were instituted, became of age, and the right of action, if any ever existed, had accrued to her. 2d. That the administration of said estate was closed and settled in a manner satisfactory to all parties interested, and had been acquiesced in up to the time of the issuing of this citation. 3d. That the letters of administration were issued under the administration law of 1810, and that there existed no law authorizing the proceeding by citation ; and that the only proceedings authorized under that administration law, were, suit upon the administration bond, and motion for the removal of the administrator. The .relators excepted to the sufficiency of the answer. And the probate court, after a hearing, dismissed the cause at the costs of the relators. The cause having been taken to the common pleas on certiorari, that court reversed the judgment of the probate court. And this proceeding in error is prosecuted to reverse the judgment of reversal. The assignments of error are all predicated on the sufficiency of the defense set up in the answer of the plaintiff in error, filed in the probate court.

      Chadwick & Frazer, for plaintiff in error.

      Hubbard & Foos, for defendants in error.
   Bartley, J.

The power of proceeding by citation or attachment against an administrator or executor, for neglect to file his settlement accounts as required by law, is a necessary incident to the proper exercise of the jurisdiction of a probate court; and the statutory provision, in the present administration laws of the ’ State, expressly authorizing such proceedings, is only in affirmance of that incidental power essential to enable a probate court to control and direct the settlement of the estates of deceased persons.

And although such proceeding by citation or attachment, is not an action at law within the purview of the statute of limitations, but a simple proceeding in the court of probate, usually preparatory to the commencement of a suit on the administration bond; yet the lapse of time, after the default of an administrator in filing his settlement accounts, which is sufficient to bar an action on the' administration bond, or to amount to a • defense against a proceeding in equity for a discovery and account, will constitute a sufficient defense against any such proceeding by citation or attachment.

True it is, that the doctrine, that a technical or direct trust is not barred by lapse of time, is usually recognized, yet it is subject to the following important qualifications, namely: That this rule in equity is dispensed with, except in cases of fraud and concealment; first, where there is a remedy by action at law to which a limitation is expressly fixed; second, where an open denial or repudiation of the trust is brought home to the knowledge of the parties in interest, which requires them to act as upon an asserted adverse title; and third, where circumstances exist calculated to raise a presumption, from lapse of time, of a discharge or extinguishment of the trust. And the defense set up in the answer to the citation in the probate court, in the case before us, clearly falls within the latter qualification of the rule.

Judgment of the Common Pleas reversed.