author: Bukket, J.

text:
    The State of Ohio ex rel. Hasbrook v. Lewis, Auditor of Hamilton County. The State of Ohio ex rel. Weber v. Lewis, Auditor of Hamilton County.

      Decennial board of equalization — Receives in due time, from county auditor, returns of district assessors — And acts under section 2814', Rev. 8tat. — Board thereby acquires jurisdiction of equalizing valuations — Board may exercise discretion— Not controlled by court — County auditor must transmit to state auditor returns of district assessors as passed upon by equalization board — County auditor bound by same — Conceded facts prevail over general allegation — Pleading.
    1. Where the county auditor, in due time, lays before a decennial board of equalization, the returns made by the district assessors, and such board thereupon proceeds to act upon such returns for the purpose of equalization - under section 2814, Revised Statutes, it thereby acquires jurisdiction of the subject matter of equalizing such valuations of real property, and such jurisdiction will continue to the completion of the work of such board, even though the board considers matters not named in the statute; the essential requirement being, that the board shall raise or reduce the valuation of each tract or lot of real property, to such an amount as, in the opinion of the board, shall be the true value thereof in money.
    2. Such decennial board is free to form such opinion as to valuation, under’ the sanction of an official oath, and such opinion cannot be controlled by a court or an officer.
    3. Such decennial board having raised or reduced the valuations of real property to such an amount as in its opinion is the true value thereof in money, it is the duty of the county auditor to make out and transmit to the auditor of state, a proper abstract as returned by the several district assessors, together with such additions as have been made thereto; and the county auditor has no authority to omit such additions.
    (Decided March 12, 1901.)
    Petition in Mandamus.
    The petition on relation of John A. Hasbrook is as -follows:

      “The relator, John A. Hasbrook, says that he is the owner of real estate in Sycamore township, Hamilton county, and a taxpayer of said county; that Eugene L. Lewis is and was on the fifth day of November, 1900, the duly elected and qualified auditor of Hamilton county, Ohio; that the question involved in this action is one of a common or general interest of many persons, who are similarly situated and who are very numerous and that it is impracticable to bring them all before the court; and that by virtue of said office it was the duty of said auditor on or before the first Monday of November, 1900, to make out and transmit to the auditor of state an abstract of the real property of each township in said county, setting forth:
    “First. The number of acres, exclusive of town lots, returned by the several assessors of his county, with such additions as have been made thereto.
    “Second. The aggregate value of such real property, other than town lots, as returned by the several assessors of his county, inclusive of such additions as had been made thereto.
    “Third. The aggregate value of the real property in each township of his said county, as returned by the several assessors, with such additions as had been made thereto.
    “The relator further says that said defendant, on or about the fifth day of November, 1900, did make out and transmit to the auditor of state a pretended abstract of the real property of each township in said Hamilton county, in which pretended abstract he purported to set forth the number of acres exclusive of town lots, returned by the several assessors of said county of Hamilton with such pretended additions as had been made thereto; and the aggregate value of such real property, other than town lots as returned by the several. assessors of said county, inclusive of such pretended additions as had been made thereto; and the aggregate value of real property in each township of said county as returned by the several assessors, with such pretended additions as had been made thereto.
    ' “And the relator further says that the abstract so made out and transmitted by the defendant, auditor aforesaid, to the auditor of state, was illegal, invalid and void, because of the additions made to the valuation of the real property in said county, by the decennial county board for the equalization of the value of the real property, within the county of Hamilton, exclusive of the city of Cincinnati, which city is a city of the first grade of the first class, for the reasons following, to-wit:
    “The decennial county board of equalization for the said county of Hamilton, which was duly appointed and qualified, and consisting of said defendant, county auditor as aforesaid, the county surveyor and the county commissioners, did not, in the performance of its duties prescribed by the statute, proceed to equalize the valuations laid before said board by the defendant, auditor of said county of Hamilton, of the returns made by the district assessors of said county, with the additions which he had made thereto, so that such tracts or lots of land in said county should be entered on the tax list at their true value, and did not observe the rules prescribed by the statute, requiring them:
    “First. To raise the value of such tracts and lots of real property as, in their opinion, had been returned below their true value, to such price or sum as they believed to be the true value thereof, agreeable to the rules prescribed for the valuation thereof; and

      “Second. To reduce tlie valuation of such tracts and lots as, in tbeir opinion, had been returned above tbeir true value, as compared with tbe average valuation of tbe real property of said county of Hamilton, having due regard to their relative situation, quality of soil, improvement, natural and artificial advantages, possessed by each tract or lot.
    “But tbe relator says that on tbe contrary tbe said decennial county board óf equalization in utter and entire disregard and violation of its duty as prescribed by tbe statutory rules, proceeded to and did illegally and arbitrarily add to tbe valuation of tbe returns made by tbe said district assessors amounting in said county of Hamilton, exclusive of Cincinnati township, in tbe aggregate to $2,224,770, by entirely ignoring, rejecting and disregarding said returns of .said district assessors and by improperly taking and assuming as the basis of said valuation the tax list and duplicate of tbe valuation of real property in said county of Hamilton for tbe year 1899 and adding thereto, without regard to the true valuation of any lot or tract of land, a sum which amounted in tbe aggregate to $700,-700; that said county board of equalization, instead of following any of tbe statutory rules prescribed for tbe valuation of real property, so as to cause a just and equitable equalization of tbe values thereof, as required by law, either from actual view of from tbe best sources of information within tbeir reach, entirely neglected to view any of the several lots and tracts of land in tbe several townships in said county of Hamilton outside of tbe city of Cincinnati, or to obtain and use any information in regard thereto; but on the contrary appointed a number of clerks to the number of about forty, and under tbe advice, instruction and supervision of said defendant, county auditor as aforesaid, placed before them, said clerks, the tax duplicate of real property in said townships for the year 1899 and instructed them to disregard and ignore the returns of the district assessors and to add to the values as they appeared upon said duplicate of 1899; that said clerks acted upon said instructions and did indiscriminately, arbitrarily and without exercise of any judgment or knowledge of the values, add to the valuations as they appeared upon the tax duplicate of real property for said year 1899; that said clerks were directed by said board and said auditor not to reduce or cause any reduction to be made from said valuations of said duplicate of 1899; that no reductions were in fact made; that no equalization of values, as required by law, were in fact made or attempted to be made, and that the values as they appeared on the abstract of said county auditor so transmitted as aforesaid, to the said state board of equalization, were made up by said clerks adding sums indiscriminately and without rule, examination or judgment to said valuations as they appeared upon said tax duplicate for the year 1899; that said board did not, collectively or otherwise, visit, examine or view any of the tracts or lots of land in said townships or attempt in any other way, than as hereinbefore described, to ascertain the values to be placed,- under the rules prescribed by law, upon the several tracts and lots of land in said townships; that said board, at the completion of the labors of said clerks, accepted the work of said clerks as the action of said board for the equalization of the valuations of said tracts and lots of land; and that said result and conclusion were accepted by said defendant, county auditor, as aforesaid, with full knowledge of the manner in which the same had been reached, and were, in violation of his duty as said auditor, transmitted to said state board as a true abstract of the valuations of tracts and lots of land in the several townships of Hamilton county.
    “Whereby, in reaching said conclusion and result, in the manner and by the means aforesaid, said board did not raise the valuation of such tracts and lots of real property in said county as, in its opinion, had been returned below its true value, to such price or sum, as, in its opinion, had been returned below their true value, to such price or sum, as they believed to-be the true value thereof; agreeably to the rules prescribed for the valuation thereof; nor did they reduce the valuation of such tracts or lots, as, in their opinion, had been returned above their true value, as compared with the average valuation of the real property of said Hamilton county, having due regard to their relative situation, quality of soil, improvement, natural and artificial advantages possessed by each tract or lot; but, on the contrary, illegally and arbitrarily increased said valuations, amounting in the aggregate to the sum of $2,224,770 aforesaid.
    “And the relator further says that the said decen: nial county board of equalization did not equalize the valuations of the real property of said county of Hamilton, as shown by the returns of the said district assessors, so that each tract and lot of real estate contained in said county, was entered on the tax list at its true value.
    “And the relator says that the said defendant, Eugene Lewis, as such auditor of Hamilton county, aforesaid, in violation of the duty, specially enjoined upon him by law, resulting from his said office, made out and transmitted to the auditor of state, an abstract of the real property of each township of said county of Hamilton, including and containing said invalid, illegal and void additions so made by said decennial county board of equalization, and has neglected, failed and refused, and still neglects, fails and refuses to make out and transmit to tbe auditor of state, an abstract of tbe real property of each township in said county of Hamilton, of the returns made by said district assessors, without the additions so illegally made by said boards.
    “And the relator says that, by the ordinary course of the law, he has not adequate remedy against the said Eugene Lewis, auditor aforesaid, for his said neglect, failure and refusal.
    “The relator therefore prays that the defendant, Eugene Lewis, auditor of Hamilton county aforesaid, may be compelled to make out and transmit to the auditor of state an abstract of the real ■ property of each township of Hamilton county, .as made by the. district assessors of said county, without the additions made thereto, by said decennial county board of equalization, by a mandamus from this court; that an alternative writ of mandamus may first issue, requiring the defendant to show cause, by a day to be named therein, why he does not do so; that on final hearing a peremptory writ of mandamus may be awarded to compel the defendant to make out and transmit said abstract; and that he may have such other and further relief as the nature of the case may require.”
    The petition on the relation of George Weber, complains against the auditor, as to the acts of the decennial city board of equalization of the city of Cincinnati, and it is in substance the same as the above petition, except that instead of the averments as to the acts of the county board of equalization employing forty clerks, etc., there are substituted averments as to the acts of the decennial city board of equalization as follows:
    “But the relator says that, on the contrary, said decennial city board of equalization, in utter and entire disregard and violation of its duty as prescribed by said statutory rules, proceeded to, and did, illegally and arbitrarily and not from actual view or from the best sources of information within their reach as required by law, add to the valuation of the returns made by the said district assessors, amounting in said city of Cincinnati, in the aggregate to $21,304,460, but acting under the advice and direction of said defendant county auditor and as aforesaid, by ignoring and rejecting and disregarding said returns of said district assessors, and by taking and assuming as the basis of said valuation, the tax list and duplicate of the valuation of real property in said county of Hamilton for the year 1899, and adding thereto without regard to the true valuation of any lot or tract of land, as fixed and returned by the district assessors, a sum which amounted in the aggregate to $11,002,610. In reaching said conclusion and result, said board did not raise the valuations of such tracts and lots of real property in said city as, in its opinion, had been returned below their true value, by said district assessors, to such price or sum, as, in its opinion, had been returned below their true value to such price or sum, as they believe the true value thereof; agreeable to the rules, etc., nor did they reduce the valuation of such tracts or lots, as in its‘opinion, had been returned above their true value, by said district assessors, as compared with the average valuation of the real property of said city of Cincinnati, having due regard to their relative situation, improvement, natural and artificial advantages, possessed by each tract or lot; blit on the contrary illegally and arbitrarily increased said valuations over and above the duplicate of 1899 amounting in the aggregate to the sum of $11,-002,610 aforesaid.
    “And the relator further says that said decennial city board of equalization did not equalize the valuations of the property of said city of Cincinnati as shown by the returns made by the said district assessors, so that each tract and lot of real estate contained in said city was entered on the tax list at its true value; but on the contrary wholly ignored and rejected the valuation as aforesaid returned by the said district assessors.”
    The charge of the petition as to the violation of duty by the auditor, is the same in both petitions, and from there on to the end, including the prayer.
    The defendant, the county auditor, interposed a general demurrer to each petition.

