author: Bowen, J.

text:
    James Nellons and others v. Nathaniel Truax and others.
    Where T. devised to his son all of his real estate, by his paying the valuation of two thousand dollars (after the decease of testator’s wife), equally to his six children, the legacies thus created are a charge upon the land devised, which may be enforced against it in the hands of purchasers from the devisee, although they purchased without actual notice of the incumbrance, and for good considerations paid.
    The several purchasers of such incumbered property are liable to the payment of the liens upon it, according to the inverse order of time in which they acquired ownership.
    The rule of pro rata contribution does not apply, in this state, to vendees of incumbered lands, who became seized at different dates.
    In chancery. Reserved in Morrow county.
    *On the 8th of December, 1835, Richard Truax made his [98 will, containing the following bequests: “ I give and bequeath unto my son, Nathaniel Truax, all my real estate, by his paying the valuation of §2,000, which §2,000, after the decease of my wife, is to be equally divided among my heirs,” etc. (naming his six children.) “ I also direct that my wife receive one-third of all my real and personal estate, during, lifetime, and to live with my son, Nathaniel Truax. The said Nathaniel to keep for her use one-mare, one cow, and five head of sheep, free of any expense; and in ease she should choose to live anywhere else, then my son Nathaniel to pay her thirty dollars, yearly, as long as she lives.” Nathaniel Truax, the son, and John Truax, the friend of the testator, were named as executors in the will. In 1838 the testator died. His will was proved and recorded, and the two executor» took upon themselves the duty of settling the estate. Nathaniel took possession of the land devised to him immediately after hi» father’s death. The widow died in 1848; but previous to that •event, Nathaniel sold the greater part of the land, in parcels, to the defendants, Dickey, Thompson, and Higgins, at different times; and Levering, another defendant, bought a portion of it at sheriff sale, on execution against Nathaniel.
    The complainants are all of the legatees named in the will except Nathaniel. By their bill they seek to charge the real estate, in the hands of the purchasers from Nathaniel, with the payment of their proportions of the $2,000; alleging that Nathaniel has failed to make payment, and is insolvent. It is admitted that the purchasers paid the consideration money in full, and that they purchased in good faith, without actual notice of the incumbrance.

      Kirkwood & Gurley, for complainants:
    *1. The terms and language of the devise are clearly sufficient to make this legacy a specific lien on the real estate as well as a charge against the devisee personally. Gardner et al. v. Gardner, 3 Mason, 208; Spence v. Robbins, 6 Gill & J. 507; Ib. 144; 2 U. S. Eq. Dig. 220, No. 386; Luckett v. White, 10 Gill & J.; 2 U. S. Eq. Dig. 220, No. 387; Coonrod v. Coonrod, 6 Ohio, 114; Dodge v. Manning, 1 Comst. 302; Sands v. Champlin, 1 Story, 326; Harris v. Fly, 7 Paige, 421; Shobe v. Carr, 3 Munf. 10; 2 U. S. Eq. Dig. 221, No. 391; Sugd. Vend. 331, 333; Abbot v. Gibbs, 1 Eq. Cas. Abr. 358; 1 Ves. 215; 11 Conn. 144; 1 U. S. Eq. Dig. 382, No. 735; Potter v. Gardner, 12 Wheat. 498; 1 Pet. 585; 1 Story, 377; 1 Atk. 573; 1 McLean, 194; Quick v. Quick, 4 Saxt.; Givens v. Givens, 1 Murph. 192; 1 Edw. Ch. 201; 22 Maine, 269; 1 Leigh, 487.
    2. The executors need not be first sued, and the personal estate first exhausted, because the fee of the land was granted to, and vested in, the divisee, burdened with the charge and discharge of the $2,000, as upon the estate devised. 12 Wheat. 498; 6 Ohio, 114.
    3. The purchasers from the devisee, or those claiming under them, took the land charged with the legacies, and are bound to look to the application of the purchase money. Purchasers of a •devisee are bound to look to his right and title; and caveat emptor is the rule. 1 McLean, 194; 6 Rand. 587; Sugd. Vend. 331, 333; Wormley v. Wormley, 8 Wheat. 443; Dickenson v. Dickenson, 3 Brown Ch. 19; 3 Mason, 218; 1 Story, 377.
    4. These legacies are payable, with interest, from the date of the widow’s death. Miller v. Philips, 5 Paige Ch. 573.

      Finch & Critchfield, for Jamos Dickey :
    1. The acceptance, by Nathaniel Truax, of the devise, made *him the debtor of the testator’s estate in the sum of two [100 thousand dollars; and had he not been named and qualified as executor he would have been liable to pay to the executor at least five-sixths of that sum; but being himself debtor, and (in his1 character of executor) creditor, also, the same, when due, became paid, became assets in his hands, and the complainants, legatees, must look to the executors and their bond. Bigelow v. Bigelow, 4 Ohio (Ham.), 138, (Cond.), 756.
    2. This devise to Nathaniel is in fee, with power to sell immediately, in order to raise means with which to pay the $2,000, which was to be distributed at a future uncertain period, to wit, at. the death of the widow; and although the land in the hands of Nathaniel may have been charged, in equity, with the payment of the $2,000; yet, having passed to bona fide purchasers, for considerations paid in full, they hold the land free from said charge. In such case purchasers are not bound to see to the application of the purchase money. Coonrod v. Coonrod, 6 Ohio, 114.
    3. Nathaniel being empowered to sell this land when he did sell to Dickey and others, they could safely buy; and having paid the purchase money in full to the one who had power to sell, they are not bound to look to the application of the purchase money, it not having been misapplied with their co-operation, if at all. Potter v. Gardner, 12 Wheat. 493.
    Where the time of sale had arrived, and the money is not to be distributed in payment of legacies for a length of time, which may be of greater or less length, the purchaser is not bound to-look to the application of the purchase money, because such a rule would implicate him in a trust which might be.of long duration. 3 Sugd. Vend. 99, sec. 13.
    4. If this land is charged, in the hands of the purchasers, with. the payment of the legacies, the parts sold last, must *be [101 first subjected to their payment; and so on, in such inverse order, until the legacies are paid.

      Windom & Norton, for defendant Levering:
    1. The legacies were not made a charge upon the lands devised; to make such charge it should have been so declared in the will, by
      ■express words, or so that it may be inferred from the whole will. 3 Watts & Serg. 370.
    The devisee became vested with the fee in the land. 6 Johns. 185: 13 Ib. 537; 6 Cruise, 270.
    A devise of the fee shows an intention of the testator to create a personal charge, while a devise of an inferior interest indicates an intention to charge the land, and not the person of the devisee. Decker’s Ex’r v. Decker’s Ex’r, 3 Ohio (Ham), 166; 6 Ohio, 116.
    2. The purchasers bought the land in good faith, and are not bound to look to application of purchase money, in such cases as this. 1 Cruise, 420, 445, note; 1 Vern. 260, 301; 8 Wheat. 421; 2 Spence, 337, 381; Sudg. Vend. 368, 369; 2 Story’s Eq. 1133; Sim. & Stu. Ch. 199; 6 Ves. Jr. 654; 16 Ves. 151; Rep. Leg. 445.

      James R. Stanbery, for Thompson and John Truax.
   Bowen, J.

The first question of importance to decide, is whether the two thousand dollars, to be paid to the testator’s heirs by Nathaniel Truax, is a charge on the real estate devised to the latter, which may be enforced against those who have, for valuable considera tions, acquired titles from him?

