author: White, J.

text:
    Cable et al. v. The President and Trustees of the Ohio University.
    1. The payment of the additional rent which the President and Trustees of the Ohio University are authorized to demand under the proviso in section 12 of the act of February 18,1804 (Ohio Land Laws, 226), is not required to bo stipulated for in the leases made under the act; nor are the leases required to contain such a stipulation by the amendatory act of 1805, in order to justify the demand for such rent. The right to make the demand springs from the statute, and is independent of any express stipulation therefor, in the lease.
    2. The resolutions of the Board of Trustees, passed June 21, 1876, providing for the collection of such additional rent; is not rendered invalid by the fact that the trustees were required to take such action by the act of March 30, 1875. 72 O. L., 177.
    3. By the fair construction of said resolutions, no discretion is given to the Treasurer of the University to determine the amount of rent to be collected; but he is required to collect such an amount of additional rent as equals the taxes imposed on property of like description by the State.
    4. The right to exact the additional rent does not extend back of the current rental year of the term.
    Appeal. Reserved in tbe District Court of Athens County.
    The plaintiffs brought an action for themselves and others, lessees of Ohio University farm lands, against the defendants, the President and Trustees of the Ohio University, a corporation of that name, in the court of common pleas of Athens county, Ohio, to restrain the defendants from collecting certain additional rents for said farm lands.
    The petition, as amended, is largely made up of acts of the general assembly and averments as to their intendment and construction. The petition, as amended, contains the following averments, to wit:
    “ That by two resolutions of congress of the 23d and 27th of July, 1787, the ‘ Board of the Treasury ’ of the then general government was authorized to contract with any persons for the grant of land described in them, on the north-west side of the Ohio river, and within the present state of Ohio ; one of the terms of the contract for the grant to be, that not more than two complete townships were to be laid off within the grant by the purchasers, to be given perpetually for the purpose of an university, and to be applied to the intended object by the legislature of the state thereafter formed, and including the land. Under the resolutions the Board of Treasury, on the 27th of October, 1787, entered into a contract for the grant, with the agents of the directors of the Oiiio Compauy of Associates on the conditions of the resolutions. The agents of that company, thereupon, laid off for the purpose of an university, the eighth and ninth townships of the 14th range in said tract. Under the act of congress of April 21, 1792, the land including the two townships was in that year patented by the United States to the directors of the company, whereby the two townships became and were given perpetually for the purposes of an university. That the legislature of Ohio, on the 18th of January, 1804, passed an act entitled ‘An act establishing an university in the town of Athens,’ which act is attached to and made a part of the petition, as ‘Exhibit A,’ and which, including other things not important for consideration, by the 1st section established the Ohio University, and by its 2d section, created in it a body politic and corporate under the name of ‘ The President and Trustees of the Ohio University;’ and by its 11th section vested in such corporation the twro townships of land for the sole use, benefit and support of the university forever; and by the 12th section provided for the appraisement (and laying oil into farm lots, by the trustees, of not less than eighty, or more than two hundred and foyty acres) of the lands of the townships, not including those in the town of Athens, within six months of the passage of the act; and after having given four weeks’ notice, to malee out leases of the tracts to such of the ‘present occupants’ as should apply within three months after such notice, and to all persons who should apply thereafter, for the term of 90 years, renewable forever, on a yearly rent of six per centum on the amount of the valuation so made, the land so leased to be subject to re-valuations at the end of thirty-five, sixty, and ninety years from the commencement of the term of each lease, the rent arising on tlie valuation at tlie end of 90 years, to shift and adjust itself at the end of each twenty years, to correspond to the average price of wheat at Marietta for the five preceding years; the leases to reserve a right of distress and reentry for non-payment of rent, at any time when it shall have been due two months, the said 12th section terminating with a proviso, as follows.:
    “ ‘ Provided always, that the said corporation shall have power to demand a further yearly rent on the said lands and tenements, not exceeding the amount of the tax imposed on property of like description by the state, which rents shall be paid at such time and place, and to such person, and collected in such manner as the corporation shall direct.’
    “ By the 13th section of the law, it was provided that the town of Athens should be laid off conformable to a certain plan, and being then laid off and the plat recorded, the trustees of the university, first giving six weeks’ notice, were to ‘ proceed to sell from time to time, at public auction, such of the house and out-lots as they may think proper,’ for which lots, on payment being made, or satisfactory security given, according to the conditions of such sale, they shall execute to the purchasers, respectively, leases for the term of 90 years, renewable forever, on an annual rent equal to and not exceeding six per centum of the amount of the purchase-money, which lots, with the improvements which may be made on the same, shall be subject to such further yearly rent as may be equal to the tax imposed, from time to time, on property of like value and description, by the state.’
    “ By section 14 it is provided, ‘ That the clear annual rents, issues and profits of all the estate, real and personal, of which said corporation shall be seized or possessed in their corporate capacity, shall be appropriated to the endowment of the University, in such maimer as ■ shall most effectually promote the end of the institution. ’

      “ By section 17: ‘ That the lands in the two townships appropriated and vested as aforesaid, with the buildings which are or may be erected thereon, shall forever be exempted from all state taxes.’

      “ That on the 21st of February, 1805, an act was passed by the Legislature of Ohio, amendatory of the foregoing act of February, 1804, made a part of the petition as ‘ Exhibit B,’ — by the first section of which act five persons therein named were appointed appraisers of the said two college townships, and they, or any three of them, were required to appraise the townships, within nine months at the present (then) real value as in its original and uncultivated state, and report to the Board of Trustees of the University, £ and the said trustees shall lease the same to any persons who have or may apply, agreeable to laxo, for the term of 99 years, renewable forever, with a fixed annual rent of 6 per centum on the appraised valuation : Provided, that no lands shall be leased at a less valuation than at the rate of $1.75 per acre.’
    “ Sec. 2. £ That the commissioners shall meet on the 1st day of April, at the town of Athens, and proceed to discharge the duties imposed on them by this act, and the act to which this act is an amendment. . . . ’
    £.£Seo. 5. £ That so much of the aforesaid act, passed 18th of February, 1804, as is contrary to this act, be and the same is hereby repealed.’
    “ That on the 16th of November, 1832, the corporation, — the land having been appraised under the act of February 21,1805, —leased by written indenture to the plaintiff Goodspeed, 80 acres of said land, from January 1, 1833, renewable forever, at an annual rent of $9.84, being 6 per centum of such appraised valuation. This indenture is part of the petition as £ Exhibit C,’ and grants in this language: £ That the said President and Trustees by virtue and in pursuance of the trust reposed in them by a law of the state of Ohio, entitled . “ An act establishing an University in the town of Athens,” passed the lSth day of February, A. D. 1804, and another law of the said state, entitled ££ An act to amend an, act entitled an aet establishing an University in the town of Athensf passed the 21 st day of February, 1805, for and in consideration of tlie rents and covenants hereinafter reserved and contained, have leased, let, and to farm let tinto the said Ezra Goodspeed, the 80 acres of land described in it.’

      “ That on the 22d of November, 1810, the corporation, the land having been appraised under said law of 1805, leased by written indenture to Josiah Coe, for 99 years from January 1, 1808, certain land in said township, at an annual rent of $17.93, being 6 per centum on the appraised value, which land, by mesne conveyances, is vested in the plaintiffs, James R. Cable and Charles R. Cable, which lease is made a part of the petition as ‘ Exhibit D,’ and contains the same language as the first-named lease, showing that it was made by the President and Trustees of the Ohio University, in pursuance of said two acts of the Legislature.
    “ On the 4th of February, 1826, an act was passed by the' legislature of Ohio, entitled ‘ An act authorizing the. Trustees of the Ohio University to dispose of certain lands,’ which is made a part of the petition as £ Exhibit E,’ and was amended January 10, 1829, by an act entitled £ An act to amend the act entitled an “ act authorizing the Trustees of the Ohio University to dispose of certain lands,” ’ made a part of the petition as £ Exhibit F; ’ the first of which authorizes the Trustees of the University to sell and convey, in fee simple, all the lands in the college townships, not encumbered by outstanding leases, and to convey to any lessee of such lands the fee simple on payment to the treasurer of the board, such sum as will, at an in-’’ terest of 6 per centum per annum, yield the sum which is' yearly reserved in such lease; the money arising on such sales to be deposited in the state treasury, to bear interest at 6 per centum, for which interest the faith of the state was pledged;" and by the last-named act providing that the Board of Trustees' should report annually to the auditor of state, the amount of money arising from such sales, to be certified by him to the' treasurer of state, and upon the money being deposited with him under said law of 1826, to receipt for the same, which receipt the treasurer of said board should deposit with the auditor of state, who was to charge the amount to the treasurer of state, and credit the university therewith.
    “ The plaintiffs further aver that since the parsage of the act of Feb. 21, 1805, the corporation never claimed any right to have or demand any rent from the lessees of the land excepting'the fixed yearly rent which, the lessees respectively stipulated to pay by their leases, and no other rents have been demanded or paid; and that it has been the understanding of all in interest, that the lands were subject to no other than the fixed yearly rent stipulated in the leases to be paid. That construction of the act of 1805 has been uniformly acted upon by all concerned, until the adoption of the resolutions of the corporation on 21st of June, 1876, which resolutions are made a part of the petition, and which resolutions recite that the law under which the university was established exempted the lands of the university from state taxation, and vested in the institution the right, in addition to a rent of 6 per cent, per annum on the valuation of the lands, a further yearly rent, not exceeding the taxes imposed on property of like description by the State; and that the General Assembly,' by an act which took effect on the 1st of July, 1875, had required the trustees to levy and collect said rent; and instructed the treasurer of the university to proceed and transfer to proper books the valuations of the lands of the townships made for county taxation, and collect such further yearly rent, not exceeding the taxes imposed on property of like description by the state.
    “ That on the 10th of March, 1843, the legislature of the state passed an act entitled c An act to declare the true intent and meaning of the first section ’ of said act of February 21,1805, whereby the true intent and meaning of .the act was declared to be ‘ That the leases granted under and by virtue of said act, and the one to which that was an amendment, should not be subject to a re-valuation at any time thereafter, as was provided for in the act to which that was an amendment,’ which act is made part of the petition as ‘ Exhibit IT.’
    “ That the plaintiffs file the petition for themselves and 227 other persons holding similar estates in said university lands, lying outside of the town of Athens. That the defendant, E. IT. Moore, is the treasurer of the corporation, and threatens to carry the directions of the resolutions into effect. That the resolutions operate to the injury of the plaintiffs, and all the persons in whose behalf the suit is brought,' and that the suit is necessary to prevent a multiplicity of suits.