      Foraker, Outcalt, Granger c£ Prior; Paxton & Warrington; George B. Okey and D. F. Pugh, for relators.
    We take it to be the settled rule that the powers of officers, such as constitute boards of equalization, under our statute, must be strictly pursued. They have such powers only as are expressly delegated, and such additional incidental powers as may be necessary to carry the delegated powers into effect. Mix v. People, 72 Ill., 241; Webster v. People, 98 Ill., 343; Merrill v. Humphrey, 24 Mich., 170.
    In proceedings under statutory authority whereby a man may be deprived of his property, the statute must be strictly pursued and compliance with all its pre-requisites must be shown. D’Antignac v. Augusta, 31 Ga., 700; Sea Isle City v. Board of Assessors, 50 N. J. L., 50.

      Courts of equity have frequently intervened to control and correct the wrongful acts of like officers and boards where they exceeded their authority, or where their duty has been recklessly disregarded, or where they have acted through prejudice, or where their acts have been arbitrary and unreasonable. Railway Co. v. Cole, 75 Ill., 591; Walsh v. King, 74 Mich., 350; Brauns v. Green Bay, 5 Wis., 115; Cooley on Taxation, (2d ed.), 746 and 784; Rawson v. Schott, 7 Circ. Dec.; 256; 14 C. C. R., 94; Orr v. State, 28 Pac. Rep., 420.
    Equity will enjoin the collection of taxes, upon bank shares valued by a rule different from other personal property. Pelton v. National Bank, 4 O. F. D., 573; 101 U. S., 143.
    A rule or principle of unequal valuation of different classes of property for taxation adopted by local boards of assessment, is unconstitutional, and equity will enjoin. Cummings v. National Bank, 4 O. F. D., 578; 101 U. S., 154; Grant v. Bartholomew, 57 Neb., 674; State v. McClurg, 27 N. J. L., 253; State v. Allen, 43 Ill., 456.
    If the acts of the equalization boards were, as we maintain, illegal, null and void, the valuations of the district appraisers, as we have shown by the foregoing citation of authority, remain unaffected, and must form the legal basis, together with the additions and corrections made thereto by the county auditor, of the abstract which he is required, by section 28Í7, of the Revised Statutes, to transmit to the auditor of state. Hence, it becomes the duty of the defendant, the performance of which may be compelled by mandamus, to transmit such true and legal abstract, as an act which the law specially enjoins upon him as a duty resulting from his office. Section 6741, Revised Statutes; State ex rel. v. Cornwall, 97 Wis., 565; State ex rel. v. Tansey, 49 Ohio St., 656.

      Gideon G. Wilson, County Solicitor, Otway J. Cos-grave, Asst. County Solicitor, Oliver B. Jones, Asst. County Solicitor, J. M. Sheets, Attorney General, J. E. Todd, Asst. Attorney General, Smith W. Bennett and W. M. Ampt, for defendant.
    Our statutes on mandamus (part 3, ch. 2, tit. 4) lay down very clear rules in relation thereto:
    1st. Section 6741, Revised Statutes, authorizes the issuance of writ in the name of the state to a person “commanding the performance of an act which the law specially enjoins as a duty resulting from an office.”
    2d. Section 6744, Revised Statutes, provides that “the writ must not be issued in á case where there is a plain and adequate remedy in the ordinary course of the law,” and
    3rd. That “It may issue on the information of the party beneficially interested.”
    1. The duty sought to be enforced must be clearly required by law.
    Mandamus will not be issued in the absence of a clear right to the object sought to be obtained by it. State v. Yeatman, 22 Ohio St., 546.
    Nor to compel an officer to do an act, which it is claimed the law enjoins on him as a duty, unless the existence of all the facts necessary to put him in default be shown. Cincinnati College v. LaRue, 22 Ohio St., 469.
    If he has any discretionary power the court will noii. attempt to control it. State ex rel. v. Comrs. of Shelby Co., 36 Ohio St., 326; State ex rel. v. Moore, 42 Ohio St., 103; High’s Extraordinary Legal Remedies; Commonwealth v. Mitchell, 82 Pa. St., 243; Dechert v. Commonwealth, 113 Pa. St., 229; United States v. Lamont, 155 U. S., 303; Spelling on Extraordinary Relief, vol. 2, p. 1134; Meckem on Public Officers; United States ex rel. v. Seaman, 58 U. S. (17 How.), 225; United States v. Commissioners, 72 U. S. (5 Wall.), 563.
    2. If relator, individually, or the public at large have been injured by any improper action of the county or city board of equalization, there is a plain and adequate remedy in the ordinary course of law and that being the case, the writ of mandamus will not issue (R. S. 6744).
    The scope and power of the board of revision and the object of its creation is well set forth in the recent opinion of this court in State ex rel. v. Morris, 45 Bull., 74.
    An opportunity being thus afforded for the full consideration of all tax valuations complained of, both in the aggregate and by the individual lots and tracts, before the tribunals established by law for that purpose, the courts will not intervene, especially at this time, to disturb or revise them. Wagoner v. Loomis, 37 Ohio St., 571.
    In the first place the assessor is required to return the true value of the property. That is one valuation. Then the county board of equalization is required to raise or lower it so as to make its actions show the true value. That is another valuation. Then the state board, acting upon aggregates, raises or lowers the valuations in towns or counties according to their opinion of the true value, giving a third opportunity for corrections. And finally, after action by all these agencies, another review is had by the board of revision. This action of the board of revision becomes therefore quite important to the individual property holder in fixing the comparative valuation for his property as related to other property in his county, and is to be had at the sessions of said board, after notice given to taxpayers, so that all may be given proper opportunity for full and complete hearing. If any wrong has been done to relator he can make his application to this board, and have ample opportunity to be heard before it. State ex rel. v. Morris, 45 Bull., 74; Stanley v. Supervisors of Albany, 121 U. S., 535; Martin v. Clay, 56 Pac. Rep., 715 (Oklahoma, 1899).
    Nowhere in the petitions is it alleged that the valuations returned by the assessors were the true valuations of said property, nor is it stated, as before said, that the valuations as fixed by the county and city boards do not show the true valuations in the aggregate of such property. Boyd v. Wiggins, 54 Pac. 411 (Oklahoma, 1898); People v. National Bank, 55 Pac. 685 (Oklahoma, 1898); Ledoux v. Lavee, 83 Fed. Rep., 761 (Fla., 1898); Moody v. City of Galveston, 50 N. W. Rep., 481 (Ct. Civ. App. Texas).
    Boards may generally act upon their knowledge or personal examination or any other information or evidence satisfactory to themselves. This is true where no specific rules are laid down for the method of making valuations. In Ohio there is no requirements that the members of the board of equalization, collectively, should visit or examine the real estate for which the valuation is to be fixed, or that they should take evidence in regard to its valuation. They may fix its valuation from their own knowledge, from their examination, from evidence, or from any other method that they may deem proper and right in determining it. And they may avail themselves of any means of information they deem necessary. Under this rule it would clearly be within their province to consider the tax duplicate of 1899, as well as any other evidence or information they thought proper or necessary. Nova Ceasarea, etc., Lodge v. Hagerty, 11 Dec. (Re.) 595; 28 Bull., 67; Railway Co. v. Comrs. Riley Co., 20 Kans., 141; Knight v. Thomas, 45 Atlantic, 499, 93 Me., 494; Brown v. Cinida, 79 N. W. Rep., 216 (Wis., 1899); State v. Duluth Gas & Water Co., 78 N. W. Rep., 1032; State of Nevada, ex rel., v. Co. Comrs., 14 Nev., 140; Knapp v. Heller, 32 Wis., 467.
    But if relator should not secure the relief to which he is entitled by the final action of the state board and the board of revision, he still has a right to appeal to the courts under provisions of Sec. 5848, Revised Statutes, which furnishes full opportunity for an adequate remedy in the ordinary course of law.
    With this right to relief by injunction subsisting, Sec. 6744, Revised Statutes, forbids the issue of a writ of mandamus.
    3. A writ of mandamus can only be issued on the information of a party beneficially interested.
    The petition in each of these cases alleges that the relator is the owner of real estate and a taxpayer in Hamilton county, but there is no allegation that the relator is a citizen or an elector of that county. And while he states that the question involved is one of general interest of many persons similarly situated, he does not say he sues in their behalf as under Sec. 5008, Revised Statutes. State ex rel v. Henderson, 38 Ohio St., 644.
    While the petition alleges that the question involved in this action is one of common or general interest of many who are similarly situated, and who are very numerous, and that it is impracticable to bring them before the court, relator appears in behalf of his private right, he has made no demand upon any public officer, or made any attempt to bring this proceeding except in his private capacity, and while other taxpayers might have similar complaints as against valuations of their property, it does not follow that they have a common interest in this proceeding. Weber v. Dillon, 54 Pac. Rep., 894 (Oklahoma, 1896).
    Mandamus will not issue upon the information of a private citizen to secure the enforcement of a purely public duty. State ex rel. Clark v. Murphy, 2 Circ. Dec., 190; 3 C. C. R., 332; 25 Maine, 291; Williams v. Comrs. Lincoln Co., 35 Me., 345; People ex rel. Drake v. University of Michigan, 4 Mich., 98; Heffner v. Com. ex rel. Kline, 28 Pa. St., 108.
   Bukket, J.