The-language of the will discloses, satisfactorily, the intention of its author. His farm of 160 acres he was desirous of transmitting to his only son, provided the other members of his family should 102] share equally in its *« valuation.” It seems to have composed the principal part 'of his estate. He therefore first secures his widow, during her life, one-third of the land and of the personal property, and makes provision for her maintainance on the place, unless she shall prefer to live elsewhere; and Nathaniel is charged, in either event, with the duty of aiding in her support. This is an ■obligation enjoined on him by the will, and undoubtedly formed one -of the inducements of the testator to give him the farm. But after the mother’s death, which would relieve him from further care and .expense as to her maintenance, and the land from all incumbrance of the devisor, then he was to distribute to his five sisters two thousand dollars, less the one-sixth, which he as one of the devisees might retain. This, it' was doubtless supposed, would approach something like equality in the distribution of the estate. To accomplish that purpose seems to have been the object of making tbe testament. The price of the land is fixed. The widow is to hold one-third of it during her life, and then its value is to be divided, equally, among the six children. Until that division was made the title of Nathaniel did not become perfect. The legacies operated as incumbrances upon it. The legatees could enforce their liens on the land, •and thereby divest his interest in it. While the estate was in this •condition the defendants, Dickey, Thompson, Higgins, and Levering, became purchasers from Nathaniel. They took the parcels by them respectively purchased subject to the unpaid legacies. The will had been proved and was of record, and was notice to them of the charge created upon it by the. testator. Morancy v. Quarles, 1 McLean, 194.

The counsel for defendants have cited, apparently with much reliance on its analogy to the present, the case of Coonrod v. Coonrod, 6 Ohio, 114. In that case the testator devised his estate, real and personal, to his son Henry, ^subject to a bequest of one thou- [103 sand dollars to his grand-daughter, to be paid to her at the age of eighteen years, in land, at such place as Ms son Henry could buy for her at its real value. The court held that this clause authorized the sale of the land ‘devised, and though chargeable with the payment of the legacy, while in the hands of the devisee, yet, the conveyance by him was compatible with the intentions of the will, and must be treated as valid in the hands of bona fide purchasers. The principle there settled is sound law, and not at variance with our present ruling.

The more recent case of Clyde v. Simpson et al., 4 Ohio St. 445, presents a very full and careful consideration of the subject, and the court arrive at the conclusion that express words are not necessary in a devise to charge pecuniary legacies upon real estate, but that an intention to do so may be derived by implication, and that where a devisee is required to pay legacies as a part consideration for the property, the law attaches an equitable lien on the land, for the security of the legatees, unless it clearly appears that the testator intended to exonerate the property from the charge. The principles settled in that case are peculiarly applicable to and decisive of this point in the present.

How shall the charge upon the land be canceled ? Shall the burden be borne by the several purchasers pro rata, or must payments be made by them according to the inverse order of time in which they acquired titles from Nathaniel?

The authorities upon this point are not uniform. In Kentucky ' the fro rata rule is adopted. Dickey v. Thompson, 8 B. Monroe, 312. In New York, the other rule is followed. The land last purchased is first liable to the incumbrance. Clowes v. Dickinson, 5 Johns. Ch. 235; 9 Conn. 403. The same doctrine prevails in 104] Pennsylvania. *The courts of that state have adhered to it with great tenacity. Cowden’s Estate, 1 Barr, 267. This case was ably considered, and while it reaffirms former decisions of the court against the application of the pro rata principle of contribution to purchasers of incumbered real estate, also holds the doctrine that there is no distinction, in this ¿particular, between mortgage, judgment, and testamentary liens; and that as between purchasers, they are all to have the same effect. It was a case of a charge upon real estate arising out of a will, and ¿presented the question of the order of liability of several purchasers of the incumbered ¿property acquiring their interest at different times. It was quite similar, in its main features, to the one now under consideration, and sustains fully the view we ex¿press.

In our own state the ease of the Commercial Bank of Lake Erie v. W. Reserve Bank, 11 Ohio, 444, adopts the decisions of New York and Pennsylvania, as to judgment liens, charging ¿posterior vendees, before resort can be had to those who are anterior, in ¿point of time, of the same incumbered estate. Begarding the question as settled by these, as well as by other adjudications on the subject, we feel no disposition, now, to de¿part from what we regard as sound ¿precedents.

A decree may, therefore, be taken for the complainants, for the respective amounts found due them by the master charging Elizabeth Nellons with interest on such sums as were ¿paid to her by Nathaniel before the mother’s death. The exce¿Ption to the master’s report, as to that item, is sustained. If the decree is not paid by Nathaniel Truax, in ninety days, it may be enforced against the land, in the inverse order of the dates of the purchases made by them. As to John Truax, the bill is dismissed.

Decree accordingly.

Swan, Brinkerhoee, and Scott, JJ., concurred.

*Bartlet, C. J., having' been of counsel in this ease, did not sit on the hearing of it. ■


source: Caselaw Access Project

author: Scott, J.

license: Public Domain

text:
    John Timmons v. The Central Ohio Railroad Company.
    In a suit brought against a railroad company for the alleged negligence of its agents in charge of a train of ears, whereby the plaintiff was run over and seriously injured, if it appear that the plaintiff might, by ordinary care, have avoided the consequences of the negligence complained of, he is not entitled to recover.
    Where the plaintiff, being in the employ of a railroad company as a brakesman on a gravel-train, of his own accord, and on his own business, leaves the train while proceeding to its place of destination, and voluntarily attempts to get aboard the same train, on its return, while its speed is not sufficiently “ checked up ” to permit this to be done with safety, and, in making the attempt, seizes the rim of a gravel-box, which, through defect of material, breaks, whereby the plaintiff falls upon the track, and is run over by the train and injured: Held, that these facts show such a want of ordinary ■ care by the plaintiff as will preclude him from a recovery.
    Petition in error, to reverse the judgment of the district court of Muskingum county.
    The facts are sufficiently stated in the opinion of the court.

      Thomas M. Drake, for plaintiff,
    cited: The Little Miami Railroad Co. v. Stevens, 20 Ohio, 415; C., C. & C. R. R. Co. v. Keary, 3 Ohio St. 200.

      C. B. Goddard and E. B. Eastman, for the defendant.

      Mr. Eastman’s points:
    1. The plaintiff’s act was voluntary, and he 'must abide by its consequences. Inskip v. The Eastern Counties Railway Co., 24 Eng. Law & Eq. 396.
    *2. Although the defendant may have been guilty of neg- [166 ligence, yet, if the plaintiff could, by the exercise of ordinary care» have avoided the accident, he can not recover. Shelf on Railways, 1 American ed. 733 (top paging). Butterfield v. Forrester, 11 East, 60; 3 Mees. & Wels. 248; 10 Mees. & Wels. 516; 12 B. & R 29; 1 Scott N. C. 392.
    3. If the parties are equally in fault, there can be no recovery. Aurora Br. R. R. Co. v. Grimes, 13 Ill. 585; Trow v. Vermont Central R. R. Co., 24 Vt. 487.

      4. If the plaintiff contributed to the injury, he can not recover. Harring v. The N. Y. & Erie R. R. Co., 13 Barb. 9.
   Scott, J.

