text:
    *Abraham Case v. Columbus Hart and James W. Humphrey.
    A landlord leasing to a cropper for one year, reserving, as rent, a part of the grain, has a lien upon the growing crop, and the entire crop can not be removed by the tenant, or those acting under him, until the rent is provided for.
    Trover will lie for the landlord’s share.
    This is a motion for a new trial, in an action of trover, from tho county of-Huron.
    It is submitted to the court upon the following agreed case :
    “ On February 12, 1839, the plaintiff, Case, leased to Petty and Brayton a portion of his farm, in the township of Lyme, Huron county. The material parts of the lease are as follows: ‘ Article of agreement,' made this February 12, 1839, between Abraham Case, of the first part, and Charles Petty and Rufus Brayton, of the second part, witnesscth: the said party of the first part agrees to rent to said party of the second part tho west side of the road running through the farm of the party of the first part, in Lyme, for one year. The party of the second part is to till forty acres of land, in a good workmanlike manner (twenty-five acres of corn, and the remainder of it in oats and wheat), and to deliver to said party of the first part, in the half-bushel, one-third part of all the grain that is raised on the above-mentioned land.’
    “ Shortly afterward, Petty bought out Brayton, and became tho sole owner of tho interest in tho lease. About November 1, 1839, James Hamilton and Bruno Silva, two of the creditors of Petty, recovered judgments against him, one in the sum of $25, and the other about $30; and on these judgments executions issued the, same day, placed in the hands of the defendant, Humphrey, who was the constable of the township, and who afterward made return thereon that he had levied the same on a field of corn (being a field of corn then standing on the leased premises, and cultivated under said lease by Petty), and, on November 12, 1839, as ^appeared from the return, he sold the corn to the defendant, Hart. It appeared in evidence, that Hart was security for the defendant, Petty, in the judgments, and' that, in bidding, he did so at the instance of Hamilton, who was absent on the day of sale, and that the bid was made to secure himself and the plaintiffs in the judgments ; and that this was the arrangement by which Petty was to go on under the lease, harvest the corn, and pay the judgments.
    “Petty went on and harvested the whole field of corn, and evidence was introduced by the plaintiff, which tended to prove that Petty harvested the whole.' field of corn by the direction of the defendant, Hart, and as his agent; but as to this last point there was some conflicting testimony. Petty removed all the corn from the field. A load or two only was taken to the barn of Hart to be thrashed, and only this ever came to the possession of Hart. There was evidence that the plaintiff said to Hart, after the purchase, that there was corn enough to pay him and to pay the judgments too. The return on Silva’s execution is in these words: ‘Nov. 12. Sold the property to Mr. C. Hart, for which Hart had not paid when the proceedings were stayed by order of plaintiff’ The corn was husked out by Petty, and enough of it to satisfy the judgments went to pay them; but the plaintiff, Case, never got any of it.
    “The counsel for the defendants asked the court to charge the jury, that, though the return was of a levy on the whole field, yet, if they believed that the constable, at the sale, and Hart, then and afterward, only intended to claim the two-thirds of the corn which belonged to Petty, and that Petty was not authorized by Hart to harvest or take away any more from the field, that then the plaintiff ought not to recover.
    “This charge the court refused to give, but did charge the jury that, under the above lease and evidence, neither the constable, Hart, nor the tenant would have any right to take away any portion of the corn, until he had first set it out to the plaintiff, Case, the part that belonged to him. To this charge the defendants objected and asked for a new trial.”

      *No argument for the plaintiff came to the hands of the reporter.
    Boalt & Worcester, for defendants, argued:
    That the lease of the plaintiff, to Petty and Brayton, passed an interest in the soil, and was a lease for a year, and not a contract which merely authorized them to enter and cultivate the soil for a single crop. 4 Kent’s Com. 85, 95; 1 Johns. 267; Hill. Abr. 113; 9 Johns. 113; 4 Dana’s Abr. 129.
    That no interest in the corn or other grain vested in the landlord until the grain was harvested and his share separated from the mass by delivery. 9 Johns. 113; 5 Pick. 522; 1 Hill. Abr. 148, and cases there cited.
    That no such interest is vested in the landlord by the statute. Swan’s Stat. 520, sec. 84. The construction of this statute being undetermined by our own courts, we may look to similar statutes in other states. In Kentucky, a stature for like purpose is in force, to which the English decisions upon 8 Ann, ch. 14, have been held applicable. 2 Dana, 208; 3 Dana, 211. So, also, have been the decisions in New York upon their statutes, in relation to this subject. 11 Johns. 186; 17 Wend. 39; 13 Serg. & Rawle, 297. Upon the construction of these statutes, and 8 Ann, ch. 14, it has been decided, that the lien applies only to the immediate landlord, and not as between the ground landlord and a sublessee. Burnet’s case, Strange, 787. That the landlord must notify the sheriff of his lien prior to a sale under judicial process and demand his rent, otherwise it is not the duty of the sheriff to retain the rent. Warring v. Duberry, Strange, 97. This notice is required from the nature of the case, although the statute is silent. 1 Strange, 214; 2 Wils. 240; 11 Johns. 186; 17 Wend. 39; 4 Wend. 476; 2 Dana, 209; 3 Dana, 211; 5 Watt, 139; 13 Serg. & Rawle, 297. If the sheriff, after demand, remove the goods, he is liable only for their value, deducting expenses. *Dodd v. Saxby, Strange, 1024. The remedy of the landlord is by motion to the court, that the money be paid to him, or by a special action on the case. 2 Wils. 140; 17 Wend. 39; 4 Wend. 576. The rent must bo that of' the year immediately preceding the execution. 1 Strange, 214. A bill of sale of the goods is a removal of them, and vests the title in the purchaser unincumbered by the landlord’s lien. 1 Atk. 104; 2 Dana, 209. The purchaser under execution acquires a title discharged of the lien, and no suit will be against him for the property. 2 Dana, 212.
    They contended that the plaintiff had not, either at common law or upon a proper construction of the statute, such property in the crop as to maintain trover, and that the facts did not show a conversion sufficient to support such action.
   Birchard, J.

By the terms of the agreement, which is a lease to a cropper for a year, the landlord was to receive one-third of the corn and oats raised, to bo delivered in the half-bushel. The position taken by the defendants’ counsel, upon which turn the whole merits of this motion, is, that until the delivery of the third part of the crops reserved as rent, the landlord had no property in them, and that consequently trover does not lie. By the usage of the country, so long continued as to have become the law of the land, a landlord thus leasing has a Hen upon or property in the growing crop until the.rent reserved is satisfied. The rent is the joint' production of the lessor’s land and the labor of the lessee. By section 84 of Swan’s Stat. 520, this lien or species of property in the landlord is recognized, and provision is made by which the interest of landlords or tenants, respectively, in the growing crop may be sold, on execution, subject to the interest or claim of the party, whether landlord or tenant, against whom the process may not issue. To preserve this lien, therefore, it is necessary to hold that the entire crop should not be removed by the tenant, or those acting in his behalf, or as successors to his rights, without first satisfying the landlord’s rent. But the constable, occupying the place of the ^tenant in tjiis matter, seized and sold, and the purchaser carried away, the whole crop, by which the landlord’s interest in it was lost. The sale wrought as to him a conversion and destruction of the whole property. The instruction to the jury, that the plaintiff could not recover if neither of the defendants intended to take more than two-thirds of the crop, was properly refused. The intention with which the act was done could not excuse them from responsibility. Their acts .were an illegal violation of the plaintiff’s rights, and, if arising in innocent mistake, they are responsible for the actual injury committed by them or their agent.

We think the action of trover will lie, and that the value of the landlord’s share of what was taken, is the rule of damages.

Motion overruled.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    The Commissioners of Trumbull County v. John Hutchins.
    Tho county commissioners are, by law, required to furnish buildings and everything necessary to be used and employed in the public administration of justice, and are chargeable with the purchase of a press for the seal of the court.
    The secretary of state is required, by law, to furnish all seals for the several courts, as well in case of loss as in the first instance.
    Assumpsit is the proper form of action against the commissioners, by the clerk, for the price of the press.
    This is a writ of error to the court of common pleas of Trumbull county.
    The suit below was an action of assumpsit, brought by John Hutchins, clerk of the court of common pleas of the county of Trumbull, against the commissioners of said county, to recover the price of a press and seal purchased by said Hutchins for the use of his office. It was submitted to the court upon an agreed state of iaets, which were, in substance, as follows:
    *The plaintiff’s demand was for money, paid by him, for a press and seal for the use of his office, as clerk of the court of common pleas for Trumbull county, the old one being broken and unfit for use. The county commissioners had not been consulted, nor bad they authorized the purchase, or been informed of the fact, until after the purchase was made. After the purchase the account was presented to them, and disallowed, before the bringing of this suit.
    The defendant moved for a nonsuit, upon the ground that the commissioners of the county neither authorized the purchase nor assented to it, either before or after it was made, and for the additional reason, that if the plaintiff could recover at all, this was not the form of action, but the plaintiff should have appealed from the decision of the county commissioners in rejecting the account. The court below refused such nonsuit, but rendered judgment in favor of the plaintiff for the amount claimed as the price of the press and seal.
    To reverse this decision, this writ of error is brought.
    Crowell & Abell, for plaintiff in error,
    made the following points:
    1. The present action can, in no event, be maintained: 1. Because the press and seal are not proper subjects of county expenditure; they should be furnished by the secretary of state.
    2. The action is barred by the decision of the commissioners, rejecting the account on which it is brought, from which no appeal was taken, as the law provides. 3. There is no promise, either express or implied, on the part of the commissioners, to pay the amount, the purchase having been made without their knowledge or consent, and against their will, and though they “ may sue and be sued,” it will be seen that it is only upon contracts to which they are parties, or have given their assent, as officers of the county, whose duties are prescribed, and whose powers are limited by law.
    2. The only appropriate remedy, if the commissioners were wrong in rejecting the account, is by mandamus, to compel them to do their duty and allow it. In this proceeding, the *whole question could be determined; as well the power of the clerk to bind the commissioners by contract, made without their knowledge or consent, as that of the commissioners, by refusing to pay what they deemed an unlawful demand, to protect the county treasury from unauthorized expenditures.
    3. Of all the officers of the county, the commissioners alone are empowered to levy taxes on the people, and for this reason, among others, it seems to be the policy of the law, and it is certainly a wise policy, to limit and confine the power of incurring expenses for “county purposes” to them solely, who alone can levy taxes to pay them.
    They cited, in support of their positions, the following authorities: Swan’s Slat. 206, 207, 402, 509. 740-742, 849, 850; Commissioners of Brown County v. Butt, 1 Ohio, 446; 5 Ohio, 490, 542; Smith v. Commissioners of Portage County, 9 Ohio, 27, 28.
    John Hutchins, for defendant in error,contra:
   Read, J.

