author: Williams, J.

text:
    Covert v. Rhodes.

      Bank check — Draft—When not an equitable assignment — Priority of assignment for benefit of creditors of drawer, made before presentation and acceptance of check or draft.

    1. A bank check or draft for a part of the sum due the drawer, does not, before acceptance by the drawee, constitute an equitable assignment of the amount for which it is drawn.
    2. When, after the drawing of such check or draft, the drawer makes an assignment of all his property for the benefit of his creditors, and notice of the assignment is received by the drawee before the check or draft is presented for acceptance or payment, the title to the whole amount standing to the credit of the drawer at the time of the assignment, passes to the assignee for the equal benefit of all the creditors. The holder of the check or draft is not entitled to priority over the other creditors.
    (Decided January 13, 1891.)
    Error to the Circuit Court of Cuyahoga county.
    The case is sufficiently stated in the opinion.

      A. J. Marvin, for plaintiff in error. •
    We hold that the doctrine laid down by the Circuit Court of Coshocton county is the correct statement of the law, and in support of that doctrine, we call the attention of the court to the following authorities: Voorhees, Assignee, v. Haskett, 1 C. C. Rep. 1; Merchants’ Bank v. The State Bank, 10 Wallace, 647; Bull v. The Bank of Kasson, 123 U. S. 105; Story on Eq. Jur., section 444; 1 Disney, 247; Daniel on Negotiable Instruments, section 23; Andrews et al. v. Blatchley et al., 110 U. S. 89; Gardner v. The National City Bank, 39 Ohio St. 600.
    This last case clearly establishes the doctrine that, as between the drawer and the payee, it was the intention that the draft should operate, and it did operate as an assignment of the funds in the hands of the drawee. This brings us again to the doctrine that the assignee takes no greater rights than his assignor had at the time of the assignee’s appointment, and the assignee steps into the shoes of the assignor; but in this case the drawer steps into the shoes of the drawee.. If, between the payee and the drawer, this check acts or should operate as an equitable assignment of the funds in the hands of the drawee, or should afterwards come into the hands of the drawer, then it will also act as an equitable assignment of the .funds which has now come into the hands of the assignee, for he stands in the shoes of the drawer of the cheek. So that we claim that under the decisions in Ohio, there is no controverting the doctrine that, as between the drawer and the payee, the drawing of the check is equivalent to an equitable assignment pro tanto of the funds in the hands of the drawee, and these funds have come within the jurisdiction of this court, and being now in the hands of the assignee are as much the property of the payee under that check as though they were in the hands of the drawer of the check. Taney v. Wilson, 16 Vroom, part 2, 282; Canty v. Latterman, 18 Cent., L. J. 30; Row v. Dawson, 1 Ves. Sr. 331; Rodrick v. Gandel, 1 De G. M. & G. 777; Letts v. Morris, 4 Sim. 607; Superintendent, etc., v. Heath, 15 N. J. Eq. 22; Story Equity J urisprudence, vol. 2, sections 1043-4; Bower v. Hadden Blue Stone Co., 30 N. J. Eq. 171; Miller v. Hubbard, 4 Cranch, C. C. 451; King v. Gershine, 1 D. 150; Black v.
      Zachaire, 3 How. 483; Wiggins v. McDonald, 18 Cal. 126; Moody v. Kyle, 34 Miss. 506; Dickey v. Hannon, 1 Cranch, C. C. 201; Gibson v. Cook, 20 Pick. 15 ; See 5 Cent. L. J. 19; 10 Cent. L. J. 94; 8 Bush, Ky., page 357; 18 Ky. Reports, 746; 26 Iowa, 315; 25 Ill. 35; 28 Ill. 168; 42 Ill. 238; 68 Ill. 399; 80 Ill. 212. The investigation of these authorities shows that the doctrine is well settled, that as between the drawer and payee the draft or check is an assignment, pro tanto, of the funds in the hands of the drawee, and that a court of equity will also support the rights of the payee to those funds whenever the parties can be so brought before the court that equity may be done in the premises. This is not an action brought against the Importers & Traders National Bank; if it was, the weight of authorities would be against the right of the holder of the check to maintain an action against that bank, but the funds that were appropriated by Crumb & Baslington and intended to be appropriated by them for the payment of this check, are now within the jurisdiction of this court, .and as averred in the petition are in the hands of the assignee, and he is before the court,, where the court looking at what is equitable and what is right between the parties can determine that right, and order the money to be paid over accordingly. We believe that in every case of a similar character the doctriné is now well established by authorities in the United States and England, that the doctrine declared by the supreme court in the 123 U. S. 111, and 10 Wallace, 647, and by 1 Ohio Circuit Court Report, is the true doctrine, and that this plaintiff under the circumstances is entitled to recover the entire amount of that check or draft from this assignee.

      Boynton, Hale <f Horr, for defendant in error.
    The only question of law arising upon the record for the consideration of this court, is, as to the relative rights of the payee of the draft, and of the assignee under the statute- for the benefit of creditors. We claim that the great weight of authority sustains the proposition that a check or draft drawn on a general fund does not operate as an assignment pro

      tanto of that fund, as between the payee of the check or draft and the assignee for the benefit of creditors of the drawer. We will not burden the court with a citation of the very numerous cases which are found in the reports, .bearing on this proposition. There are a few cases holding the contrary. Fogarties v. State Bank, 12 Rich. (S. C.) 518; The Union National Bank v. The Oceana County Bank, 80 Ill. 212; Roberts v. Austin, 26 Iowa, 315; and two or three other cases in Illinois. The only case among them which was decided upon a state of facts similar to that now under consideration, is that in the 26 Iowa, 315, which was decided by a divided court.
    On the other hand, the Supreme Court of the United States in the case of Laclede Bank v. Schuler, 120 U. S. 511, holds directly what we claim. To the same effect is Whitney v. Eliot National Bank, 137 Mass. 351; Dickinson v. Coates, 79 Mo. 251; s. c. 49; Chapman v. White, 6 N. Y. 412; Lord v. McCaffrey, 49 Pa. St. 410; Moses v. Franklin Bank, 34 Md. 580; Bush v. Foote, 58 Miss. 5; Att’y General v. Life Ins. Co., 71 N. Y. 325. And in England, Hopkinson v. Forster, L. R. 19 Eq. Cas. 74; Foley v. Hill, 2 H. L. Cas. 28. These cases are decisive of the question involved, and show the judgment of the circuit court to be correct.
    The case of Gardiner v. The National City Bank, 39 Ohio St. 600, relied on by counsel on the other side, rests entirely on different facts. Indeed, Judge Johnson in delivering the opinion, clearly distinguished the case then under consideration, from cases like the present.
   Williams, J.

The original action was brought in the ■ Court of Common Pleas of Cuyahoga county, by John A. Covert, against J. H. Rhodes as assignee for the benefit of creditors of Crumb & Baslington. The substantial averments of the petition are, that Crumb & Baslington, a banking firm in the city of Cleveland, on the 22d day of June, 1887, drew their draft on The Importers & Traders National Bank of New York city, for the sum of one thousand dollars, payable to the order of the plaintiff. The amount then due the firm from the drawee, exceeded that for which the draft was drawn. Through successive indorsements, the draft reached the National Bank of Commerce of New York city, on the 6th day of July, 1887, and was then presented by it for payment. In the meantime, on the 24th day of June,, 1887, Crumb & Baslington made an assignment of all their property to the defendant for the benefit of their creditors. Notice of the assignment having reached The Importers & Traders Bank prior to the presentation of the draft, payment was for that reason refused, and the whole amount standing to the credit of Crumb & Baslington was' afterwards paid over to the defendant. The plaintiff sought by his action, to compel the defendant to pay him the amount of the draft. A general demurrer to the petition was sustained, and judgment rendered for the defendant. The affirmance of that judgment by the circuit court, is the matter of complaint here.

Unless the draft, before presentation, constituted an equitable assignment of a part of the amount due Crumb & Baslington from the bank on which it was drawn, equal to the sum it called for, and thus vested the title thereto in the plaintiff, it is clear his action could not be maintained; for, if the unaccepted draft did not so operate, the title to the whole amount standing to the credit of Crumb & Baslington, with every right which their creditors could have asserted against it at the time the assignment was made to the defendant, vested by virtue of the assignment, in the assignee, for the equal benefit of all the creditors. Blandy v. Benedict, 42 Ohio St. 295. The practical question, then is, whether the unaccepted draft for a part only of the amount due the drawer, gave the payee or holder, priority over the other creditors of the drawer. We are of the opinion that it did not. ■ Some cases and textwriters, we are aware, maintain with much earnestness, the position taken by the counsel for the plaintiff, that a draft or bank check for part of the amount due the drawer, is an equitable assignment pro tardo, giving the payee or holder, an equitable property in the fund, which may be pursued as long as it can be certainly identified, except into the hands of third persons who have acquired possession of it for value, and without notice. But the great weight of authority is, we think, the other way.

Mr. Pomeroy, in his work on Equity Jurisprudence, section 1284, says that: “ An ordinary bill of exchange or draft drawn generally and not upon any particular fund, whether accepted or not by the drawee, does not operate as an equitable assignment. Its operation is not changed even when funds have been placed in the drawee’s hands as a means of payment; for the drawee may apply these funds to another use, and although this act might violate his duty to the drawer, the payee would obtain no interest in or claim upon the specific fund. According to the great preponderance of authority, a check is in this respect a bill of exchange, and does not act as an equitable assignment of a portion of the drawer’s deposit equal in amount to the face of the cheek.” According to the same author, in order that the doctrine of equitable assignment may apply, there must be a specific fund upon which the assignment may operate, and, “ the sure criterion ig whether the order or direction to the drawee, if assented to by him, would create an absolute personal indebtedness payable by him at all events, or whether it creates an obligation only to make payment out of the particular designated fund.”