The plaintiff in error, who was also plaintiff in the •courts below, filed his petition in the court of common pleas of Muskingum county, setting forth, in substance: that in the month •of Juno, 1853, and for some time previous thereto, he was in the employ of the defendant, as brakesman on a gravel-train, running between a gravel-bank near Newark, in Licking county, and Black-lick, in the county of Franklin, each of these points being on the line of defendant’s road; that besides his duties as a brakesman, it was his business to assist in loading and unloading the said gravel-train; that it was customary, and often became necessary, for himself and the other hands belonging to the said train, engaged in like employment with himself, to get off and on the said train at other points besides those at the ends of the route, as when losing a hafor .a coat from the train, and for other necessary purposes; that when he entered upon his employment with the defendants, he supposed it to be mutually understood, that they would furnish and keep sound •and safe cars in the business in which the plaintiff was employed, .and also, careful, competent, and skillful agents and servants in 107] *charge of the said train connected with the business in which it and the plaintiff was engaged, so that neither the life of the plaintiff might be endangered, nor any bodily injury be sustained By him, through the neglect of the defendants, in these respects. 'The plaintiff, however, says that the defendants, wholly unmindful ■of their duty, did not keep all their cars in a safe and sound condi-, tion; nor did they keep on said train, servants and agents, in charge ■of the same, sufficiently attentive, careful, skillful, and competent, in order to regulate the movements thereof, and insure the work-hands belonging thereto, from loss of life and bodily injury; for the plaintiff says, that, being engaged about his usual business, on ■said train, on the 25th day of June, 1853, on its passage from the gravel-bank to Blacklick, near New Columbia, having dropped his coat from said train, about ten miles east of Blacklick, he got off, in order to go back and recover his coat, intending to wait at New ■Columbia, for the return of the train, and then resume his place •on board, in discharge of his accustomed duties; that, on the approach of the train to the said town of New Columbia, when re. •turning from Blacklick, he stood on the platform from which persons usually get on board of the ears, and gave, by waving his hat, the usual signal, which the hands belonging to the gravel-trains are accustomed to give, in order to be taken up by said trains; yet the agents and servants of the defendants in charge of the said gravel-train, regardless of their own duty and that of the defendants, or lacking ability to perform the same, did not attentively look out for the plaintiff, nor sufficiently check up and detain the said train, so as to allow and enable the plaintiff to get on board the same with safety; and besides, the gravel-box belonging to the •car which the plaintiff laid hold of, in order to ascend, was so defective, that part of the rim of-the car so laid *hdld of, broke [108 •or split off, by which the plaintiff unavoidably fell on the track and a part of the said train, through the inattention and carelessness of the said agents and servants of defendant, in charge of said train, run over, broke, and crushed, his ankle-joint and lower part of his leg, so badly, that the same had to be amputated, rendering him a cripple for life, and doing him a damage for which he claims four thousand dollars, etc.

Upon demurrer to this petition, judgment was rendered by the court of common pleas for the defendant; and, on error, this judgment was affirmed by the district court; and the plaintiff now seeks to reverse this judgment of affirmance.

The sole question in the case, is, as to the sufficiency of the petition. Does it, in the language of the code, state facts sufficient to constitute a cause of action ?”

Passing by other grounds of exception to this petition, we think it substantially defective in this, that it discloses, on the part of the plaintiff himself, a want of ordinary care, which wag the immediate cause of the injury of which he complains.

He left tbe gravel-train of his own motion, for his own purposes, and not in discharge of any duty or service owiDg by him to the defendant, and acting equally without orders, and in the exercise of his own discretion, he attempts to get aboard the train, on its return, while its speed is not “ sufficiently checked up ” to permit this to be done with safety.

The rule of law in cases of mutual negligence, as laid down by Lord Ellenborough, in Butterfield v. Forrester, 11 East, 60, is, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequences of the defendants’s negligence, he is en-109] titled to recover — if by ^ordinary care he might have avoided them, he is the author of his own wrong.'

The’doctrine of this rule has been since generally approved and adopted. See Bridge v. Grand Junction Railway Co., 3 M. & Wel. 244; Davies v. Mann, 10 M. & Wel. 545. In Trow v. Vermont Central Railroad Co., 24 Vt. 487, the law is thus stated: “ When there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained. In the use of the words '-proximate cause,’ is meant negligence occurring at the time the injury happened. In such case no action can be sustained by either, for the reason, that as there can be no apportionment of damages, there can be no recovery.”

In Kerwhacker v. Cleveland, Columbus & Cincinnati Railroad Co., 3 Ohio St. 172, the general rule is laid down thus: “ Where-the parties are mutually in fault, or, in other words, where negligence of the same nature in each party has co-operated to produce the injury, the party sustaining the loss is without remedy.” And though this rule is declared to be subject to qualifications, yet we find no facts stated in the petition in this case which would bring the plaintiff within the recognized exceptions.

Even admitting’ then, that it was the duty of.the defendant’s agents in charge of the train to stop for the plaintiff at New Columbia, and afford him a safe opportunity of getting aboard, and these agents wholly neglected this duty, yet this would not release-the plaintiff from the duty of taking ordinary care of himself. The negligence of others toward him furnishes no reason why he should recklessly expose his life or limbs to peril. We are not informed by the petition in this case whether the gravel-train was moving at the rate of speed usual with such trains when the plaintiff at-110] tempted to get aboard; but we are told that *it was not “ sufficiently checked up to allow and enable the plaintiff to get on board of it with safety;” and yet, without orders, the plaintiff, a brakesman, familiar with the train, and aware of the danger, exposes himself to the peril of the attempt. Every consideration of policy and justice requires that the risk should be on his own account.

As to the alleged defect in the car. This was a gravel-train, constructed, of course, with reference to the objects and purposes for which it was designed. The boxes were intended to hold .gravel; and this purpose they might very well answer,.though it would be unsafe to trust their rims as a ladder by which to mount the train when in motion. The duty of the defendant to construct the boxes and their rims with special reference to such a purpose, does not appear.

The judgment of the district court is affirmed.

Bartley, C. J., and Swan, Brinkerhoee, and Bowen, JJ., concurred.


author: Bartley, C. J.

text:
    William P. Young v. Aaron L. Schenck.
    Where a case, originating in the common pleas, comes into this court by reservation in the district court, and it is not made to appear, by transcript or otherwise, what judgment was rendered in the common pleas, and how the case was removed to the district court,, whether by appeal or writ of error, the case will be remanded.
    It is not competent for the district court to send a case to the Supreme Court for the determination of legal questions, in advance, and before the decision of them shall have become necessary, and been regularly presented for the decision of the case.
    Where, in a case in the district court depending on an issue of facts, the parties even waive the intervention of a jury, and submit the issue to the determination of the district court, the cause is not in a condition for a reservation on the motion of one of the parties, and to be sent here for the determination of the issue of fact.
    ^Reserved in the district court of Butler county.
    This is a special action on the case, instituted in the court of common pleas of Butler county, in 1852, for an alleged omission, by the defendant, as sheriff of Butler county, to take a sufficient bond, on the discharge of a canal-boat seized under the water-craft law of this state at the suit of said plaintiff in said court. The •declaration charges the defendant with liability on account of such nonfeasance in office. The defendant plead the general issue and the statute of limitations; and an issue of fact was made. But Row this issue was disposed of, and what judgment was rendered in the common pleas, and how the cause came to be removed into the district court, whether by appeal or writ of error, is not shown to us — no transcript from the common pleas appearing in the case. And the only proceeding in the case, appearing to have been taken in the district court, is the reservation of the case, the certificate of which shows, that at the May term of that court, for 1854, “the cause being submitted to the court, together with the evidence in writing on file,” the court, in view of important questions arising in the case, on motion of defendant’s counsel, reserved the case fpr decision by the Supreme Court.

      James Clark, for plaintiff.

      Thomas Millikin, for defendant.
   Bartley, C. J.

This cause is not in a situation to admit of its-determination by this court. What judgment, if any, was rendered in the common pleas, and whether the cause reached the district court by appeal, or by writ of error, is not made to appear in the case. And if this difficulty could be removed by supplying a tran 112] script from the ^records of the common pleas, it could not help-the case here. For the first thing we meet in the case is an issue of fact, which the parties have a right to have tried by a jury. It does not appear that the intervention of a jury was waived by the parties. And if the parties had actually waived a jury, and submitted the cause to the district court, that court could not, by any reservation of the case, on motion of one of the parties, have transferred the trial of the issue of fact to this court, and thus substituted this court for the district court, which the parties had agreed to substitute for a jury. Hubble v. Renich, 1 Ohio St. 176. It. maybe, that the testimony in the case is all in writing, and on file, consisting of depositions and an agreed statement of .facts; and, also, that the trial of the case may involve important legal questions; yet the issue of fact should have been submitted to a jury, or passed on by the district court. If the legal questions had been raised on a motion for a new trial, or by demurrer, or on some motion antecedent to the trial of the issue of fact, the case might have been in a condition to have been brought into this court. But as it is (being a reservation on motion of one of the parties only), if even the intervention of a jury had been waived, and the cause, by consent of the parties, submitted to the district court, it does not appear that the parties consented to submit the finding on the issue of fact to this court, conceding it to be competent for this court to determine issues falling within the peculiar- province of a jury.