This record raises the question simply whether the county commissioners are, in law, bound to furnish the clerk with the seal of the court of common pleas of the county, and a press necessary to its use, and if so, whether an action of assumpsit will lie, for the price of their purchase, by the clerk.

If it be the legal duty of the commissioners to furnish the press and seal, the price paid for their purchase by the clerk, is properly recoverable in an action of assumpsit.

A press, of some description, is necessary to the use of the seal of the court. The seal is the legal authentication of the process and the records of the court, and it is the duty of the clerk to affix it. Thus, under our law, a seal is incident to the administration of justice, and the press a necessary incident to the seal. Both are therefore connected with the administration of justice, as means or instruments necessary for the performance of absolute legal requirements. The administration of justice *is a public charge, and so is everything necessary to its administration.

It is the legal duty of the county-commissioners to furnish all things coupled with the administration of justice within the limits of their own county. It is their duty to furnish suitable and convenient buildings for holding court, at the expense of the county; and fire-proof offices for the use of the clerk, and for the preservation of the records and papers connected with the business of the court. In fitting up their court rooms and offices, it is the duty of the commissioners to fit them up as court rooms and clerks’ offices, and this requires that they should be supplied with, and contain those things which are necessary to enable the officers for whose public use they are fitted up, to perform their official duties. But the court in this case conceive that a proper construction of the words of the statute, which declares that “ the clerk shall receive a reasonable allowance for blank books and stationery,” includes the press necessary to the use of the seal, and requires the county commissioners either to furnish or pay for it out of the county funds. The word “ stationery” embraces all things necessarily employed by the clerk for the purpose of writing and authenticating every species of writing which the law requires the clerk to write and authenticate; especially all such things as are necessarily connected with the office for such purpose. The press is an article of this description. Upon these grounds, so far as the press alluded to is involved, the clerk would be entitled to recover. But as to the seal of the-court of common pleas, the county commissioners are not bound to furnish it. The statute provides that the secretary of state shall furnish the seal of the several courts to their respective clerks.

The words of the statute are “ that the secretary of state shall procure, at the expense of the state, for each organized county, where the same has not been done, a seal for the Supremo Court and court of common pleas, of the same description and device with those heretofore furnished to the clerks of the respective counties.”

*It has been supposed by some, that the secretary of state is only bound to furnish the first seal to newly organized counties, and not to supply counties which have had seals with new seals,' in the place of such as may havo been lost, worn out, or otherwise rendered unfit for use. Such is said to have been the construction put upo» this act by the practice of the several secretaries of state. Such construction the court conceive to be erroneous, and we hold, that the secretary of state is- required by the act to furnish seals for the courts of all counties which have no seal, as well to counties that have had seals, which have been lost, worn out, or otherwise rendered useless, as to newly organized counties that have never had a seal. The statute intends to secure similarity or likeness of seal of the same courts. To furnish such devolves upon the secretary of state. If called upon, it is his duty to furnish seals to all counties which have none.

The intention of the legislature would be as liable to be defeated if the secretary of state should not replace seals, as in a neglect to furnish them in the first instance. The seal of the courts was not, therefore, a county charge.

The court below erred in rendering judgment for the price of the seal purchased by the clerk. Judgment reversed.


author: Lane, C. J. Read, J.,

text:
    Parker Jeffries v. John Ankeny et al.
    A person, the offspring of a white man and a half-breed Indian woman, is a lawful voter.
    An action on the case lies against township trustees, for refusing a lawful vote, without proof of express malice.
    This is an action on the case from G-reene county.
    The suit was brought by the plaintiif against the trustees of Zenia township, for refusing his vote. The case was reserved to determine the law arising upon a special verdict.

      *Tbe jury find the defendants presiding as judges of a legal election, and that the plaintiff tendered his vote, and offered to prove his qualifications, but that the defendants rejected his vote, because, they said, they were of opinion the plaintiff was “a person of color.” That the plaintiff was of the Indian race, without more than one-fourth Indian blood. If, upon the facts, the court should hold the plaintiff entitled to recover, they assess his damages at six cents.
    J. S. Prescott, ior plaintiff in error:
    In this case I shall trouble the court, on the part of the plaintiff, with remarks only as to one point of the case. That is, does the action lie against trustees, for refusing the vote of a citizen legally authorized to vote?
    The only case I shall cite the court, is Ashby v. White, 2 Ld. Raym. 938, 950. In that case the action is sustained, and, as far as can be gathered from the report, without regard to the motives of the officers refusing the vote, and, therefore, probably from the necessity of the case, for otherwise the party would be without remedy. I believe it has been the practice of the Supreme Court of this state to support similar actions against school directors. I would ask the court to consider the following points:
    1. The importance of the right, and that every citizen, lawfully entitled, should be permitted to enjoy that right.
    2. Unless this action can be sustained, the right is at the complete mercy of the trustees, as it must be always easy for them to give an excuse for the rejection of any vote opposed to them politically or otherwise.
    3. There-is no other remedy.
    Ellsberry and Howard, for defendant:
    By the constitution of the State of Ohio, the right of suffrage is conferred upon white persons, and them alone. Constitution of Ohio, art. 4, sec. 1.
    *It is a principle at law, fully sustained by authority, that no action can be maintained against a judge or justice of the peace, acting judicially, in a matter within the scope of his jurisdiction, although he may decide erroneously in the particular case. 1 Salk. 306; Ld. Raym. 466; 5 Term, 186; 3 M. & S. 411; 6 Bing. 85; 5 Johns. 282; 9 Johns. 395; 10 Mass 356; nor can an action be maintained against a juryman, or the attorney-general. 1 Term, 513, 514, 535. Nor against a superior military or naval officer. 1 Term, 493, 510, 784; 4 Taunt. 67; 1 Chit. PI. 89.
    The trustees of townships are judges of elections. Swan’s Stat. 306.
    The act of passing upon the qualifications of an elector is a judicial act.
   Lane, C. J.

The first question arising is, whether such a suit is maintainable against officers like these, without averments and proof of malice. The negative is holden in some of the United States: 6 Johns. 114; 1 New Hamp. 88; 6 Serg. & Rawle, 35; and such seems to be the law of England, 1 East, 555. A different doctrine has obtained in Massachusetts, 2 Mass. 236; 11 Mass. 350; 7 Pick. 485; and this position conforms to the opinion of Holt, in Ashby v. White, Ld. Raym. 938. It is generally true, that no suit lies against an officer, for a mistake in the exercise of his judicial discretion; but when we reflect how highly the privilege of voting is generally valued, and that the legislature has provided, and the forms of law admit no other remedy than this action, we unite in the opinion, that a necessity exists for entertaining this remedy. In the absence of malice, where the suit is brought merely to assert the right, the damages will be nominal and small. It is only in cases of intentional injury, arising from corrupt motives, that the jury will be likely to inflict a severe penalty.

The other question depends upon the construction of that passage of the constitution, “free white citizens,” whether it ^excludes from voting all persons having the intermixture of any other blood than that of entirely white persons. There have been, even in this state, since its organization, many persons of the precise breed of this plaintiff, I mean the offspring of whites and half-breed Indians, who have exercised political privileges and filled offices, and worthily discharged the duties of officers. One such is now a clerk of this court, and two are now members of this bar, and disfranchisement, for this cause, will be equally unexpected and startling.

We regard this matter as clearly settled by the interpretation which the expression in the constitution has received by this court, on the circuit and in bank. In 1831, in the case of Polly Gray v. State of Ohio, 4 Ohio, 354, and in 1833, in the case of Williamson v. School Directors, etc., Wright, 178, it was held that, in the constitution, and the laws on this subject, there were enumerated three descriptions of persons — whites, blacks, and mulattoes-upon the two last of whom disabilities rested ; that the mulatto was the (middle term between the extremes, or the offspring of a white and a black; that all nearer white than black, or of the grade between the mulattoes and the whites, were entitled to enjoy every political and social privilege of the white citizen; that no other rule could be adopted, so intelligible and so practicable as this; and that further refinements would lead to inconvenience, and to no good result.

A majority of the court abide by this construction.

Judgment for plaintiff.

Read, J.,

dissenting.

I can not concur in the opinion of a majority of the court in this case. It is similar, in principle, to the case of Thacker v. Hawk et al., and was considered with it.

Section 1 of the “act for the support and better regulation of common schools,” etc., passed March 7, 1838, limits the common school fund to the education “ of all white youth in the state.”

The words of the statute, in my opinion, excludes Indians and part Indians, and all persons not of the pure blood of the white *raee. For my views, fully, upon the meaning of the word white, as applied to designate races of men, I refer to my dissenting opinion to the case of Thacker v. Hawk et al.