      “ Tlie prayer of tlie petition is that an injunction may bo granted to restrain the collection of the additional tax, and that said claim may be adjudged unfounded and without right and illegal, and for such further relief as the nature of tlie case may require.
    “ The amended petition was demurred to by the defendants, for the reason that it did not state facts sufficient to constitute a cause of action, which was sustained by the court of common pleas. The plaintiffs appealed to the district court, by which court the case was reserved to the supreme court for hearing on the demurrer.”
    The following is a copy of the resolutions passed by the Board of Trustees of the Ohio University, at their annual meeting, June 21, 1876 :
    “TViieüeas, The law of the state under which the Ohio University was established, exempted the lands of the university from state taxation, and vested in the institution the right to collect, in addition to a rent of six per cent, per annum on the valuation of tlie lands, a further yearly rent not exceeding the taxes imposed on property of like description by the state; and,
    “’WiiEKEAS, In view of the fact that the Trustees 'have never collected this further yearly rent not exceeding the state-taxes, the General Assembly of Ohio has passed an act requiring them to levy and collect the said rent, which act took effect on the first day of July, 1875 ; therefore be it
    “ 1. Iiesol/oed, By the Board of Trustees of the Ohio University, that the treasurer of the university is hereby instructed to provide himself with the books necessary for the purpose, and transfer to them from the duplicate of the auditor of Athens county, the present valuations placed, for the purpose of county taxation, on the leasehold lands of the university.
    “ 2. Hesolved, That the said treasurer is hereby directed to proceed on the first day of January, 1877, to the collection' of the said rents then due for the year and a half, beginning on tlie first day of July, 1875, and to collect the same hereafter, annually, ou the first day of January.

      “ 3. Besolved, Tliat lease-holders shall be allowed the same privilege in the payment of this rent which is allowed them by law in the payment of the other, namely : That no rents paid on or before the first day of March in each year, shall be considered in arrears.
    “ Ohio University, Athens, June 21, 1876.
    Attest: J. M. Dana,

      Secretary of the Board.”

    Harrison, Olds da Marsh, and O. H. Grosvenor, for plaintiffs in error.

      Perry da Jenney, and Be Steiguer, Jewett da Slattery, for defendants in error.
   White, J.

The principal contention in this case may be resolved into two questions:

1. Whether the power vested in the President and Trustees of the Ohio University by section 12 of the act of February 18, 1804 (Ohio Land Laws, 226), to demand a further yearly rent, on the land leases under the act, not exceeding the amount of state tax imposed on like description of property, is required, in order to justify its exercise against the lessees, to be incorporated into the leases, and express provision therein made for the exercise of the power ?

2. If such is not the effect of the act of February 18, 1804, whether the amendatory act of February 21, 1805 (Id. 232) does not require such provision to be made in the leases.

A brief reference to some of the provisions of the act of 1804 will enable us to answer the first question. Section 3 of the act prescribes, that certain persons named, and their successors, shall be, and they are thereby created a body politic and corporate, by the name of “ The President and Trustees of the Ohio University.” Section 11 provides : “ That the two townships, eight and nine, in the fourteenth range of townships, within the grant of land made by congress to' the Ohio Company of Associates, be, and they are hereby vested in the corporation by this act created, in trust, for the sole use, benefit and support of the said university forever.”

Section 17 is as follows: “ That the lands in the two townships, appropriated and vested as aforesaid, with the buildings which are, or may be erected thereon, shall forever be exempted from all state taxes.”

Section 12 provides for laying off the lands (except such as are included in the town of Athens), or such part thereof as may be deemed expedient, into tracts of not less than eighty, nor more than two hundred and forty acres, and for estimating the value of the same as in their original and unimproved state. The section also provides that after the lands shall have been thus laid off and estimated, the trustees, after giving notice as prescribed in the act, “ shall proceed to make out leases of said tracts to such of the present occupants as shall apply for the same within three months after such notice given, and to all persons who shall apply thereafter, for the term of ninety years, renewable forever, on a yearly rent of six per centum on the amount of the valuation so made.” The section also provides that, “the land so leased shall be subject to a re-valuation ” at certain periods, and that the lessee shall pay a yearly rent of six per centum on the amount of the re-valuation. At the expiration of the term of ninety years the rent is subject to be regulated by the price of wheat, in the mode provided for in the section.

The proviso to the section, and on which the present controversy arises, is as follows: “ Provided, always, that the said corporation shall have power to demand a further yearly rent on said lands and tenements, not exceeding the amount of tax imposed on property of like description by the state, which rents shall be paid at such time and place, to such persons, and collected in such manner as the corporation shall direct.”

Now, it seems clear to us, that the statute does not contemplate that the leases should contain a provision for the payment by the lessees of the additional rent provided for in the proviso. This additional rent is not to exceed the amount of the state tax on libé description of property. The property leased is held by the corporation in trust for the sole benefit and support of the university; and the exemption from state taxes is intended for the benefit of the trust. The rent which the corporation by the proviso is authorized to demand, is in addition to what is stipulated for in the lease.

The trustees were to make leases for the term of ninety years, renewable forever, on a yearly rent of six per centum on the first valuation. The lands so leased ” were, by force of the statute, subject to a re-valuation ; and they were also subject to the additional charge or rent provided for in the pro viso. The right to demand this “ further yearly rent ” springs from the statute, and is independent of any express stipulation therefor in the lease.

The answer to the second question depends upon whether the proviso to section 12, above referred to, was repealed by the act of February 21, 1805. That it was not expressly repealed is conceded. The only question is whether the proviso was repealed by implication. The only section in the act of 1805 bearing on the question is the first. That section appoints five persons named as appraisers, and requires them, or any three of them, to appraise townships eight and nine, within nine months, at the present real value of the land in its original and uncultivated state, and to make report thereof to the trustees. It also provides that “ the said trustees shall lease the same to any persons who have or may apply, agreeable to law, for the term of ninety-nine years, renewable forever, with a fixed annual rental of six per centum on the appraised valuation; provided, that no land shall be leased at a less valuation than at the rate of one dollar and seventy-five cents per acre.”

We discover no repugnancy between this section and the power vested in the corporation by the proviso contained, in section 12 of the act of 1804. As already remarked, the demand -which the corporation is authorized to make, under the proviso, is in addition to the rent stipulated for in the lease, and exists independently of such stipulation. The language of section 1 of the act of 1805, already qifoted, refers to what is to be embodied in the lease, and has no reference to the additional charge, in lieu of taxes, which the statute authorizes to be imposed, irrespective of the stipulations in the lease. Hence, whether we regard the matter now in controversy as res integra, or as controlled by the decision in Mc Vey v. Ohio University (11 Ohio, 131), we are led to the same result.

3. The validity of the resolutions of the board of trustees, under which the additional rent is demanded, is questioned on several grounds.

1. It is claimed that the resolutions were not passed by the trustees in the exercise of their own judgment, but under the imperative command of the legislature.

The substance of the objection is, as we understand it, that the trustees, in adopting the resolutions, acted under coercion. In answer to this objection it may be said in the first place that no such fact is averred in the petition, and, in the absence of such averment, the fact cannot be presumed. Furthermore, we need not now inquire into the extent to. which the action of the trustees is subject to legislative control. Whatever may be the extent of such control, it existed when the leases were made, and they were taken subject to it. But assuming, in the present instance, that the trustees in their action were not subject to be controlled by the legislature, they must in that case be presumed to have known it, and, hence, to have regarded the action of the legislature as merely in the nature of advice or recommendation.