Gause remanded to the district court.

Swan, Brinkerhoee, Bowen, and Scott, JJ., concurred.


author: J. R. Swan, J.

text:
    *Charles Thomas, late Treasurer of Hamilton County, v. The Auditor of Hamilton County.
    Under the first section of the act of March 14,1853, to enforce the collection .of taxes against banks, etc., the five per cent, penalty therein provided accrues-to the treasurer who made the demand of taxes as fees, and the county has-no interest in, or control over, its receipt or payment. If the successor of such treasurer collects the penalty, and retains it for his own use, he may be liable to an action therefor by his predecessor, for whose use the penalty accrued, but the county can not be compelled, by mandamus, to pay the amount to such predecessor.
    This is an application for a writ of mandamus to compel the auditor of Hamilton county to draw a warrant upon the treasury for money therein alleged to belong to the plaintiff — being the treasurer’s penalty of five per cent, and compensation of five per cent, on the taxes of the Ohio Life Insurance and Trust Company, for 1852 and 1853.
    The plaintiff was elected treasurer of Hamilton county at the fall election of 1851, and entered upon the discharge of the duties of his office in June, 1852.
    On the duplicate of that year he was charged with the collection, from the Ohio Life Insurance and Trust Company, of taxes amounting to over fifty-nine thousand dollars.
    The company had refused to list under the act of April 13,1852, entitled “ An act for the assessment and taxation of all property in-this state, and for levying taxes thereon according to its true value in money.”
    The value of their property was therefore assessed by the proper officer, and the penalty of fifty per cent, added in consequence of the delinquency.
    The taxes thus assessed were not paid within the time limited by 114] law, and tbe plaintiff thereupon filed a bill in ^chancery in the court of common pleas of Hamilton county, as authorized by section 42 of the said act of April 13, 1852, and continued to prosecute the same while he remained in office, and afterward untiL the settlement with the auditor of state. Upon his annual settlement with the county auditor, on January 15, 1853, he made return that the tax was unpaid, and that he had instituted the proceedings aforesaid for its collection.
    On the 14th of March, 1853, the general assembly passed “ an act to enforce the collection of taxes,” etc., the fourth section of which provides: “ That each county treasurer shall report to the auditor of state, on or before the 1st day of April next, and thereafter on or before the 26th day of December, annually, the amount of taxes charged, or which may hereafter be charged upon the duplicate of his county against any corporation, company, or association, .authorized to loan or invest its capital stock, or any part thereof, upon or in bonds, notes, bills, or other obligations bearing interest, and secured by deed, mortgage, or other incumbrance of real estate, in two or more counties of this state, and which taxes, or any part thereof, then remain or may thereafter remain unpaid. And the auditor of state shall, after ascertaining the aggregate amount of all such taxes due by any corporation, company, or association as aforesaid, appoint (by warrant under his hand) some suitable person as commissioner, to proceed forthwith to the principal office, agency, • or place of business within this state of such corporation, company, or association, and demand payment of the whole amount of such taxes, and five per centum penalty thereon (which said penalty shall be for the use of the county treasurers, and in proportion to the amount of the. taxes charged upon their respective duplicates), by leaving a written notice at the principal office, agency, or place 115] of business within this state, of such corporation, *company, or association. And if the taxes and penalty aforesaid, or any part thereof, shall remain unpaid for the space of five days from and after the delivery of such notice, the commissioner shall distrain and seize whatever gold, silver, or copper coin, bullion, bank-bills, promisory notes, bills of exchange, or other securities, or goods, or chattels, the property of such corporation, company, or association, may be sufficient to pay the taxes and penalty so as aforesaid demanded together with five per centum poundage (which said poundage shall be for the use of the commissioner), and all the costs and expenses • of such distress and seizure, and of any sale which may thereafter become requisite.”
    On the 1st of April, 1853, the plaintiff discharged the duty required of him by this section, by reporting to the auditor of state the amount of taxes charged upon the duplicate of 1852 against the Ohio Life Insurance and Trust Company; and the auditor of '•state, on October 24,1853, appointed Francis Link, commissioner, to collect the taxes; and on the 2d of November, 1853, Link demanded payment of the taxes and treasurer’s penalty in proper form, so that all the steps preliminary to a distraint were thus taken.
    Before this, however, the duplicate for 1853 had been furnished to the plaintiff, upon which he was charged with the collection from the Ohio Life Insurance and Trust Company — they again refusing •to list — of taxes amounting to nearly eighty-two thousand dollars.
    Under this state of facts, the commissioner, Link, being on the point of distraining for the taxes and penalty of 1852, and the duplicate of 1853 in the plaintiff’s hands, Samuel E. Foote, a citizen •of Connecticut claiming to be a stockholder and trustee of the company, filed a bill in chancery in the circuit court of the United 'States, for the seventh circuit and district of Ohio, against William *D. Morgan, auditor of state, Francis Link, commissioner as [116 aforesaid, and others, and obtained an injunction restraining the collection of these taxes and penalties, and afterward, upon application to dissolve the injunction, argued by the attorney-general of Ohio, the court refused to grant the motion.
    The taxes assessed upon the duplicate of 1853, remaining unpaid, the plaintiff, upon the 21st of December, 1853, in obedience to the first section of the law in question, demanded payment of that portion assessed upon the banking department, together with his penalty of five per cent.
    On the 26th of December, 1853, the plaintiff rejjorted the delinquency of this company to the auditor of state, as required by the fourth section ; but no further steps were taken by the plaintiff or the auditor of state, at that time, in consequence of the injunction obtained by Foote.
    At his annual settlement with the-county auditor on the 15th of January, 1854, the plaintiff reported these, taxes unpaid, and that their collection had been enjoined.
    The controversy between the state and the Ohio Life Insurance and Trust Company was finally determined, by a decision of the Supreme Court of the United States, adverse to the interests of the-latter. The company then came forward, and adjusted their delinquent taxes, under an agreement with the auditor of state, made-in June, 1855. The result of this settlement was, that the company were permitted to list their property nunc pro tunc, as if no delinquency had occurred, paying only the treasurer’s penalty of five per ■cent, in addition to the taxes, and Link’s claim for poundage was settled by the company. They accordingly paid in addition the taxes of 1851, which were also in arrear, for the taxes of 1852 for state purposes, $8,801.29; for county and other purposes, $30,-186.39 ; and *for the treasurer’s penalty, $1,645.05 ; and for [117 the taxes of 1853, for state purposes, $131,067.37; for county and other purposes, $34,189.27; and for treasurer’s penalty, $2,100.29. Subsequently, to correct an error in estimating the taxes of 185?, they paid for the county and other purposes, $3,425.61, and for treasurer’s penalty, $147.63.
    The amounts payable for state purposes were paid directly into the state treasury, and the remainder, including the amount of the treasurer’s penalty, into the county treasury. Upon making the latter payment, the following receipt was taken in duplicate, from ’Henry P. Bowman, the successor of Thomas, and one of the copies deposited with the county auditor.
    “ $72,171.11. Treasurer’s Oeeioe, Hamilton County, 1
    “ July 2, 1855. J
    “ Beceived of the Ohio Life Insurance and Trust Company its certificate of deposit, No. 1,927, in my favor, for the sum of $72,171.11, being the amount of said company’s delinquent taxes, with interest and treasurer’s penalty for the years 1851,1852, and 1853, as ascertained by the auditor of state to be due this county, after deducting state taxes. H. P. Bowman,