The Indians are a distinct people, governed by their own laws and customs. And we can not presume that a law conferring the benefit of an educational fund upon our own people embraces them, unless they are expressly named.

Indians are not designated as white men. If not, part Indians can not be pure white; and, to hold that all persons less than half Indian, are white, would establish a principle that would make all persons less than half black, or negro, white. This would admit into our common schools all persons who were less than half negro, or black. Now, it is known that the people of Ohio will not permit their children to be compelled to associate with persons of part negro blood in our schools. To prevent this matter,

the phraseology of the statute was carefully worded.

If it be desirable to extend the benefits of the educational fund of Ohio to Indians, and part Indians, the statute must be altered -r as it now stands, it excludes them.


text:
    Edwill Thacker v. John Hawk et al.
    Where the court of common pleas instructed the jury that a man who ha» any negro blood whatever was not a lawful voter, it is error.
    This is a writ of error to the court of common pleas of Gallia county.
    The original action was against the defendants, trustees of Wilkesville township, for refusing to receive the plaintiff's vote an election for justice of the peace. On the trial, the following .bill of exceptions was taken :
    *Be it remembered, that, on the trial of this cause in the court of common pleas of Gallia county, at the April term thereof, A. d. 1841, the evidence on both sides being closed, some of which evidence, offered by the defendants, tended to prove that the plaintiff in this case had some negro blood in him, the plaintiff moved the court to instruct the jury, that, if the plaintiff was nearer white than a mulatto, or half blood, he was entitled to vote at said ■election, which instruction the court refused to give to the jury; but the court did instruct the jury, that if the plaintiff had in him any negro blood whatever, he was not entitled to vote at said election, and, thereupon, the said plaintiff excepted to such refusal .and instruction, and prayed that his bill of exceptions on that behalf might be allowed, which is accordingly done, and, upon his motion, the same is ordered to be made a part of the record in this case.”
    Simeon Nash, for plaintiff in error :
    There are two questions presented by this record:
    1. Can an action be sustained against the trustees of townships for refusing to receive the vote of one legally entitled to vote, unless proof can be adduced of their having acted maliciously? 'This question was also raised by the demurrer to the second count.
    In Massachusetts, this question has been expressly decided, after the gravest consideration. Such actions are there maintained upon great principles of public policy. Killman v. Ward, 2 Mass. 236; Lincoln v. Hopgood, 11 Mass. 350; Henshaw v. Foster et al., 7 Pick. 322; Cassen v. Foster et al., 12 Pick. 485. The same doctrine has been maintained in the State of Maine. Osgood v. Bradley, 7 Greenl. 421. In the case of Williams v. Directors of School District, etc., Wright, 578, a similar action seems to have been maintained against school directors, for not permitting plaint, iff’s children to attend the public school. No malice seems to have been imputed to the directors.
    *There is one decision against this doctrine-Jenkins v. Waldron, 11 Johns. 114. In this case, the court decided that the action could not be maintained, without proof of malice. The opinion of the court is brief, and predicated upon the assumption that the trustees are quasi judges. The case of Ashby v. White, Ld. Raym. 938, is cited and relied upon, as maintaining the same principle. This same case is relied upon, in the case of Lincoln v. Hopgood, 11 Mass. 350, for asserting a directly contrary doctrine. The case is also found in Smith’s Selection of Leading Cases, 17 Law Library, 82. On careful examination, it will be found to fail the New York court. It is there said, that the ease decides that a man, having a right to vote, can maintain an action against the returning officer for refusing his vote. If the trustees are like judges, and not ministerial officers, then they could not be sued for refusing a vote maliciously. Judges can not be called in question for their decisions, however maliciously they may have acted. And this was the opinion of the judges in Ashby v. White, who were opposed to Lord Holt.
    2. As to the instructions of the court. I believe they are wrong. There are but three classes of persons — blacks, or negroes, mulattoes, and whites, known to our laws. A black, or negro, is a full-blood African, or one nearer to that than a mulatto; a mulatto is one begotten between a white and a negro, or one nearer to that than to a white; and a white person embraces all which are neither blacks nor mulattoes. Our black law speaks only of blacks, or negroes, and mulattoes; these are prohibited from coming into the state, and from being employed, unless having given security. Persons neither blacks nor mulattoes can come into the state without restriction. The property of blacks and mulattoes is exempted from taxation for school purposes; none but white children are permitted to attend school. A person neither a black or mulatto, but having some negro blood, will then be taxed, and his children excluded from the school. The legislature never intended such injustice; they designed to permit the children of all to attend, *whose property was subject to taxation to raise the school funds.
    The question has been decided in Ohio. Polly Gray v. Ohio, 4 Ohio, 354. In this case, it was'held that Polly Gray, being nearer a white than a mulatto, was a white person, and a negro could not be a witness against her. The same question came before this court on the circuit, in the case of Williams v. School Directors, etc., Wright, 578. It was there held, that the children of a white mother, and a father three-quarters white, were white children, and as such, were entitled to attend the public schools. Since these decisions, such persons have been considered white, and have been permitted to vote, and their votes were decided to be legal, in the contested election from Hamilton county, in the session of 1840-41. The only question then is, will the court maintain its own decisions? 1 Devereux, 336; Scott v. Williams, 1 Hen. & Mumf. 133; Hudgins v. Wright, 2 Mumf. 379; 2 Halstead, 253; 3 Ib. 375.
    No argument for the defendants in error came to the hands of the reporter. ,
   Lane, C. J.

This case presents the same question as in Jeffries v. Ankeny et al., and must be decided by the same principles. The court charged the jury, that if the plaintiff had any negro blood whatever, he was not a lawful elector. That charge was wrong, and judgment must be reversed.

Judgment reversed.

Read, J.,

dissenting. I can not concur in the opinion, that any person of less than half black or negro blood, has the right of an elector, under the constitution of Ohio.

The words of the constitution are (art. 4, see. 1,: “In all elections, all white male inhabitants above the age of twenty-one years shall enjoy the right'of an elector.”

Thus, color is a constitutional qualification of an elector in Ohio, and that instrument confers the enjoyment of the elective

franchise upon white persons only, and by the force of its terms, excludes all persons who are not white.

To hold, therefore, that all persons, less than half black, or less than half negro blood in their veins, have the right of electors or voters, in the State of Ohio, is in my opinion, a direct and open violation, both of the letter and spirit of the constitution.

The constitution, in defining the color-qualification of an elector, does not employ the phrase — partly white — more white than black — all persons less than half black — but simply the word white.

The word “white” means pure white, unmixed. The word expresses a simple idea, quality, or principle, homogeneous, not made up or compounded of two different elements or qualities. A mixture of black and white is not white; white and black may be mixed in different proportions — they may be more white than black, or more black than white ; but a preponderance of the one or the other color will not make the mixture a pure white, or a pure black.

When the words white and black are employed to designate different races of men, they are applied to men of the same blood or stock. When applied to individuals, to designate the stock or race to which they belong, they mean that the individuals, thus designated, are purely of the blood of the white race or the black race. A man of mixed blood, partly white and partly black, can not be called a'white man or a black man, because those words import, that the person to whom applied is of pure blood of the white or black race. Nor does it matter about the preponderance of blood, if there be a mixture; he is of the pure blood of neither the one nor of the other. It is not the shade of color, but the purity of the blood, which determines the stock or race to which the individual belongs.

The word white has never been applied to persons of any shade of black or negro blood, to contradistinguish them from the full black. In speaking of such, the language is, “ he is quarter black,” a “light mulatto,” “nearly white;” always using some qualifying term. To say that a man is a white man, is to ^affirm that he has no black or negro blood in him; that he is of the pure, unmixed blood of the white race. Such is the meaning which has universally, and at all times, attached to the term “ white man.” It is an axiom in- the construction of written laws and constitutions, that words are to be taken in their ordinary and common acceptation. The word white, then, employed in the constitution, to define the color-qualification of an elector, limits the right of voting to white persons only, and excludes all others. To hold that all pei’sons, less than half black, are voters under this clause of the constitution, is to hold that, all persons, Jess than half black, are white. To establish this .proposition, the reasoning would stand thus:

White persons are voters under the constitution of - Ohio; all persons are white who are less than half black; therefore, persons less than half black, are voters under the constitution of Ohio. Which reasoning proceeds upon the affirmation, that the part is equal to the whole; that more than half is all; that three-fourths white is white; that is, that three-fourths is equal to the whole.

But it is contended that there should be some limit — some certain and fixed rule upon the subject of color.. There can be no more certain and definite rule upon the subject than that which the constitution lays down. To say that no person can vote who is not white, is as definite as to say all persons are voters who are less than half black, and of far more easy practical application, because, where it would be easy to determine whether a man had any black blood in him, it might be impossible to determine the exact amount, in persons who were mixed. The whole difference strikes me to be this: that when the constitution has declared one rule upon the subject of color, a majority of this court havo declared a totally different rule, destructive of, and repugnant tor the one laid down in the constitution. Whether a man is white or black, is a question of fact; that the white man, only, shall have the right to vote, is a rule of law ; and that it may be difficult to determine whether, in a given case, the fact comes within the law, does *not impeach the rule of iaw as uncertain, but only proves that the question of fact is involved in doubt.

The position that all persons, less than half black, are white persons, possessed of the political rights of citizenship, is sup ported, neither by the examples or authority of other states, nor by the policy or practice of our own, nor by judicial decisions.