When stripped of their general charges of illegality and violation of statutes, the petitions in substance aver that the decennial board of equalization largely increased the amount of the total returns made by the district assessors, both in the city and county, and that the county auditor has certified the amounts of the returns so made by the district assessors, together with the increase made by the boards of equalization, to the auditor of state, so that the auditor of state has both the amounts as returned by the district assessors, and the increase added by the boards of equalization, and the totals of both added together; and the prayers of the petitions are, that the county auditor be compelled to make out and transmit to the auditor of state the amounts returned by the district assessors, without the additions made thereto by the decennial boards of equalization. It does not at first view clearly and plainly appear in the petitions that the county auditor has transmitted to the auditor of state the totals returned by the district assessors, the additions made thereto by the decennial boards of equalization, and the totals arising from such additions; but taking the petitions by the four corners, and construing them in the light, and with the knowledge, possessed by the court of such transactions, those facts appear with sufficient clearness to take them as 'true, when testing the sufficiency of the petitions, by a general demurrer.

The ground upon which it is urged that the additions made by the decennial boards of equalization should be withdrawn, is that those boards acted in violation pf the statutes prescribing their duties in making the additions, and that the violation of duty was so flagrant as to render their acts not only irregular, but void and of no effect, and being thus void, -that the returns of the assessors should stand as if no increase or decrease had been made by the boards of equalization.

The question then comes to this: Were the proceedings of the decennial city and county boards of equalization, in making the additions to the returns of the district assessors, when made in the manner as charged in the petitions, void, or merely irregular? If void the additions should be disregarded, but if only irregular, they must be held to be legal.

The law prescribing the duties of such boards, is section 2814, Revised Statutes, as amended 94 O. L., 246, and which reads as follows:

“Section 2814. The auditor shall lay before the board the returns made by the district assessors, with the. additions which he shall have made thereto,; and they shall then immediately proceed to equalize such valuation, so thát each tract or lot sliall be, entered on the tax list at its true value, and for this purpose they shall observe the following rules :
“1st. They shall raise the valuation of such tracts and lots of real property as, in their opinion, have been returned below their true value, to such price or sum as they may believe to be the true value therof, agreeably to the rules prescribed by -this title for the valuation thereof.
“2d. They shall reduce the valuation of such tracts and lots as, in their opinion, have been returned above their true value, as compared with the average valuation of the real property of such county, having due regard to their relative situation, quality of soil, improvement, natural and artificial advantages possessed by each tract or lot.
“3d. They shall not reduce the aggregate value of the real property of the county below the aggregate value thereof, as returned by the assessors, with the additions made thereto by the auditor, as hereinbefore required.”

The rule prescribed by the title to which the above section belongs is found in section 2792, and is that each parcel of real property shall be valued at its true value in money. This is also the rule prescribed by the constitution of the state. Section two of article twelve.

It was therefore the sworn duty of each board of equalization to raise or reduce each parcel of real property to such an amount, as, in their opinion, was its true value in money; and no restriction is placed upon the manner of forming that opinion when it comes to raising the valuation, only so that it be “to such price or sum as they may believe to be the true value thereof.” As- the petitions do not complain of any reductions of value, we need not consider the duty of the board in that regard, but it is sufficient to say that the duties prescribed are merely directory, and the statute provides no remedy for the enforcement of such direction, and therefore the action taken by the board under the sanction of a solemn oath is presumed to be fair and correct, and is conclusive, subject to the action of the state board of equalization.

It is urged that this is a case in which the boards of equalization had no jurisdiction, and not merely a case of irregular exercise of power. This is not tenable. The petitions admit that the boards of equalization were legaly constituted, and that the auditor placed before them for equalization the returns of the district assessors. Having those returns before them for the purpose of equalization, the boards were thereby invested with jurisdiction of the subject matter, and that jurisdiction continued until they completed their work; and if in the course of exercising that jurisdiction they took into consideration matters not required by the statute, that fact might be irregular, but it would not oust the jurisdiction, and would not render the result of their work void.

The petitions concede in the foreparts of them, that the auditor made out and transmitted to the auditor of state, an abstract of the real property of each township returned by the several assessors, with such additions as had been made thereto, and the aggregate value of such real property as returned by the several assessors, inclusive of such additions as had been made thereto.. True the pleader charges that it was a pretended abstract, and pretended additions; but nevertheless an abstract, and additions. And judging by the strong language hurled against those same additions, in other parts of the petitions, the additions were not mere pretenses, but were substantial both in amount and effect.

The petitions do not charge that the boards did not proceed to equalize the valuations laid before them, but charge that they did not so equalize that each tract or lot of land should be entered on the tax list at its true value, and did not observe the rules prescribed by statute. This concedes that the boards acted upon the returns of the district assessors laid before them by the auditor, and having acted, they undertook to exercise their jurisdiction, and while they may have erred in judgment and proceeding, such error would not render their work void, but only irregular.

The petitions further aver that the decennial boards of equalization proceeded to, and did add to the valuation of the returns made by the district assessors, amounting in the aggregate to $21,304,460: True they charge that this was illegally and arbitrarily done, but still the fact is conceded that it was done, and that the returns of the district assessors - were therefore the basis and foundation to which the additions were made. This and like concessions of fact in the petitions, negative and destroy the averment that the board “wholly ignored and rejected the valuations returned by the district assessors.” When a conceded material fact in a pleading is inconsistent with a general allegation in the same pleading, such conceded fact must prevail, and the general allegation be disregarded. Both cannot be true.

It being conceded in the petitions that the decennial boards of equalization made their additions to the returns of the district assessors, it follows that they had jurisdiction of the subject matter; and all the averments in the petition, as to the manner in which they arrived at the amount of such additions, are insufficient to take away such jurisdiction and render their work void. The statute confers no power on the auditor, to supervise, review, correct, or disregard the work of the hoards. He is one of the board, and is bound by the acts of the majority. He, as auditor, has only such powers as are conferred on him by statute, and there is no statute in this state authorizing him to cast aside the additions made to the valuations returned by the district assessors, and certify the amounts of such returns to the auditor of state, without the additions made by the board of equalization. Such an abstract by the county auditor would be in direct violation of the statute; because section 2817 requires him to make out and transmit to the auditor of state, an abstract of the real property, with the aggregate value as returned by the several district assessors, with such additions as shall have been mad 2 thereto.

We prefer to dispose of these cases upon the merits of the main question involved, and have therefore not decided the technical questions raised by the defendant, nor the question as to whether mandamus is the proper remedy.

The demurrer to each petition will be sustained, and each petition dismissed.

Judgment accordingly.

Minshall, C. J., Williams, Speak, Davis, and Shauck, JJ., concur.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Henderson-Achert Lithographic Company v. The John Shillito Company.

      Sureties on undertaking in replevin — Remedy against indemnitor — Oourt of equity cannot compel performance of covenant of indemnity — Before happening of event indemnified.