The obligation of a bank to its general depositors, is not that of bailee or trustee, but that of debtor simply. It does not agree to pay checks or bills drawn on it out of any particular fund, nor does it retain any particular fund for that purpose. As said by Mr. Justice Davis, in Bank of Republic v. Millard, 10 Wall. 152, 155, when deposits are received by the bank, “ unless there are stipulations to the contrary, they belong to the bank, become part of its general fund, and can be loaned by it as other money. The banker is accountable for the deposits which he receives as a debtor, and he agrees to discharge these debts by honoring the checks which the depositor shall from time to time draw on him. The contract between the parties is purely a legal one, and has nothing in the nature of a trust in it.” The authorities are, without exception, to that effect. There is little, if any conflict of authority upon the proposition, that on notice of the' drawer’s death, before acceptance, by the bank, its right to pay the bill or check ceases, and its indebtedness to the drawer becomes assets of his estate. The reason, we apprehend, is, not because the bank is the agent of the drawer for the disbursment of a particular fund, and the agency is terminated by the death of the principal, but because, before acceptance, the title remains in the drawer, and devolves immediately on his death, upon his personal representative by operation of law. The authorities are also nearly uniform to the effect, that the holder of such draft or check cannot maintain an action against the drawee without the latter’s acceptance. The reason given, is, that without acceptance there is no privity between them. It would seem clear, that if before acceptance, the check or draft operated as an equitable assignment pro tanto, such action might be maintained; for, an equitable assignment transfers the fund, and the refusal of the drawee to pay, would be a conversion by him of the payee’s property, for which suit might at once be brought.

The subject has been discussed in all its bearings, in the various reported cases, and without extending the discussion here, our conclusion is, that a check or draft for a part only of the sum due the drawer, does not, before acceptance, constitute an equitable assignment of the amount for which it is drawn ; and, where, after it is drawn, the drawer makes an assignment of all his property for the benefit of his creditors, notice of which is received by the drawee before acceptance, the property in the whole amount then remaining to the credit of the drawer, passes to the assignee, for the equal benefit of all the creditors, and the holder of the check or draft, has no priority over the other creditors. We concur with Mr. Justice Miller, in his opinion in the case of the Laclede Bank v. Schuler, 120 U. S. 515, 516, that “ it is not easy to see any valid reason why the assignment of an insolvent debtor, for the equal benefit of all his creditors, and all his property, does not confer on those creditors an equity equal to that of the holder of an unpaid check upon his bankers. The holder of this check comes into the distribution of the funds in the hands of the assignee for his share of those funds with other creditors. The mere fact that he had received a check, a few days before the making of the assignment, on the bank, which had not been presented until after the general assignment was made and notified to the bank, does not seem, in and of itself, to give any such superiority of right. The assignment was complete and perfect, and vested in the assignee the right to all the property of the assignor immediately upon its execution and delivery, with due formalities, to the assignee, and the check of this assignee .... could have been paid by the bank with safety, if first presented. The check given by the same assignor a few days before was only an acknowledgment of a debt by that assignor, and became no valid claim upon the funds against which it was drawn until the holder of those funds was notified of its existence. This, we think, is the fair result of the authorities on that subject.” Among the many cases which sustain this view, the following, are directly in point: Grammel v. Carmer, 55 Mich. 201; Dickinson v. Coates, Assignee, 79 Mo. 250; Bullard v. Randall, 1 Gray, 605; Attorney General v. Continental Life Insurance Company, 71. N. Y. 325; Kimball v. Donald, 20 Mo. 577; Loyd v. McCaffrey, 46 Pa. St. 410; Chapman v. White, 6 N. Y. 412; Dykers v. Bank, 11 Paige, 612; Hopkinson v. Forster, 19 L. R. Eq. C. 74; Moses v. Bank, 34 Md. 574.

While, however, we regard it as well settled that a draft. or check for a part only of the drawer’s deposit, or sum due him, does not operate as an equitable assignment, a different rule seems to obtain where an order, draft, or check is drawn for the whole amount of the deposit, or the exact sum due. There may be, in such case, it is said, a sufficient designation of the specific fund to be transferred, to constitute an equitable assignment. This distinction is made by many well considered cases. Among them: Moore v. Davis, 57 Mich. 251; Bank v. Railway Company, 52 Iowa, 378-384; Mandeville v. Welch, 5 Wheat. 277; Kingman v. Perkins, 105 Mass. 111; Macomber v. Doan, 2 Allen, 541; Robbins v. Bacon, 3 Me. 346; Gibson v. Cook, 20 Pick. 15-17.

In the opinion of the court in Moore v. Davis, supra, Cooley, C. J., discussing the distinction between the two classes of cases says: “ In ■ the recent case of Grammel v. Carmer, 55 Mich. 201, the question whether a draft was an assignment of the fund in the drawee’s hands, to the extent of the sum drawn for, was considered and decided in the negative. That, however, was the case of a banker’s draft, and it was not drawn for the whole fund in the drawee’s hands. Many cases were cited in the opinion filed in that case, and the following, not then cited, are to the same effect : Shand v. DuBuisson, L. R. 18 Eq. 283; Lewis v. Traders’ Bank, 30 Minn. 134; Jones v. Pacific Wood, etc., Company, 13 Nev. 359; Rosenthal v. Mastin Bank, 17 Blatchford, 318; Dolson v. Brown, 13 La. Ann. 551; Sands v. Matthews, 27 Ala. 399. But this case differs from Grammel v. Garmer in the fact that the draft now in question was drawn for the exact.amount of a sum claimed to be due from the drawees to the drawer for a bill of merchandise, and that the account was attached to the draft, evidently for the purpose of being sent forward with it. When thus sent forward, it would explain to the drawees the account on which it was drawn; but it must also have been understood to serve a further purpose, namely, to be evidence in the hands of the drawees that the account was paid when the draft was taken up by them. There could be no sufficient reason for attaching it at all, unless it was understood that payment of the draft would be payment of the account as well. By the general commercial law, as was said in Grammel v. Carmer, the purchaser of a draft is supposed to take it in reliance upon the responsibility of the drawer, and he has no other reliance until it is accepted. This is the general rule. But if the draft is for the whole amount of a fund, the draft may, in connection with other circumstances, tend to show an intent that it should operate as an assignment.”

Gardner v. The Nat’l City Bank, 39 Ohio St. 600, belongs to this latter class of cases. There, the draft was for the exact amount due the drawer; and in the opinion, Johnson, C. J., carefully distinguishes the case from those in which the draft was drawn for a part only, of the amount owing by the drawee.

The judgment of the circuit court is in accordance with the views we have expressed, and is accordingly

Affirmed.


source: Caselaw Access Project

author: Minshall, C. J.

license: Public Domain

text:
    Hill v. King, Ex’r.

      Sureties — Subrogation—Section 5836, Bevised Statutes, Construed.

    1. Where a surety pays a judgment rendered against him and his principal, he has the right, though not certified as such in the record of the judgment, to be subrogated to the place of the judgment creditor’, against the principal and all others standing in his shoes.
    2. This right is not affected by the provisions of section 5836 Revised Statutes. The object of this section is to enlarge, not to limit, the rights the surety had for his indemnity against his principal, on payment of the debt.
    (Decided January 13, 1891.)
    Error to the Circuit Court of Marion county.

      Powell, Owen, Picketts Black, with IT. T. VanFleet, for plaintiff in error.
    We maintain that, whatever be the state of the law upon this question in other states, it is thoroughly well established by this court that payment by a surety of a judgment against himself and his principal, is not as against him, a satisfaction of the judgment. That upon such payment he succeeds, ipso jure, to the rights of the judgment creditor. Neilson v. Fry, 16 Ohio St. 552; Dempsey v. Bush, 18 Ohio St. 376, 381; Neil v. Nash, 23 Ohio St. 483.
    * The above cited cases establish certain propositions upon which the case at bar may be resolved in favor of the plaintiff in error.
    They are:
    1. Payment by a surety of a joint judgment against him and his principal, with intent to save his right to be subrogated to the judgment creditor, preserves to him such right, notwithstanding the legal extinguishment of the judgment.
    2. Such intention is presumed from the fact of payment until the contrary is shown. Neilson v. Fry, supra.

    3. Such right of the surety will not be defeated by the fact that it was not stipulated for at the time of payment; nor the fact that at the time he was ignorant of such right.
    4. The effect of such payment is to entitle the surety, in equity, to be subrogated to the rights of the judgment creditor, not only as against the principal debtor, but against all subsequent lien holders standing in his shoes.
    5. Where the mortgage is subsequent to the judgment, the rights of the mortgagee are no greater against the surety than they were against the judgment creditors, in whose place the surety stands. Dempsey v. Bush, 18 Ohio St. 376 and 381. This case reads like a report of the case at bar. We invite attention to it.
    When the rights of the mortgagee accrued, they were subject to the judgment. There is no question of innocent purchaser or encumbrancer here. No new right, no better standing, was acquired by the mortgagee by the fact of payment, than he held when he took his mortgage. The fact of suretyship existed when he acquired his mortgage lien, and he could not, by the act of accepting the mortgage, impair any of the equities which attached to the relation of surety-ship, nor prejudice the right of the surety to succeed to those of the creditor by paying the judgment.
    We understand that the case turned in the court below upon the fact that suretyship was not certified in the judgment. This view of the question is wholly untenable. If the fact appears of record, no necessity exists for the certificate. The court below did not find that the fact of surety-ship did not appear of record. It found that such relation is not averred in any of the pleadings, and that the court rendering original judgments made no finding nor certificate of such suretyship. That the important thing to be considered is whether the fact of suretyship appears of record, is abundantly illustrated by Peters v. Williams, 86 Ohio St. 159. In the case at bar the fact of suretyship clearly and conclusively appears of record.
    In conclusion, we feel tempted to say, even if it seems like repetition, that when the mortgagee acquired his lien, all the rights and equities of the surety had attached as incidents to this judgment. ’ Among them was the right to pay the judgment, and stand, by reason of that fact, in the shoes of the judgment creditor. No mortgagee or other encumbrancer could be permitted to come in and elbow the surety out of his rights and equities which he had acquired, and had the right still to acquire, by paying the judgment — especially under the threat of process, as he did in this case.