2. It is also objected that the resolutions do not determine the amount of further rent which the treasurer is directed to collect, but undertake to delegate to him the power to determine the amount.

It seems to us that on a fair construction of the resolutions no discretion is given to the treasurer to determine the amount of rent to be collected; but that he is required to collect such an amount of additional rent as equals the taxes imposed on property of like description by the state.

3. The resolutions are also objected to on the ground that they are retroactive in their operation.

The resolutions were passed June 21, 1876, and directed the treasurer to proceed on the first day of January, 1877, to collect the additional rent for the year and a half next preceding, and thereafter, annually, on the first day of January.

In the opinion of a majority of the court, the right to exact the additional rent does not extend back of the year of the term current at the time of the adoption of the resolutions. From tire leases attached to the petition, it appears that in each of those instances the term began on the first of January, and that the rent is payable on the first of January, at the end of each successive year of the term. In those instances the current year of the term at the time of the adoption of the resolutions, was the year beginning January 1,1876, and ending January 1, 1877.

The power of the corporation is to demand “ a further yearly rent; ” and it seems to us this power cannot be exercised with respect to years of terms that are past, but must be limited to the current year, and to those that are to come.

If the additional rent can be exacted for six months of a preceding year of the term, we see no reason why the exaction may not be extended back indefinitely. True, the statute provides that such additional rent is to be paid at such time and place, and to such person as the corporation shall direct. But the question here is, to what extent does the determination of the corporation become operative upon the lessees, and bind them to pay the additional charge? As already remarked, it seems to us the charge cannot be made to extend back of the current rental year of the lease.

The demurrer to the petition will be overrruled, and the collection of the additional rent to the extent above indicated will be enjoined ; and as to all other matters, the petition will be dismissed.

Johnson, J., being a trustee of the university, did not sit in the case.


source: Caselaw Access Project

author: McIlvaine, O. J.

license: Public Domain

text:
    Corwine v. Mace.
    D. executed a codicil to her last will and testament, as follows:
    “Item 1st. I desire and do hereby change and modify Item 8th in said will, so as to read as follows : I give and bequeath unto Jacob Mace, of the county of Ross, state of Ohio, his heirs and assigns forever, the equal one-half of all those pieces of land purchased by me of Wesley Claypool, situate in Ross county, state of Ohio, and being described in Item 8th of said will. And the other one-half of said Claypool land, described in Item 8th, and by said 8th Item of said will devised to James W. Hays, Peter B. Hays and John Hays, I devise to Peter B. Hays and James D. Corwine, son of John W. Corwine, and their heirs and assigns forever. My wish and desire being to exclude John Hays and James W. Hays from any interest in said Claypool farm. The said Peter B. Plays and James D. Corwine to have their half of said Olaypool farm on the upper side thereof and the said Mace on the lower side.”
    Item 8th of the will referred to in the codicil was as follows:
    “Item 8th. I give and bequeath unto Jacob Mace, of the county of Ross, state of Ohio, and unto his heirs and assigns forever, the equal undivided one-half of all those pieces of land purchased by me of Wesley Claypool, situated in Ross county, state of Ohio, containing about eleven hundred and seventy-four acres, one rood and twentjr-nine poles, which is particularly described in the deed made by Wesley Claypool and wife to me, bearing date April 39, A. D. 1850. And I hereby devise and bequeath unto James W. Hays, Peter B. Hays and John Hays the remaining one equal undivided half thereof, to be shared equally between them.”

      Held, 1. The devisees named in the codicil took the estates as tenants in common, subject, however, to be aparted among them so that the interests of Hays and Corwine should be located on the upper side and that of Mace on the lower side of the farm. 3. In making partition between them the part on the upper side to be set off to Hays and Convine should be of equal value with that part on the lower side set oil to Mace. 8. Such partition may be enforced by a civil action under the code.
    Appeal. Reserved in the District Court of Ross County.
    The case is sufficiently stated in the opinion.

      O. F. Moore and George D. Cole, for plaintiffs.

      Harrison, Olds & Ma/rsli, with whom were Van Meter <& Throckmorton, for defendants:

      We maintain that the testatrix divided the farm into two equal parts by an ideal east and west line, which gave an equal quantity of land to each part above and below the division line, and devised the upper part to Hays and Corwine, and the lower part to Mace.
    The will did not specify the dividing line by metes and bounds, but it furnished the data and a rule by which that line was easily ascertainable. It only required a survey and a mathematical calculation. Each might precisely ascertain and know his own severalty, and what he had the exclusive right of possessing. A description of the several parts would have been but little, if any, more definite, or certain. Under this construction there is surely no ground for an application to any court to fix the line. If either party takes possession of any land above or below his part, a remedy can be had against him by an action of ejectment or trespass.
    The estates devised are legal, and not equitable, estates.
    As to ascertainment of boundaries, see 70 N. C. 706; 64 Pa. St. 275 ; 3 'Washburn on Real Property, '"'635; 2 Dev. & Battle, Eq. 379.
    A court of equity has no jurisdiction to fix the boundaries of legal estates, unless some equity is superinduced by the act of the parties. Story Eq. Jur. § 615, et seq. • 2 Beading Cases in Eq. *433. In the case at bar, no equity has been superinduced by the act of the parties.
    The equity of partition attaches only to estates held by joint tenants, tenants in common and coparceners. Partition of an estate in severalty is a contradiction in terms. The purpose and effect of partition is to convert tenancies in common into estates in severalty.
    If the testatrix had devised to the plaintiffs the upper half in value of said lands, and to the defendant the lower half in value, this would not have constituted a tenancy in common. The data from which the dividing line is to be ascertained, is attempted to be given; whether sufficiently so or not, is another question. The land is divided by an ideal line into the upper and lower halves. If the respective parts are to be halves in value, the line may come at one place, and if they are to be halves in quantity, the line may come at another. But wherever the dividing line is, the plaintiffs have, under the will, the land above it, and the defendant has the land below it. They have no part of it in common.
    As to tenancies in common and in severalty, see 1 Wash. Real Prop. *407 ; 2 Cruise Dig. R. P. *344 ; 9 Pick. 34 ; 15 N. II. 546 ; 3 Ohio, 21.
    We submit that the plaintiffs have no case for the interference of a court of equity, either because of confusion of boundaries, or for partition, or under any other head of equity jurisprudence.
    As to construction of codicil, see 7 H. of L. Cas. 68; 1 Jai’inan on Wills, 315 ; 27 Vt. 739 ; 29 Ohio St. 150; 50 Me. 364; 30 Me. 28 ; 24 Conn. 219; 25 Ohio St. 115.
   McIlvaine, O. J.

This is a civil action for the partition of certain premises held by the parties, James D. Corwine, Peter B. Hays and Jacob Mace, as devisees under the will of Ilesiah Davis. The principal question arises on the construction of the will. The eighth item of the original will, executed May 19, 1863, was as follows:

“ Item 8th. I give and bequeath unto Jacob Mace, of the county of Ross, state of Ohio, and unto his heirs and assigns forever, the equal undivided one-half of all those pieces of land purchased by me of Wesley Claypool, situated in Ross county, state of Ohio, containing about eleven hundred and seventy-four acres, one rood and twenty-nine poles, which is particularly described in the deed made by Wesley Claypool and wife to me, bearing date April 29th, a.d. 1856. And I hereby devise and bequeath unto James W. Hays, Peter B. Iiays, and John Hays the remaining one equal undivided half thereof, to be shared equally between them.”

Afterwards, on the 8th of June, 1871, the testatrix executed a codicil, the first item of which reads as follows :

“ Item 1st. I desire and do hereby change and modify item 8th in said will so as'to read as follows : I give and bequeath unto Jacob Mace, of the county of Ross, state of Ohio, his heirs and assigns forever, the equal one-half of all those pieces of land purchased by me of Wesley Claypool, situate in Ross county, state of Ohio, and being described in item 8th of said will. And the other one-half of said Claypool land, described in item 8th, and by said 8th item of said will devised to James W. Hays, Peter B. Hays, and John Hays, I devise to Peter B. Hays and James D. Corwine, son of John W. Corwine, and their heirs and assigns forever. My wish and desire being to exclude John Hays and James W. Hays from any interest in said Claypool farm. The said Peter B. Hays and James D. Corwine to have their half of said Claypool farm on the upper side thereof and the said Mace on the lower side.”

The title of the parties to this suit is held under this item of the codicil, and the controversy is in relation to the nature and extent of the estates of the respective devisees. The plaintiffs, Corwine and Hays, claim that the estate devised is held by the devisees as tenants in common, that is to say, that defendant Mace owns an undivided half, and each of the plaintiffs an undivided fourth part of the whole tract, subject, however, under the direction of the will, to be apportioned according to value, so that the interest of the plaintiffs shall be aparted to them on the upper side, and that of the defendant on the lower side of the tract. While the defendant contends that the lower half of the tract, according to acreage, was devised to him in severalty, and that plaintiffs took, under the will, the upper half, as tenants in common.