It has always been admitted that our political institutions embrace the white population only. Persons of color were not recognized as having any political existence. They had no agency in our political organization, and possess no political rights under it. Two or three of the states form exceptions. The constitutions of fourteen expressly exclude persons of color, by a provision similar to our own; and, in the balance of the states, they are excluded upon the ground, that they were never recognized as a part of the body politic. This exclusion extends to all persons of any degree of black or negro blood; and, by the practice of no one of the states, have persons, only less than half black, been treated as white. I have not been able to find any judicial decision to this effect, and presume there is none. Our constitution was formed in view of this practice and prevailing sentiment; and the existence of a like prohibitory clause, respecting color, with our own, forces upon us the conclusion that, with the prohibitory clause, we adopted the construction which it had always received. Such is the construction which, in point of fact, we have always given our constitution; and, in practice, we have always excluded from the right of voting all persons of any degree of negro blood. Indeed, it is matter of history, that the very object of introducing the word -white into the constitution, by the convention framing that instrument, was to put this question beyond all cavil or doubt, by, in express terms, excluding all persons from the enjoyment of the elective franchise, except persons of pure white blood.

During our territorial organization, although the ordinance and the territorial act, designating the qualification of electors, employed the phraseology, “ all free male inhabitants,” *ete., yet no negro, or person of any degree of black blood, was ever permitted to vote. This fact is familiar to the old inhabitants, who resided here during our territorial organization. This phraseology might be subject to doubt; and, although persons of any portion of colored blood were not considered a part of the body politic, it might’be construed to embrace them. Hence, to avoid the possibility of such construction, the framers of our constitution extend the phraseology, from “free male inhabitants,” to “white male” inhabitants, and incorporated it into the constitution.

In the convention framing our constitution this question was matter of warm, if not bitter, discussion. A motion was made, on the report of the committee upon this clause, to strike out the word “white.” Amendments were proposed authorizing blacks and mulattoes residing in the territory to vote and to confer the like privilege upon their descendants; and, finally, in some way to recognize them as citizens by introducing a clause into the constitution excluding blacks and mulattoes from the right of voting, and prohibiting them from holding all office, either civil or military, but conferring upon .them all the rights of citizenship not expressly excepted in the constitution. This last proposition, if adopted, would so far have recognized persons of color as citizens, that the legislature could never have enacted laws to remove them from the state; and, employing the term “black and mulatto,” might have been construed to confer full political rights upon all persons less than half black or mulatto; although in Kentucky, where blacks and mulattoes are prohibited from political rights, all persons, of any degree of black blood, are held to be mulattoes. (Journal of Convention framing Constitution of Ohio.)

Judge Burnet, who is as familiar with the early history of Ohio as any man in the state, and was engaged in the practice of law in the territory, and had been prominently connected with the administration of its public affairs, remarks, in one of his historical letters upon this subject, published in the transactions of the Historical and Philosopical Society of Ohio, vol. 1, pt. 2, p. Ill: *“The result of those discussions was an abandonment of all the propositions which had been made, and a general conviction that a constitution should'be formed for the free white population of the district, who, alone, were represented in convention ; that its phraseology should be so guarded as to show that people of color were not considered as parties to the compact; and, as they had no agency in its formation, so they should have none in its administration.”

The same writer further observes that they were regarded in the position of the aborigines who remained in the state after they had ceded their land to the general government; that they have the moral right, whilst suffered to remain, to claim the protection of our laws, and to be treated with justice, and humanity, but, beyond that, they have no claim. Hence, we find, so early as 1804, followed up by another act in 1807, statutes discouraging the immigration of blacks into our state, and imposing upon those among us such conditions and restrictions as would induce a vast majority of them to quit the state. Thus we have denied them all constitutional right to remain even in the state; have passed laws to induce them to leave it, and carefully excluded all persons of any degree of negro blood from all participation in the enjoyment of our political rights. Indeed, the hope always has been cherished,¿ that the time would come when this unfortunate .race should be removed from our community, and placed in some position where they could, among themselves, enjoy their own government, and administer its affairs; or, at least, that Ohio, which is free from slavery, should be rid of a population which, while they remain among us, must be miserable and degraded.

This exclusion of persons of color, or of any degree of colored blood, from all political rights, is not founded upon a mere naked prejudice, but upon natural differences. The two races are placed as wide apart by the hand of nature as white from, black; and, to break down the barriers, fixed, as it were, by the Creator himself, in a political and social amalgamation, shocks us as something unnatural and wrong. It strikes us as a violation of the laws of nature. It would be productive of no *good. It would de-

grade the white' if it could be accomplished without elevating the black. ' Indeed, if we gather lessons of wisdom from the history of mankind — walk by the light of our experience, or consult the principles of human nature — we shall be convinced that the two races never can live together upon terms of equality and harmony. The distinctions are too marked to be overcome by the power of political action, and the folly of the attempt will probably be only equaled by the fatal consequences of the result. In view of these •conclusions, and in this feeling, our constitution was formed, and such views and feelings have always directed the policy of the state. The practical construction which we have given our constitution for a period of more than forty years, has been to exclude all persons of all degrees of black or negro blood from the exercise or enjoyment of all political rights; and such was the practice under the far broader phraseology of our territorial or. ganization. The fact that (under the law excluding blacks and mulatto persons from giving testimony in all cases where white persons are parties) all persons less than mulatto, or half black, have been admitted as witnesses, is no authority against this uniform construction, because all persons of sufficient intelligence, without some positive prohibition, are competent to testify; the Arab, the Hottentot, or anybody else, only that such shall be sworn according to the forms of their own religious belief. Hence, a statute which excludes by name a certain class, shall not be construed to extend to classes not named; for, to carry out such construction, would exclude all persons.

The policy of the state always has been to discourage the immigration and settlement of persons of color among us. The decisión of this court, conferring political rights upon all less than half black, is an inducement for such to immigrate to the state and remain here. It violates the spirit of the constitution, because, in principle, I see no difference in allowing a mulatto to vote, and a person little less than mulatto, or a full black, for the tint of black blood extends to them all, and this is the reason of their exclusion.

*Tbus, it appears to me, for the reasons I have assigned, that wo are forbidden to give any other construction to the word “white,” in our constitution, than that it-excludes all persons not of the pure blood of the white race from the enjoyment of the elective franchise, and all participation in the exercise of political rights.


author: Wood, J.

text:
    James C. Chalmers v. Robert Stewart.
    A school subscription in aid of the common school fund imposes no obligation to pay, if black children are admitted into the school, or those who are notoriously vicious, corrupt, immoral, or profane.
    This is a writ of error to the court of common pleas of G-reene county.
   Wood, J.

The declaration counts on a certain subscription paper, signed by the plaintiff in error and others, the object of which was the employment of the defendant in error to keep a common school in district No. 15, etc., and by which the plaintiff agreed to pay the defendant two dollars per scholar for teaching two scholars for sixty days. The declaration avers that the defendant in error was ready and willing to teach, etc., of which the plaintiff in error had notice, and the refusal of the plaintiff in error to pay, etc.

A plea of the general issue was filed, the cause submitted to the jury, a .verdict found for the defendant in error, and judgment rendered thereon, in the court of common pleas, which is now-sought to be reversed by the prosecution of this writ.

During the progress of the trial a bill of exceptions was taken, from which it appears that the plaintiff in error offered to prove to the jury that the defendant in error was employed by the directors of school district No. 15 to teach a common ^school, [387 his salary to be paid in part out of the common school fund, and in part by subscription, and that he had, in violation of his duty and the laws of this state, received into his school divers youths who, he admitted, were colored, and not entitled to the benefits of the common schools of Ohio, but were ’prohibited by statute, in consequence of which the- plaintiff in error withdrew his children from school; which evidence was objected to by the counsel for the defendant in error, and the objection sustained by the court, and this decision is assigned for error.

, The inquiry presented is, did the court of common pleas err in the rejection of this evidence ? In other words, did it tend to.prove any fact that would be a bar to this action ?

The school in question was a public school; the subscription was in aid of the common school fund. The defendant in error was employed by the directors of the district to teach a school organized under the statute regulating common schools. Section 51 of this act provides, that all white youth over four and under twenty-one years of age shall be entitled to equal privileges in all the common schools of this state. Swan’s Stat. 841. Who white children are, has, in principle, been determined by this court at the present term. Thacker v. Hawk et al.

The majority, or predominance of blood, either black or white, carries with it conclusive evidence of the qualifications or disqualifications conferred or imposed by our statutes. By law, white children, only, have the privileges of common schools. A teacher, therefore, can only admit such in a public school, supported in whole or in part by the public funds. If he does admit blacks, he violates the obligation on his part to keep a legal school; and it would be unjust to hold the promisor bound by a contract which the promisee disregarded and omitted to perform.

The bill of exceptions shows that the evidence offered was the direct admission of the defendant in error, that he did receive into the school divers youths, against the provisions of the statute. This evidence a majority of the court think was ^competent, and if the fact was fully established it would have been a bar to a recovery. The common pleas erred, therefore, in arresting this testimony from the jury. In this case, the obligation not to admit blacks is imposed by statute. I have no hesitation, however, in laying'it down as a general principle, in all eases, that a teacher of a public school is under the implied obligation to regard the morals of the youth intrusted to his care, and, should he so far disregard his duty as to admit the vicious and corrupt, controlled by no sense of moral obligation; should he fill his school with prostitutes or thieves, or those openly profane or licentious, such teacher would forfeit all claim to compensation; and where the statute imposes the prohibition for reasons which were satisfactory to the law-making power as to whom the teacher may admit to the privileges of the school, its enactments, if disregarded, must be followed by the same consequences.

Ellsberry, for plaintiff in error.

Harlan, for defendant.

Judgment reversed and cause remanded.