      11 Treasurer of said County.”
    On the 29th of December, 1845, the plaintiff submitted to Daniel S. Meeker, the county auditor, a written demand for a warrant upon the county treasury for the amount of said treasurer’s penalty for the years 1852 and 1853, as paid into that treasury, and for the allowance of one per cent, (and the issuing of a warrant therefor) on the amount of taxes for those years so paid by said company.
    To this demand the auditor replied in writing on the 14th of January, 1856, by refusing either to allow or reject it, and thepresent application is designed to compel such action of the county auditor as the plaintiff had demanded.
    *On December 29, 1856, the plaintiff demanded from [US' Jones, the present auditor, the issuing of warrants upon the treas-• ury, similar to those originally claimed at the hands of his predecessor, but received the same answer previously given by Meeker.
    In argument counsel presented three questions: 1. To whom does the treasurer’s penalty of five per cent., paid by the Ohio Life-Insurance and Trust Company, belong? 2. Is the plaintiff entitled to the allowance and payment of the treasurer’s commission of one per cent, on the taxes paid by that company? And, 3. If either-of these propositions be resolved in his favor, is he entitled to relief in the way he seeks it, by a writ of mandamus.

      Mills & Hoadly, for the plaintiff.

      William B. Caldwell, for the defendant.
   J. R. Swan, J.

It is provided by the first section of the act of' March 14, 1853 (Swan’s Rev. Stat. 928), that if the taxes remain-, unpaid until the 21st day of December, of any year, “ the treasurer of the county wherein such taxes have been or may be assessed shall forthwith demand payment of the amount of such taxes, and five per centum penalty thereon, which penalty shall be for the use-of the treasurer.’’

The five per centum is, as to the delinquent party, a penalty;, but, as to the treasurer, is a fee, which he is entitled to demand and receive for his own use. It accrues to the treasurer at the time he demands the taxes after the 21st of December. The county neither looses nor gains by its collection, or by the treasurer neglecting to collect it. It is not charged on the duplicate; and, on settlement with the county, the treasurer is not bound to account for it as public funds. Hence, when collected,-it may be at once ^appropriated by him to his own use. This per centum ac- [119 crued to Thomas when he made a demand of the taxes, and Bowman received it for the use of Thomas. If Bowman had, on settlement with the county, charged himself with this money, as-county funds, and it had thus found its way into the county treasury, there might be some propriety in treating it as withheld from-Thomas by, and a charge upon, the county. But the facts presumptively show that this mandamus is prosecuted to compel tho- • county to pay money which is, and always has been, in'the pocket •of Bowman; and was never under the control of the county, as •county funds; and was never chargeable to the county as a county •debt.

Thomas is not entitled to the one per centum; that accrued, if at all, to the treasurer who actually collected the money.

The motion for a mandamus is overruled.

Bartley, C. L, and Brinkerhoee, Bowen, and Scott, JJ., eon-curred.


author: Brinkerhoff, J.

text:
    Frederick Chapman and Laman G. Harkness v. The Mad River and Lake Erie Railroad Company and the Sandusky City and Indiana Railroad Company.
    .''Whether the construction by one railroad company of another road entirely parallel with its own, which, if owned and managed by an interest distinct from itself, must necessarily be a competing road, for the purpose and with the effect to bring about a change in its own line, rather than to create a feeder or an extension of its own line, is within the limits of such “ connections” as are authorized by the twenty-fourth section of the “act to provide for the creation and regulation of incorporated companies in the State of Ohio” — quczre.
    •Conceding that it is not competent for the general assembly to authorize a corporation to embark in new enterprises, entirely beyond and outside of 120] *the scope of the objects contemplated by its charter at the time stockholders became members of the corporation by subscribing to its stock, and thus to effect a fundamental change in the charter, and in the risks and prospects of its stockholders, without the consent of all the stockholders; yet it is clear that before a stockholder can be entitled to a remedy by injunction against such departure from the original objects of the incorporation, he must have shown himself prompt and vigilant in the assertion of his rights as such stockholder. .It will not do for him to wait until the mischief of which he complains is accomplished, fortunes expended, and great public interests created. If he do, he must be held to have acquiesced in the change, or to content himself with some other form of remedy.
    ’Where a railroad company has received from private parties donations of lands, subscription of stock, and payments in money, in consideration that it should locate its road at a particular place, and allow private side-track and warehouse privileges in connection therewith, the company will not be permitted to effectuate a change in fact (though not 'in name) of the line of its road away from such place, hy getting up a new corporation and', constrncting a new road parallel with its old one, under a different charter, and permitting its old line to go to decay, without compensating the parties ■ with whom it has contracted as aforesaid.
    Where it is found that a complainant was originally entitled to a remedy hy injunction, designed to effect a specific performance, and, pending the pro- ■ ceedings, the subject-matter of the litigation is abstracted, destroyed, or decayed, a court of equity will not turn him over to seek his damages in a-court of law, but will afford a remedy hy compensation.
    Reserved by the district court of Huron county.
    This is a bill in chancery filed by complainants in the old Supreme Court for the county of Huron, against the Mad River and Lake Erie Railroad Company, and a supplemental bill against the-same defendant and the Sandusky City and Indiana Railroad Company, which, together, came on for hearing in the district court for the county of Huron, and was reserved for decision in the Supreme Court.
    The original bill was filed July 16,1851, and charges in substance:.
    That the Mad River and Lake Erie Railroad Company is *a [121 corporation incorporated by an act of the legislature passed January 5, 1832.
    That by the 13th section of their act of incorporation the company were invested with the power to construct a double or single-railroad, or way, from some point in the town of Dayton, in the county of Montgomery, through several towns named as points, to the town of Sandusky, in the county of Huron, “ making such other intermediate points as might thereafter he found necessary.”