    1. A court of equity cannot compel the performance of a covenant of indemnity, in advance of the happening of the event or contingency upon which, by its terms, it is to be performed.
    2. Sureties on an undertaking in replevin have no remedy at law or in equity upon a contract to indemnify them against . loss on account of their suretyship, until such loss has occurred; nor has the defendant in the replevin suit who recovered a judgment against the plaintiff therein, though the sureties and judgment debtor be insolvent, and the judgment be otherwise uncollectible.
    (Decided March 12, 1901.)
    Error to the Superior Court of Cincinnati.
    The priginal action was brought by the HendersonAchert Lithographic Company, against the John Shillito Company, in the Superior Court of Cincinnati, February 27, 1897, on the following petition:
    “Plaintiff says that it, and the defendant, are and were at the times named, corporations by the laws of the state of Ohio; that on the 24th day of September, 1889, Belford, Clarke & Company, an Illinois corporation, was indebted to. it in the sum of $2,988.00, and on that day the plaintiff brought suit against said Belford, Clarke & Company, in cause No. 44,303, of this court, and duly levied an attachment on a large •stock of books and other merchandise belonging to said Belford, Clarke & Company, which were in the possession of the defendant, and the same were thereupon taken possession of by Leo Schott, the then sheriff of Hamilton county, by virtue of the writ of attachment then issued to him in said cause; that another Illinois corporation, the Book & Stationery Department Supply Company, claimed to be the owner of said attached property, and in order to replevin the same, it requested one George B. Fox to become its surety on a replevin bond and to procure a co-surety for such bond, and to this end the Book & Stationery Department Supply Company, on or about November 1, 1889, authorized the defendant, the John Shillito Company, when the said stock of goods and merchandise which had been attached by the plaintiff as aforesaid should be recovered by replevin, to appropriate the same or so much thereof as would be necessary to protect and indemnify said George B. Fox, and whomsoever he might cause to sign said bond, from any loss by reason of such suretyship; and the said defendant, the John Shillito Company, then agreed and promised the said George B. Fox to hold said stock of books and other merchandise or the proceeds arising from its sale, or so much thereof as would be necessary to indemnify and protect the said Fox and whomsoever he might secure to sign said bond with him, against any loss by reason of his or their said surety-ship ; and thereupon on the 7th day of November, 1889, the said The Book & Stationery Department Supply Company brought an action in replevin in this court No. 44,378, in which action the said Leo Schott, sheriff, with the defendant, the John Shillito Company, and this plaintiff were made defendants, and the said stock of books and other merchandise were duly seized and taken possession of by the coroner of Hamilton county, to whom the writ of replevin was issued in said action, and were by him taken from the possession of the sheriff who held them by the writ of attachment for the use of the plaintiff as aforesaid; that subsequently a replevin bond according to law, was duly given in said cause and executed on behalf of the plaintiff in said cause, by the said George B. Fox, and one George Fox who signed said bond at the instance and request of his nephew the said George B. Fox, who, in signing said bond himself and in procuring the said George Fox so to sign the same, relied upon the agreement of the defendant as aforesaid to hold said stock of books and other merchandise, or sufficient of the proceeds thereof to protect and indemnify him and his co-surety; that upon the execution of said bond by said sureties the said coroner delivered said books and other merchandise to the John Shillito Company, the defendant herein, who took possession of the said property for the said Book & Stationery Department Supply Company, the plaintiff in replevin, and in pursuance of its agreement as aforesaid with the said George B. Fox, the said John Shillito Company held said stock of books and other merchandise and has since sold all or the greater part thereof; that in said attachment suit cause No. 44,303 of this court, on July 12,1890, final judgment was entered sustaining said attachment and rendering judgment in favor of this plaintiff against the said Belford, Clarke & Company for $3,129.02 and the costs of this plaintiff in said cause, taxed at $140.35; that in said replevin suit, cause No. 44,378, a judgment was duly rendered on January 22, 1897, in favor of this plaintiff against the said Book & Stationery Department Supply Company, for $4,365.56, on which judgment there has been paid the sum of $948.92, being the amount in the hands of the garnishee in said cause No. 44,303, which credit was first applied to the payment of $140.35, costs in said cause No. 44,303, and the sum of $808.57 was credited upon the judgment in cause No. 44,378, leaving a balance due the plaintiff herein on the said judgment, of $3,556.99, with interest thereon from January 4, 1897, and the costs of said suit taxed at $91.14, which judgment for the balance due thereon is in full force and effect.
    “And the plaintiff further says'that the defendant, The John Shillito Company, has realized from the sale of said stocji of books and other merchandise, more than sufficient to pay the said judgment and interest and costs in cause No. 44,378, but though duly requested refuses to pay, .to or for the plaintiff the balance due upon said judgment or to satisfy said judgment; that the said George Fox has died intestate ; that his estate and the surviving surety are unable to respond to the obligation arising on said bond, so that the amount due thereon or any par! thereof, cannot be collected from the said surviving surety or from the estate of said George B. Fox by legal process.
    “Wherefore the plaintiff prays that the defendant may be decreed to pay to the plaintiff the sum of $3,556.99, with interest thereon from January 4,1897, and the costs of said cause No. 44,378, taxed at $91.14, and for all other and proper relief.”
    An amendment to the petition, filed February 8, 1898, added the following allegation:
    “And the said Book & Stationery Department Supply Company is a non-resident of Ohio, and is also wholly insolvent and has no property in this state, and the judgment against it cannot, nor can any part of it hereafter be collected by execution or otherwise at law.”
    Issue was joined by the following answer:
    “The defendant admits that it is a corporation, as alleged; that the plaintiff commenced and prosecuted to final judgment an action against Belford, Clarke & Company, numbered 44,303.on the dockets of this court, and levied an attachment upon a stock of books and other merchandise, at that time located upon the property of this defendant; that the Book & Stationery Department Supply Company instituted an action in replevin, numbered 44,378 upon the dockets of this court, executing a replevin bond with George Fox and George B. Fox as sureties, and that final judgment has been rendered in favor of this plaintiff and against said The Book & Stationery Department Supply Company in said last named action.
    “For want of knowledge the defendant denies that said George Fox has died intestate and that his estate and the surviving surety are unable to respond to the obligations on said bond, and it denies each and every other allegation in the petition not herein expressly admitted to be true.
    “Defendant prays to be hence dismissed with its costs.”
    At the May term, 1898, the cause was tried to a jury, whose verdict was for the plaintiff, for the amount claimed, and judgment followed the verdict. A bill of exceptions duly taken shows that evidence was given by both parties in support of the issues on their respective parts; and, that the court instructed the jury, among other things, in substance, that it was not necessary the sureties on the replevin bond should have sustained any loss, to entitle the plaintiff to the verdict, but that the verdict should be for the plaintiff, for the amount claimed, if the jury should find the defendant, through an authorized agent, entered into the agreement alleged in the petition, and the sureties on the replevin bond relied on that agreement.
    The general term reversed the judgment, on the ground that the verdict was contrary to law, and unsupported by any evidence, and for error in the foregoing charge of the court. Error is prosecuted here to obtain the reversal of the general term.
    Other facts deemed important in the disposition of the case will be found in the opinion.

      Gustavus H. Wald and Charles B. Wilby, for plaintiff in error.
    Upon the execution of the replevin bond with Fox as security ■ thereon, the lithographing company was the creditor, the supply company the debtor, and Fox the surety. Our adversaries contended below that the lithographing company did not become a creditor until after judgment recovered in 1897 on the replevin bond. But the supply company’s taking of the goods in replevin was wrongful in the beginning, and the judgment in replevin only judicially established its wrongfulness ab initio, and liquidated the damages. The lithographing company was, therefore, the creditor, and the supply company the debtor, and Fox a debtor as surety, from the time of the execution of the bond. Walsh v. Miller, 51 Ohio St., 462; The John Shillito Co. v. Henderson-Achert Lithographing Co., 9 Dec., 7; 6 N. P., 25; 9 Dec., 7; 6 Ohio N. P., 28.
    (1.) The lithographing company as creditor is subrogated to the rights of Fox to all securities provided for his indemnity by his principal, (2), one of Fox’s rights is to sue the Shillito company for its failure safely to keep and hold as a fund for his indemnity the property pút into its hands for that purpose by the supply company, the debtor, and wrhich both the sup-' ply company and the Shillito company agreed that it should so hold in consideration of Fox signing the bond. (8.) The principal debtor and the surety being insolvent, the creditor may proceed at once to realize upon the security in the surety’s hand, viz.: the right of action against the Shillito company, without first securing a judgment against the principal and surety.
    According as this court adopts one or the other of these views either the general term’s judgment of re versal should be affirmed, or that judgment should itself be reversed, and the judgment at special term affirmed.
    Judge Davis’ opinion seems to be based upon two grounds: first, that the security to the surety being for indemnity only is personal to him, and not the subject of subrogation, and second, that the surety not having paid the judgment in replevin, and no judgment having been recovered against him on the replevin bond he has not yet been damnified, and has himself not any right to call on the Shillito company for the fund, and that our right can not rise higher than his. Stump v. Rogers, 1 Ohio, 533; McConnell v. Scott, 15 Ohio, 401.
    True, in the case at bar we have not, formally, recovered judgment against the surety, but we have done what is equivalent thereto (were such judgment a condition precedent to our right of action, as we shall hereafter show it is not, when principal and surety are insolvent), for wé have procured judgment against the principal in replevin, a judgment binding on the surety, indisputable by him, and to which he can at any time be made a formal party, without action brought, by summary proceeding. Richardson v. Bank, 57 Ohio St., 299; Coons v. Clifford, 58 Ohio St., 480; Ohio Life Ins. & Trust Co. v. Reeder, 18 Ohio, 35.
    That a creditor, upon the insolvency of his debtor and the surety, is entitled by subrogation, or substitution to the benefit of all securities provided by the debtor, not only for the payment of the debt, but for the mere indemnity of the surety, and that too, without obtaining judgment at law against either, is settled by overwhelming authority. Pendery v. Allen, 50 Ohio St., 121; Kelly v. Herrick, 131 Mass., 373; Inst. for Savings v. Bank, 9 Allen, 175; Fickett, In re, 72 Maine, 266; Ijams v. Gaither, 93 N. C., 458; Morris, Ex parte, 16 Bankruptcy Reg., 572; Tompkins Co. v. Catawba Mills, 82 Fed. Rep., 780; Keller v. Ashford, 133 U. S., 610.
    A creditor is in equity entitled to the benefit of any collateral securities which the debtor has given to the surety, or person standing in the situation of a surety.
    Collateral securities taken by a surety for his indemnity, are regarded as trusts for the better security of the debt, and courts .of equity will compel the execution of the trust.
    Where a purchaser of land procured a third person to give his note for the consideration money, and to indemnify the maker executed to him his bond and mortgage on the premises, and before the note became due the maker failed, held that the vendor of the land was entitled to the benefit of the bond and mortgage. Vail v. Foster, 4 N. Y., 312; Moses v. Murgatroyd, 1 Johns. Ch., 129; Meyers v. Campbell, 59 N. J. L., 378; Bank v. Wheeler, 12 Tex. Civ. App., 489; Thornton v. Bank, 71 Mo.,221; Morrill v. Morrill, 53 Vt., 74; Pierce, In re, 2 Lowell, 343; Bank v. Stewart, 4 Dana, 27; Tolle v. Boeckler, 12 Mo. App., 54; Central Trust Co. v. Louisville Trust Co., 87 Fed. Rep., 23; Wolmershausen v. Gulick, 1893, 2 Ch., 514; Outlaw v. Reddick, 11 Ga., 669; Miller v. Aldrich, 31 Mich., 408.
    The precise point, the liability of the trustee who has wasted the trust fund, to account to the surety, for its value, was decided by this court, in Gilbert v.
      Sutliff, 3 Ohio St., 129; State v. Guilford, 15 Ohio, 593.
    The promise safely to hold the books or their proceeds and devote them to Fox’s indemnity was a binding promise, and could not be rescinded without his consent. When the defendant without the consent or knowledge of Fox sent the proceeds out of the state and handed them over to a stranger, it broke its promise and Fox instantly had a right of action against it.
    It was a promise made not by a stranger, but by a party defendant in the replevin suit. It was a promise to hold as a fund for indemnity of the surety, not Shillito’s property, but the property of the principal debtor.- The only stranger having no interest in the transaction was Fox, the surety, who agreed to assume the liability of a surety on the faith of defendant’s promise to keep the books or their proceeds safely as a security for him against loss, and in the freeing of the books from attachment by means of the replevin, defendant had a direct pecuniary interest. That such a promise is not within the statute of frauds, though at first vigorously and confidently denied, seems to have been finally now admitted. Denial would seem useless in the face of Ferrell v. Maxwell, 28 Ohio St., 383; Stoudt v. Hine, 45 Pa. St., 30; Jack v. Morrison, 48 Pa. St., 113; Justice v. Tollman, 86 Pa. St., 147.
    Browne on the Statute of Frauds, 187. And this is put on the express ground that it is not a promise by a stranger to pay out of his own money, but to pay over funds furnished by the principal debtor.
    If a mere stranger is liable in advance of payment by the surety to an action for injury to the security, a fortiori is one liable who on valuable consideration moving to him from the surety promises to hold for his security property placed in his hands for that purpose, and then in fat violation of his promise without the surety’s knowledge or consent hands that property over to a stranger to be carried beyond the borders of the state; and to the Surety’s right to enforce that liability — “to all his rights” — we are entitled by subrogation. Wetzell v. Richcreek, 53 Ohio St., 62; Schweinfurth v. Railway Co., 60 Ohio St., 215; and Riggin v. Creath, 60 Ohio St., 114.