Judge Read did not sit in this case.


author: Birchard, J.

text:
    *William Morgan v. Daniel Staley et al.
    The partition of lands incumbered by a dower estate, may be enforced in equity by the owner of the incumbrance, he being also tenant in common of the remainder.
    This is a bill in chancery, for partition, from the county of Greene.
    Daniel Staley died in 1829, intestate, seized of a tract of land, in Greene county; and left, surviving him, a widow and six children. Forty-five acres of the tract were, in 1831, set off to the widow for her dower. In 1839, the complainant purchased the widow’s dower estate, and then bought the interest in remainder therein of one of the heirs at law. Ho now files this bill in chancery against the other tenants in remainder to compel partition.
    Howard & Smith, for complainant,
    contended that the complainant, being the owner of the dower estate, and also of one undivided sixth part of the remainder in fee, he had such an interest as entitled him to have his sixth part set off to him in severalty. They cited Swan’s Stat. 614; 3 Prest, on Conveyancing, 89, 90.
    Gest & Harlan, for defendants,
    insisted that the complainant’s interest was not such as entitled him, in equity, to have partition. They cited 4 Kent’s Com. 271; Co. Lit. 167, a; 9 Cow. 530; Brown v. Brown, 8 N. H. 93; 25 Am. Jurist, 465; Swan’s Stat. 617, sec. 13; Thomas’ Co. Lit; 805, 830.
   Birchard, J.

The counsel of the complainant and respondent seem to have different views of the nature of this proceeding-One has treated it as a proceeding in equity, the other as a statutory proceeding. It is, nevertheless, a bill in *equity, seeking the exercise of the ordinary powers of a court of chancery; the distinction between which and the powers of a court at law, in matters of partition, is well defined. 1 Story’s Eq. 605, 610. The equity jurisdiction, in such cases, is founded in the convenience of the thing, and in the necessity of proceeding, in a tribunal competent to settle all the interests of all the parties with perfect fairness and equality. This may frequently be done under the direction of a master, by special commission issuing out of chancery, much better than on a mere writ. If the titles of parties, says Lord Redesdale, Mitford’s Eq. PI. 120, 121, are in any degree complicated, the difficulties which have occurred at law have led to applications'to courts of equity for partition. In this case the complainant has a dower estate, and is in-possession of the premises ; and is also a tenant, in common with five others, of the estate in remainder. If, on the issue of a writ of partition, at law, the estate should be found incapable of division, without manifest injury to the whole, and the freeholders should return an .appraisal of the premises, under the statute, in order to have a sale made, it is manifest that the parties in interest would occupy very unequal grounds, if desirous of purchasing.

The complainant, by a purchase, and uniting ,of the freehold, and remainder, would secure an unincumbered estate of inheritance, while neither of the respondents, nor any other person, could acquire anything but a remainder, incumbered by a dower estate, the duration of which, and all other contingencies incident to such an interest, would be at their hazard. It would be singular, if, under such circumstances, their rights should^happen to be so well protected, as to enable them, or the public generally, to enter into fair and equitable competition with tho complainant. This view of the case presents an inequality which ought not to be-overlooked, and, in our estimation, is sufficient to justify a resort to the equity side of the court.

Again, each of the parties to this bill, owns one-sixth part of the remainder; and, if they were all capable of contracting, it is not to be doubted that they might have effected, by agreement, *an amicable division, notwithstanding the incumbrance of dower, by means of quitclaims, or other forms of conveyance ; and this, for the purpose of enabling the complainant to erect, with safety, permanent buildings, or other fixtures, necessary to the profitable enjoyment of the freehold estate in his possession. The partition is withheld; and, so long as this is the case, we feel no difficulty in entertaining this bill for the purpose ■of compelling partition. There is still another ground of equity jurisdiction. Three of the respondents are minors, and incapable of contracting or protecting themselves, by bidding, in the event of a sale at law.

In 1 Story’s Eq. 611, that learned commentator observes: “ Courts of equity will generally follow the analogies of law, but are not to be understood as limiting their jurisdiction to cases cognizable at law, for there is no doubt that they may interfere in cases where a writ of partition would not lie at law.” In New York, 8 Johns. 564, the chancellor held that a tenant in common of the inheritance might maintain partition, notwithstanding a dower estate was outstanding. That was a case at law.

Following the analogies of that decision, and of our statute, 'Swan’s Stat. 612, the remainder may, in equity, be partitioned when dower has been assigned. Decree for complainant.


author: Lane, C. J.

text:
    *The Lessee of Presley Kemper v. The Cincinnati, Columbus and Wooster Turnpike Company.
    An incorporated road company, which is authorized by its charter to lay out and construct a turnpike road, not exceeding one hundred feet in width, to erect gates and colleot toll, has no right to appropriate, for a toll-house land lying without the line of the road.
    This is a writ of error to the Supreme Court of Hamilton ■county.

      The defendants are authorized by their charter, to lay out, survey, and make a turnpike road, between certain termini, and to take from the land occupied by said road, when surveyed and located, any stone, gravel, timber, or other necessary materials; and in ease sufficient can not be procured on the land located for the road, they are further authorized to enter upon any unimproved lands adjoining, or in its vicinity, and to take so much, stone, gravel, or other materials, as may be necessary to construct' the road. They are directed to open the road, for a width not exceeding 100 feet, thirty of which shall be made an artificial road. And they are authorized to erect gates on said road, and collect toll, upon compliance with certain requisitions in their charter.
    The premises in dispute consisted of a lot of ground, on which a toll-house were erected, outside the strip of ground 100 feet wide. The defendants claimed a right to occupy the ground for a toll-house, by virtue of the powers conferred by their charter. The court below instructed the jury that the charter conferred upon the defendants authority to take and hold the plaintiff’s land for this purpose. And the point is raised on this record, whether the right of the defendants to possess the plaintiff’s land, extended beyond the land covered by the survey of the road.
    Charles Pox, for plaintiff in error,
    insisted that the charter inly authorized the company to survey and take so much *land as is necessary to construct the road 100 feet wide, and that no authority was given for the permanent occupation of the land for any other purpose. That charters should be strictly construed. He cited 9 Pick. 110; 2 Mass. 122; Cooper’s Eq. 77; 2 Dows. Parl. 520; 2 Maule & Selwyn, 32.
    V. Worthington, for defendants,
    maintained that they were authorized, by their charter, to locate a road, erect gates, and collect toll. That, for the exercise of these rights, toll-houses were necessary. They had, therefore, the right to appropriate land for a toll-house, as an incident to the rights expressly granted by their charter. He cited 1 Caine, 179; 10 Johns. 389; 23 Wend. 193; 8 Ohio, 38; 2 Ohio, 112, pt. 2; 4 Ohio, 253; 5 Ohio, 118; 18 Johns. 397; 17 Pick. 434; 12 Conn. 364; 10 Conn. 157; 11 Conn. 467; 2 Johns. 190.
   Lane, C. J.

A corporation created for any lawful purpose, is invested with such powers as are directly conferred, and likewise with such powers as are necessary to execute its lawful functions, and no more. Beyond this, the grant is to be taken strictly.

A turnpike company, being an association formed to accomplish a useful and public object, ma^ lawfully possess powers to occupy another’s land, on making due compensation, when necessary to accomplish its end. 5 Ohio, 488; 7 Ohio, 112, pt. 2. The charter, therefore, very properly confers authority to acquire a right to the land for the road, and to the materials lying upon it; and where these are insufficient to construct it, the authority is given to take them from the adjoining unoccupied lands. The right to maintain toll-houses is undoubted; but the right to place them on any other land than that devoted to the road, is not conferred by the express terms of the charter, nor is any necessity shown oi believed to exist, for subjecting other property to this purpose.

Judgment reversed.