      McNeal f Wolford, for defendants in error.
    I. The lien of a judgment upon lands of a judgment debtor is purely statutory, and the subrogation of a surety in a judgment to the rights and remedies of the judgment creditor is also statutory. This being true the plaintiff must be able to claim the right to a subsisting lien according to the terms and requirements of the statute. Sec. 5836, Revised Statutes.
    The statute provides, also, the manner of entering judgment against principal and surety, and the kind of execution to be issued thereon. Sec. 5419, Revised Statutes. If the plaintiff in error, here, was in fact a surety on the liability upon which the judgment was rendered jointly against his principal, himself and others, the statute provided the way in which he could preserve his right of subrogation to remedies of the judgment creditor. Having neglected the requirements of the statute he should not be allowed to claim its benefits.
    II. If the record herein did sufficiently show the relation of principal and surety to have existed, then we deny that the surety is entitled to the relief asked for, except upon a certificate of suretyship as provided by the statute. Elliott et al. v. Elmore et al., 16 Ohio, 27; Kelly v. Collins, 11 Ohio, 310; Barcus v. Ins. Co., 2 Clev. Rep. 299; Scully v. Kruckler, 8 Cincinnati Law Bulletin, 547. These authorities show that it is discretionary with the court rendering a judgment to settle the relationship of judgment debtors; that another court has no power to correct a failure to make a certificate of suretyship, in a proper case, unless the same is brought to it on a bill of exceptions containing the evidence; and, that the fact that the instrument sued on shows the relation of principal and surety will not make it necessary that a certificate of such relation be entered in the judgment.
    III. When Hill and Waddel paid the judgment below they extinguished the debt and the lien of the judgment. There was no further power at law to enforce the lien. If they had been certified as sureties such would not have been the effect, for the right of subrogation is preserved by the statute (sec. 5886), but as it was, the lien was absolutely extinguished so far as the right to enforce it was concerned. If any right whatever was left it was to bring an action against the judgment creditors Qfor there were four of them') to be subrogated to their right lien. No actions have ever been brought by Hill in equity to be subrogated and he cannot be so subrogated at law because he has not been certified as required. How can he claim any lien now? Pie became a party to this action in the court of common pleas on his own motion. He became such party without being subrogated by operation of law (Rev. Stat., see. 5836), or in equity by action against the Dieberts, the judgment creditors, whose rights and remedies he claims. They were not parties in the actions and for that reason no decree of subrogation could at any time be made in this case. We contended then, and still contend, that he had no right to be in the case. Neilson v. Fry, 16 Ohio St. 559. In the case of Dempsey v. Bush et al., 18 Ohio St. 376, 381, and of Neal v. Nash et al., 23 Ohio St. 483, the sureties seeking relief were certified in the judgments and were, as we believe, entitled to the relief by the statute. In such case no action to be subrogated is necessary.
    Counsel for plaintiff says : “ That the important thing to be considered is whether the fact of suretyship appears of record is abundantly illustrated by Peters v. McWilliams, 86 Ohio St. 155,” etc. That case does not pretend or purport to hold that the fact of suretyship appearing, merely in the record, is of any importance whatever. It does show what would warrant the court in making a certificate of suretyship and what certificate would be sufficient.
   Minshall, C. J.

Robert Hill, the plaintiff in error, was, with others, a surety upon certain bonds given by B. F. Stahl as administrator of the estate of Henry Deibert, deceased. Stahl becoming insolvent, suit was brought upon the bonds by the several beneficiaries, who, at the October term, 1881, of the court of common pleas, recovered judgments against him and bis sureties for the several amounts due them, amounting in all to some $1,200. Executions were at once issued, but were returned January 11,1882, without levy, by reason of the commencement of proceedings in error in the district court. The judgments having been affirmed, executions were again issued, April, 1885, whereupon Hill, to avoid the sale of his own property, paid one half of the judgments, $906.03, Waddle, a co-surety, paying the other half.

The lands of Stahl, owned by him at the recovery of the judgments and subject to their liens, were conveyed by him on July 29, 1882, to one Thomas O’Day, who executed a mortgage on them to secure the notes given to Stahl for the purchase-money. The mortgage was duly recorded at the time. Afterwards Stahl sold and transferred the notes and mortgage to one Hopkins, who sold and transferred them to Julia King. Julia King having died, suit was brought by her administrator in 1886 to foreclose the mortgage. To this suit Hill was made a party; and answered, setting up by way of cross-petition, the recovery of the judgments against him' as before stated in 1881, the payment made by him on the judgments in April, 1885, and claiming the right to be subrogated to the liens of the judgments so paid as against the mortgage held by the plaintiffs’ decedent. The case was tried in the circuit court on appeal, which found that, as a matter of fact King was the surety of Stahl on the bond, but that he had not been certified as such in the record of the judgments, and dismissed his answer and cross-petition.

The only question in the case is, whether the omission of the fact of his suretyship in the record of the judgment, deprives Hill of the right to be regarded as subrogated to the place of the judgment creditors, for the amount paid by him upon the judgment against him and his principal. And unless, as seems to be claimed, the right of the surety on payment of the judgment to the place and remedies of the creditor, is, by the provisions of § 5836, Revised Statutes, made to depend upon his being certified as such in the record of the judgment, there can be no doubt that, according to the settled rules of equity and the decisions of this court, it does not.

The rule is that so soon as the surety pays the debt of his principal there arises in his favor an equity to be subrogated to all the rights, remedies and securities of the creditor, and has the right to enforce them against the principal for the purpose of his indemnification. Whilst payment by the surety discharges the debt and extinguishes all the securities so far as concerns the creditor, such is not its effect as between the principal and the surety and all who stand in the shoes of the former; as to these, it is in the nature of a purchase by the surety from the creditor, and operates as an assignment of the debt and securities to the surety. And, if a question is made whether the acts of the surety have been such as to keep the security on foot, the court, in the absence of evidence to the contrary, will presume that they were done with that intention which is most .for the benefit of the party doing them. Sheldon on Subrogation, § 87 ; 3 Pom. Eq. Juris., §1419 and note 1; Brandt' on Suretyship, §§270, 273; Burge on Suretyship, 348.

The doctrine, in its application to the relation of principal and surety, is so equitable and just, that there seems to be an entire consensus in the views of authors and courts upon the subject. And in no court has it been more fully recognized and applied than in our own. Neilson v. Fry, 16 Ohio St. 552; Dempsey v. Bush, 18 Ohio St. 376; Neal v. Nash, 23 Ohio St. 483.

In Dempsey v. Bush, it is announced in the syllabus that, “ A surety against whom and his principal judgment has been recovered, has the right, in equity, on paying the amount due on the judgment, to be subrogated to the rights of the judgment creditor in the judgment; and this right of the surety will not be defeated by the fact that there was no stipulation therefor by the surety at the time of making the payment, nor by the fact that he was at the time ignorant of the existence of such right.” The case is very much like the present, one. The judgment to which the sureties were subrogated by payments made in 1864 and 1865, was obtained against them and their principal by the executors of Ross in 1859. And, the mortgage, against which they were given priority by subrogation to the rights of the judgment creditor, was executed in 1861; that is after the recovery of the judgment, but before its payment by the sureties. And it is said in the statement of the case, that the payments were made without any agreement between the executors and the sureties, except that they were in full of the judgment ; and without any intent on the part of the sureties either to assert or to abandon any supposed right of subrogation, and without any knowledge on their part of the existence of such right, although intending to assert all their rights in the premises. Whether the sureties had been certified as such in the judgment is not stated; it is probable they were not; but if they were, no prominence was given to the fact in the opinion of the court. The right of the sureties to be subrogated was placed on the ground that they had paid the judgment.

The claim, based upon the language of § 5836, Revised Statutes, that unless the surety is certified as such in the judgment, its payment by him cannot avail to keep it on foot for the purpose of his indemnity, is, we think, a misapprehension of the purpose and object of the section. The provisions of this section were first introduced into our statutes in 1868, and with some slight modifications have continued in force to this time. A study of its language and history will show, that the object of its enactment was, not to limit or modify any of the existing rights of a surety against his principal, on paying the judgment against both of them, but rather to add to and enlarge those that he had. Before the enactment of this statute the only proceeding the surety had for reviving a dormant judgment to which by reason of payment he was entitled to be subrogated, was by action, as was done in the case of Real v. Rash. But under the provisions of the above section, by taking the precaution to be certified as such in the record of the judgment, the surety may, in his own name, on payment of the judgment, cause it to be revived by a conditional order under the provisions of section 5367, Revised Statutes; and, it would seem, from the generalty of the language employed, he may for his own indemnity keep it alive against the principal by causing an execution to issue ; because the creditor, in whose place he stands, might have done so — the language of the section being, “ shall have all the rights and remedies against the principal debtor that the plaintiff had at the time of such payment.”

These are some of the advantages conferred on the surety by being certified as such in the judgment, and of which he could not have availed himself prior to the adoption of the provisions contained in section 5836, Revised Statutes, without first having obtained the judgment of a court in a proper action, subrogating him to the place of the creditor. It may be regarded as a statutory mode of subrogation, acting upon the facts of a case without the aid of a court; and furnishing to the surety a summary remedy by which he may not only revive the judgment, but keep it alive, on making payment to the creditor. The remedy is cumulative to the rights of the surety, but, upon well settled principles of construction, is not exclusive of others which the law had given him for his indemnity against his principal. Where he has failed to be certified in the judgment, he may, as before, bring an action and cause it to be revived by judgment; and, in any proceeding, may be regarded as subrogated, where, as in Dempsey v. Bush, as also in this case, an actual judgment of subrogation is not required in order to do justice between the parties. That is to say, in suits brought to sell the subject of the lien and distribute the proceeds, the court, being in the exercise of its equitable jurisdiction, considers that as done, which, upon the facts of the case, the party had a right to have done, and distributes the proceeds without any formal judgment of subrogation.