      Robert Ramsey, Kramer & Kramer, and Maxwell & Ramsey, for defendant in error.
    1. Fox waived his right .to the securities offered by the supply company.
    The letter of November 1, 1889, authorized Dawson to withhold from sale enough merchandise to indemnify Fox, so long as Fox desired that indemnity. It did not authorize him to withhold any of the proceeds of such of the merchandise as should be sold. He had no other source of authority than this letter. But Fox consented at once to the sale of these goods, and. they were in fact sold.
    While Dawson still held enough of the original stock of goods on hand to indemnify Fox, the latter saw and took a copy of the supply company’s letter, disclosing the fact that the security was to consist of merchandise and not money. Yet he continued to acquiesce in the sale of the merchandise.
    2. The transaction was between Fox and Dawson individually.
    The letter was in terms addressed to Dawson personally. The John Shillito Company had nothing to do with the matter. It was quite outside the scope of Dawson’s authority as superintendent of a retail store where these goods were exposed for sale, to agree to withhold part of them from sale. It does not appear that he communicated with the officers of his company upon the subject. When they remitted the account in September, 1891, they were innocent, both in law and in fact, of any connection with Dawson’s undertaking.
    3. The securities were for the protection of Fox alone and not for the better securing of the bond. Therefore the lithographing company had no cause of action when they were disposed of in 1891.
    The letter expressly stated that the goods were to be held for the protection of Fox against “any loss by being a party to the bond,” and held only “until such time as said George B. Fox” should release them. It will be conceded that if Fox had notified the Shillito company that he did not “desire any further guarantee,” the remittance of September 5,- 1891, would have been proper, and the lithographing company could not have complained. By this test, the indemnity offered is shown to have been strictly personal to Fox and to him alone. Jones v. Bank, 29 Conn., 25; Chambers v. Prewitt, 71 Ill. App., 119 (Affirmed, 172 Ill., 615); Logan v. Mitchell, 67 Mo., 524.
    These propositions seem to be sustained by an unbroken line of decisions. Homer v. Savings Bank, 7 Conn., 478; Poole v. Lowe, 52 Pac. Rep., 741; Constant v. Matteson, 22 Ill., 546; Poole v. Doster, 59 Miss., 258; Osborne v. Noble, 46 Miss., 449; Hopewell v. Bank, 10 Leigh, 206; Bowman v. McElroy, 15 La. Ann., 646; Clay v. Freeman, 20 So., 871; 2 Brandt, Suretyship, Sec. 326; Ohio Life Ins. Co. v. Reeder, 18 Ohio, 35; Leggett v. McClelland 39 Ohio St., 624; Zuelig v. Hemerlie, 7 Circ. Dec., 56, 18 C. C. R., 660.
    It follows that in 1891, when these goods were disposed of the lithographing company had no cause of action against the Shillito company. It could not prevent the solvent debtor (conceding for the sake of argument that the supply company was then its debtor) from selling any of its property, and therefore could not complain of the Shillito company for delivering the goods.
    4. When this equity was asserted, nothing remained but a right to sue, which was purely personal to Fox and not the subject of subrogation.
    If the lithographing company has any remedy it can only be availed of by persuading Fox to elect to sue. He should have been made defendant below, and have asserted his rights in this action. After the decision of Conley v. Chilcote, 25 Ohio St., 320, the debtor was made defendant and elected to take his exemption out. of the attached funds. Subrogation is an equitable mode of avoiding circuity of action. It is not a doctrine of maintenance, giving the sanction of equity to that which is against the policy of the law. Wald’s Pollock on Contracts, 299.
    If Fox has made no objection to this alleged wrong, equity will not permit anyone else to object. That would be to multiply and not to avoid litigation, whereas the avoiding of litigation is the motive for the doctrine of subrogation.
    5. The lithographing company has no greater right than Fox; and he has not been damnified.
    A derivative right can not rise above its source. Fox might have had a right of action at law for damages. The defense would have been non damnificatus. He was not indemnified against “liability” on the bond, but against “loss.” The liability arose, but the loss has not yet occurred, and will not, since both sureties are insolvent.
    The distinction between liability and loss in such a case is stated with exactness by the circuit court, in
      Pratt v. Walworth, 8 Circ. Dec., 472; 15 C. C. R., 412; Allison v. McCune, 15 Ohio, 726.
   Williams, J.

There appears to have been, at the trial, but one substantial controversy of fact, which was, whether Mr. Dawson, the superintendent of the defendant’s store, had authority to, and did, enter into the agreement set forth in the petition, in behalf of the defendant. The jury’s determination of that controversy adversely to the defendant, though justified by the evidence, is not necessarily decisive of the case, which, as presented here, is reduced to an inquiry into the nature and effect of the agreement so made. The answer admits that the plaintiff, in an action brought by it against Belford, Clarke & Co., levied an attachment on personal property of that company then in the possession of the defendant here, of sufficient value to satisfy the demand which the plaintiff was there seeking to collect; and that, in the due prosecution of .that action the plaintiff recovered judgment for the amount alleged in its petition in this case. It is also admitted that, while the attachment was a subsisting lien on the property it was replevined from the officer at the suit of the Book and Stationery Department Supply Company; and that, the plaintiff here, who was made a defendant in that suit, recovered against the plaintiff therein, a judgment for damages for the wrongful replevin of the property, in an amount equal to the judgment recovered in the attachment case. The evidence shows that, upon the replevin of the property, it was placed by the plaintiff in that suit, in the store of the defendant in this case, for sale on commission by the latter as agent of the former who, in order to obtain sureties on the replevin bond, submitted to Mr. Dawson, then the superintendent of the defendant’s store, the following written proposal:

“Jas. W. Dawson, Esq., Cincinnati, O.
“Dear Sir: We hereby authorize you to hold of the stock and mdse, now in the Book & Stat’y Dept, of the John Shillito Company so much in amount as will be necessary to guarantee George B. Fox or whosoever he may have sign bond, against any loss by being a party to, the bond given or to be given in a replevin suit of this company vs. The Henderson-Achert Co., and to hold such stock and mdse, until such time as said Geo. B. Fox may notify you in writing that he does not desire any further guarantee.
“Yours truly,
“Book & Stationery Dept. Supply Co.
“C. Higgins, Pres’t.”

This proposal was accepted, and in pursuance thereof, George B. Fox and another person became sureties on the bond, which was conditioned tha't the plaintiff in the replevin suit would duly prosecute the same, and pay all costs and damages that should be awarded against it. It was admitted on the trial that the sureties on the replevin bond, and the plaintiff in that suit were, and are, all insolvent; and, that the defendant in this action did not, at the time of its commencement, nor since, have either property or money belonging to the plaintiff in replevin, all having been paid or turned over to the latter, or according to its direction, without the consent of the sureties on the bond.

The , defendant’s contract of indemnity so entered into, no doubt inured to the benefit of the sureties who, upon the faith of it, incurred their obligation on the replevin bond, as fully as if made directly with them. And it is the contention of counsel for the plaintiff that, when its action was commenced, it was the right of the sureties to enforce performance of that contract by compelling the defendant to discharge their obligation on the bond, and, as that required the satisfaction of the judgment recovered in the replevin suit, the plaintiff is entitled to the same remedy through the process of subrogation, as here sought.