text:
    *Edmund Wilcox and Jonathan Welch v. Charles F. Kellogg, David G. Williams, Milo G. Williams, and Ethan S. Williams, Administrators of Jacob Williams, deceased, et al.
    A transfer by a firm to one partner, bona fide, and by him to a third person in like manner, for valuable consideration, passes both the legal and equitable title to the property, against the creditors of the firm.
    The equity of creditors upon partnership property for debts due them, is only the equity of the partners in the property, and can only be reached through the partners.
    An absolute transfer of property does not come within the provisions of the act of February 23, 1835, relating to fraudulent assignments.
    This is a bill in chancery, from the county of Hamilton.
    The bill states that, at the February term of the court of common pleas, 1837, the complainants recovered a judgment, at law, against Charles F. Kellogg and David G-. Williams, partners in trade, under the firm of Kellogg & Williams, for the sum of $872.57, besides costs of suit, on a promissory note made by said Kellogg & Williams, due September 4, a. d. 1836; . and also for goods sold by the complainants to said Kellogg & Williams. That an execution issued upon said judgment, and was returned by the sheriff, no goods, chattels, lands, etc., found, whereon to levy, and that said Kellogg & Williams have no property within the reach of execution for the satisfaction of the aforesaid judgment.
    The bill further states that, in the month of October, A. D. 1836, and about the time the suit was commenced in which their judgment was obtained, Kellogg & Williams were in possession of a large stock of goods and wearing apparel of different kinds, in a store in Cincinnati, to the valuó of $6,000 or $7,000, debts due them to more than $2,000, besides other property. About that time, by some agreement between them, Williams took possession of the *goods, debts, and other property, and exercised the exclusive control, and undertook, with the proceeds of the property, to pay the debts of the firm, and, among others, that of the complainants; that, since that time, the said Williams has converted the goods and wearing apparel into money, either at public or private sale, or placed them in tho hands of third persons, for the purpose of covering and concealing them from the complainants, and to prevent them, or the avails, from being applied to the satisfaction of their judgment.
    The bill further states that Williams has paid none of the debts of Kellogg and Williams; that he has collected a large portion of the debts of the firm, but applied no part thereof to the payment of complainants’ judgment.
    It is also averred that Jacob Williams, Albert Kellogg, Thomas Johnson, William Little, and Horace S. Edwards, have in their possession some part of the goods, or the proceeds thereof, held under some agreement with the said David G. Williams and Jacob Williams, or one of them ; that after David G. Williams took exclusive possession of the goods, he transferred them, or some part thereof, to the said Jacob Williams, who has since controlled' the goods, but for the benefit of the said David G., and which goods ought to be subjected to the satisfaction of complainants’ judgment, etc.
    The bill prays, among other things, that David G. Williams and Charles F. Kellogg may sot forth, specifically, on oath, what amount of goods, clothing, and other property they had at the time the complainants’ note fell due, or at any time since, and' what disposition they have made of it, and, if sol'd, to- whom, and: for what consideration ; and that the other defendants may, in like manner, answer all and singular the premises charged; prayer for an injunction for satisfaction of complainants’ judgment, etc., and for other relief.
    To this bill David G. "Williams and Jacob Williams have answered fully, and their aitswers substantially agree. All fraud is denied. From those sources, it is in proof, that when David G. Williams went into the firm with Kellogg, he, Williams, furnished all the capital then advanced, except about *$400, which was advanced by Kellogg. That in order to raise the necessary funds to commence business, by the purchase of goods, Jacob Williams, the father of said David G., and his father in law, Phillips, indorsed his note to the Ohio Life Insurance and Trust Company, for $550. He had $600, and, with these sums, Kellogg proceeded to the east and purchased $3,000 worth of goods, about one-half on a credit of six and twelve months. After five months it became necessary to make new purchases; the business had not been profitable, but the said David G. Williams relied on the assurances of Kellogg that it would become so ; and, to keep up the credit of the firm, and to pay off the bills given at six months, the said David G. borrowed of Jacob Williams, his father, $1,000, on January 29,-a. d. 1836. Kellogg again went cast, bought $4,000 worth of goods, at six months’ credit. The purchases were too ■large, business dull, and the said David- G. was convinced the ■debts could not be paid from the business of the firm. He therefore took the property with the intention of closing the concern for the benefit of the creditors in good faith. He received of the firm $5,000 in goods, and $1,500 in book accounts, and repaid Kellogg $400, advanced by him, and $150 for his services. The said David G. then wrote to all the creditors in the east advising them of his apprehensions that their debts would not be met as -soon as duo, and asking further time, or offering to surrender the goods. His offer was declined by all except the complainants, who did not answer his letter. The said David G. then formed a partnership with Isaac Stokes, but it was unsuccessful; he was taken sick, and, when he recovered, he found the stock much reduced, and nothing on the books. He then determined to break up the concern, and transfer the goods to those who had advanced almost the entire capital, and accordingly did so.
    He was indebted to said Jacob Williams, besides tho $1,000 borrowed of him, for $224, ^before that time advanced to him, and $400 due on the note to the Life Insurance and Trust Company, paid or assumed by the said Jacob, in the whole, including interest, $1,627 ; also, in the further sum of $409 on a note discounted at the Franklin Bank of Cincinnati, and used by said David Gr., and paid by said Jacob. He therefore transferred the goods to said Jacob, on December 11, A. d. 1836, for his benefit, and, if anything remained, for other creditors, with no understanding nor belief that any part of the avails was to be returned to him. The goods were all sold by auctioneers, in Cincinnati, gradually, not forcing them into the market; and, after paying expenses, there is a balance still due to Jacob Williams from the said David Gr., of at least fifty or sixty dollars.
    Many of the allegations, and much of the proof, is omitted, not being, in the opinion of the court, essential to be considered, in order to correctly dispose of the case.
    The case was argued by Wright & Hodges, for the complainants, who cited Root v. French, 13 Wend. 570; Coddington v. Bay, 20 Johns. 651; Bay v. Coddington, 5 Johns. Ch. 54; 33 Ohio L. 13.
    V. Worthington, for defendants, cited Story on Part. 508; Hoxie v. Carr, 1 Sumn. 181; Phillips v. Cook, 25 Wend. 399; Ex parte Ruffin, 6 Ves. 119; 11 Ves. 3; 17 Ves. 514, 2 Ves. & Bea. 172.
    The discussion being chiefly as to the question of fraud, is omitted.
   Wood, J.

It is contended by the complainants, that the whole proofs disclose a fraudulent attempt to place this property beyond the reach of creditors. If so, the complainants arc entitled to relief. The law, says Mr. Justice Wilmot, breaks through all the forms with which fraud may surround itself, and exposes it, odious and hateful, to the public gaze. *At law, however, it has become a truism, that fraud must be proved. In equity, it is sometimes said, the rule is not so strict, but it is nevertheless certain that the evidence of facts and circumstances must be such that it can reasonably be inferred, or else, in legal parlance, it does not exist.

The substantial facts relied upon in the case at bar, by which fraud is attempted to be fixed upon the transaction, are:

1. The ties of blood between David Gr. and Jacob Williams.
2. That David Gr. transferred the property, about the time he had reason to suppose the debts of the firm of Kellogg & Williams would be pressed for collection.
3. That he wrote to the eastern creditors, requesting time for payment, which, it may bo claimed, was a device to put them off their guard, until he could dispose of the property.
4. That an amount much larger than the debt due to Jacob Williams was transferred to -him.
5. That it was sold at auction to pay this debt.

It is recognized as a suspicious circumstance, when a debtor, in failing circumstances, passes his whole property into the possession of his near relations; but in this case, the consideration is proved to have been bona fide, beyond dispute, over $2,000 cash advanced. This transfer was legal, if honest, at any time before the law had taken the property into its custody, whatever might be the circumstances of David Gr. Williams. In writing to the eastern creditors for time, the letters show he offered to surrender the property, if the creditors desired it, but they declined. The amount transferred was directed to be sold gradually, at auction, not forced, and did not bring sufficient to pay the debt; and in cities, the auctioneer is a convenient and proper channel through whom property of this descripiton will frequently sell to the best advantage.

We do not, therefore, after the most mature deliberation, find evidence sufficient to declare this transaction fraudulent.

It is contended, however, that the complainants being creditors of the firm of Kellogg & Williams,' the debts of which *firm Williams had assumed to pay, they had a lien upon the partnership property, into whosoever hands it might pass, which might be enforced in equity. Is this so ? It is laid down in Story on Part., see. 358, that while the partnership is solvent and going on, creditors have no equity against the effects of the partnership; neither have they any lien on the partnership effects for their debts. There being no lien, and no equity in favor of creditors against partnership effects, it follows they are susceptible of being legally transferred bona fide, for a valuable consideration, to any persons whatever, and as well to other partners as mere strangers. The equity of creditors upon partnership property is, when sifted, as laid down in the books, only the equity of the partners, and can only be reached or worked out, as it is said, through them. It appears to me, then, clearly, if these goods passed, on the dissolution of the partnership of Kellogg and Williams, to .David G. Williams, bona fide, and for a valuable consideration, from him again, to Williams and Stokes, and from them to David G-. Williams, and thence to Jacob Williams, in the same bona fide manner and for a like consideration, they are beyond the reach of the complainants.

But it is said, the transfer to Jacob Williams is fraudulent, under the act of February 23, a. d. 1835, being an assignment in trust. But this is clearly not so. It.is an absolute conveyance to pay Jacob Williams his debt, and is not, therefore, within the provisions of that act. Bill dismissed.


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    *Robert S. Halleck v. The State of Ohio.
    In an indictment for perjury it is sufficient to aver that the court had power to administer the oath, without setting forth the facts necessary to give jurisdiction.
    When it became material to prove the contents of a book of accounts, which had been admitted by the accused to be correct and true, the book may go to the jury as evidence of the extent and nature of the admission.
    This is a writ of error to the court of common pleas of Ashtabula county.
    The case was this: Complaint had been made by the plaintiff in error before Crosby, a justice of the peace, against Abijah South-wick for perjury. On the hearing of this complaint, the plaintiff in error was examined on oath as a witness. In the course of examination, it became a material question, whether a note for $17.38 had been given by Southwick to Halleck on a settlement between them. Halleck, the plaintiff in error, stated on oath, as a witness, that a note, for that amount, had been given him by Southwick, on a settlement, in June or July ; but that tho note was mislaid or lost. Halleck was then indicted for perjury in the above statement.
    The indictment sets forth that complaint had been made by the plaintiff in error, in due form of law, before Crosby, a justice of tho peace, against.one Southwick, for perjury.

      After setting forth the appearance of Southwick to answer this complaint, tho indictment then avers, that, “thereupon, the said David Crosby, as such justice, as aforesaid, proceeded to hear and determine the matter of said complaint, in the presence of said Abijah Southwick, and at, and upon the said hearing, of the said matter of said complaint, by the said David Crosby, as such justice of the peace as aforesaid, the said Robert S. Halleck, of said township of Savbrook, in the county of Ashtabula aforesaid, appeared as a witness, in support of said complaint, to, and before the said David Crosbj', Esq., such -justice of the peace, and then and there as such witness, *by, and before the said David Crosby, Esq., such justice of tho peace, as aforesaid, was, in due form of law, sworn by 'the said David Crosby, to testify the truth, the whole truth, and nothing but the truth, relative to the complaint aforesaid, then and there in hearing, before the said justice, he, the said David Crosby, Esq., then and there having sufficient and competent authority to administer an oath to the said Robert 8. Sal-lech, in that behalf.”