The contention of the defendant is based chiefly on the last clause in the first item of the codicil, and on the fact that in describing the interests devised the testatrix omitted the qualifying word, undivided,” which had been used in the original 8th item of the will. That there is much plausibility in the claim thus made cannot be denied; but upon a careful consideration of the language used by the testatrix in the 1st •item of the codicil, a majority of the court are of opinion that a tenancy in common between the devisees was created, although the testatrix contemplated a separation of the interests, and directed the location of the respective interests when partition should be made.

The last clause in the item does not give to Hays and Cor-wine the upper half of the farm, and to Mace the lower»half ; but directs that Hays and Corwine are to have their half on the upper side and Mace on the lower side thereof. Although the interest of Hays and Corwine is here designated as “their half of said Claypool farm,” wre must look to other parts of the item to determine the true meaning of the phrase here used, namely, what was meant by “ their half,” which they were to have on the upper side of the farm, and the same as to Mace on the lower side ? The devise to Mace was “ the equal one-half” of the land described in the 8th item of the will. The title of Mace rests in this clause, and by its terms, the interest devised to him was as clearly an undivided “equal half ” as if the language of* item 8 of the will had been repeated. And in disposing of the “ other one-half ” the language is still more emphatic. The “ other one-half,” which is here devised to Hays and Corwine, is described as the same which was “ described in item 8th, and by said 8th item of said will devised to James W. Hays, Peter B. Hays and John Hays.” What was devised to James W. Hays. Peter B. Hays and John Hays by the 8th item ? After giving to Jacob Mace “ the equal undivided one-half ” of the Claypool land, the 8th item devised to James, Peter and John Hays “the remaining one equal undivided half thereof.” And this is the exact interest, in terms, which is devised to Hays and Corwine by the codicil, and winch is also the exact complement of the interest devised to Mace. Such being the clear meaning and intent of the testatrix, as manifested by the language employed in the only dispositive clauses of the codicil, when taken in either its ordinary or technical sense, we entertain no doubt that the half of the farm which Hays and Corwine were to have on the upper side and the half which Mace was to have on the lower side of the farm, are to be ascertained and measured, not according to acreage, but according to the value of the interests described in the dispositive clauses of the codicil.

An objection is made to the jurisdiction of the appellate court. We are of opinion that the nature of the title and the relief sought bring the case clearly within the cognizance of a court of equity, and that, thérefore, an appeal. from the common pleas to the district court was properly taken. The statute concerning the partition of legal estates does not afford the remedy to which the parties in this case are entitled under the will of Mrs. Davis.

Decree for plaintiffs.


author: Johns^h, J.

text:
    Moorehouse v. Crangle.
    C., who was a large stockholder of a business corporation, and president thereof, verbally promised M. that if he would subscribe and pay $500 to the capital stock of the company, lie should, within one year, receive fifteen per cent, on the amount invested. M., in consideration of this promise, subscribed and paid for the stock. Wo dividends were made " or earned within the year. Held, that this was not a contract to answer for the debt, default or miscarriage of another.
    Error to the District Court of Belmont County.
    The statement of facts will be found in the opinion.

      D. D. T. Cowan, for plaintiff in error. '

      L. Danford and St. Clair Kelly, for defendant in error.
   Johns^h, J.

This case calls for a construction of the 1st clause of section 5 of the Statute of Frauds, which provides : “ That no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another; . . . unless the agreement ... or some memorandum or note thereof shall be in writing.”

Moorehouse, the present plaintiff, was plaintiff below. He charges in his petition that the defendant was a large stockholder, and- president of a manufacturing corporation — the National Glass Manufacturing Company — and being desirous.of procuring an increase of its capital stock, “ for his own personal gain and profit, promised, agreed and guaranteed to and with the plaintiff, that if the plaintiff would subscribe and pay five hundred-dollars to the capital stock of said company, he, the said plaintiff, should receive fifteen per centum on the amount so subscribed and paid by him, within one year thereafter.”

In consideration of this promise, the plaintiff subscribed and' paid into the capital stock of said company, said amount.

It is further alleged that no dividend was declared or earned by said company within one year, nor did the plaintiff receive' fifteen per cent, or any other amount for the use of the money so paid by him, wherefor he asks a judgment for $75.

To this defendant interposes:.

1st. A denial of the contract.

2d. .That the contract is one to answer for the debt, default,- or miscarriage of another, and so should be in writing.

3d. Upon a trial to a jury, evidence was offered tending to support the cause of action and the answers, and the court was asked by plaintiff to charge : that,

“If you find from- the testimony that the promise set up in the petition was made substantially, and that the National Glass Manufacturing Company did not earn or become liable to the plaintiff for any dividend within the first year, the contract need not be in writing, if you find that it was to be performed within a year.”

Which charge the court refused to give, but charged the jury as follows:

“ The jury must determine from the testimony and ail the circumstances, what was the contract ? Was it an original contract, that is, was the defendant bound, himself, to pay, or was he only to answer for the default or miscarriage of the company, or to pay in case the company did not ? If the testimony shall satisfy yon that the contract was an original contract on the part of the defendant to pay at all events, then your verdict should be for the plaintiff; but if from the testimony the jury shall be satisfied that the contract, agreement or guaranty was, in effect, to pay if the manufacturing company did not pay, then, in that view, the contract would be a collateral contract, and, not being in writing and signed by the defendant, or some one authorized by him, the plaintiff cannot recover, and your verdict should be for the defendant.”

To which refusal of the court to charge as requested, as well as to the said charge as given, the plaintiff, by his counsel, excepted.

The petition, the charge requested, and the charge given, present the single question : is the contract alleged, one to answer for the debt, default or miscarriage of another? or, stating the question in another form : is it a collateral or an original undertaking ?

The terms of the statute make it clear, that a collateral promise, or one to answer for the liability of another, is one where there is a debt or obligation of another than the promisor, for whose default he undertakes to be liable.

An original liability of another is the foundation of the collateral liability of the promisor.

We accept the statement of the law by defendant’s counsel 'as substantially correct, that “ where it is expressly agreed, or is to be implied that some other person is, or is to become liable primarily, the contract is collateral.”

Numerous cases may be cited illustrating this rule.

Thus, in Hill v. Smith, 21 How. U. S. 283, it appeared that plaintiff had sold land to a railroad company, the price of which was paid in stock of the company, which the defendant gua/ranteed should be at par within three years. This was held to be an original, and not a collateral contract.

In noticing the word guaranty,” which was used in that contract, and which was relied on as importing a collateral contract, it is said, this term is usually applied to a collateral undertaking, yet, when taken in connection with the other terms of the instrument, the contract was clearly an original, independent one.

‘So, in Green v. Brookins, 23 Mich. 71, Or., who claimed to have an interest in a patent hay-fork, verbally promised B., in consideration that he should take two shares of the capital stock, of a company, to bo organized to deal in said patented article, and the rights under said patent; that such shares should not cost him anything; and further promised that as soon as the company should be organized he would find a man to take the shares for the amount of the note, and that B. should not be at any cost or expense.

It was held that this promise was not within the statute, for the reason that it was not an undertaking to answer for tbe acts of another. There was no debt or obligation of another to answer for, therefore it was an original contract.

This question was fully discussed in the notes to Forth v. Stanton, 1 Wins. Saunders, 211, where it is said: “ The question is, what is the promise? Is it a promise for the debt, default or miscarriage of another, for which that other remains Halle ?”

If we apply this fundamental rule to the case before us, it becomes easy of solution.

The defendant, in consideration that plaintiff would subscribe and pay $500 to the capital stock of the company of which ho was president, and in which he was a large stockholder, agreed that the plaintiff should receive fifteen per cent, on the amount thus invested, within one year.

If this contract is not within the statute of frauds, the plaintiff is entitled to recover, as it is not doubted but' that the consideration stated is sufficient.

Was there any debt, obligation or legal duty, express or implied, owing by the corporation to the plaintiff as a stock-' holder, for which the defendant undertook to answer upon default of the corporation ?

The obligations legally imposed upon the corporation, and upon those charged with the duties of managing the corporate business, in favor of the plaintiff as a stockholder, were only such as were common to all stockholders. These corporate authorities were bound to good faith and to reasonable care, skill and diligence, with a view to profit, in the prosecution of the business of the corporation. If profits thereby accrue, it becomes the duty of these authorities to declare such dividends out of the same, from time to time, as the nature and condi-' tion of the business should warrant.

The defendant did not undertake to answer for any debt, default or miscarriage by the corporation, growing out of a failure to perform any of these duties. Indeed, so far as the record discloses, all these obligations in favor of the plaintiff have been faithfully performed by the corporate authorities.