    That this charter, by its terms, was made a public act.
    That on the 17th of March, 1838, an amendatory act was passed,, which contained the following as its first section : “ That the Mad-. River and Lake Erie' Railroad Company shall have power to acquire title, by purchase or voluntary cession, to lands and real estate in the vicinity of said road, or through which it is or may be-located, so far as the same maj' be necessary or convenient, to procure the right of way, and to dis|)ense with farm crossings; or' such as may be granted to aid in the. construction ; or given by way of subscription to their capital, and the same to hold or convey, in such way as the board of directors may determine;” and the following as the third section : “ If the said corporation find any obstacle to continuing the location of their railway on any ¡■selected route, either by the difficulty of construction or procuring right of way at reasonable cost, or whenever a better and cheaper route can be had, it shall have authority to change the route and vary the location, adhering, however, to the several points named in the act to which this is an amendment.”
    That these acts are the only authority which the company has •or ever had to construct and use a railroad between the points .named, and that the sections recited are the only parts of said acts in any manner relating to the location of their railroad.
    *That in July, 1835, the railroad company being about to locate their road from Sandusky south, and being in great need of means to construct it, entered into a contract with complainants .and others, who were at that time proprietors of the village of Bellevue, by which it was agreed that if the company would locate their road at or through the village of Bellevue the other parties ■would, on their part, convey to the company one-fourth part of all the unsold lots in the village, and, in addition, that they would grant the right of way to the company through the plat of the village, .and all other lands belonging to complainants, and the other per- ■ sons making the contract with them.
    That the inducement for the complainants to make this contract was, that they were largely interested in the lots of the village, and wex-e large owners of othex*. real estate in the vicinity, and wished to secure the location of the road as well for the advantage it would be to their village and lands as that they might fox’m business connections with the road by way of side-tracks and warehouse connections.
    That in pursuance of this contract the company, in the same month of July, 1835, located their road from Sandusky to Bellevue, and immediately commenced the construction of it, and finished it to Bellevue in October, 1837; and the complainants and -the other persons interested with them, released the right of way for more than a mile through their lands ; and afterward the com-pany having selected, in place of the fourth of the village'contracted to be conveyed to them, eighteen lots on the 11th of May, 1840, the parties made a new contract in place of the former one, ■wherein it was agreed that, in consideration of the location of the railroad, and the establishment of a depot and side-track at Belle- ■ vue, the proprietors would convey to the company the eighteen .123] lots selected by them; and on *the 13th of September, 1840, the deed was made in compliance with these contracts, a certified ■copy of which is filed with the bill as an exhibit, and which contains the following recital of the consideration: “Know all men, that we, James Hollister” (and other persons named, among whom are the complainants), “who are the proprietors of the town of Bellevue, in the county of Huron, in consideration that the Mad River and Lake Erie Railroad Company have established a depot .and side-track at the said town of Bellevue, and in .consideration of the contracts made with said company in regard to said location, ■dated July —, 1835, and May 11, 1840, and of the sum of one dollar, paid to the proprietors,” etc.
    That after the road commenced funning from Sandusky to Bellevue, the complainants made another agreement with the company, where it was agreed that, in consideration that complainants would subscribe one thousand dollars or twenty shares to the capital stock -of the company, the company would grant them the privilege of building and continuing a side-track to connect their warehouse with the main line of the said railroad, for the purpose of enabling them, their heirs and assigns, to do a receiving and forwarding business on the said road; that all of this last agreement that is evidenced by writing is upon the records of the company, and complainants pray a discovery in the company’s answer; that complainants complied with this agreement on their part, subscribed and paid up the twenty shares of stock, and have built, at great ■expense, the side-track and warehouse, and have continued in the use and occupation of the same until the filing of the bill.
    That on the 10th of July, 1847, in consideration of five hundred dollars which complainants had paid to the company in compliance with a resolution of the board of directors, the company executed to them a deed under its Corporate seal, a copy of £124 which is filed with the bill as exhibit “ B,” and reads as follows:
    “ Office of the Mad Rive and Lake Erie Railroad Co. Sundusky City, July 10 1847
    “Whereas, Chapman & Harkness have complied with a special resolution of the board of directors of this company,-granting them a connection by private side-track for a warehouse to be erected at Bellevue (see minutes, p. 301); now, this is' to certify, that the said Chapman & Harkness are entitled to the privilege of building and continuing a side-track to connect their warehouse, to be built in Bellevue, with the main line of the Mad River and Lake .Erie Railroad Company, for the purpose of enabling them, their heirs and assigns, to do a receiving and forwarding business upon-said railroad; provided, that the said track be built under the-direction of the superintendent of this company, and continued agreeably to the rules adopted by the board of directors upon that, subject.
    (Attest,) “ Wh. Hunt, President.

    “R. Patterson, Secretary.”

    That the cars commenced running on the railroad as far as Bellevue in the fall of 1837, but that the road was not completed until January, 1851, when the track was laid through to Dayton; that the complainants still own the stocks by them subscribed; that they still own the warehouse and side-tracks, and are still the owners of a large part of the lots in the village of Bellevue, and of other lands-in the vicinity. Complainants claim that they purchased and held this property, relying upon the good faith of the railroad company;- and that from the location of the road, in the manner set forth by-them, and the several contracts made with the company by them, they had a right to forever enjoy all the benefits and privilegesaceruing to them or their property from the location of the road through Bellevue; and had a right to its continuance and maintenance on the line originally located. Yet, notwithstanding all its-said contracts, the company-have taken vai’ious steps to change the 125] location and vary the route of *their railroad, and to remove-the same upon’a line which would pass eight miles west of Bellevue, viz., that the company have caused a survey to be made of the new route, and estimates of its cost of construction; that it has purchased the right of way over lands on the new line, and advertised for proposals for contracts to construct the same; and that its officers have-frequently told the complainants and others that it was their intention to change the location of the road, and to remove the same-upon the new route.
    Complainants charge that the board of directors and officers of the company have determined to construct the road upon the new line, and to abandon the old one.
    That this would be of great and irreparable damage to complainants, and in violation of the several contracts made with them, and against the rights of the complainants, as stockholders in the company.
    The bill prays for a perpetual injunction restraining the company from changing the location of the said railroad from Bellevue, and from building or constructing' any new line or route, which shall not pass through Bellevue.
    To this bill an answer was filed at the July term of the court, 1851.
    The company, by its answer, admits itself to be a lawful corporation, and that the several parts of the acts of incorporation recited in the bill, are correctly set forth ; that -the company was organized in 1833, and a preliminary survey made by Mr. Stanbury, of the TJ. S.-Topographical Engineers, the same year; that the road was located from Sandusky to Tiffin in July, 1835, and contracts of construction entered into on the 16th of September of that year, and the ears commenced running to Bellevue in October, 1837; that the company continued to prosecute the work as fast as its resources would admit, and the heavy rail was *laid to Day- [126 ton in the winter then last past, but that it was then relaying the road from Springfield to Sandusky with the heavy rail, for which purpose it had purchased 11,000 tons of iron. It claims that ft “ hath found a better and cheaper route from Sandusky to Tiffin,” and admits that it “ hath proposed to change the location and vary the route of its railroad in accordance to the provisions of the act referred to by the complainants” It admits that complainants are stockholders to the amount of twenty shares, but claims that this is but a small part of the stock of the company.
    The answer claims that in straightness of line, shortness of distance, levelness, suitable materials for ballasting, and sufficient water to supply engines — “the guiding elements in selecting a route for a railroad ” — the new line was much better than the Bellevue route; that the company, in 1835, had employed for its. “resident engineer, Mr. James H. Bell, a man of very convivial habits, and particularly of not over rigid virtue,” and partly insinuates, and partly charges, that the complainants procured the contracts relating to the location of the road by fraud and corruption, practiced upon Bell, and puts to complainants interrogatories concerning the interest that Bell had in the town-plat of Bellevue, at the time of the location of the road. It concludes by averring, that,, in the proposed change of line, no other motives existed than to promote the good of the company and the public. The answer admits the deed attached to the bill, and the rights of connection, and complainants’ subscription of stock, but does not admit the contracts mentioned in the deed.
    A provisional injunction was allowed July 26,1851, “ restraining the defendant from altering the location of the Mad River and Xake Erie Railroad, to be continued until further order, or until the said railroad company shall, in pursuance of the law, in such 127] case made and ^provided, acquire the legal right to change the present location of said railroad.”
    August 12,1851, the injunction bond was given; August 15,1851, the writ was issued.
    A supplemental bill was filed August 23, 1852, reciting the proceedings under the original bill, and further charging:
    That, after the allowance of the injunction, the 'company had combined with certain other persons, and under a protended or ganization, under a charter incorporating the Sandusky City-and Indiana Railroad Company, were constructing the same road intended, originally, to have been made by the Mad River and Lake Erie Railroad Company, and that they were doing this in evasion of the injunction.
    That the route of the new road was the same, and the purpose was to connect with the old line at Tiffin.
    That the new line was surveyed and located by the engineer of the Mad River and Lake Erie company.
    That the Mad River company was furnishing all the means to build the new line.
    It charges an agreement that the Mad River company should do the business of their road over the line of the new.
    That the Mad River company were relaying their road south of Tiffin with the heavy rail, while they were allowing the road north of Tiffin to go without repair; and that it was their purpose, after they should get to running on the new road, to abandon the old one altogether. The bill prays for an injunction restraining the Mad River company from building, or using its means in constructing the new road, and both companies from connecting at Tiffin.
    The answer of the Mad River and Lake Erie Railroad Company 128] *to the supplemental bill was filed October 11,1852.
    It states that, “ since the allowance of the injunction granted by this honorable court, forbidding it to change its line until the assent of the board of public works hath been obtained, it hath abandoned its intention to ehangeits line; it hath, therefore, repaired and Jkej)t in order the line of its road; hath purchased warehouses at Elat Eock and Bepublic, and is doing a fair and successful business upon it."
    It further says : “ This respondent hath heard, and believes to be true, that a certain corporation hath been organized under the name of the Sandusky City and Indiana Eailroad Company, but it avers that it hath taken no part in its organization.”
    It denies the existence of any agreement between the two companies, but it insists that it has a right to make such agreements and connections with that or any other railroad company, whose linos admit a connection, or enter into any agreement, for their •common benefit, consistent with, and calculated to promote, the objects for which they were created.
    It repeats its denial that it has, or ever had, any intention to let the old line go down, and avers that it does take every means reasonable to preserve the same in repair; and that the business on that section will require the same to be continued.
    The Sandusky City and Indiana company filed an answer denying generally the allegations of the bill.
    Answers were filed by complainants to the interrogatories in the answer to the original bill denying all fraud, and that they ever paid, or promised to pay Bell anything, or to give him any interest in property, if the railroad should be'located at Bellevue.
    *Since the reservation of this case, by consent of parties, [129 the complainants filed a second supplemental bill, charging, in substance, that the said railroad companies, defendants, pending the preliminary injunction allowed on the original bill, combining together to evade the effect of said inj unction, and impose upon complainants, as stockholders in said Mad Eiver and Lake Erie Eailroad Company, and as owners of property on and in the vicinity of the line of said company’s road through Bellevue, the same injury and damage to be protected against which they filed their said original bill, varied only in the manner of inflicting the same, have, recently, to wit, on or about the 17th day of February, a. d. 1853, entered into a certain contract of lease, whereby the Mad Eiver and Lake Erie company had become the lessee, under the said Sandusky City and Indiana company, of a new line of railroad between San-dusky City and Tiffin, which had been constructed, as charged in complainants’ first supplemental bill. Said lease being for the term of ninety-nine years, and then to be renewed on the same terms.
    The Mad Eiver company, in the lease, agrees thereafter to pay all taxes which might be imposed on said new line of railroad, and to assume and j>ay the debts of said Sandusky City and Indiana company, amounting to the sum of ten thousand dollars, and to-indemnify and save harmless the said last-named company from the liability to pay a further debt of three hundred and fifty thousand dollars (and the accruing interest thereon), which is contained in a series of three hundred and fifty bonds, of one thousand dollars each, the payment whereof the said Sandusky City and Indiana company had secured, by a deed of trust and mortgage to Samuel Honshaw, Henry Timmons, and Ebenozer Lane; and the Mad Eiver company agreed, further, to finish, at its own expense, the 130] portion of said railroad ^embraced in the lease, and to operate and manage the same in such manner as will not forfeit the first party’s franchises and corporate rights.
    The Mad Eiver and Lake Erie company, by the terms of said lease, was at liberty to use the corporate name of the Sandusky City and Indiana company, in all legal or other proceedings necessary to maintain or enjoy the rights and interests contained in the lease, saving said company harmless from all expense.
    The bill charges, further, that the said Mad Eiver and Lake Erie company transcended its corporate powers, by entering into said contract of lease, and had embarked in a new enterprise, without the consent, and against the will, of complainants, as stockholders in said company, and not in anywise sanctioned or authorized by the act of incorporation, or any other law of the state, in force at the time the complainants subscribed for the stock by them owned in said company; and that said company had been, during a length of time, without any lawful authority, as against the complainants, as stockholders, and in defiance of the orders and injunctions exist-, ing in this case, running said new line of road, to the prejudice and injury of complainants, as stockholders; and that the company threatened to continue so to run and use said new line under said lease, and during its continuance. The complainants then pray that said lease be decreed to be fraudulent' and void, as against them, as stockholders, and that the same be ordered to be canceled; and that said Mad Eiver and Lake Erie Eailroad Company be perpetually enjoined from using said road, under said lease, or otherwise ;' and for general relief.
    This second supplemental bill is indorsed with the following-agreement between the counsel for the parties: “ It is agreed that this bill be filed, and that it be considered as ^standing upon [131 answer by the companies denying the allegation thereof; and that the proof taken be considered as applying thereto.”