    The indictment then proceeds to aver the materiality of Halleck’s testimony relative to the note given him by Southwick, on settlement, and, setting forth his statement in relation thereto, negatives his testimony with the usual averments.
    The evidence on the trial to which the plaintiff excepted, is set forth in the opinion of the court.
    Wade & Ranney, for tho plaintiff in error, contended :
    That the indictment should show a cause depending, in which the oath was administered, and that the court had jurisdiction of the cause. 2 Russell on Crimes, 520; Bullock v. Coon, 9 Cowen, 31; 1 Chitty’s Crim. Law, 188; Stevenson v. The State, 6 Yerger 531; State v. Ammon, 3 Murph. 126; Shaffer v. Kinton, 1 Binn. 537; Vansteenburgh v. Kortz, 10 Johns. 167; Rex v. Cohen, 1 Stark. 511; Starkie’s Crim. Pleading, 124.
    That to give the magistrate jurisdiction, the complaint should have been made by affidavit, in writing. Swan’s Stat. 537. That as the indictment does not aver tho complaint to have been in writing, the magistrate does not appear to have had jurisdiction of the cause in which the plaintiff in error was sworn; but the proceedings, so far as appears from tho indictment, were, therefore, coram nonjudice.

    That the averment of the proceedings being in due form of law, and of the magistrate having sufficient and competent authority to administer the oath, is merely a conclusion drawn by the pleader; but the facts, to establish the correctness of that conclusion, should be averred.
    *They also insisted that the book of accounts, containing
    the settlement between Southwick and Halleck, was improperly admitted.
    No argument was submitted on the part of the state.
   Birchard, J.

This case presents two questions. One of evidence, and the other as to the sufficiency of the indictment. It appears from the record that the plaintiff was indicted and triod for perjury in testifying, before one Crosby, a justice of the peace, on a complaint pending before him, against one Southwick; that said Southwick had previously executed to him, on a settlement of accounts, a promissory note for the payment of $17.33. The bill of exception shows that on the trial of this cause, South-wick was introduced as a witness, and produced his book of accounts, and testified that it contained a true and just account of his charges against the plaintiff, and also of the credits which he had given him; that plaintiff and the witness had settled said account, and that, on such settlement, the witness read over such accounts to the plaintiff, who acknowledged them to bo just and true; and further, that he, the witness, had never given to the plaintiff the note of $17.38 mentioned in the indictment, The bill also shows that another witness testified, that he wait present at said settlement, when Southwick read from his account the items of debt and credit, and that the plaintiff acknowledged the same to be correct. After further evidence had been introduced, the prosecutor, in the progress of the cause, offered in evidence to the jury the book of accounts, and it was admitted by the court, notwithstanding the objections of the plaintiff.

Was this book of accounts improperly admitted? Counsel urge that it was, inasmuch as it was not within the custody or control of the plaintiff, and, that if it contained facts material for the state to prove, it could only be referred to by the witness, to refresh his memory. It seems to us that the court did not err in permitting the book to go to the jury. The material ^question was, whether or not, on the settlement of that account, Southwick gavo to the plaintiff a note of $17.38. The proof, by two witnesses, showed, that this book contained evidence of the items adjusted at that settlement, and that its correctness was, at that time, admitted by plaintiff. There can bo no question but that the admissions of the plaintiff were legal evidence against him. This book of accounts, whether kept by him or another, whether within or beyond his control, was the best evidence of its own contents, and bettor evidence of the extent and particulars of the items therein contained, and admitted by plaintiff to be just and correct, than the recollection of any person. So far, then, as the book of account showed items which had been admitted and settled by the parties, ;[ind tended to enable the jury to ascertain the actual debits and isredits, and of the sum then due to either party, it became, under the state of the proof, competent testimony; not merely because it was a book of account, but because it contained written evidence of what the parties themselves had done, and of what the plaint, iff had then said was just and true.

The objection to the indictment is, that it does not show that Crosby, before whom the perjury is alleged to have been committed, had any jurisdiction to administer the oath, inasmuch as it does not set forth that a complaint, in writing, on oath or affirmation, was made before him. The indictment charges that the plaintiff’s offense was committed before David Crosby, a justice of the peace for Saybrook, in the county of Ashtabula; and, it avers that said Crosby had full power and authority to administer the the oath; that it was taken on the hearing of a complaint against said Southwick, for perjury, which complaint had been made in due form of law, and was then on hearing before said Crosby, as such justice. It may be admitted that this general form of allegation would be bad, by the rules of common law, without it necessarily following that the court at common pleas erred in refusing to arrest judgment in this case, for, by recurring to section 11 of the act providing for the punishment of crimes, Swan’s Stat. 231, it will be seen that, in this state, the common law has been ^modified by express legislation. Section 11 provides “that, in an indictment for perjury, it shall be sufficient to set forth the substinco of the offense charged upon the defendant, and before what court or authority the oath or affirmation was.taken, averring such court or authority to have had full power to administer the same, without sotting forth any oart of any record or proceeding' in law or equity,” etc.

A careful comparison of this indictment with the section of this Statute (parts of which I have given) will convince the mind that it contains all the averments which our statute requires, and that the court of common pleas could not have pronounced it defective without disregarding the law, and requiring of the prosecutor something beyond what it had made sufficient. Motion overruled and-cause remanded for judgment.


author: Read, J. Birchard, J.,

text:
    Isaac Vanvalkenburg v. The State of Ohio.
    Proof of uttering and publishing counterfeit bank notes as true and genuine, will not sustain an indictment under section 29 of the statute for selling and bartering such notes.
    This is a writ of error todhe court of common pleas of Cuyahoga county.
    The plaintiff in error was indicted under section 29 of the act providing for the punishment of crimes, Swan’s Stat. 236, for “selling, bartering, and disposing of two certain counterfeit bank notes to one Seth Goodwin.”
    The proof was that the counterfeit notes were passed to Goodwin, as true and genuine bills, in exchange for other bank paper. The exchange was made by plaintiff, under pretense of accommodating Goodwin, as an old customer, and without charge. On the trial, the court was asked to charge the jury, *tbat, if they iound, from the testimony, that the notes were passed, uttered, or published, as true and genuine, with intent to defraud Goodwin, the prisoner could not be convicted under this indictment. The court refusing so to charge, a bill of exceptions was taken, and this refusal is assigned for error.
    Other errors were assigned on the record, in relation to the jurisdiction of the court, which, as the case is disposed of on other grounds, are omitted.
    J. Adams and C. Stetson, for plaintiff in error.
    F. T. Backus, for the state.
   Read, J.

It is a clear principle of law that you can not indict a man for one crime and convict him of an offense wholly different from that laid in the indictment. The allegations and the proof must correspond in criminal as well as in civil cases.

It is a well-settled rule of criminal proceedings that, in all statutory offenses, the indictment must pursue the words of the statute substantially in setting out the offense. With us there is no such thing as common-law crimes. The prisoner was indicted for selling and bartering counterfeit bank notes, under section 29 of the act punishing crimes. The proof shows that he uttered and published them as true and genuine, with intent to defraud, which is an offense punishable under section 22 of the same act. Swan’s Stat. 233.

A majority of the court are very clear in the opinion that an indictment, under section 29, for selling, bartering, etc., will not warrant a conviction of the offense specified in section 22 of the act.

The offenses are certainly not identical, or else the legislature performed a work of supererogation in creating them both. The one embraces the case oí uttering and passing, as true and genuine, spurious and counterfeit paper, knowing it to be such, with intent to defraud. The other is where a person *solls, barters, or disposes of spurious bills, as such, not as true and genuine, and without any intent to defraud. In the latter it was designed to punish a person who kept and sold, or disposed of counterfeit bills, to willing purchasers and receivers, who well understood the character of the articles purchased. One' section punishes the person who vends the counterfeit bills to such as wish to purchase the article. The other punishes him who passes them as genuine money, or bank notes, with intent to defraud. Guilty traffic is the essence of one, but of the other, an intent to defraud.

The words of the statute, describing the offenses, are very different, being in the one, “utter and publish, as true and genuine;'” in the other, “to sell, barter, or in any manner to dispose of;” tho legislature have thus defined different offenses, and in different words.

The rules of criminal pleading require the offense to be set out substantially in the words of the statute. The statute contains a definition of the offense. Now, if under an indictment for one offense, you may convict of a distinct and different offense, ;t would bring us to this legal conclusion : That you could have a common indictment under which a conviction could be had for every variety of offense. But can this conviction be sustained upon the principle that the greater offense includes the less ? It is true that whore, to the same act, the law attaches different degrees of criminality, according to the motives and circumstances under which it was performed, an indictment for the highest degree of criminality will authorize under it a conviction for any less degree. As an indictment for murder in the first degree will sustain a con. viction for murder in the second, or manslaughter, so upon an indictment for an assault with an intent to murder, there may be a conviction for the assault only. But this is not the case where the offenses complained of are distinct.

According to the theory of criminal pleading, no one definition of a crime, in an indictment, can contain two distinct offenses, so as to warrant a conviction for either, any more than *by the lavs of matter, two bodies can occupy the same space at the same time. Judgment reversed.

Birchard, J.,

dissenting. I am not able to concur in the decision just announced:

1. Because I know of no authority against the correctness of the decision of the court below, and, in the limited research which I have been enabled to make for such authority, I have discovered well-considered cases, which, in my judgment, will sustain it. 15 Mass. 187; 7 Conn. 54; 9 Conn. 259, and cases there cited.