Most clearly, therefore, it appeal's that there was no corporate contract, express or implied, for which defendant made himself responsible. His contract was entirely distinct and independent of the obligation of the corporation to the plaintiff. The corporation had no power to obligate itself in advance to pay to plaintiff as a dividend, or otherwise, the sum which defendant agreed he should receive on his investment.

. There was then no corporate debt or obligation, express or implied, to pay to plaintiff any amount on his investment.

• Defendant’s contract was, in legal effect, essentially different from the obligations of the corporation in favor of plaintiff as a stockholder, and the liability created was wholly independent of. any default by the corporation. It was not an undertaking to answer for the default of the corporation.

. In refusing to charge as requested, we think the court erred.

The request refused was specific, and was based upon the allegations of the petition. The plaintiff was entitled to have it given to the jury.

. For refusing to give this request, the judgment must be reversed.

We do not think this refusal was cured by the charge given. It contained no explanation of the distinction between an original and a collateral promise applicable to the case on trial, nor any information as to the duties and liabilities of the corporation as the foundation of a collateral undertaking.

There was no evidence, so far as the record discloses, tend-, ing to show that the contract was collateral. The issue presented no such question. The second answer merely alleged that the promise, “ set forth in the petition,” was a sjjecial promise, not in writing. This was an issue of law. The first answer was a denial that he made the contract set forth.

The only issue of fact presented was whether the contract set forth was proved. If so, the plaintiff was entitled to recover.

This issue did not call for an exposition of the law touching collateral promises.

It is claimed that the charge given as to plaintiff’s right to recover on an original contract was the equivalent of the request refused. If this be conceded, then the court is placed in the anomalous position of charging and refusing to charge, the same proposition. But a general proposition, abstractly correct though it be, cannot be regarded as curing the error of a refusal to charge a specific proposition, applicable to the ease. Krouse v. Railway Co., 30 Ohio St. 222.

Judgment reversed..


text:
    Cook v. Penrhyn Slate Company.
    1. In an action liy a creditor of a firm to charge the defendant as a member of such firm, neither the reports from a mercantile agency, nor the declarations of other third parties, are competent evidence to establish such liability.
    2. When an issue of fact is tried to the court, the admission of incompetent evidence will be ground for reversal, if it appears that upon the competent evidence in the case, the finding ought not to have been made.
    3. Where the conduct of a party is relied upon to charge him as a member of a firm of which he Is not in fact a member, it should appear that the creditor relied on such conduct, and trusted the firm on the faith of such party being a member.
    Error to the Superior Court of Ciucinuati.
    The original action was brought by the defendant in error, a New York corporation, against J. W. D. Hall and Carter Cook, partners, under the firm name of Hall & Cook, on a promissory note, of which the following is a copy:
    “ $1,165.98. Cincinnati, Nov. 1, 1812.
    “ Ninety days after date we promise to pay to the order of A. F. Waters, agent, eleven hundred and sixty-five 98-100 dollars at Fourth National Bank, Cincinnati, Ohio. Value received.
    “Hall & Cook.”
    The petition averred that A. F. Waters, the payee, was the agent of the corporation in taking the note.
    Carter Cook alone answered. He denied the execution of the note on his behalf.
    ■ The issue was submitted to the court for trial, a jury being waived. It appeared on the trial that Carter Cook was a member of the firm of Hall & Cook, in Cincinnati, from April 1, 1871, to February 1, 1872; that at the date last named the firm was dissolved, and a firm of the same name was formed by L. B. Cook, a son of Carter, and said Hall. All the customers of the old firm were notified of the dissolution, and of the formation of the new firm ; but there was no publication in any of the newspapers of notice of such dissolution. The sign over the door of “ Hall & Cook,” in ten or twelve inch letters, was allowed to remain; birtthe names of the members of the firm, which were painted on the side of the door in one and a half inch letters, were changed, the name of L. B. Cook being substituted for Carter Cook. After the change in the firm, Carter Cook had nothing to do with its business; but he engaged in business in Cincinnati for himself, carrying on the roofing, stove and tinning business.
    It appears from the testimony of George H. Waters, a witness for the plaintiffs, that he was their traveling agent, and took the order for the goods for which the note was given, and also the note after the delivery of the goods. He states that ho took the order from Hall at the store, on the 11th of September, 1872, and that neither Carter Cook or L. B. Cook was present. He also testified as follows:
    “ After I got the order, on same day, I inquired at store of Dunn & Witt, who were the partners in Hall & Cook ? and Mr. Brown, the book-keeper of Dunn & Witt, told me Carter Cook was one of the partners; I did not notice names of individual partners on the order / I learned that Carter Cook was one of the partners at store of Dunn & Witt, and thereupon had the order filled ; I noticed nothing on sign hut Hall & Cook; did not notice names of individual partners on door; the note was signed by L. J3. Cook; I supposed he had authority to sign the firm name; he gave it to me; Hall was not there; I never saw Carter Cook before this suit was brought; I never personally inquired of mercantile agency about Hall & Cook, but my brother did.”
    The order was written under one of the printed letter heads prepared by Hall & Cook while Carter Cook was a member of the firm, and in which the names of J. W. D. Hall and Carter Cook 'were printed as constituting the firm. These letter heads were left in the drawer at the dissolution of the old firm, and they were used by the new firm without the knowledge of Carter Cook.
    The plaintiffs offered in evidence the following reports from a mercantile agency:
    “ Hall & Cook, Cincinnati, O. Roofers. New firm. ‘ C.’ is capitalist, and is estimated worth 60 to 70 M $. Hall has no means; the business will be well managed, and they will in all probability be good for what they buy.”

      “ Hall & Cook, 259 ~W. 3d St., Cincinnati, O. Tin and slate roofing.
    “ Sept. 18, N2. — Are amply responsible for all they buy, and in excellent credit; safe customers. Estimated worth ail the way from 60 to 100,000 $.”
    The introduction of this evidence was objected to by the defendant, but his objection was overruled and. the evidence admitted, to which he excepted:
    Goods were subsequently furnished by the plaintiffs to Hall & Cook, amounting to the sum of $211.19; but it is not sought to charge Carter Cook with this amount.
    Afterwards, Hall & Cook became insolvent, and made an assignment for the benefit of creditors to Carter Cook. The plaintiffs presented their account against Hall & Cook, including the note sued on, to Carter Cook, as assignee, for allowance.

      Subsequently to the giving of the-first order, several letters were written to the plaintiffs by Hall & Cook, under the printed letter heads of the old firm ; but in the view taken by the court of the case, they need not here bo particularly noticed.
    The court found the issue in favor of the plaintiffs, and gave them judgment for the amount due on the note.
    On error, this judgment was affirmed by the court in general term. The present proceeding in error is prosecuted to reverse these judgments.

      J. U. <& J. A. Olemmer, for plaintiff in error:
    Notice, by publication in newspaper, of dissolution of firm, is not necessary to protect outgoing partners against persons not having previous dealings with the firm. Every new creditor is bound to inquire who are the parties really interested at the time in the firm. Story on Partn. § 160 ; Parsons on Partn. 413.
    An advertisement is not indispensable. Its place may be supplied by something else. Lindley on Partn. 420; Wardell v. Haight, 2 Barb. 549; Lovejoy v. Spofford, 3 Otto, 430.

      JR,. O. Púgh and Wm. II. Pugh, for defendants in error :
    Notice of dissolution of partnership should be published in a newspaper. 28 Conn. 43; 24 Vt. 642; 2 Starkie on Ev. 811, 813. Proof of notice'necessary. Lindley on Partn. 45, 355 ; 3 Kent Comm. 66 ; 2 McLean, 458 ; 8 Wend. 423 ; 22 Wend. 193; 20 N. Y. 240 ; 24 N. Y. 550 ; 3 Pick. 177; 2 Pet. 199.
    As to liability of Cook as partner, see 12 Ohio St. 179; 1 Smith L. C. 968; 3 Camp. 310; 1 Brod. & Bing. 9; 6 Smedes & M. 335; 17 Vt. 449; 2 McLean, 347; 2 Starkie on Ev. 804.
   White, J.

The court erred in the admission in evidence of the reports of the mercantile agency. The question in issue was whether Carter Cook was a member of the firm at the time the goods were ordered and the note was given; or, if ho was not a partner in fact, whether his conduct was such in regard to tlie transaction that the plaintiffs were authorized to charge him as such partner. There is nothing in the evidence to show that the defendant authorized these reports or was in an}7 wTay connected with them. They cannot, therefore, be used to charge him with liability. So, also, is the testimony of the witness, "Waters, incompetent, that on the same day he got the order ho inquired at the store of Dunn & Witt, who were the partners in the firm of Rail & Cook, and was informed by the book-keeper that Carter Cook was one of the partners. R ho was ignorant of whom the firm was composed his duty was to make inquiry of those he was about to credit, and not of strangers.

The case was tried to the court, and if the finding ought to have been for the plaintiffs, upon the competent evidence in the case, the defendant would not have been prejudiced by the admission of the incompetent evidence. But from an examination of the record, we cannot say that such is the case. It seems to us that the court took an erroneous view of the case, and was influenced in reaching its conclusion by the incompetent evidence.