No injustice is done to the holder of the mortgage in this case by keeping the judgments in force for the benefit of the surety. When the mortgage was made and delivered, the judgments of the Deiberts were liens on the land. It was the duty of Stahl to have protected his surety by paying these judgments: but, instead of so doing, he sold the land, took a mortgage to himself for the purchase money, and left the judgments to be discharged by the surety. Hence the mortgage being subsequent in time to the judgments, is in no way impaired by paying to the surety, from the proceeds arising from the sale of the land, the amount due him on the judgments instead of to the creditor. The interest in the land covered by the mortgage remains the same in either case.

Judgment reversed, and judgment for Hill on his cross petition.


author: By the Court :

text:
    City of Toledo v. Board of Education.

      Assessments for street improvements — School property not liable to.

    School property is not liable to assessment for a street improvement; nor can a judgment be rendered against the Board of Education for the payment of the assessment out of its contingent fund.
    (Decided Feb. 3, 1891.)
    Error to the Circuit Court of Lucas county.

      The action below, was for the recovery of the amount of an assessment made upon the property of the defendant tor a street improvement. The petition is as follows:
    “ The plaintiff says — That at the time of the happening of the occurrences hereinafter mentioned, it was, and now is, a municipal corporation, duly incorporated under the laws of Ohio as a city of the third grade of the first class.
    “ That on the 21st day of June, A. D. 1886, the common council of the city of Toledo passed a resolution declaring it necessary to improve Twelfth street, a public highway in said city, from the north-easterly gutter line of Washington street, to the south-westerly gutter line of Oak street, by grading and paving the central twenty-six (26) feet thereof with cedar blocks, and providing the necessary curbing, drainage, etc., in accordance with the plans, specifications and profiles on file in the office of the city civil engineer. Said resolution was duly approved by the mayor of said city, and was published for two consecutive weeks in a newspaper published and of general circulation therein. And said common council also gave twenty days written notice of the passage of said resolution to the owners of the property abutting upon the improvement, and especially to the defendant herein, or to the persons in whose name the property was assessed for taxation upon the tax duplicate, who were residents of the county of Lucas.
    “ That on the 2nd day of August, A. D. 1886, the said common council duly passed an ordinance prdviding for the making of said improvement in accordance with the provisions of the aforesaid resolution. Said ordinance further provided that the costs and expenses of said improvement should be levied and assessed upon the lots and lands bounding and abutting upon said improvement in proportion to the foot front, and that said assessment should be payable in three (3) installments. One-third in ten days after confirmation of said assessment, one-third in one year, and one-third in two years thereafter to the contractor doing the work, or-his assigns. Said ordinance was duly approved by the mayor of said city, and was published twice in a daily newspaper of general circulation therein.
    “ That thereupon said city, by its clerk, duly advertised for the period of four weeks, in two newspapers published in said city, for bids for making said improvement in accordance with said resolution and ordinance, and certain bids therefor were filed and opened in accordance with the provisions of the statute in such case made and provided ; and John Streicher and William Casey having filed the lowest responsible bid, the same was accepted by the plaintiff, and a contract for making said improvement, in accordance with the aforesaid resolution and ordinance, was duly entered into by and between plaintiff and said John Streicher and William Casey on the 27th day of September, A. d. 1886.
    “ That thereupon the said John Streicher and William Casey proceeded to make said improvement, and completed the same in all respects in accordance with the terms of said contract, and the same was duly accepted by said engineer and the city of Toledo.
    “ That after the completion and acceptance of said improvement as aforesaid, to wit: on the 15th day of August, A. D. 1887, the common council of said city, by an ordinance duly passed, made an assessment in accordance with the provisions of the statute in such case made and provided, to pay for said improvement, and thereby levied and assessed upon each front foot of the several lots or parcels of land bounding and abutting on said improvement the sum of two dollars and fifty-seven and 558-1000 cents, and assigned said assessment to said John Streicher and William Casey, and ordered payment thereof to be made to them or their assigns, one third within ten days, one third in one year, and one third in two years after confirmation, or be subject to the interest and penalty thereon allowed by law. Said ordinance was published twice in a newspaper of general circulation in said city.
    “ That at the time of making the assessment as aforesaid, the defendant, The Board of Education of the city of Toledo, Ohio, was the owner of the following described premises, and by the assessment aforesaid there was levied and assessed thereon the following sum, to wit:
    “ On lot number seventeen, and the southwesterly two thirds of lot sixteen (17 & S. W. 16) of Dunlap’s Addition to the city of Toledo, Lucas county, and state of Ohio, the sum of 1489.36, which said lot was, at the times aforesaid, and is now, used for school purposes by The Board of Education of the city of Toledo, Ohio, and which sum is still a valid lien thereon, and wholly unpaid and unsatisfied.
    “ That all right, title and interest in said assessment have been, for a valuable consideration, sold and transferred to said John T. Coghlin, who is now the owner and holder thereof.
    “ That payment of said assessment has been demanded previous to the commencement of this suit, but the same, or any part thereof, has not been paid, and plaintiff is, therefore, entitled to recover the statutory penalty of five per centum thereon.
    “ That there is now due to plaintiff for the use of said John T. Coghlin, on account of said assessment, the aforesaid sum with interest on one third thereof from August 25, 1887, on one third thereof from August 25, 1888, and on one third thereof from August 25, 1889, and also the statutory penalty of five per centum thereon, for which amount plaintiff asks judgment against said defendant.
    Wherefore plaintiff prays that an account may be taken of the amount due by reason of said assessment, including penalty and interest thereon, that judgment may be entered therefor against said defendant, that said amount may be declared a first lien on the premises which were assessed, and be ordered to be paid within a short day to be fixed by the court; that in default of such payment said premises be sold, as upon execution at law, to pay the same, and that plaintiff may have such other and further relief as may be equitable and just. T. J. McDonnell,
    “ Attorney for plaintiff."

    The defendant demurred to the petition, the demurrer was overruled, and a personal judgment rendered against the defendant, which was declared a lien upon the school property of the defendant. On error, the judgment was reversed by the circuit court, and the petition below dismissed. The sufficiency of the petition is the only question presented.

      T. J. McDonnell and W. H. A. Read, for plaintiff in error.

      E. W. Tolerton, for defendant in error.
   By the Court :

The plaintiff, the city of Toledo for the use of the contractor, is not entitled to the relief prayed for, nor, under the prayer for general relief, can a judgment be rendered against the Board of Education for the payment of the amount of the assessment out of the contingent fund of. the board, authorized to be raised by section 3958 Revised Statutes. The amount must be paid out of the general fund of the city.

Judgment affirmed.


author: By the Court:

text:
    Board of Education v. The City of Toledo.

      Sidewalk — School property not assessable for.

    (Decided February 3, 1891.)

    Error to the Circuit Court of Lucas county.

      E. W. Tolerton, for plaintiff in error.

      T. J. McDonnell and W. H. A. Read, for defendant in error.
    The action below was for the recovery of the amount of an assessment made by the city for the use of the contractor, upon the property of the Board of Education, for the cost of a sidewalk ordered to be made by the city. A demurrer to the petition was overruled, and judgment entered on the demurrer ; which was affirmed by the circuit court on error.
   By the Court:

We see no ground for a distinction between making an assessment upon the property of a board of education for the improvement of a street, and one for the making of a sidewalk, where the same has not been ordered by the board. The former, as we have just held, cannot be made.

Judgment reversed and petition of plaintiff below dismissed.


author: Minshall, J.

text:
    Gager, Treas., v. A. W. Prout et al.

      Constitutional law — Retrospective laws — Section 2781, Revised Statutes, construed — Taxation—Correction of false returns — Proceedings by County ■Auditors.
    1. A retrospective statute, remedial in nature, that is, giving a new remedy for the enforcement of an existing right, is not repugnant to the provision in our constitution inhibiting the passage of retroactive laws. Rairden v. Holden, Adm’r, 15 Ohio St. 207.
    2. Section 2781, Revised Statutes, as amended April 14, 1886, in so far as it authorizes the county auditor to make additions of taxable property, omitted by the owner in his returns for previous years, being simply remedial, is not invalid. As to the penalty required to be added for such years, it is otherwise, but being separable from the other provision, and in no way essential to it, may be disregarded without affecting the validity of the statute in other respects.
    8. Proceedings before a county auditor for the correction of false returns made by the owner of taxable property, are not governed by the precise rules of the Code of Civil Procedure, regulating the commencement and prosecution of civil actions. No particular style for the proceeding, or form of notice, is prescribed, and it is sufficient if the notice fairly informs the parLy of the nature of the proceeding and the capacity in which he is required to appear and answer.
    4. A certified copy of the inventory of the estate of a deceased person filed by the executor in the probate court, is competent evidence to show omissions in the returns of the deceased, and, in the absence of anything to the contrary, may warrant the auditor, in making additions.
    5. Proceedings had before a board of equalization cannot be pleaded as an adjudication in bar of proceedings before a county auditor for the correction of returns under the provisions of sections 2781 and 2782, Revised Statutes.
    6. Where additions have been made to the returns of a deceased person, on notice to üie executor, the treasurer is not required to formally present the amount of the taxes for allowance, before bringing suit for the same.
    (Decided February 24, 1891.)