When not otherwise controlled- by express agreement, there is an implied stipulation in the usual unconditional contract of suretyship, that the principal will pay the debt at-maturity, and thus protect the surety by relieving him from the burden of his obligatipn; and, upon failure to do so, the latter had the right in equity, and now has by statute, to compel payment of the debt out of the principal’s estate, though the surety made no payment before the commencement of his suit. Stump v. Rogers, 1 Ohio, 533. Section 5845, Revised Statutes. The creditor is undoubtedly entitled to subject to the payment of a judgment recovered on the debt, any securities placed by the principal in the hands of the surety for its payment, or for his indemnity against its payment. If the securities consists of tangible property that can be reached by execution, process of that nature is the appropriate remedy for their subjection to the satisfaction of the judgment; for the property, though in the hands of the surety, being the propery of the principal debtor, is subject to seizure and sale like other property belonging to him, and its application to the payment of the debt and the consequent discharge of the surety’s liability, is in accomplishment of the purpose for which it was placed in his custody. Where the securities are choses in action, counter bonds, or taortgages given by the principal, for the collection of which, and their application to the debt, an action becomes necessary, the surety may resort to that remedy; and the creditor may oftentimes reach property of that nature in the possession of the surety, without the aid of subrogation, through a creditor’s bill, or proceedings in aid of execution. But as the money arising from such securities, however reached, properly belongs to the creditor for the security of whose debt they were intended, equity will aid him through subrogation to the remedies of the surety, which may prove the more effectual, because the creditor in that way becomes entitled to whatever priority of right exists in favor of the surety. This doctrine is sometimes said to rest upon the principle that a trust for the benefit of the creditor attaches to the property eo instanti it is placed in the possession of the surety, the execution of which may be enforced at the suit of the creditor, the cestui que trust. This was held in Pendery v. Allen, 50 Ohio St., 121, and has been in many cases, some of which are cited in the brief of counsel for the plaintiff. In other cases the doctrine is said to arise from that principle of natural equity which requires that his property, in whatever form it may be, who is ultimately liable for the payment of the debt, should be primarily applied to . that purpose, in exoneration of the one who is only secondarily liable. Either view presupposes that the securities are placed with the surety, and are -the property of the principal debtor. The doctrine has been applied, however, where a stranger to the debt, for a sufficient consideration, has agreed to assume and discharge the obligation of the surety. The creditor may adopt and enforce the promise, for it is the property of his debtor, and its performance includes the payment of the debt. Such being its purpose, a court of chancery will see that its design is fulfilled. Champion v. Brown, 6 Johns. Ch., 406.

A distinction has been made between cases of that kind, and those where the agreement is personal to the surety, for his individual indemnity only, and not for the discharge of his liability; courts in cases of the latter class holding that the creditor acquires no equity to enforce the covenant. Homer v. Bank, 7 Conn., 478; Taylor v. Bank, 87 Ky., 398; Bank v. Hastings, 1 Doug. (Mich.), 225; Jones v. Bank, 29 Conn., 25. There are many other authorities to the same point, some of which are cited in the brief for the defendant. An attempt to define the precise scope of this distinction is a task that need not be assumed here further than to remark that it must depend, in each case, upon the terlns and conditions of the covenant or contract of indemnity. For, while the right of subrogation is not founded on contract, it is well settled that it may be qualified and controlled by express agreement of the parties; and, in that respect, their rights and obligations may be whatever, by their contract, they choose to make them. Contracts of that nature, like all others, are to be construed and enforced according to the intention of the parties, as derived from the language they have employed.

The contract between the defendant in this action and the plaintiff in the replevin suit, was made by the former’s acceptance of the latter’s written proposal hereinbefore quoted; and that instrument fixes definitely and conclusively the terms and extent of the defendant’s obligation of indemnity to the sureties on the replevin bond. That obligation as there expressed, is “to guarantee” the sureties “against any loss by being a party to the bond,” and to hold the property then in custody of the defendant for that purpose, until such time as the sureties should give notice that they did “not desire any further guarantee.” The apparent design of this last clause of the agreement was to provide the defendant with the means of fulfilling its obligation of indemnity. At all events, it does not enlarge nor diminish that obligation, which is to protect the sureties on the replevin bond against loss to them from their suretyship; for, until such loss should occur it is entirely immaterial to them whether the property continue in the possession of the defendant or not, and it is not material then, since the defendant is, in either event, bound to make good the loss. The nature and extent of the defendant’s obligation to the sureties, was, therefore, unaffected by the surrender of the property, and of the money arising from the sales made, to the owner. If the property or its proceeds had remained in the possession of the defendant when the plaintiff recovered the judgment in the replevin suit, either could, undoubtedly, have been subjected to its payment by legal process or proceedings. But that would have been, not through, nor by virtue of any rights of the sureties, but by independent remedies belonging to the plaintiff as a creditor.

The plaintiff had no contract with the judgment debtor, nor with the defendant here, that the property placed in the possession of the latter should be held for the payment or security of the debt; nor, did the latter bind itself to any one to hold the property for such purpose. The defendant is a stranger to the debt, and its agreement is one strictly of indemnity to the sureties ; so that, its individual liability on the agreement, to enforce which this action was brought, is in no sense a property right of the plaintiff’s debtor, and satisfaction of the judgment obtained therefrom would not be payment out of, the debtor’s estate, but out of the estate of a stranger. Confessedly, therefore, the liability of the defendant on its covenant to indemnify the sureties against loss, can be reached by the creditor, if at all, only through some right or remedy that belongs to the sureties. And it should be borne in mind that the defendant’s obligation does not arise out of any principle of equity, but is created by special agreement of the parties. Except for its express agreement the defendant would have nothing to do with the liability of the sureties. That agreement, therefore, which alone created, must determine the extent of the defendant’s liability, both at law and equity; for there is no principle upon which a court of equity, or law, can enlarge the legal effect of the agreement. It seems self-evident that the rights of the creditor through subrogation to the remedies of the sureties can, in no case, exceed those of the latter, and that, until the indemnitor’s covenant has been broken, or there has been some failure to perform it, no action can be maintained thereon by either. This was declared in Ohio Life, etc., Co. v. Reeder, 18 Ohio, 35, 47, and there is no diversity of authority on that subject.

There is an essential difference, in legal effect, between covenants of indemnity, strictly, that is, of indemnity against loss, and covenants to pay, or assume, or stand for, the debt, or a surety’s liability thereon. A right of action accrues on those of the latter class as soon as the debt matures and is unpaid, because the liability then becomes absolute, and the ■failure to pay is a breach of. the express terms of the covenant. While those of the former class are not broken, and no right of action accrues, until the indemnitee has suffered a loss against which the covenant runs. This distinction grows out of the. express terms of the contract, and is well established by authority. It is expressed by Mr. Justice Swayne, in Wicker v. Hoppock, 73 U. S. (6 Wall.), 94-99, as follows : “In that class of cases (contracts of indemnity) the obligee cannot recover until he is actually damnified, and he can recover only to the extent of the injury he has sustained up to the time of the institution of the suit. But there is a well settled distinction between an agreement to indemnify, and an agreement to pay. In the latter case a recovery may be had as soon as there is a breach of the contract, and the measure of damages is the full amount agreed to be paid.” That the distinction obtains at law, counsel concede. But, it is insisted that a different rule prevails in equity, which, it is claimed, will entertain a suit for the specific performance of indemnifying covenants before a loss has been sustained, by compelling the payment or discharge of the surety’s obligation, for his better and more complete exoneration. There is both reason and authority to sustain the proposition that a covenant, though by a stranger, founded upon a sufficient consideration, to pay, or to assume, or to stand for a debt on which a surety is,bound, may be specifically enforced in chancery, after the maturity of the debt, if it be not then paid by the covenantor. The reason is, as has already been stated, that by his failure to pay he has failed to perform his covenant, and the remedy is within its express terms. The courts have many times so held. But on no sound principle can a court of chancery, any more than a court of law, compel an indemnitor to perform his covenant in advance of the happening of the contingency or event upon which, by its terms, it is to be performed. Such a remedy would necessarily involve, not the enforcement of the contract made by the party, but its modification by» the court, and its enforcement in that modified form.

It would not be profitable to enter upon an extended examination of the authorities touching this point. They have been reviewed in Hoy v. Hansborough, 1 Freem. Ch. (Miss.), 533; Bank v. Hastings, 1 Doug. (Mich.), 224-256, et seq., and more recently in the case of Central Trust Co. v. Louisville Trust Co., 100 Fed. Rep., 545, in each of which cases the existence of a remedy like that demanded in this case, on covenants of the same nature, was denied. In the last case above cited, the general character of the contract of indemnity, and of the relief sought, but refused, were practically the same as in the case here under consideration; and, in the opinion of the court it is said of the other two cases, which are there cited, that: “The covenants upon which the indemnitors were sued in each of the cases cited were simple covenants ‘to save harmless and indemnify’ against loss and damage, and were substantially identical with the covenant upon which this action was brought. In neither had any loss been actually sustained. A mere possible legal liability to pay was in both cases held to be insufficient to satisfy the terms of the bond, and in each case relief was denied upon the ground that the contingency provided by the bond had not arisen. The opinions are well reasoned, and most of the authorities now relied upon by counsel for complainant were considered and distinguished.”

So, in the case before us, the defendant’s covenant for the benefit of the securities on the replevin undertaking is one strictly of indemnity against loss on account of their suretyship, and nothing more; and, as they have yet suffered no loss, no right of action has accrued to them thereon, either at law or in equity, and consequently none exists in behalf of the plaintiff,

Judgment affirmed.

Burket, Shauck and Davis, JJ., concur.

Minshall, C. J., dissents.


author: Minshall, C. J.

text:
    Drolesbaugh v. Hill et al.

      Sureties on officer’s bond — Liable where under, color of office— H<e uses unnecessary force and violence.

    The sureties on the bond of an officer, conditioned for the faithful discharge of his duties, are liable thereon to the party injured, where under color of his office in making an arrest with or without warrant, and without probable cause, he uses more force and violence than is necessary.
    (Decided March 12, 1901.)
    Error to the Circuit Court of Crawford county.

      Finley & Gallinger and Anson Wickham, for plaintiff in error.
    We contend that this court and other courts have held under like circumstances that the sureties on the bond are liable. State v. Blake, 2 Ohio St., 147.
    We think this exact question was settled by this court in the case of Riley et al. v. Walker, decided in 1899, found in 42 Bull., 275; 60 Ohio St., 626; among the unreported cases.