      Charles Kent, H. H. Hunter, and S. T. Worcester, for complainants.

      W F. Stone, Henry Stanbery, Odlin & Lowe, and R. S. Hart, for defendants.
   Brinkerhoff, J.

After a careful and laborious examination of the voluminous testimony in the case, we are satisfied that the leading allegations in the original and supplemental bills are true. The contracts therein set forth exist. The complainants are stockholders, as they allege; and, after the allowance of the provisional injunction, it is evident, beyond controversy, that the principal officers, most influential managers, and controlling minds of the Mad River and Lake Erie company, set themselves deliberately at work to defeat the object of the original bill, and to evade, by indirection, the effect of the provisional injunction. To this end an organization, regular on its face, was contrived and effected under a legislative charter, authorizing the construction of a railroad, under the name of the Sandusky City and Indiana Railroad, from the city of Sandusky to the west line of Ohio, or the south line of Michigan, at the option of the corporation, naming no other point or terminus whatsoever; and passed February 28,1851. The stockholders of the Mad River and Lake Erie company, who became the controlling managers in the new company, under the almost unlimited power of selecting the route for their road, and the extent to which it might be constructed, which their charter permitted to them, determined to construct their road from the city of San-dusky, as far *as Tiffin, a point leaning somewhat toward the [132 west line of Ohio, and there to stop. A very few of the stockholders may have been duped into the expectation that the road might be carried further; but no such idea was seriously entertained by those who got up and controlled the corporation. No payments were ever made on subscriptions of stock in this corporation. The stockholders went through the forms of giving their notes for the amount of their subscriptions, but it does not appear that any of them were ever paid. The road was constructed to Tiffin; but by' the aid, with the means, and on the credit of the Mad River and Lake Erie company; for its use and to answer its purposes. A large quantity of heavy iron rail which the Mad River and Lake-Erie company had purchased, and on hand for the purpose of relaying its old track from Sandusky to Tiffin, by way of Bellevue, was diverted from that object, laid upon the track of the Sandusky City and Indiana road, and the old line by way of Bellevue, although a pretense of still running a train of cars upon it has been persisted in — has, in fact, been suffered to go to decay. •

As soon as the Sandusky City and Indiana road, the creature of the Mad River and Lake Erie company, was completed to Tiffin, the latter company took a perpetual lease of the former road, in which it assumed all the debts of the new company, but contracted for the payment of no other rent whatever, and transferred to it all its machinery and business, except such as arose and lingered immediately on the line of its old dilapidated track, with its flat rail and rotting timbers, between Sandusky and Tiffin, by way of Bellevue. And thus the Mad River and’ Lake Erie company-effected by indirection, though under a punctilious observance of the forms of law, the very object which, under the prohibitions of the provisional injunction, or the requirements of the statutes here-133] after to be ^noticed, it either could not, or did not choose to effect directly, to wit., the actual, practical, change of its line from. Sandusky to Tiffin. For the Sandusky City and Indiana company,, though perfect in its external legal aspect, was, in substance, if the idea of substance can be attached to a thing which has no substance, the merest sham that can be imagined.