      Error to the Circuit Court of Erie County.
    This was a suit brought in the Court of Common Pleas by the treasurer of Erie county against the executors of Mary Barney, deceased. It is averred in the petition that taxes to the amount of $4,703.81 stand charged on the tax-duplicate of Erie county against Mary Barney, deceased, late a resident of the county; that about April 11,1889, the plaintiff presented the defendants a statement of the amount for allowance which was refused by them; that the taxes remain unpaid, and'judgment is asked for the amount.
    The issues were made up by an amended answer and reply, which are as follows :
    “Amended Answer.
    “ Now come the defendants, and leave of court having been granted them for said purpose, for their amended answer herein, admit they are the duly qualified executors of the last will of Mary Barney, deceased, and deny each and every other allegation in said petition contained.
    “ And as a defense number one (1), they say, first, that no claim was ever exhibited to the defendants as executors for the amount claimed in the petition for allowance or payment as required by law. Second, if there appears on the tax duplicate of Erie county, taxes to the amount of $4,703.81 charged against Mary Barney, late of said Erie county, deceased, the same was placed there by the officers without any authority of law.
    “ Defendants were never notified by the auditor of Erie county before such entry on the tax list and duplicate was made. That the auditor of Erie county did not file in his office a statement of the facts upon which he made such addition and correction. That the auditor did not certify to the treasurer the said tax to be put on the duplicate as required by law, and hence the treasurer had no authority to put the same upon the duplicate, nor to collect the same from these defendants.
    “ That the auditor in making said addition did net call before him any testimony, nor was any evidence offered to show that such corrections or additions ought to be made, and such additions were made without any evidence whatever, and were, and are fraudulent and void.
    “ And as a second defense, defendants say:
    “ That such additions upon the duplicate which are alleged in the petition to the amount of $4,708.81 is in fact made up of the following sums and amounts, to wit:
    “For the year 1884,.....$16,500
    “For the year 1885,..... 20,500
    “ For the year 1886,..... 17,000
    “ For the year 1887,..... 24,000
    “ For the year 1888,..... 33,000
    “ And to the amounts above given for the years 1886, 1887, and 1888, 50 per cent, was added as penalty, making the amounts of property as added to the duplicate for those years as follows, respectively:
    “ For the year 1886,.....$25,500
    “For the year 1887, ..... 36,000
    “ For the year 1888,..... 49,500
    “ That the statute under which the auditor claims to have authority to make such additions was enacted by the general assembly on the 14th day of April, 1886, and was, and is unconstitutional and void.
    “ And as a third defense defendants say that at the time when the returns of personal property were made for taxation for the said years above named, Mary Barney was in full life and returned her property, and all of it, for taxation, and that during each of said years an annual board for the equalization of real and personal property, in the city of San-dusky, which is a city of the second class, equalized the value of the real and personal property, mone}rs and credits within said city, and added to and deducted from the valuation of all personal property, moneys and credits returned by the assessors therein, and which were omitted by said assessors, and heard evidence for the purpose of adding other items omitted from said returns, and that in each of said years the said Mary Barney was notified to appear before said board, as was required by law; and she did appear in person or by her duly authorized agent.
    “ And testimony was heard bearing upon her returns of personal property, and her returns of personal property were duly passed upon by said board, and the amount and value of her personal property was equalized by said board, and all questions arising upon or under the same were heard by said board, and by them fully settled and adjudicated.
    “ Wherefore defendants say that by reason of such adjudication the auditor of Erie county had no jurisdiction to add, either with or without evidence, any sum whatever to her returns, or to the tax duplicate against her on her estate, and that the attempt by him to do so is an attempt to pass upon and determine precisely the same questions that were passed upon and determined by the rify board of equalization of the city of Sandusky, acting within their authority and power.
    “ Amended Reply. '
    “Now comes the plaintiff and for reply to the first defense in said amended answer set forth, denies each and every allegation-therein contained, except that there appears on the tax duplicate the sum of $4,708.81 charged against Mary Barney, late of said Erie county, deceased.
    “ For reply to second defence of said answer, plaintiff admits that said amount, $4,703.81, standing charged upon the tax duplicate of Erie county, as alleged in the petition, is in fact made up of taxes upon the amounts and for the years alleged in said answer, and that in making up such amounts for each of the years 1886, 1887 and 1888, as required by law, fifty per centum penalty was added, making the total amounts for those years as alleged in said answer. And plaintiff says that said amounts were duly ascertained and entered by the auditor of said Erie county upon the lists, in his office, and duly assessed for taxation and certified to the county treasurer for collection upon evidence heard by him, said auditor, after notice of said hearing duly served upon the defendants herein, prior thereto, and which notified them of said hearing to be had, and gave them ample time and opportunity to appear and be heard in their own behalf and produce evidence, if any they had, and to show that the returns for taxation of said Mary Barney for each and any of those years were correct, which they failed to do, and were in default, and said auditor thereupon, upon the evidence before him, a statement of which facts or evidence was duly filed by him in his office as required by law, ascertained and found that said Mary Barney, now deceased, in the year 1884 was the owner of personal property, money, credits, investments in bonds, stocks, etc., which had not been returned for taxation by her in the sum of $16,500 ; in 1885, in the sum of $20,500; in 1886, in the sum of $17,500; in 1887, in the sum of $24,000; and in 1888, in the sum of $33,000; and entered his finding and judgment accordingly, and the plaintiff now pleads the proceedings of the auditor upon the notice to the defendants as aforesaid and his findings and judgment, as an adjudication of the matter herein, and as in bar to the defenses herein pleaded. Plaintiff further denies the allegation that the statute under which the auditor proceeded was and is unconstitutional.
    “For reply to the third defense, plaintiff admits that for the years above named, the said Mary Barney was in full life, and also admits that for said several years a board of equalization of real and personal property was in session in the city of Sandusky which is a city of the second class. Plaintiff denies each and every other allegation in said third defense.”
    The case was tried to the court upon the pleadings and the evidence; at the close of which, as appears from a bill of exceptions taken at the trial and made a part of the record, the court, upon consideration, being of the opinion that the statute, that is to say § 2781 Revised Statutes, as amended April 14, 1886, is unconstitutional, dismissed the petition, to which the plaintiff excepted at the time. Upon proceedings in error the judgment was affirmed by circuit court, not, as appears from the opinion of the court, that the law is invalid, but because the proceedings by which the additions were made in the auditor’s office, were, as claimed, against Mary Barney, and not against her estate.
    The bill of exceptions contains all the evidence and the proceedings at the trial.
    In addition to the ground on which the common pleas dismissed the petition, and that on which the circuit court affirmed the judgment, the following objections are also made to the right of the treasurer to recover:

      First. — That there was no presentation of the claim to the executors for allowance.

      Second. — That there was no evidence before the auditor to sustain the findings made.

      Third. — That the claim that Mary Barney had omitted taxable property from her returns had been heard and passed upon by the board of equalization of the city of Sandusky, and was therefore adjudicated.
    The facts, other than these already stated, requisite to an understanding of the questions discussed, are stated in connection therewith in the opinion.