      In that case a constable armed with a search warrant for the house of one David Walker, entered the premises and there assaulted one Nancy A. Walker. She brought suit upon the official bond of the constable, and the sureties made the same contention in that case that the sureties make in this, viz., that the assault and battery, being no part of the duties of his office, the sureties were not liable — the officer being a trespasser as to Nancy A. Walker. The common pleas court sustained a demurrer to the petition. The circuit court reversed the common pleas, and the Supreme Court on June 6, 1899, affirmed the circuit court.
    Whatever distinctions other courts may make between acts done by an officer “by virtue of his office” and acts done “under color of his office” otherwise called colore officii, the Supreme Court of this state seems to draw no distinction, as will be observed in the 3d syllabus of the case just quoted, where the term “colore officii” is used, and especially in the case of Ohio v. Jennings, 4 Ohio St., 418, where this court held that a seizure of goods of A under color of process against B is official misconduct for which the sureties are liable, on the ground that the trespass of the officer “is not the act of a mere individual, but is- perpetrated colore officii

    The duties of the city marshal are ministerial, and where he performs his ministerial duties improperly, his sureties are liable. Rev. Stat., 7129, 1847-8-9; Truesdell v. Combs, 33 Ohio St., 186; Reinhard v. City, 49 Ohio St., 257; Clancy v. Kenworthy, 74 Iowa, 740; Tieman v. Haw, 49 Iowa, 312; Commonwealth v. Cole, 7 B. Mon., 250; State v. Hays, 30 W. Va., 107; Central Law Journal, 477.

      Harris cG Sears, for defendants in error.-
    It is an elementary principle of law, so well established as to scarcely require the citation of authorities to support it, that the liability of sureties is strict issi mi juris, and cannot be extended by implication beyond the scope of their engagements, or the reasonably necessary import of the language of their bond. This rule, is, in its general terms at least, so well, settled that it may be regarded as axiomatic. Murfree on Official Bonds, Sec. 710; McGovney v. State, 20 Ohio, 93.
    It follows, then, that the sureties can rely on the strict wording of their bond, and plaintiff, to hold them liable, must make allegations clearly showing a breach of the condition of such bond, otherwise, his petition, as against the sureties, is demurrable.
    The sureties simply undertook, when they signed Hill’s bond, that Hill should faithfully perform his duties as marshal of the city of Bucyrus. They did not undertake to be responsible for any violation of the law of the state of Ohio, which Mr. Hill as an individual might commit, unless such act or violation of law, on the part of Hill, amounted to an unfaithful performance of his official duty. It then becomes pertinent for us to consider what are the official duties of the marshal of Bucyrus. We find them defined in the laws of Ohio, sections 1847-1854, inclusive.
    Section 7129 of the Revised Statutes authorizes a marshal to arrest anyone found violating the law of the state or ordinance of the city or village, until a legal warrant can be obtained; this is what we commonly understand to be arresting on view.
    If the marshal committed the grievances complained of in the amended petition, he is liable for his trespass, in tort, the same as any other individual. The sureties on his bond did not undertake to make themselves liable for an assault and battery which Hill might commit while he was marshal, any more than they would be liable if he should rob a hen-roost, or run away with another man’s wife; and an averment in a petition, charging that he stole sheep, by virtue of his office, would be no more meaningless, than the allegation in the petition that he committed an assault by virtue of his office; for the simple reason, that the duties imposed upon him by law, and which his bond guarantees that he will faithfully perform, include none of the offenses or trespasses mentioned.
    The averments of the amended petition, place Hill upon the same level and footing of any individual trespasser, and the facts alleged, are sufficient to have warranted Drolesbaugh in resisting arrest and defending himself, if necessary, to the extent of disabling or killing his assailant. Murfree on Official Bonds, Secs. 459 and 781; 33 N. C., 151, cited in 21 L. R. A., 738; 72 N. C., 110; 37 Ill. App., 490; Jewell v. Mills, 3 Bush, 67.
    The court will note that plaintiff in his amended petition avers that the acts complained of, committed by Hill, with the exception of the alleged assault in the city prison, were done by Hill the marshal by virtue of his office of marshal; and counsel for plaintiff in error, in their brief, not only seek to exclude the idea that the trespass complained of was committed by the marshal, merely under color of his office, and not by virtue of his office; but they even attempt to argue that the Supreme Court of Ohio in the case of Ohio v. Jennings, 4 Ohio St., 418, and also in the case of Riley v. Walker, decided by this court without report, but reported by somebody in volume 42 W. L. B., 275; 60 Ohio St., 626, either abrogate or disregard the established rule, that for acts done by an officer colore officii, his sureties are not liable. That the rule is what we have stated the following authorities will show: Brandt on Suretyship, Sec. 566; 37 Wis., 43; 8 Neb., 344; 3 Bush. Ky., 62; Throop on Public Officials, Sec. 238; 10 Mass., 309; 13 Mo., 437; 8 Tenn; 21 Wis. 684; 9 Mo., 63.
    We think the present case especially on the facts is distinguishable from the case of Ohio v. Jennings, 4 Ohio St., 418, 423, cited by counsel for plaintiff in error. We do not think that Judge Thurman in deciding that case used the term colore officii in its technical or legal* significance, as contra distinguished from virtute officii; the particular fact being considered and discussed by the court, was, that an official under color of a process against B has seized the goods of A, and it was merely owing to the fact that the trespass had been so committed under color of a legal process, which the offender actually had and held, that the court denominated his act colore officii. In reality, when considered in the light of the well defined meaning of the terms colore officii and virtute officii, it is quite apparent that the act of the constable in Jennings v. State was legally and technically virtute officii.

    The principle controlling in Ohio v. Jennings, supra, is well illustrated in the case of People v. Scuyler, 4 N. Y. P., 173; Seeley v. Birdsall, 15 Johns., 267; Allcock v. Andrews, 3 Esp., 540n.
    See also the distinction defined in Wilfield’s Adjudged Words and Phrases, page 632; Murfree on Official Bonds, Sec. 698 and 699; Brandt on Surety-ship, Sec. 566.
   Minshall, C. J.

The action below was a suit against Hill, the city marshal of Bucyrus, and his sureties on his bond. To the petition as amended the court sustained a demurrer, and’ rendered judgment for the defendants. The judgment was affirmed on error, by the circuit court, and the ruling is brought here for review.

The petition alleges the election of Hill as marshal of the city of Bucyrus, and his qualification by giving bond in the sum of $1,000, as required by law, with Charles Clark, J. B. Morgan, and W. M. Reid his sureties thereon; conditioned that “if the said Charles E. Hill as such marshal of said city shall faithfully perform the duties of his said office, then this Obligation shall be void, and otherwise to remain in full force and virtue;” and then assigns as a breach of the bond:

“That the said Charles E. Hill, as marshal of said city of Bucyrus, on the 27th day of March, 1897, in his official capacity of marshal aforesaid, and by virtue of his said office of marshal, did unlawfully and without reasonable or probable cause, and without warrant or any process of any court, arrest this plaintiff upon the streets of said city .in the presence of divers and sundry good people, and then and there by virtue of his said office of marshal, did forcibly and unlawfully drag the plaintiff along and over the streets of said city to the jail or lockup of said city, in the .presence of divers and sundry good people, and did then and there in his official capacity of marshal, and by virtue of his said office, unlawfully, without warrant or any process of any court, incarcerate the plaintiff in said jail or lockup of said city, and then and there by virtue of his said office of marshal aforesaid, did unlawfully imprison the plaintiff in said lockup or jail for the period of about two hours; and plaintiff says that said Charles E. Hill, while unlawfully having this plaintiff in his custody as aforesaid, did then and there in the presence of divers persons, unlawfully pinch plaintiff’s arm thereby bruising and wounding the same and causing plaintiff great pain, and did beat, wound and bruise plaintiff by striking him with his fist in plaintiff’s face, cutting and lacerating plaintiff’s lips and knocking one of his teeth loose, and did then and there unlawfully demand and receive of plaintiff the sum of five dollars for releasing plaintiff from said unlawful imprisonment,” and asks judgment for $1,000.

The question then presented is, whether the averments of the petition show a breach of the condition of the bond.

The contention of the defendant in error is, that it simply shows the commission of an assault and battery on the plaintiff, for which the defendant is liable in his capacity as an individual, and not in his capacity as an officer; or that the averments show that he simply acted under the color of his office and not in virtue of it. Some such distinction has been taken in some of the cases, but it is not generally followed, as it is of little practicable application. In Story v. Jennings, 4 Ohio St., 418, where a constable under a writ of replevin against B took the property of A it was held that the sureties on his official bond were liable. Thurman, J., delivering the opinion, says: “The authorities seem quite conclusive, that a seizure of the goods of A under color of process against B is official misconduct in the officer making the seizure; and is a breach of the condition of his official bond, where that is, that he will faithfully perform the duties of his office. The reason for this is, that the trespass is not the act of. a mere individual, but is perpetrated colore officiiHe cites many cases in support of the holding, and among others, that of The People v. Schuyler, 4 Com., 173. That such is the generally received doctrine, see Brandt on Surety-ship, Sec. 566; Throop, Public Officers, Secs. 240, 241; Lowell v. Parker, 10 Met., 309, 313; Lammon v. Feusier, 111 U. S., 17, 22; Murfree, Official Bonds, Sec, 303.