The plaintiffs never dealt with the old firm ; nor does it appeal-, as wo understand the record, that they knew of what persons it was composed until long after its dissolution.

Whether Carter Cook was guilty of such negligence by leaving the printed letter heads of the old firm in the possession of the new, as would charge him as a partner where credit was obtained by their use, wo need not now inquire, for it does not appear that they operated to obtain such credit. Waters, who took the order and had it filled, as he states, says that he did not notice the individual names on the order; and, ■ consequently, he could not have given credit to Carter Cook by reason of his name being printed thereon.

Judgment reversed and cause remmdedfor a new trial.


author: Okey, J.

text:
    Eichenlaub v. The State.
    One charged with the commission of a misdemeanor was prosecuted by information, and the information being unsupported by oath or affirmation, the accused moved to quash it for that cause, -which motion was overruled. Held, that in overruling such motiou there was error.
    Error to the Police Court of Cincinnati.
    On December 14,1876, William Miller made affidavit in the Police Court of Cincinnati that certain articles of personal property, described in the affidavit, “ have been, within ninety days last past, by some person or persons, feloniously taken, stolen and carried away from the house of affiant, No. 724 Elm street, of the city aforesaid, in said county, and that he verily believes that the said goods and chattels, or some part of them, are now concealed in the same house, in the four rooms now occupied by George Eichenlaub.”
    On the same day a search warrant, substantially in the form prescribed by the act of 1837 (1 S. & 0. 816; 1 Curwen, 347), was issued by the judge of the police court, directed to the superintendent of the police of the city, by which warrant the superintendent was required, in case the goods or any part thereof were found, to bring the property, together with the person or persons found to be in possession of the same, before the police court, to he disposed of and dealt with according to law. The statutory provisions relating to search warrants then and still in force (66 Ohio L. 280; 74 Ohio L. 314; R. S. § 7120 eb seq) were not observed.
    The officer returned the warrant to the police court, showing thereon, that certain specified articles, described in the warrant, had been found, but there ivas no statement that any person had been arrested.
    No other affidavit was made or warrant issued.
    On December 20, 1876, the prosecuting attorney of the police court filed in that count an information, in the first count of which Eichenlaub is charged with stealing the goods, and in tlie second count he is charged with receiving them knowing the same to have been stolen.
    The prisoner moved to quash the information on the ground that there was no affidavit or warrant to support it; and that motion having been overruled, and exception taken, a jury was impaneled, by which jury the accused was found guilty on the second count of the 'information, and not guilty as to the first count, and the value of the property so received was found to be three dollars.
    A motion in arrest of judgment, based on the same ground as the motion to quash, was made on behalf of the prisoner, and overruled by the court; and thereupon the count ordered that Eichenlaub pay a fine of $10 and costs, and that he stand committed until the fine and costs were paid.
    The court of common pleas of Hamilton county, on February 5,1877, overruled an application on behalf of Eichenlaub for a writ of error, and on March 1, 1877, a writ of error was allowed to him by this court.

      Thomas Powell and E. M. Spmgenberg, for plaintiff in error.

      G. E. Gallahmi, prosecuting attorney of the police court, for defendant in error.
   Okey, J.

At the common law the attorney-general has authority to proceed by information in all cases of misdemeanor, except misprision of treason, though in practice he rarely does so except when directed by some department of the government. In Connecticut and a few other states, informations are resorted to even more frequently than in England, but in nearly all of those states the information must be verified by affidavit, or based on affidavit and warrant.

By our constitution of 1802 it was provided (art. 8, § 10), That no person arrested or confined in jail shall be treated with unnecessary rigor, or be put to answer any criminal charge¿ but by presentment, indictment or impeachment.” In GwrnphelVs case, Tappan, 29, 33, decided in 1816, an information was filed, and it was urged that notwithstanding the above language of the constitution, the common law power to proceed by information still existed. But the court said : “An information is as much a criminal prosecution as an indictment. The same process issues on the one as on the other, to bring the person charged or informed against before the court; and that process, with us, is a capias. The defendant has been taken by a capias, and is now holden to answer this information. I think a fair construction of our constitution requires us to hold that the proceeding by information is prohibited. If we examine the history of informations, we shall find that they have crept into use against the plain meaning of Magna (Jliarta; that, although in England a series of precedents supports them, yet they are neither congenial to our principles of government, nor countenanced or permitted by the state constitution. Such is the unanimous opinion of this court.”

I am not aware that any attempt to proceed by information was afterward made in any criminal case under that constitution, unless we except contempts of court, in which the necessity for any other proceeding than one of a summary character does not exist. They are, indeed, in legal strictness, not criminal cases.

Under our present constitution (art. 1, § 10), in cases where the punishment is less than imprisonment in the penitentiary, an indictment is unnecessary, unless provided for by statute. Dillingham v. The State, 5 Ohio St. 280, 282. But in so ordaining, the framers of the constitution did not intend to substitute, in such cases, the proceeding by criminal information as it exists at common law. Reasons for this conclusion are stated in Gates v. The State, 3 Ohio St. 293, but there are others equally cogent. *

The present constitution provides (art. 1, § 14): “ The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to bo searched and the person and things to be seized.” The fourth amendment to the constitution of tlie United States is in almost the same words, but does not apply to offenses prosecuted under state laws; and, doubtless, the fifth section of the eighth article of the constitution of 1802 has no other or different meaning than article 1, section 14, above mentioned. ■

Obviously the provision in article 1, section 14, is not to be confined to cases literally .within its terms. So applied it might prohibit a search warrant in a case where stolen property lias been secreted, but no particular person is suspected of the theft. As Scott, O. J., says in Walker v. Cincinnati, 21 Ohio St. 53, speaking of the proper construction of the constitution : “ Of course, I do not mean that we are bound to adhere strictly to the letter, without regard to the evident meaning and spirit of the instrument. The fundamental law of the state is to be construed in no such narrow and illiberal spirit. On the contrary, it is to be construed according to its intention, where that is clear; and that which clearly falls within the reason of the prohibition may be regarded as embodied within it.” And see District Court Case, 34 Ohio St. 431, 440, 441.

Wc regard the section quoted (art. 1, § 14) as asserting this important principle, that no person shall be placed on trial for a crime against the laws of this state upon the mere information of a public prosecutor, nor until he has been charged with the commission of such crime upon oath or affirmation. An indictment, being founded upon oath or affirmation, of course satisfies the requirements of the constitution.

The constitution does not provide for prosecution by information, nor does any statute make provision for such mode of prosecution in the police court; still, we have no doubt that is a very proper and convenient mode of carrying on prosecutions before that tribunal; but we hold that the basis of such information must, under the constitution, be a charge on oath or affirmation. Moreover,- we do not mean to say that such information must be confined literally to the charge in the affidavit, nor that such information may not be amended. Probably the rule on this subject is correctly stated in Gates v. The State, supra. Nor do we deny the power of officers, and even private persons, to arrest criminals, under some circumstances, without warrant or charge on oath or affirmation. This power is recognized in our statutes (66 Ohio L. 291; 74 Ohio L. 317; Rev. Stats. §§ 7129, 7130), has long existed, and is not prohibited by any constitutional provision. But these statutes provide, in effect, that the person so arrested can only be detained “until a legal warrant can be obtained,” and such warrant can only be issued on oath or affirmation. In other words, such power to detain without warrant exists to the end that there may not be a failure of justice through the escape of criminals, and the power is measured by, and ends with, the necessity on which it is based.

We are of opinion, therefore, that by force of this' constitutional provision (art. 1, § 14), and others in harmony with it, the conviction of Eichenlaub is erroneous, for he was never charged on oath or affirmation with larceny or receiving stolen goods. But a fair construction of our statutes requires us to say, that the legislature has never authorized proceedings in a criminal case, unless such information was based on a warrant issued upon oath or affirmation, charging the person informed against with the commission of a crime. In 1856, the legislature authorized'the prosecuting attorney to “file his information originally in the probate court, without a preliminary hearing before an examining court” (53 Ohio L. 137; 2 S. & C. 1219); and that provision is still in force (75 Ohio L. 960, § 4; Rev. Stats. § 6457); but this, it will be seen, can only be done upon the proper affidavits being filed; ” and the judge is required, to issue a warrant. And so it is with the police judge. He has in criminal cases the same jurisdiction as a justice of the peace (66 Ohio L. 176, § 166 ; Rev. Stats. § 1787), and a fair construction of the various statutes relating to the subject requires us to say, that such jurisdiction must be invoked in the same way, that is, by warrant founded on complaint made under oath or affirmation. True, the statute provides, that “ the mode in which business shall be brought before the court shall be fixed by ordinance or rule of court; ” ' and that “ the judge shall adopt such rules of practice and procedure as will give all parties a proper statement of any charge against them ” (66 Ohio' L. 177; Rev. Stats. §§ 1794,1795); but this does not have the effect of dispensing, and, for the reasons already given, could not dispense, with the warrant, founded on oath or affirmation, required by the constitution and laws.