      John P. Stein, L. Q. Cole, Wm. L. Avery, and ForaJcer, Black BocJchold, for plaintiff in error.
    The executors of Mary Barney were answerable for her defaults; but not personally, only out of her estate. For them to be answerable out of her estate, she must first have been charged. But how was she to be charged with taxes unless they were against her. We are to tax the dead, then ? By no means! Mary Barney was not dead in these years for which she is taxed. But you are taxing her now for them. Precisely! And since it is for then, must it not be in her name? That was the name in which the taxable property was owned then, and in which name it ought to have been returned and taxed. The omission to return it did not change the nature of the obligation. Revised Statutes, section 2781; State ex rel. v. Raine, 24 Law Bull. 117; County of Redwood v. Winona, etc., Land Co., 40 Minn. 517; Sturges v. Carter, 114 U. S. 518; Burroughs on Taxation, sec. 93; City of New Orleans v. Railroad Co., 34 La. Ann.
      679; Harwood v. North Brookfield, 130 Mass. 561, 564; Noyes v. Hale, 137 Mass. 266, 271—2; Vanderpool v. Bonnell, 49 N. J. Law, 317, 321; Welty, Law of Assessments, sec. 60; Pearson v. Creed, 69 Cal. 538; Sawyer v. Mackie, 149 Mass. 269; Trowbridge v. Horan, 78 N. Y. 439, 442; Haight v Mayor, 99 N. Y. 280, 284; Cook v. Leland, 5 Pick. 236; Wood v. Torrey, Adm’r, 97 Mass. 321, 323; Endicott v. Corson, 50 N. J. Law, 381; Revised Statutes 1095, 1097, 2859; Dallinger v. Davis, 149 Mass. 62; Williams v. Holden, 4 Wend. 223; Wolfe, Ex’r, v. Geffroy, Treasurer, etc., 16 Ohio St. 219; Genin’s Executor v. Auditor and Treasurer, 18 Ohio St. 534.
    11. The manner of the charge accorded with the construction controlling the name; that is to say, the omitted values were restored, each for its own year, to the tax list of that year, as being where such values should have been originally but for the omission to return ; and were placed likewise upon the same duplicates in the hands of the treasurer that the taxes would have been on as unpaid taxes; in other words, upon “the delinquent chattel duplicate of delinquent chattel taxes of Erie county.”
    Against this manner of charge, much clamor has been heard elsewhere. Your duplicate, it is exclaimed, has been settled by the treasurer — it is “ dead.” But it was not more dead than any other account that has been settled; that is, it was dead only so long as not opened up. The very remedy provided by the statute, sections 2781, 2782, was to open it up, “ to go behind the annual adjustment made of the taxes by the auditor with the tax-payer; ” to afford “ a method by which the taxes might be assessed in spite of the annual settlements made by the auditor.” Sturges v. Carter, 114 U. S. 518.
    The tax list and duplicate are but accounts of taxes, in the offices of the county auditor and treasurer, with the tax-payer; the list being the original charge and the duplicate being a copy, the collections upon which, by the treasurer, are settled for by him semi-annually, each fiscal year, with the auditor. Until the act of May 2,1877 (74 Ohio L. 156), there was no provision for a separate duplicate of unpaid personal taxes. These appear to have remained to be collected by the treasurer upon his original duplicate. (S. & C. 1467, 1468, secs. 85-91.) The act of May 2,1887, substituted the delinquent chattel duplicate. Allen v. Russell, 39 Ohio St. 337, 338; Shotwell v. Moore, 45 Ohio St. 632; Lee v. Sturges, 46 Ohio St; 153; Sturges v. Carter, 114 U. S. 511; Welty Law of Assessments, section 159; Insurance Co. v. Cappeller, 28 Ohio St., 560; State ex rel. v. Raine, supra; Endicott et al. Ex’rs v. Corson, Collector, etc., 50 N. J. Law, 381; Stockle v. Silsbee, 41 Mich. 615, 618; Morrison v. Ry. Co., 96 Mo. 602, 606-8; State ex rel. v. Rau, 93 Mo. 126, 129; Farrington v. N. Eng. Invest. Co., 45 N. W. Rep. 191; Ry. Co. v. Johnson, 108 Ills. 11, 14; Jenkins v. McTigue, 22 Fed. R. 148.
    III. The treasurer made out a statement of the years and amounts of the addition, and the taxes for each jmar, footed up with the “ treasurer’s penalty for collection,” five per cent., making the total sum sued for; and addressed the statement to the executors — “ Gentlemen: There has been added to the tax duplicate against the estate of Mary Barney, omitted taxes as follows.” This he presented. Harter v. Taggart’s Ex’rs, 14 Ohio St. 122, 127-128; Kyle’s Adm’r v. Kyle, 15 Ohio St. 15, 21; Stambaugh v. Smith, 23 Ohio St. 584, 594; Pepper v. Sidwell, 36 Ohio St. 454, 457.
    IY. That the inventory was evidence, is denied. As if the admission of a defendant was not always evidence. That the memorandum was evidence, is also denied. But it did not purport to be a statement of the evidence. All that the statute requires the auditor to file is “ a statement of the facts or evidence.” The dates and amounts, and volume and page of record, of the mortgages as in the memorandum, with the dates of cancellation, were facts. The evidence was by certified copy, or direct inspection of the records; but the auditor was certainly not required to file the records. Fratz v. Mueller, 35 Ohio St. 397, 403.
    The whole objection, however, is based upon a misconstruction. Defects of evidence before the auditor, were there any such, are not to be questioned here; the defendants have had their day in court before the auditor. The function discharged by the auditor, in ascertaining the omitted values, was that of an assessor. Originally it was prescribed, that, “if any person shall fraudulently omit to give in any part of his or her property, it shall be the duty of the lister (or, as subsequently named, ‘ assessor ’) to take a list of such person’s property thus refused or omitted to be listed, from the best information he can obtain.” Acts, February 27,1816, section 4, Chase, 986; February 23, 1824, sec. 7, Chase, 1372; February 3, 1826, sec. 28, Chase, 1476; March 14, 1831, sec. 15, Chase, 1804. Under each of these acts notice was provided for, and opportunity to be heard before the county commissioners, or as afterward, the board of equalization; and, if not proved to be innocent in the premises, the person was taxed threefold, or by the earlier of the acts fourfold; but if the board were satisfied that the omission was not with fraudulent intent, the property was taxed the same as other property. The act of March 2, 1846 (44 Ohio L. 98), relieved the assessor of this duty, and left it unprovided for until the amendment of February 8,1847 (45 Ohio L. 60). 50 Ohio L. 135; Swan Revised Statutes, 901; Act of April 13,1852, secs. 26, 27; Revised Statutes, secs. 2750, 2751, 2782,2784; Champaign Co. Bank v. Smith, 7 Ohio St. 42, 49; sec. 1, S. & S. 759; 75 Ohio L. 436; Genin's Ex'r v. Auditor, 18 Ohio St. 534; Fratz v. Mueller, 35 Ohio St. 397, 404; Weatherhead v. Town of Guilford, 19 Atl. R. 717, 718; Town of Hartford v. Champion, 54 Conn. 436.
    V. The equalization of an assessment is but part of the assessment, and can no more be a bar to correction by the auditor of “ false return or statement for taxation ” under the statute, than is the original assessment, by the auditor himself, upon the returh, a bar. If it were, the singular consequence might happen, of the statute being altogether avoided, simply by repetition of the offense — that is to say, hy going before the board of equalization and repeating there the same false statement as in the return. The board of equalization, itself, is not exhausted of its own power by one exercise. Welty, Law of Assessments, sec. 153; Cent. Pac. R. R. Co.

      v. Placer County, 46 Cal. 668, 671, 672. The doctrine of •“ res adjudicata does not apply to their proceedings.” (Id.) Or if it does, the precise matter must be shown to have been before them, as in whatever other claim of estoppel. County Redwood v. Winona and St. Peter Land Co., 40 Minn. 512, 517.
    For brief of counsel for plaintiff in error, on the question of the constitutionality of the act of April 14, 1886, see case of State ex rel. v. Crites, post. — [Reporter.]

      Colver f King for defendants in error.
    I. There was no valid presentation of this claim by the treasurer, for allowance, as required by sections 6092, 6098 and 6097; Keenan v. Sexton, 13 Ohio, 41; Harter v. Toggart, 14 Ohio, 122; Kyle v. Kyle, 5 Ohio St. 15; Stanbaugh v. Smith, 23 Ohio St. 584 and 594.
    II. The proceedings were against Mary Barney, and not her estate. Williams v. Holden, 4 Wend. 223; Payson v. Tufts, 113 Mass. 493; Davis v. Noble, 42 Ohio St. 405; Wood v. Torey, 97 Mass. 321; Cook v. Leland, 5 Pick. 236. A tax assessed against a dead person is void. Crugar v. Dougherty, 43 N. Y. 107, 118, 119. Tax laws will be strictly construed. 43 N. Y. 119; Sharpe v. Spear, 4 Hill, 76. A tax must be assessed against a living person. Welty on Assessments, 135; Smith v. Davis, 30 Cal. 536; Myers v. Hale, 130 Mass. 266.
    III. The auditor acted without evidence. We have said before, that this action was adversary. The auditor is required by section 2782, to notify the person against whom he proposed to proceed, that such person may have an opportunity to show that his return is correct, and the auditor is empowered to send for persons and papers and issue compulsory process for the same, and hear evidence, and when he decides he “ shall, in all such cases, file in his office a statement of the facts or evidence upon which he made such correction : ” This is language similar to that in section 2807, requiring boards of equalization, when an addition is made, to enter on their record a statement of the facts on which it was made.

      The auditor’s action must be based upon evidence, and if he undertakes to act without evidence such action is void. Fratz v. Mueller, 35 Ohio, St. 397-405; Iron Company v. Schugel, 9 Am. Rep. 591; Hirschman v. Fratz, 7 Law Bull. 35; the inventory is no evidence to prove the existence of taxable property for previous years. It might he evidence of the existence of the items named at the time of the appraisment, but it is not conclusive as to that even upon the executors who made it. Cameron v. Cameron, 15 Wis. 1; Nabb v. Dickson, 7 Nevada, 163. The board of equalization passed upon the same questions. This action of the board was judicial, and it is final, where they have any evidence before them to sustain their finding. Welty on Assessments, section 158; Wagoner v. Loomis, 37 Ohio St. 571 to 582; Heffer v. Mahony, 19 Law Bull. 369.
    IY. The decisions of the board of equalization are and must be final, unless impeached in a court of competent jurisdiction. If the citizen whose case is adjudicated by this board, acquiesces in their determination the state or the county ought not to be allowed to repudiate it. If conceded by the one, to be binding upon him, the law should declare it to be equally binding upon the other. This rule is safe and is just. Any other will beget injustice and inspire official speculation and greed.
    V. The act of April 14, 1886, is unconstitutional. It is in conflict with section 28 of art. II. of the constitution of Ohio. The statute provides that the auditor shall, for each year, ascertain the true amount which a person ought to have returned for taxation, “for not exceeding five years next prior to the year in which the inquiries ” are made, and to such true amount “ for each year he shall add fifty per centum, multiply the sum or sums thus increased by said penalty, by the rate of taxation belonging to said year or years,” and enter these on his tax list and certify them to the treasurer for collection. The act itself denominates it as a penalty. The act also requires the auditor to ascertain the true amount which such person ought to have returned. It cannot be, • then, that the object was to add fifty per cent, in order to make the amount enough. The state had no intention to assess a man on more property than he owned. No, the true amount having been ascertained by the auditor, then the fifty per cent is added, clearly as a punishment.
    Was it intended to have retrospective operation? The terms of the statute clearly indicate such intention on the part of the legislature. It repealed the law of 1878, which allowed the auditor to go back four years. It could not have been the legislature’s intention to leave the four years previous to 1886 unprovided for under the law. On the contrary they added one year to the time fixed by the old law and provided that the auditor should go back five years in his investigation. Railroad v. Commissioners, 31 Ohio St. 338 and 344. Again, section 2781, was one of six sections in the Revised Statutes of 1880, relating to this subject. The five sections following section 2781, excepting section 2784, remain in force to-day, as they were in 1886, and their provisions apply and are connected with section 2781, as it originally stood and as it was amended. The following sections point out the manner and define the power to be exercised by the auditor in Carrying out the provisions of section 2781. And if the auditor was to go back five years, he would employ the same process as if he went back one year. To say that the statute might have a prospective operation is not an argument, for all statutes remedial and penal have a prospective operation necessarily.
    We concede the principle adopted by Judge White in the ease of Berneir v. Becker, 37 Ohio St. 74, that, “ It is laid down as a rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.” But we insist that the legislative intention is to be ascertained from the statute itself and the purpose and object sought to be accomplished from its passage. Again, we submit that if the legislature had intended this statute to have a prospective operation they would simply have made it supplementary to the original section and left that unrepealed.
    Can the penalty be separated from the principal sum for the years previous to 1886 ? Only a few words need be said upon this point. To do this the court must dissect this statute word from word, clause from clause, and sentence from sentence. If the statute be retrospective, as already claimed, as to the true amount of tax, it is also retrospective to the penalty? By express terms they are made inseparable.
    Can any part of this statute be held valid ? We here proceed to consider its unconstitutionality with respect to a division of it at the time it went into effect, as well as a division of the penalty from the principle. It cannot be divided by holding it void as to the returns and additions made in those years before its passage, and valid as to those in the years afterwards. Nor as already claimed, valid as to the tax upon the true returns, and invalid as to penalties. In this case the effect of such construction would legalize the action of the auditor for the three last years, and invalidate for the first two. The law is all one and cannot be separated. The definition of retroactive legislation, given by Judge Story, had already been quoted; this is substantially adopted and followed in Ohio and in those states that have a similar constitutional provision. Rairden v. Holden, 15 Ohio St. 210; Dow v. Norris, 4 N. H. 16; Clark v. Clark, 10 N. H. 380; Greenlow v. Greenlow, 12 N. H. 200; Sturges v. Carter, 114 U. S. 511 and 519; Cooley on Const. Lim., 177, 178; Warren v. Mayer etc., 2 Gray, 98, 99; State v. Commissioners, 5 Ohio St. 497-507; Slauson v. Racine, 13 Wis. 398; State v. Dousran, 28 Wis. 547; State v. Sinks, 42 Ohio St. 345; Jones v. Rollins, 18 Gray, 329; State v. Hughes, 43 Ohio St. 98, 124. Butzman v. Whitbeck, 42 Ohio St., 223.