2. The indictment charged, upon the plaintiff in error, the offense of bartering counterfeit paper, knowing it to be such. The statute defines such an offense. The proof established the facts of the guilty knowledge, and the bartering of the paper, by swapping it for Ohio paper, worth, nominally, a less sum in market. This fully made a caseol crime, as defined by the statute, and the proof sustained all the allegations of the indictment. I can not, in tho absence of any authority, and against strong authority, hold that there is any legal principle which would enable a defendant, on trial for such a crime, to defeat the state, by proving, in addition to the facts established against him, that he also intended to defraud his victim. It would have been proving his innocence by establishing a greater degree of moral turpitude, on his part, than that which was alleged against him. It would be like allowing one indicted for larceny to escape punishment, by proving, that, when he stole, he also committed a burglary or robbery; or, one indicted for an attempt to commit a rape, to show that he did not make any such attempt, by establishing the fact, that he not only made the attempt, but was actually successful in the perpetration of the crime. The case cited from 7 Conn. 54, is in point. The statutes of that state define a rape, and an attempt to commit one, as two distinct and separate offenses; and, however illogical it may seem to others, the Supreme Court of Connecticut held, proof of an actual rape committed ^carried with it proof of the attempt to commit the offense; and that conviction or acquittal of the latter was a bar to any future prosecution for the former. The books appear to me to sustain them. 1 Hale P. C. 246; 4 Co. 46, b; 15 Mass. 187; 1 Leach Crown Law, 36, 88; 2 East P. C. 560; 2 Hale P. C. 302.

As I understand the law, the rule is, that in cases where an indictment is fully sustained by the facts in proof, and the facts also disclose that the defendant might, with propriety, have been indicted for a graver offense, it is discretionary with the court to allow a noil, pros., and to discharge the jury, in order to prevent the trial from barring a future prosecution, for the more aggravated offense. 1 Chit. Crim. Law, 637.

Charles Fox, for plaintiff.

Edward Woodruff, for defendant.


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    John P. Foote v. The City of Cincinnati.
    The amendment to the city charter of Cincinnati, passed March 12, 1838, has never been duly accepted.
    The liability of a lessee to pay rent subsists, notwithstanding the leasehold has been appropriated for a street, and he is entitled to a compensation from the city for this liability.
   Lane, C. J.

This case presents a motion, by the plaintiff, for judgment on a verdict, and a motion, from the defendant, for a new trial.

In 1837, Foote leased certain tenements from Longworth, for five years, at the annual ground rent of $300. In 1838, the city extended Pearl street, and occupied the whole land leased. This suit is brought by Foote, to recover damages for this appropriation of his property. The jury, under the direction of the court, have assessed his damages at $3,860.10, if by law, he is released from the payment of his rent; but if his liability subsists to pay rent for the residue of his term, they estimate his damages at $5,201.76.

*The questions arising are, whether the plaintiff shows a right to recover in a suit at law, without averring by his declaration that he has attempted to get his compensation in the form prescribed by the charter and city ordinances, and if such recovery may be had, for what sum he is permitted to take judgment.

In March, 1838, an act was passed amending the city charter, and authorizing the council to open streets, ascertain damages, and provide for their adjustment. In May, 1838, an ordinance was made to carry this act into effect. The defendants insist that the plaintiff must show, by pleading, an attempt to obtain his com pensation by the provisions of this ordinance, before recovery.

But the amendatory act was to be of no force until adopted “by a majority of the voters of the city.” Section 8 of the act provides “that the qualified voters of said city are hereby authorized, af the timo and place of holding their annual election in April next, to vote by ballot for or against this act becoming a part of the charter of said city; and at such election it shall be lawful for said qualified voters to indorse on their tickets, ‘yea,’ or ‘nay,’ which tickets shall be received by the trustees of said city, who shall act as judges of said election and make, returns thereof to the mayor of said city, at his office, in the same manner that returns of the election of city officers are required to be made by the act to which this is an amendment.” 36 Ohio L. 242. To obtain this acceptance, the council requested the qualified voters of the city to vote on this question at the township polls. Now this vote may justly be held void, for although the territorial limits of the city and the township are the same, they constitute different political organizations; the elections are holden before different officers, and the voters composing the two corporations possess different qualifications. The plain intention of the legislature was to present the question of acceptance to the voters of the city at some regular city election; and a request to vote at an election held for a different purpose, and *in a different municipal organization, is no fair compliance with the law.

But the objection is capable of a different and conclusive answer. Unless the law by which the defendant’s property is taken for a public use provides him a compensation, it is void. McArthur v. Kelly and others, 5 Ohio, 143; 2 Kent’s Com. 339.

This charter does not attempt to afford compensation to any except to the owners who hold freeholds, or renewable leaseholds of ninety-nine years, leaving shorter interests, like the plaintiff’s, entirely without protection. There can, therefore, be no obligation on him to appeal to a law which affords him no remedy; and the case of Hickox v. City of Cleveland, 8 Ohio, 543, renders no such recurrence necessary. His right, then, to the common forms of justice is unimpaired, and he may well sustain the present suit.

The jury having found the alternative damages, it only remains for us to determine for which sum he may take judgment. If his liability to pay rent to his landlord subsists after this appropriation of his property to a public use, his compensation should cover such rent; but if his rent is extinguished by such occupation, he is entitled to no indemnity. We are referred to Gillespie m Thomas, 15 Wend. 464, as an authority to show that the rent is discharged. We find the court adjudicating upon the proceedings of street commissioners in New York, exercising special statutory powers, who have all parties, both landlords and tenants, before them, and who adjust all interests and satisfy all damages. The proceedings of such a tribunal, by whom the landlord obtains a compensation for his rent, involves a discharge of the lessee. But this case does not touch the general principle that the right of eminent domain, or the right of appropriating land to public uses, is no proper technical incumbrance of the land, and that such appropriation is no eviction. Folts v. Huntley, 7 Wend. 211; Elisha Parks v. City of Boston, 15 Pick. 198. The rights of the parties, therefore, are unaffected by those rights. The tenant’s liability to pay rent to his landlord ’^continues unimpaired, and he is entitled to a compensation to include the largest sum.

Judgment- for plaintiff.


text:
    Ira Belknap v. John O. Cram, Nehemiah G. Abbott, John Miser, John W. Thompson, George James, et al.
    Joint property will, in equity, be subjected to the payment of partnership debts.
    Notes given by one member of a firm to his partners, on its dissolution become their individual property, and, in the possession of their assignee) can not be subjected to pay the creditors of the firm.
    This is a bill in chancery, from Muskingum county.
    The material facts upon which the cause was decided, are set forth in the opinion of the court.
    Goddard & Converse, for complainant.
    H. Stanbery and George James, for defendants.
    As some important principles discussed by counsel were not decided, nor the case finally disposed of, the arguments are omitted.
   Wood, J.

The facts in this case appear to be these: The com • plainant became the surety of Misc., Thompson & Co., which firm was composed of Misc., Thompson, Abbott, and Cram. This firm was dissolved, and Misc., who bought *out Thompson, gave Abbott and Cram notes, secured, for $4,000, and became obligated to pay the partnership debts, and all the partnership effects were transferred to him. At the date of the dissolution, and when the arrangement was completed, the assets of the firm of Misc., Thompson & Co. were amply sufficient to pay all the partnership debts. Misc. afterward squandered the partnership property, and Abbott and Cram became insolvent, and assigned the notes for $4,000 to the respondent, James, as a trustee, to pay certain separate debts of theirs, previously contracted’in the city of New York. At the time of this assignment, these Now York debts were in the hands of James and others, as attorneys, for collection, and Abbott and Cram being pressed for payment, the assignment was made in consideration of an extension of time, and Misc.’s notes collected and the money partially in the hands of James to be applied in payment of the New York debts. The trustee is charged with notice, at the time of the assignment, of the circumstances under which it was made.

The object of the suit is to subject the avails of these notes, in the hands of James, to the payment of the demand on which the complainant was surety for Misc., Thompson & Co., on the principle which is familiar in the law of partnerships, that the joint property must be applied to pay the joint debts of the firm. While the rule is admitted, its application to this case by no means follows. The whole transaction, on the part of Abbott and Cram, and the trustee, appears to have been conducted in good faith, and the consideration for the transfer of the notes, such as the law will support. A creditor of the firm can not, under any circumstauces, reach the joint property, in case of a transfer in discharge of a separate debt. While the members of a partnership, as between themselves, have a lien which they may directly enforce, by the application of the joint property to liquidate the joint debts, a creditor of the firm has no such lien on its effects. He has, it is said,.in the books, something which approaches a lien, but it can not be enforced except through the partners themselves. Nor while *the partnership is solvent and going on, have the creditors any equity, strictly speaking, against the effects of the partnership. All they can do is to proceed, by action at law, against the partners. 6 Ves. Ch. 119; 11 Ves. Ch.3; 2 Swanst. Ch. 552. There being then, says Mr. Justice Story, in his Law of Partnership, page 510, no lien and no equity, until the levy of an execution, it follows that the partnership effects may be legally transferred, bona fide, for a valuable consideration, to any persons whomsoever, and as well to the other partners as to strangers-as was decided at this term, in the case of Wilcox et al. v. Williams et al.

It seems to us, therefore, to be clear, that at the time of the dissolution of this firm, admitting for the present, that the notes transferred to Abbott and Cram were partnership assets, that they vested in them as their individual property, and were transferred by Abbott and Cram, and legally vested in the respondent James. If this be not so, there is no safety in a creditor receiving payment of a separate debt, even with the assent of the firm, however solvent; but his security can only depend upon its continued prosperity.

But it is not clear that these notes of Misc.’s were partnership property. On the other hand, it is evident, to my mind, they were not. They were executed by Misc. on the dissolution of the partnership; they were the individual notes of Misc. and his securities, and were delivered to Abbott and Cram, and were never the property nor in the control of the firm of Misc., Thompson & Co., for whom the complainant was surety, and he can have no claim to reach them in equity. Joint property, says Judge Story, is that in which the partners have a joint interest, at the time of the dissolution, either in law or equity. Story on Part. 528.

There are other principles involved in this case, but it was reserved here to determine the one disposed of only. The injunction is dissolved as to James and the New York creditors, and the case may be remanded to the county for further hearing as to other parties, and for final decree.

Injunction dissolved and cause remanded.