Judgment reversed.


author: By the Court.

text:
    Inskeep v. The State.
    Where, a verdict is rendered under the act of 1877 (74 Ohio L. 339, § 1; Rev. Stats. § 7240), finding a prisoner to be sane, error will not lie to reverse such proceeding for alleged errors therein, even after his conviction.
    Motion for leave to file a petition in error to the Court of Common Pleas of Union county.’

      T. E. Poioell and P. B. Cole for plaintiff in error.

      George K. Nash, attorney-general, and G. W. Emerson, contra.
   By the Court.

We held in this case, as reported in 35 Ohio St. 482, that where a verdict is rendered under the above-mentioned'seetion, finding a prisoner to be sane, error will not lie to review the proceedings previous to the prisoner’s conviction of the crime charged; and doubt was suggested whether alleged errors in such proceeding could be reviewed, even after conviction.

The prisoner has been convicted of the felony charged, and sentenced to the penitentiary, and he now seeks to reverse the judgment on the same ground relied upon in the first proceeding in error above referred to.

The statute provides that if the jury find the accused to be sane, and no trial has been had on the indictment, a trial shall be had thereon as if the question had not been tried.” Rev. Stats. § 7241. An error of the court, prejudicial to the rights of the prisoner in making the defense of insanity on such trial, would no doubt afford ground of reversal after sentence ; but the proceedings in a preliminary trial under said section 7240 are not in their nature final, and hence are not the subject of review, even after conviction.

Motion overruled.


author: Boynton, J.

text:
    Woolever v. Stewart.
    1. The act of January 31, 1871 (68 OhioL. 15), in so far as it requires the owner of a dam constructed across a stream not navigable, and who has enjoyed the adverse use of such dam for the period of twenty-one years, to construct and maintain, at his own expense, a chute or pas- ' sage-way over the same for fish, is unconstitutional. Whether the act is valid where the adverse use is less than twenty-one years, is not, decided.
    2. Where a cause is appealed from a justice of the peace to the court of common pleas, the latter court is limited, in its appellate jurisdiction, to the amount for which the justice is authorized to enter judgment.
    3. The clause in section 108 of the justice’s code of 1853, which authorized the defendant to withhold the amount of his claim which is in excess of the jurisdiction of tiie justice, and to make the same the subject of a subsequent action, does not relate to a claim for unliquidated damages. Where such is the nature of the claim the whole excess must, be remitted, or the justice is without jurisdiction to act upon the claim. '
    Error to the Court of Common Pleas of Ashtabula County. Reserved in tlie District Court.
    Stewart brought an action against Woolever before a justice of tlie peace to recover the sum of $300, for providing materials and constructing a chute or passage-way for fish over a dam across Grand river. Ho alleged that the defendant was the owner of an ■ undivided tliree-fourths of said dam, and the occupant of tlie whole, and that in virtue of proceedings had under the act of January 31, 1871 (68 Ohio L. 15), which were particularly set out, the erection of said chute or passageway and the providing of materials therefor, were let to him by the commissioners of said county, for which lie was to receive $1,000. Woolever to pay $750, and the opposite owner $250. The excess above $300 was remitted by the plaintiff below and judgment prayed for tliat amount.
    The defendant set up as a first defense a connected title from the state of Connecticut through intermediate conveyances to himself, without reservation or limitation, of the land on which his portion of said dam was erected, and a like title in the •opposite owner of the land on which the remainder of said dam was erected; and that said dam was erected across said river, which was non-navigable, over fifty years ago, at its present height, and that it had '.been continued at said height ever .since, for the purpose of supplying water to run a flouring mill owned by said defendant. Ho further averred that said chute or passage-way for fish was built by the plaintiff below, without his consent and against his protest.
    As a second defense he set up facts showing that said chute or passage-way was so carelessly constructed as to set the water back on the wheels that propelled the machinery of the mill, greatly retarding their motion and diminishing their power, to his damage in the sum of $1,000. He then averred, that he ■“ withheld from said suit all of said damages over $300,” and prayed judgment against the plaintiff for that sum.
    A demurrer was sustained in the common pleas to each of these defenses, and judgment given for the plaintiff below for the amount prayed for. On error to the district court the cause was reserved for decision by this court.

      W. P. Ilowlcmd and Simonds cfe Wado for plaintiff in error:
    1. The act of January 31, 1871 (6S Ohio L. 15), is in conflict with section 28 of article 2 of the state constitution, and section 10 of article 1 of the United States constitution. 16 Ohio, 540; 3 Ohio, 395; 21 Ohio St. 667; 8 Ohio St. 346; 24 Ohio St. 542; 17 N. Y. 195; 7 Jones (N. C.) 321; 66 Pa. St. 41; 6 Cranch, 131; 7 Cranch, 164; 6 Randolph, 245; 16 Ohio, 599 ; Society v. Wheeler, 2 Gall. 139 ; Dow v. Norris, 4 N. H. 16; Clark v. Clark, 10 N. H. 380; Greenlaw v. Greenlaw, 12 N. H. 200 ; Kennet's petition, 4 Foster, 139 ; Goshorn v. Purcel, 11 Ohio St. 641; Rariden v. Holden, 15 Ohio St. 207, 209, 210; Miller v. Hine, 13 Ohio St. 565, 568; Cooley Const. Lim. 361, 369; Webster v. Cooper, 14 How. 488; Medford v. Learned, 16 Mass. 215 ; Gilpin v. Williams, 25 Ohio St. 283.
    2. It attempts to impose a tax or assessment in violation of section 1 of article 2, as limited by sections 1 and 2 of article 13. see 66 Pa. St. 48.
    The statute authorizes the taking of private property, without reference to the public welfare, without the consent of the owner and without compensation, and is therefor unconstitutional. 8 Ohio St. 346 ; 66 Pa. St. 41; McElory v. Goble, 6 Ohio St. 187; 2 Washb. R. P. 64, 65, 66, 67; 3 Eng. C. L. 371; Walker v. Board of Public Works, 16 Ohio, 540; Cooper v. Williams, 4 Ohio, 391; Washburn on Easements, 319 ; Buckingham v. Smith, 10 Ohio, 297; Gavitt v. Chambers, 3 Ohio, 495; Commissioners Land Fund v. Kempshall, 26 Wend. 404; Rules of the Chancellor, 17 Wend. 571; Gardom v. Trustees, 2 Johns. Ch. 162; 4 Ohio St. 167; 5 Ohio, 143; 11 Ohio 410 ; 21 Ohio St. 667; 4 Ohio St. 494; 21 Ohio St. 11.

      Worthway c6 Fitch, for defendant in error :
    We claim that the act of January 31, 1871, 68 Ohio L. 15, is constitutional. Revised Statutes, §§ 4219, 4220, 4221.
    1st. It is a mere police regulation. The police power of the state is merely invoked to require of Woolever and others, owners of dams, to erect chutes that fish may pass up the streams of the state. “ The police power of a state reaches to every interest and every subject of profit or enjoyment.” Cooley’s .Constitutional Limitations, 4 ed. ch. 16, p. 714, and definitions and cases there cited; and also opinion of Chief Justice Shaw in Commonwealth v. Alger, 7 Cushing, 84, 94.
    • 2d.' The power of the state to require every person to souse his property as not to injure that of another, or interfere with another’s rights, is within the police power of a state. And every holder of property, however absolute and unqualified his title may be, holds it under that implied liability, and subject to such reasonable restraints and regulations as may by the legislature be established. Tinnicum Fishing Co. v. Carter, 61 Penn. St. 31; Jordon v. Overseers of Dayton, 4 Ohio, 309; Cooper v. Hall, 5 Ohio, 322; Rhodes v. Cleveland, 10 Ohio, 160 ; Combs v. Akron, 15 Ohio, 480; Munn v. Illinois, 94 U. S. 124, 125 ; Collins v. Hatch, 18 Ohio St. 523; Bliss v. Kraus, 16 Ohio St. 55 ; Baker v. Cincinnati, 11 Ohio St. 534; Burckholter v. McConnellsville, 20 Ohio St. 308 ; 8 Ohio St. 333 ; Fox v. Fox, 24 Ohio St. 335.
    3d. The question of eminent domain does not form any part of this case. It is not in it. No property of Woolever is sought to be appropriated or taken from him in any such sense, as where land is taken for a railroad, a highway, a school-house site, or a cemetery. The act only requires that he shall so use his dam that the people living above it shall not bo deprived of the fish that would pass up the stream had the dam not been built; and he holds it subject to that condition. Commonwealth v. Chapin, 5 Pick. 202; 104 Mass. 446 ; 15 Wall. 500 ; Angell on Watercourses, 89.
    4th. If the provisions of the act are within the police power of the state, the right to exercise it is not barred. 4 Mass. 528; 94 U. S. 164; 49 N. H. 240.
    5th. The act is not without precedent. See Stoughton v. Baker, 4 Mass. 522 ; Commonwealth v. Chapin, 5 Pick. 199; Commonwealth v. Alger, 7 Cush. 98; Commonwealth v. Weatherhead, 110 Mass. 175 ; Hamy v. Compton, 36 N. J. L. 507.
    6th. The court will not declare the statute unconstitutional, unless the repugnancy between the two is manifest and unavoidable. It must be clearly shown to be in conflict. 13 Pick. (Mass.) 518, 625; Fletcher v. Peck, 4 Wheat. 518 ; 6 Cranch, 87, 128; 2 Ohio, 75; 1 Ohio St. 83; 10 Ohio, 237; 11 Ohio, 27; 19 Ohio, 195 ; Selemem v. McBride, 15 Ohio St. 573; Railroad Co. v. Clinton Co., 1 Ohio St. 77; Goshorn v. Purcell, 11 Ohio St. 641; 21 Ohio St. 14.
   Boynton, J.