      Wm. Worthington, Judson Harmon, and J. W. Warrington, by consent of the court,
    submitted the following argument as to the constitutionality and effect of the act of April 14, 1886 (83 O. L. 82), amending and repealing sec. 2781 of the Revised Statutes of Ohio.
    I. The penalty makes the act of 1886 unconstitutional in its retrospective operation.

      Indeed it is impossible for it to be otherwise. The auditor can correct the return only by adding specific property omitted therefrom; such property is always capable of valuation, and after valuation any arbitrary addition is necessarily a penalty. A statute imposing such a penalty for an act already done is both retroactive and ex post facto, and therefore void. Nor does it matter that in previous years, by prompt action, the state might have yearly imposed a similar penalty. The lapse of time operated as a bar, which, in view of the constitutional inhibition against retroactive legislation, once fallen could not be raised. Cooley’s Constitutional Limitations, 6th ed., 448, and cases there cited. Rockport v. Walden, 54 N. H. 167; Mellinger v. Houston, 68 Tex. 37; State v. Mayor, 37 N. J. L. 39; Nash v. White’s Bank, 105 N. Y. 243; better reported in 7 Cent. Rep’r, 690.
    II. The rule determining when part of a statute may be upheld as constitutional, while another part is void, has been often applied and is well understood. As was said in Baldwin v. Franks, 120 U. S. 685-686: “ To give effect to this rule, however, the parts — that which is constitutional and that which is unconstitutional — must be capable of separation, so that each may be read by itself. ” “ The limitation which is sought ” in that case “ must be made, if at all, by construction, not by separation. This, it has often been decided, is not enough.”
    Or, to use the substance of the language of this court, the two parts of the statute must be independent, one from the other, otherwise it is improbable that the legislature would have enacted one without the other. State v. Sinks, 42 Ohio St. 345; State v. Pugh, 43 Ohio St. 98; State v. Dombaugh, 20 Ohio St. 167; Commonwealth v. Potts, 79 Pa. St. 168; Lathrop v. Mills, 19 Cal. 514, 535; Genin v. Auditor, 18 Ohio St. 535; Bowles v. State, 37 Ohio St. 35; State v. Dombaugh, 20 Ohio St. 167; Railroad v. Commissioners, 31 Ohio St. 338; Gibbons v. Catholic Institute, 34 Ohio St. 289; Adler v. Whitbeck, 44 Ohio St. 539; State v. Frame, 39 Ohio St. 399; Butzman v. Whitbeck, 42 Ohio St. 223; People v. Kenney, 96 N. Y. 294; State v. Constantine, 42 Ohio St. 437;
      People v. Bull, 46 N. Y. 57; Duer v. Small, 17 How. Pr. 205; Lathrop v. Mills, 19 Cal. 513; Allen v. Louisiana, 103 U. S. 80; Commonwealth v. Kimball, 24 Pick. 362; State Freight Tax, 15 Wall. 232; Ratterman v. Western Union Tel. Co., 127 U. S. 411; Jones v. Bridgeport, 36 Conn. 283; County of Redwood v. Winona, etc., Land Co., 40 Minn. 512; Hoke v. Commonwealth, 79 Ky. 567.
    III. But although the act cannot have retrospective operation, it is not absolutely void. It was intended to furnish a rule for the future as well as the past, and for the future it may operate. The distinction has been alluded to under the previous head, and is well settled. Jaehne v. New York, 128 U. S. 189. Thus in Gilpin v. Williams, 25 Ohio St. 283, it was declared that the act providing for the sale of entailed estates was intended to be retroactive, and was void in its retroactive operation. But prospectively, that act is valid. Nimmons v. Westfall, 33 Ohio St. 213; Oyler v. Scanlan, 33 Ohio St. 308. The same is true as to laws impairing the obligation of contracts when applied retrospectively. They are still valid prospectively, if the intention to create a permanent rule be manifest. So as to ex post fact claws generally.
    - IY. Section 2, of the act of April 14,1886, 83 Ohio L. 82, repeals in terms original section 2781, without any saving clause. This repeal not only abrogates that law, but abandons all recoveries that might have been made under it.
    “ The rule undoubtedly is, that where a statute is repealed without any saving clause as to pending suits, ‘ arising thereon,’ all right to maintain them, whether they be civil or criminal, is at an end.” Railroad Co. v. Belt, 35 Ohio St. 481. The right to maintain is gone, because the right of action, whereon the right to maintain depends, is gone with' the statute that created it. Lawler v. Burt, 7 Ohio St. 340; Butler v. Palmer, 1 Hill, 324; State v. The Mayor, 37 N. J. L. 39; Norris v. Crocker, 13 How. 429; Nash v. White’s Bank, 7 Cent. Rep’r, 690; Calkins v. The State, 14 Ohio St. 222; Hartung v. The People, 22 N. Y. 95; Medley, Petitioner, 134 U. S. 160, 174.

      Nor can it be contended that original sec. 2781 is saved as to false returns made prior to its repeal by force of sec. 79, because that statute by its very terms does not apply to those cases where the new law was intended to act retrospectively and furnish the rule of action. After contending so strenuously that the act of 1886 shows clearly upon its face its intention to act retrospectively, counsel for plaintiffs in error will hardly turn about face and deny the existence of such intention. 4 Curw. 2799; Bergin v. State, 31 Ohio St. 113; Westerman v. Westerman, 25 Ohio St. 500; Lublow’s Heirs v. Wade, 5 Ohio, 507-508; Comr’s of Union Co. v. Greene, 40 Ohio St. 318, 321; Raymond v. Cleveland, 42 Ohio St. 522; Seasongood v. Cincinnati, 46 Ohio St. 296; Norris v. State, 25 Ohio St. 224; Railroad Co. v. Belt, 35 Ohio St. 479, 481; Lafferty v. Shinn, 38 Ohio St. 49; Upshur County v. Rich, 135 U. S. 467, 477; Woodruff v. Parham, 8 Wall. 138; Sturges v. Carter, 114 U. S. 511; Bulkley v. Stevens, 29 Ohio St. 622.
   Minshall, J.

1. The principal question in the case, and the one that has elicited the most discussion from counsel, is as to the constitutional validity of the law under which the additions to the tax returns of the deceased were made. It is presented in two aspects: First, as to its prospective, and second as to its retrospective, operation.

The section in question, 2781 Revised Statutes, was adopted April 14, 1886, and reads as follows:

“ If any person whose duty it is to list property or make a return thereof for taxation, either to the assessor or county auditor, shall, in any year or years make a false return or statement, or shall evade making a return or statement, the county auditor shall for each year ascertain, as near as practicable, the true amount of personal property, moneys, credits, and investments that such person ought to have returned or listed for not exceeding [the] five years next prior to the year in which the inquiries and corrections provided for in this and the next section are made; and to the amount so ascertained for each year, he shall add fifty per centum, multiply the sum or sums thus increased by said penalty by the rate of taxation belonging to said year or years, and accordingly enter the same on the tax lists in his office, giving a certificate therefor to the county treasurer, who shall collect the same as other taxes.”

It is not claimed by all the counsel who have been heard in the case, that there is any constitutional objection to this statute when applied to omissions occurring in any year subsequent to its adoption. It is conceded by most that its application to such cases is without objection. The ground upon which the opposite view is maintained is, that the constitution requires all taxes on property to be according to its true value in money (sec. 2, art. 12) ; and that the addition of the 50 per centum to the true value authorized by the section in question, contravenes this provision of the constitution. This is more plausible than sound. The object of this section is not merely to afford a remedy for the recovery of what is due the state under its system of taxation, but also to secure honest returns by adding a penalty to the making of false ones. It is conceded that the state may, for this purpose, add a penalty to the tax itself. What difference then can it make, so far as any substantial right of the individual is concerned, whether he is made to feel the penalty for a false return in the basis on which he is taxed, or in the rate of the tax itself ? Let either course be adopted and the result will be one and the same — an increase in the amount of what he has to pay. It is the latter which is of moment to the tax-payer, and not the arithmetic by which it is ascertained. But it is not necessary to consider the question further upon principle, for the addition of a certain per centum to the true amount as a penalt}r for making a false return, was sustained by this court in Genin’s Ex’r v. Auditor, 18 Ohio St. 534, and is in accordance with what has been the legislative policy of this state from an early day.

But it is apparent from its reading, that this section was, on its enactment, intended to apply to any case of a false return, falling within any of the five preceding years ; and it is this application of the statute to which objection is made by all the counsel who hold the law to be invalid, on the ground that it is within the inhibition of the constitution against the enactment of retroactive laws: Legislative Article, § 28. The application of the objection to this case is found in the fact that the suit is to recover, not only the tax on additions made by the auditor for the years 1886,1887 and 1888, to which the statute had a prospective operation, but, also, for the years 1884 and 1885, to which it had not, and could only affect by retroaction. But it must be observed, that for these two jmars the auditor added no penalty upon the amount he found had been omitted in each year, he simply added the amounts and extended the tax at the proper rate for each year. So that the question here is, not whether a penalty may be imposed by a law passed subsequently to the omission, but, whether the amount that should have been returned and might have been added under the provisions of an existing law, to wit, the act of 1878, may now be added for the purpose of taxation under the provisions of the section in question ?