It is not difficult to distinguish between an act done by an officer in his capacity as an individual, and one done in his capacity as an officer; for the former his sureties are not liable in any case, for the latter they generally are when the act is wrongful and results in injury to another. Constables and marshals are clothed with very considerable power over the citizen. They may without a warrant make an arrest on view for an offense committed in their presence, as well as on a warrant. The peace and good order of society, requires that they should have such powers; but the protection of the individual requires that the same should be exercised in a reasonable and prudent manner; and to secure this, a bond with sureties is exacted for the faithful discharge of their duties. An officer in making an arrest has the right to use such force as may be necessary to overcome any resistance to the execution of his office, offered by the person to be arrested; but he must use no more force or violence than is reasonably necessary for the purpose; and if he does he makes himself and his sureties liable upon his bond to the party injured. The averments of the petition are quite specific. It is averred that by virtue of his office, the marshal unlawfully arrested the plaintiff, struck, bruised and ill-treated him, dragged him through the streets, confined him in the jail and exacted five dollars for his release. It is true that it is averred that this was done without any warrant or probable cause. It does not follow from this that it was not done in his capacity as marshal. If he had no warrant, he had the right to arrest upon view of what he deemed an offense. The fact that it is averred that he acted by virtue of his office precludes the idea that he acted as an individual and of his own wrong. From the petition it appears that what he did, he did as an officer and not as an individual, and the averments of the petition are consistent with such having-been the fact. He may have made the arrest upon view, and have used no more force than was necessary. If such is the case, he and his sureties may defend themselves by setting up the facts in an answer. The petition therefore makes a case.

In the case of Clancy v. Kenworthy, 74 Iowa, 740, the facts were much the same as in this case, and the same argument was made against the sufficiency of the petition. In answer to the argument the court said:

“If in exercising the functions of his office, defendant is- not liable for acts because they are illegal or forbidden by law, and for that reason are trespasses or wrongs, he cannot be held liable on the bond at all, for the reason that all violations of duty and acts of oppression result in trespasses or wrongs. For lawful acts in the discharge of his duty he of course is not liable. It follows that if defendant’s position be sound, no action can be maintained on the bond in any case.”

It would seem that the public have as much interest, if not more, in the duty of an officer not to color-ably exercise the powers with which he is clothed, as not to use unnecessary violence, where he is- otherwise clearly within the duties of his office. It is by virtue of the office he holds that he may exercise its duties to the injury of another. It is not probable that any individual, not an officer, would have attempted to do what the marshal is charged with doing.

Our attention is called to the case of Carpenter v. Sloane, 20 Ohio, 327, as practically determining this one. A clerk and his sureties were sued on his official bond, for having issued letters to a guardian without having taken a bond. The court held that he was not liable on his bond for the reason that it was not his official duty to see that a bond had been given. Manifestly the case has no application here.

However the law may be in some of the other states, in this, and many of the others, where an officer acting under color of his official duties, commits a wrong to the injury of another, he, with his sureties, is liable on his bond to the party injured. The wrongful making of an arrest by an officer colore officii is an unfaithful discharge of his duties, and therefore a breach of his bond.

17udgment reversed and cause remanded for further proceedings.

Si-iauck, Davis, Spear, Burket and Williams, JJ.', concur.


author: By the Court :

text:
    Brady v. The National Supply Company. Same v. The Union Supply & Hardware Company.

      Corporation need not aver it is a corporation — When commencing an action — Burden of proof — When corporation is defendant and its powers questioned — Must he specially pleaded — Rule as to foreign corporations.

    1. Where a corporation commences an action, it need not aver in its petition that it is a corporation; and if such averment is made, it will be held to be immaterial and mere surplusage, and a general denial to a petition containing such averment will not impose upon the plaintiff the burden of proving on the trial that it is such corporation.
    2. To raise the issue of nul tiel corporation, the defendant must Specially plead in his answer that the plaintiff is not a corporation. Smith v. Weed Sewing Machine Co., 26 Ohio St., 562, approved and followed.
    3. Where a corporation is made a defendant, and its charter, powers or franchises become the foundation of the action, the same must be specially pleaded in the petition; and in the case of a foreign corporation, the name of the state by which, and the substantial terms in which, the charter, powers or franchises were granted, should appear in the petition. Devoss v. Gray, 22 Ohio St., 159, approved and followed.
    (Decided March 12, 1901.)
    Error to the Circuit Court of Lucas county.
    These two cases were heard and considered together. In the National Supply Company case, the petition avers that the company is a corporation duly incorporated under the laws of the state of West Virginia, that it is doing business in the state of Ohio, and that it has complied with the laws of this state relating to foreign corporations doing business in Ohio, and then proceeds to state its cause of action arising on a judgment recovered by it against said Frank E. Brady in the state of Indiana. The answer is a general denial.
    In the Union Supply and Hardware Company case, the petition avers that it is a corporation duly organized and incorporated under the laws of the state of Ohio, and is doing business in this state, and then declares upon a judgment recovered by it against said Frank E. Brady in the state of Indiana. The answer is a general denial.
    No proof of the incorporation of either company was introduced upon the trial in the court of common pleas, other than the transcripts of the judgments so recovered in the state of Indiana. Plaintiff in error claims that in the absence of such proof the judgment should have been in his favor. The court of common pleas regarded such proof unnecessary and rendered judgment against him in both cases. The circuit court affirmed the judgments, and thereupon Mr. Brady filed his petition in error in this court, seeking to reverse the judgments of the courts below.

      G. F. Watts, for plaintiff in error,
    cited the following authorities: Lewis v. Bank, 12 Ohio, 132; Smith v. Sewing Machine Co., 26 Ohio St., 562; Bliss Code Pleading, Secs. 247, 248; Kinkead Code Pleading, Vol. 2, Sec. 990; Goodrich v. Jacobs, 6 Ohio, 43; Am. & Eng. Ency. of Law, 1st ed., Vol. 12, page 149; Whittaker v. Branson, 12 Paine, C. C., 209; 2 Freeman on Judgments, 4th ed., Sec. 456; 2 Ohitty on Pleadings, 482; Adait v. Rogers, Wright, 428; Laerence v. Willoughby, 1 Minn., 87; Newburg v. Munshower, 29 Ohio St., 617; Toledo Com. Co. v. Glen Mfg. Co., 55 Ohio St., 217.

      Ira G. Taber, for defendants in error,
    cited the following authorities: Methodist Church v. Wood, 5 Ohio, 283; Elektron Mfg. Co. v. Electric Co., 4 Circ. Dec., 555; 8 C. C. R., 311; Smith v. Sewing Machine Co., 26 Ohio St., 562; Lewis v. Bank, 12 Ohio, 132; Section 148c, Revised Statutes; Brown v. State, 11 Ohio, 276; Watson v. Brown, 14 Ohio, 473; Anderson v. Kerns Draining Co., 14 Ind., 199; Lewis v. American Savings & Loan Assn., 98 Wis., 203.
   By the Court :

“At common law a corporation, when it sues, need not set forth its title in the declaration; but if issue be taken, it must show, by evidence upon the trial, that it is a body corporate, having legal authority to make the contract which it seeks to enforce, if the action be upon contract, or to sue in that character and capacity in which it appears in court. * * * The code does not require the title of the plaintiff to sue to be more specifically set out than was required at common law.” Smith v. Weed Sewing Machine Company, 26 Ohio St., 565.

It is therefore not necessary to aver in a petition that the plaintiff is a corporation, and if such averment is made in the petition it will not be held to be a material allegation, and will be regarded as mere surplusage, and a general denial to a petition containing such an averment will not impose upon the plaintiff the burden of proving at the trial that the plaintiff is a corporation. If the defendant desires to raise the issue as to whether the plaintiff is a corporation, he must specially plead and aver in his answer that the plaintiff is not a corporation, and has no right to contract or sue as such, as the case may be.

The same rule applies when a -corporation comes in by way of cross-petition.

If, hoAvever, a corporation is made a defendant in an action, and its charter, powers or franchises become the foundation of such action, the same must be specifically pleaded in the petition; and if the corporation be a foreign one, the name of the state by which, and the substantial terms in which, the charter, powers and franchises Avere granted, should appear in the petition. Devoss v. Gray, 22 Ohio St., 159.

Judgements affirmed.

Min shall, C. J., Williams, Burkist, Spear, Davis and Siiauok, JJ., concur.'


author: By tiie Court:

text:
    The State of Ohio v. Johnson.

      Burglary — Section 6S35, Rev. Stat. — Sufficiency of indictment.

    Under Revised Statutes, section 6835, as amended (82 O. L., 161), an indictment charging the defendant with having burglariously broken and entered “a certain building, to-wit, a certain store room then and there situate the property of one J. M. Durkin,” is 'sufficient.
    (Decided March 12, 1901.)
    Exceptions by the Prosecuting Attorney to the rulings of the Court of Common Pleas of Greene county.
    The defendant was indicted for burglary and larceny. The. indictment charged the defendant with breaking into “a certain building, to-wit, a certain store room then and there situate, the property of one J. M. Durkin.” The defendant was arraigned, pleaded not guilty, trial was had, and he was convicted as charged in the indictment. On the day of conviction a motion to arrest judgment Avas filed by the defendant’s counsel and avus sustained by the court on the sole ground that it is no crime in Ohio to enter or attempt to enter a store room, notwithstanding the proof shows it to be a building. To this decision of the court of common pleas the prosecuting attorney, on leave granted him, has filed his bill of exceptions.

      Marcus Shoup, Prosecuting Attorney, for the state.

      W. F. Trader, for the defendant.
   By tiie Court:

General words, following particular words must, as a general rule, be confined to things of the same kind as those specified. Shultz v. Cambridge, 38 Ohio St., 659. But this is a rule which is designed to be used in aid of the interpretation of a statute, and ought not to be so used as to limit or defeat the legislative intent. The things specified in section 6835 of the Revised Statutes are not in any respect “things of the same kind,” except that they are all buildings: so that the effect of the amendment to the section (82 O. L., 161), by adding the words “or any other building,” is to extend the crime of burglary to any building whatever. This indictment with appropriate averments as to time, place and intent, charges that the burglary was committed by breaking and entering “a certain building, to-wit, a certain store room then and there situate, the property of one J. M. Durkin.” This designates the building with sufficient certainty, whether the store room is the whole or only a part of the building; for breaking into such a room is necessarily breaking into the building of which it is a part. The case of Hagar v. The State, 35 Ohio St., 268, does not apply since the amendment of the statute. Exceptions sustained.

Minshauu, O J., Wiuuiams, Burket, Spear, Davis and Shauck, JJ., concur.