We think the court erred in sustaining the demurrer of the plaintiff below, to the first defense of the answer.

It appears, from the facts stated therein, that the dam over which the chute or passage-way for fish was constructed, was built more than fifty years ago, and that the defendant and those under whom he claimed had enjoyed its use uninterruptedly, and without any complaint from upper riparian owners, during that period of time. He traced his title, through several mesne conveyances, to the state of Connecticut, and alleged that there was no reservation therein, or limitation upon the right or interest that they purported to convey. The-river across which the dam was constructed was non-navigable. No compensation was awarded for any injury to his property, or for that portion taken for the construction of the chute.

From these facts, there is little difficulty in solving the questions arising upon the assignments of error. For if it be granted that the upper riparian' proprietors of land on a non-navigable stream have the right to the free and unobstructed, passage of lish from the waters below to those adjoining their lands, or, where they own the bed of the stream, to the waters covering such bed, it is a right that inay be lost by adverse use in another; and the uninterrupted use and enjoyment of a dam across such stream, in the assertion of a right to such use, continued for the period of twenty-one years, are as conclusive of the right to such enjoyment in the future, as if the same were acquired by grant. The right of the upper owners to the free passage of lish up the river to their fisheries, is certainly no higher than their right to be protected against injuries resulting from setting water back upon their lands, and nó principle seems to be more firmly settled, than that the-exercise of such right adversely' by a lower owner for the period of twenty-one years, ripens into the right to continue such use, although none in fact existed before. Angelí on Watercourses, § 208, et seq.

The right by such use becomes vested, and is as fully within the protection afforded by the constitution against legislátive interference, as any other, however acquired. Assuming, therefore,, without deciding the point, that a lower owner has no right to obstruct the passage of fish up anon-navigable stream, by the erection of a dam across the same, or otherwise, to the injury of those above, they alone can complain, and if they permit an adverse enjoyment to ripen into a title, the right to cause such obstruction to be removed, is gone. Carter v. Murcot, 4 Burr. 2162. See also Bristow v. Cormican, 3 L. R. App. Cas. 666.

This is the condition of the present case. The right to the unmolested use of tbe dam and to tbe bed of tbe stream, at the time the chute or passage-way was constructed, and at the time the statute was enacted, was the private property of the defendant below. It, therefore, could be taken from him only by observing the requirements of the constitution. To the extent his property was taken for public use, he was entitled to compensation, and unless required -for such use it could not be taken at all. Much less could the legislature require him to perform labor upon it, or be at any expense in fitting it for public enjoyment. The act of January 31, 1871, .under which the passage-way was constructed, seems founded on the doctrine that the right of the owner of the dam to construct the same across the river, although he may own to the thread of the stream, is subject to the implied limitation that he keep open a sufficient passage-way ffcr fish to the water above; and cases were cited in argument, from Massachusetts, which recognize such limitation to be well established in that commonwealth, whatever tlie rule may be elsewhere.

On the other hand, there are many well-considered cases, which deny the existence of any such limitation where the stream is non-navigable, and the adjoining owner’s boundary extends to the thread of the stream. Hargrave Law Tr. 5; People v. Platt, 17 Johns. 211; State v. Glen, 7 Jones N. C. 321. ¥e need not determine in the present case which line of decisions is correct, when applied to a dam newly erected, as the unconstitutionality of the act when applied to the facts stated in the answer is clearly established. If there was an implied obligation resting on the owner of the dam, to keep a way open for the passage of fish to the waters above, it was for the benefit of the upper owners, and for them only; and if they suffered an adverse use to ripen into an adverse right, the right thus acquired could neither be destroyed nor impaired by legislation. Cooley’s Const. Lim. 362, and note.

The demurrer to the facts stated as a second defense was properly sustained.

The original action having been brought before a justice of the peace, the jurisdiction of the court of common pleas, on appeal, was limited in amount to the sum which was within the jurisdiction of the justice. This the defendant seems to concede by asking a judgment for only $300, on a counterclaim amounting to $1,000. But his claim was one for unliquidated damages, and, evidently believing that the right to divide the claim, and to withhold for future recovery all in excess of the sum for which the justice was permitted to enter judgment, was authorized by section 108 of the justices’ code, he withheld such excess and prayed a judgment for $300. This he was not authorized to do. The clause of the section which authorized a defendant to withhold the sum in excess of the jurisdiction of the justice, and to make the same the subject of a subsequent action against the plaintiff, does not relate to a claim for an unliquidated demand. If it did, it would give a defendant the benefit of two trials, to determine the whole amount to be recovered, and this without doubt would often result in inconsistent judgments. See Swan’s Treatise, 11 ed. 801. Where the demand set up is unliquidated, and exceeds the sum for which the justice is authorized to render judgment, the excess must be entirely remitted, or the justice is without jurisdiction to take action upon the claim.

Judgment reversed and cause remanded for further proceedin gs.


author: MoIlvaine, C. J.

text:
    McEwing v. James.
    1. " The date annexed to items in the copy of an account pleaded as a set-oil, filed with the answer, does not conclude the party as to the time when his claim accrued.
    2. The statute of limitations ceases to run against a set-off from the date of the commencement of the action in which it is pleaded.
    Error to the District Court of Gallia County.
    On March 12, 1868, James, the defendant in error, commenced the original action against McEwing, the plaintiff in error. Tbe action was founded on a promissory note bearing ■date May 26, 1856, payable one year after date.
    On May 9, 1868, the defendant below filed his answer, setting u]3 certain matters of account by-way of set-off, and filed .therewith a copy of the account, which consisted of various items, bearing date between July 5, 1855, and May 28, 1856
    To this answer the plaintiff, by way of reply, pleaded the •statute of limitations, upon which the only issue in the caso was joined.
    On November 21, 1869, the cause was submitted to a jury, who returned a verdict as follows: “That there is due-from said defendant to the said plaintiff on said note in the petition set forth, the sum of one hundred and twenty-six dollars and eighty cents. That there is due from said plaintiff to said ■defendant on the matters set up in said answer, the sum of •one hundred and sixty-three dollars and seventy-five cents, to be set off against the amount so found on said note. That the cause of action on the matters set up in said answer did .accrue more than six years prior to the setting up of the ’same.” ,
    Afterwards, on May 24, 1873, both parties demanding a judgment on the -verdict, the court rendered judgment in favor of the plaintiff for $126.80, with interest from the date •of the,verdict.
    This judgment was affirmed by the district court, and the plaintiff in error now seeks the reversal of the judgment below.

      Joseph Bradbury, for plaintiff in error.

      Simeon Mash, for defendant in error.
   MoIlvaine, C. J.

Upon the pleadings and verdict, was the judgment below correct ?

The pleadings do not show that the plaintiff below was entitled to judgment. If the copy of the account -filed with the answer could be .regarded as a part of the pleadings, it would show, prima fade, that the claim was barred by the statute of limitations; but the defendant, was not concluded by the dates thus given to tlie items of his account. The testimony is not set out, and for aught that appears in the record, the: testimony may have shown those dates to be incorrect, ox-other matter avoiding the statute of limitations. For the effect of the testimony upon this issue, we can only look to the verdict. The verdict is, that there was due from the plaintiff to the defendant, upon the matters set up in the answer, the sum of $163.15, to be set off' against the amount so found to be due upon the note set up in the petition. True, it is also found that the cause of action set up in the answer accrued more than six yeai’s before the same was set up. But tins, finding was wholly immaterial, as the claim was not barred unless it had accrued more than six years before the commencement of the action. The .statute stops running against a set-off at the date of the commencement of the action in which it is pleaded; the date of pleading the set-off is immaterial. In this case, nearly two months elapsed between the commencement of the action and the filing of the answer, and the verdict does not show that the claim was barred at the coxníxiencement of the action.

The judgment should have been fof the defendant below,, for the excess of the set-off over and above the plaintiff’s claim.

This view of the case renders it unnecessary to determine whether section 99 of the Code of Civil Procedure of 1853, in relation to the compensation of counter-claims, does or does not apply in cases like the pi’esent.

Judgment's ieloio reversed, and judgment entered for the flaÁntiff vn error, in accordance with the verdÁct*