All laws intended to affect the conduct or the acquisition of rights by the citizen, should have a prospective effect only. This is the principle incorporated in our constitution, inhibiting retroactive laws, and finds a place in every enlightened system of jurisprudence. But the principle in no way impairs the power of the legislature to pass laws of a remedial nature, and apply them to past as well as future cases. Where a right has ’accrued a remedy for its enforcement cannot be said to impair any right of the person against whom it is enforced; to assert the contrary would be to confound the wrong with the right. In Rairden v. Holden, Adm'r, 15 Ohio St. 207, suit was brought upon the bond of an administrator under a statute which gave a new remedy on the bond against the administrator and his sureties, and which could not have been pursued at the time the bond was given. It was claimed that the action could not be maintained under the provision of our constitution, inhibiting retroactive laws. But the court held that “a statute purely remedial in its operation on pre-existing rights, obligations, duties and interests, is not within the mischiefs against which that clause was intended to guard, and is not, therefore, within a just construction of its terms,” and the suit was sustained. Such has been the uniform holding in this state.

Original section 2781 Revised Statutes, was the same as an act passed May 11, 1878, the latter having been, without change in the phraseology, carried into the revision of 1880. It, like the amended section of 1886, provided a remedy for the correction of false returns, the provisions of the two statutes being in all respects identical, except that the act of 1878 limited the inquiry to a retrospect of four years, and confined the'penalty to the last or current year of the inquiry. Under the act of 1878 additions were made to the returns of one Sturges by the auditor of Richland county. He refused to pay the taxes extended thereon in accordance with the act, and suit was brought for their recovery by the treasurer. The suit was removed by Sturges to the Circuit Court of the United States for that district; and judgment having been rendered against him, the case was taken on error to the Supreme Court of the United States, where the judgment was affirmed. Sturges v. Carter, 114 U. S. 511. It was insisted that the act was invalid because retroactive. In answer to this, Woods, J., delivering the opinion, said : “ The act of 1878 merely provided a method by which taxes might be assessed and collected in spite of the annual settlements made by the auditor. It gave a new remedy to the state for enforcing a right which it had all the time possessed, namely, the right to the taxes upon property liable to taxation.” And again it “ took away no vested right of the tax-payer, it imposed upon him no new duty or obligation, and subjected him to no new disability in reference to past transactions.” The same construction of the statute was adopted by this court in Lee v. Sturges, 46 Ohio St. 153. The suit was brought in 1878 for the recovery of taxes for the years 1876 and 1877, placed upon the duplicate by the auditor after his semi-annual settlement, for 1877, with the treasurer. The judgment of the court below for the amount was affirmed on error. And in a more recent case, State ex rel. v. Raine, 47 Ohio St. 447, it is said by Bradbury, J.: “ The several statutes giving to state and county auditors authority relating to the collection of the public revenue do not create obligations against the citizen or taxpayer; they simply provide the instrumentalities by which the revenue officers may enforce obligations imposed by the statutes which create the tax.”

Now, in the case before us, the right of the state to the simple taxes on the additions made by the auditor for the years 1884 and 1885, was not created by section 2781 as adopted in 1880, nor by the same section as amended in 1886. This section in its original and amended form, simply prescribed a remedy for the recovery of taxes due the state and its subdivisions under those provisions of our tax law, which make it the duty of every citizen to return his property for taxation, and to pay the taxes levied upon it equally with others. So that the repeal of the original section, in no way affected the primary right of' the state to recover the simple taxes that had accrued upon the property of the deceased for the two years prior to 1886. The recovery of these taxes was a fair subject for the application of retrospective legislation. This is not seriously disputed; but, it is claimed, that whilst provision might have been made for the recovery of the taxes on the true amount of the additions only, the provisions therefor are so plaited and interknit with the provision for a penalty as that the entire section, so far as it was, intended to be retrospective, must fail. There is no question but that the provision for a penalty, as applied to the years prior to the passage of the act of 1886, can have no effect. It imposes a liability for the making of false returns, or failing to make returns, that did not exist at the time of the omission, and is therefore within the mischief intended to be avoided by the provision in our constitution against retroactive laws.

Therefore the question made is fairly presented. But we think it must yield to a rule of construction that has been firmly established by repeated decisions of this court. By this rule a statute may be invalid in part, by reason of some provision being repugnant to the constitution, and valid as to the residue, where it appears that the invalid part is an independent provision, not in its nature and connection essential to the other parts of the statute, nor so related to the general purpose of the statute as to warrant the conclusion that the legislature would have refused to adopt it with the invalid part stricken out. Bank v. Hines, 3 Ohio St. 1, 34; Treasurer Fayette County v. Bank, 47 Ohio St. 503; State ex rel. v. Dombaugh, 20 Ohio St. 167; Railroad Co. v. Commissioners, 31 Ohio St. 338; Gibbons v. Catholic Institute, 34 Ohio St. 289, 290; Bowles v. State, 37 Ohio St. 35.

Here, in the first place, the provision for the addition of the amount omitted in the return of the taxpayer, and that for the addition of a penalty, are clearly separable. It may be said that the penalty is made to depend upon the addition of what had been wrongfully omitted; but the converse is not true: It is not necessary to impose a penalty that an addition may be made of what had been omitted. Under the statute, mere verbal criticism aside, the true amount omitted by the individual may be placed on the duplicate, with the tax extended thereon, without first increasing the addition by a penalty of 50 per centum. In the second place, it cannot be claimed with any show of reason, that the legislature would not have provided for making the addition of the amount omitted, without the addition of a penalty also. To so hold would be to disregard all known motives of human conduct, and to say, that an entire body of intelligent men would be governed by mere caprice instead of the interests of their constituents ; or rather by a desire to make the delinquent property holder smart, than to subserve the interests of the public treasury. As such motives are not entertained by men in general, they should not be ascribed to the legislature.

As the act applied prospectively to the years 1886, 1887 and 1888, and as no penalty was added by the auditor for the years 1884 and 1885, the court of common pleas erred in dismissing the petition on the ground that the act of 1886 was unconstitutional.

2. We will next consider the ground on which it is said the circuit court affirmed the judgment, namely, that the proceedings instituted by the auditor were against Mary Barney, and not against her estate. Conceding that the proceedings had before the auditor for the correction of the returns of property for taxation, are judicial in character, it does not follow, as we think, that they are to be governed by all the precise rules of the Code of Civil Procedure for the commencement and prosecution of civil actions. Notice is required, but no particular style for the proceeding, or form of notice, is prescribed. It is therefore sufficient if the notice fairly informs the party of the nature of the proceeding, and in what capacity he is to appear and answer. Two notices were given in this case, both of which were disregarded. Both were addressed to “ A. W. Prout and Perry Gr. Walker, executors of the estate of Mary Barney, deceased.” The first informed them that an error had been discovered in “ your tax returns,” and fixed the 16th of March, 1889, for a hearing. This being disregarded, a second notice was sent them on April 5, 1889, addressed in the same way, and, reciting the former notice and its disregard by them, proceeded as follows: “ This is therefore to notify you that unless you shall on the 9tfi day of April, 1889, at 10 o’clock, A. M., appear at this office, which said date and place is fixed that you may have an opportunity of showing that the statement or return made by Mary Barney to the assessor was correct. Otherwise from the statement and evidence furnished to me I shall proceed to assess and charge Mary Barney upon the tax duplicate of the county with the following amounts: 1883, $11,900; 1884, $16,500; 1885, $20,500; 1886, $17,000; 1887, $24,000; and 1888, $33,000, and the same will be placed upon the county treasurer’s books for collection, together with 50 per cent, penalty on amount ascertained for the years 1886, 1887 and 1888.

“Wm. J. Bonn, County Auditor.”

Taking these notices together and it fairly appears that the proceeding was against the estate of Mary Barney, deceased ; and that what they were required to answer, was as to the returns made by her in her life-time, and not as to their individual returns. That they so understood it at the time, appears from their subsequent conduct; and that is enough.

8. It is also claimed, that there was no valid presentation of the claim by the treasurer to the executors for allowance. As to this it is sufficient to say, that no presentation of the claim by the treasurer was required. The claim, on notice to the executors, had been established before the auditor and by him certified to the treasurer for collection. Having had notice of the commencement of the proceeding, the law charged them with 'notice of what thereafter was done, and it became their duty to pay the taxes charged upon the additions as other taxes.

4. It is also claimed that there was no evidence before the auditor to sustain the findings made. The evidence consisted, among other things, of a certified copy of the inventory of the estate filed by the executor in the probate court, showing notes secured by mortgage and unsecured notes, many of them running back long before 1884, on which the interest appeared to have been kept paid up, and all inventoried as good. The certified copy of the inventory was competent evidence. It made a prima fade case, and in the absence of anything to the contrary warranted the making of the additions, as, by a reference to the returns made by the deeease'd during these years, it was merely a matter of arithmetic to ascertain the omissions that had been made.

5. It is also claimed, that the claim that Mary Barney had omitted taxable property had been heard and passed upon by the board of equalization of the city of Sandusky, and was therefor adjudicated. The records of this board show that some small additions were made to her returns for the years 1884, 1885 and 1887, but they do not show that any of the matters now in dispute were adjudicated and determined by it. But the power possessed by that board are very different from the jurisdiction conferred on the auditor by section 2781. The board is a part of the machinery provided for the assessment and taxation of property; and false returns or statements made to it, maj’- be corrected by the auditor under sections 2781 and 2782, as well as those made to the several assessors, so that what may be done before a board of equalization cannot be plead as a bar to the auditor in proceedings under section 2781 to correct a false return made by a property owner.

The judgment of the circuit court and of the court of common pleas, are reversed, and the cause remanded to the latter court for further proceedings.