But while all this is true, it is also true that there wore strong and legitimate reasons for the Mad River and Lake Erie company to desire the change of route which it sought and'finally effected in the manner we have mentioned. In distance, the now route was-shorter; in curve and grade, it was much easier, and it afforded abundant supplies of water and material for ballast, in both of which the old route was very deficient. The directors of the company had originally adopted the route by way of Bellevue on the. recommendation of their chief engineer. This engineer had become a part proprietor with complainants in the town of Bellevue, then recently laid out and platted, and thus had a strong pecuniary intertest in the location of the road on the Bellevue route. He represented to the directors that he had surveyed the route on which the Sandusky City and Indiana road has since been located, when in truth he had done nothing of the kind. That the complainants. made him a part proprietor with themselves in their new town, with a view to influence the then pending question of the location of the road by way of their town, is probable; but it is not shown that the complainants were cognizant of the misrepresentations of the engineer; and if it were shown, we think the acquiescence of the directors, and their contracting with complainants on the assumption that the road was to remain at Bellevue, long after they had ample opportunity to discover, and had discovered the malconduct *of their engineer, and the retaining of the property [184 conveyed to the company under those contracts, must be held to estop them from claiming anything now, on this ground, against the complainants.

By the 10th section of an “ act regulating railroad companies,’, passed February 11, 1848, and in force at the time of the filing of the original bill in this case, it is enacted that “ whenever any rail, road company • • • shall find it necessary, for the purpose of avoiding annoyance to public travel, or dangerous or difficult curves or grades, or unsafe or unsubstantial grounds or foundations, or for other reasonable causes, to change the location or grade of any portions of their road, • • • such railroad company shall bo, and is hereby authorized to make such changes of grade and location, not departing from the points and general route prescribed in the charter of such company; • • • and shall, also, be liable in damages, when any have been caused by such change to the owner or owners of the lands upon which such road was theretofore located • • • provided, however, that no such change of the location of the road be made, unless approved by the board of public woi'ks,” etc.

This section of the statute, while the road of the Sandusky City and Indiana company was in process of construction, was superseded by the act of May 1, 1852, “ to provide for the creation and regulation of incorporated companies in the State of Ohio,” which is still in force, and which is the same in terms as the tenth section of the act of February 11, 1848, except that the clause making the consent of the board of public works necessary to authorize the change of location, is omitted.

It is hardly necessary to say, that in the actual change of the line of its road from Sandusky to Tiffin, which the Mad River and Lake Erie company has effected, it is not pretended *that it [185 has proceeded under the provisions of either of these statutes, or that it has complied with any of the provisions therein prescribed.

The complainants now pray, that the lease of the Sandusky City and Indiana road by the Mad River and Lake Erie company, be decreed to be null and void; that the latter company be perpetually enjoined against the use of the former road; and for general re-, lief; and the first question presented for our determination is, whether the complainants, on the ground of their being stockholders in the Mad River and Lake Erie company, are entitled to the relief specifically prayed for.

The Mad River and Lake Erie company now claims that it was authorized to do all it has done by virtue of the twenty-fourth section of the act last above referred to (Swan’s Rev. Stat. 205), and which is as follows: “ Any railroad company heretofore or hereafter incorporated, may, at any time, by means of subscription to the capital of any other company, or otherwise, aid such company in the construction of its railroad, for the purpose of forming a connection of said last-mentioned road with the road owned by the company furnishing said aid; or any railroad company organized in pursuance of law, may lease or purchase any part, or all of any railroad constructed by any other company, if said companies' lines of said road are continuous, or connected as aforesaid, upon such terms and conditions as may be agreed on between said companies respectively; or any two or more railroad companies, whose lines are so connected, may enter into any arrangement for their common benefit, consistent with, and calculated to promote the objects for which they were created; provided, that no such aid shall be furnished, nor any purchase, lease, or arrangement perfected, until a meeting of the stockholders of each 186] of said companies shall have *been called by the directors thereof, at such time and place, and in such manner as they shall designate, and the holders of at least two-thirds of the stock of such company represented at such meeting, in person or by proxy, and voting thereat, shall have assented thereto.”

In the view which we take of this case, it is unnecessary for us to decide a question of construction arising under this section, which is, whether the Mad River and Lake Erie company has brought itself fairly within its provisions; or, in other words, whether the construction by one railroad company of another road entirely parallel with its own, which if owned and managed by an interest distinct from itself must necessarily be a competing road, for the purpose, and with the effect to bring about a change in a part of its own line, rather than to create a feeder, or an extension of its •own line, is within the limits of such “ connections ” as were contemplated by the general assembly in this enactment? But, waiving this question, was it constitutionally competent for the legislature to authorize this company to embark in new enterprises, ■entirely beyond the scope, and outside of the objects contemplated ■by its charter, at the time the complainants became members of the corporation by subscribing to its stock, and then to effectuate ••a fundamental change in its charter, and in the risks and prospects •of its stockholders, without the consent of all its stockholders? 'We think the affirmative of this question to be at least doubtful. And the contrary was directly held’by the chancellor of the third circuit of Yermont, in an' able opinion, powerfully sustained by .authority, and resting, it seems to us, on a basis of reason which it will be found difficult to overthrow. Stevens v. Rutland & Burlington Railroad Co., 1 Law Reg. 154.

While, therefore, we find it impossible to claim for the legislature any such power, and conceding, for thé sake of *the ar- [IS? gument, that it has no such power, we are quite clear that, before a stockholder can be entitled to a remedy by injunction against •such departure from the original objects of the incorporation, he must have shown himself prompt and vigilant in the assertion of his rights, as such stockholder. It will not do for him to wait until the mischief of which he complains is accomplished, fortunes expended, and great public interests created. If he do, he must be held to have acquiesced in the change, or to content himself with some other form of remedy.

Now, the original bill in this case was filed, and the provisional injunction allowed, before the Mad River and Lake Erie company had made any expenditure in the construction of the Sandusky City and Indiana road; but the original bill, and first supplemental bill, both proceeded on the ground of contract alone, setting up no claim that their rights as stockholders were about to be violated A claim to relief on this ground is first presented in the second supplemental bill, after the Mad River and Lake Erie company had exhausted alike its means and its credit in the construction of the new road, and thereby rendered itself unable to repair its old line, even if it had the disposition to do so. It is true, the original bill states the fact that they are stockholders; but the statement is incidentally made, solely for the purpose of showing the consideration. of one of the contracts, which it sets forth as the basis of the relief sought. We-are not satisfied, therefore, that the complainants arc in time to demand this form of relief, on the ground of the violation of their rights as stockholders.

Moreover, there is a limit to the powers of this court. Suppose we were to declare the lease of the Sandusky City and Indiana road to the Mad River and Lake Erie company to be fraudulent, null, and void; and were to perpetually enjoin the latter .company against 138] connecting with, ^running upon, or using the former road ?— to what end? Wo could not compel the Mad River and Lake Erie company to use its old line — it is at present unfit for use — we could nqt compel them to repair it; and, indeed, it is more than doubtful whether it now has either the means or the credit to repair it; and the only effect of such a decree, we apprehend, would ho to bring about a transfer of freight and passengers from one road to the other at Tiffin, without benefiting, in the remotest degree, the pecuniary interests of the complainants, on the one hand; while, on the other, we would materially prejudice great public and private interests.

But, does it follow from all this, that the complainants are entitled to no remedy? We think not. On the part of the complainants, it is contended that the contracts between them and the Mad River and Lake Erie company, bound the latter to keep up and maintain its road on the line through Bellevue forever. On the part of the company, it is contended that by the location of their road through Bellevue, and the allowance of the privileges of sidetracks and warehousing, stipulated for by conrplainants, their contracts have been literally fulfilled and executed, and their obligation is at an end. We think that, by a fair interpretation of those contracts, it is implied that the privileges stipulated for by the complainants should continue at least until the line of road through Bellevue should be lawfully changed.

Now, this line has been changed — changed by indirection,'it is true, and not in name, but still, in substance and in fact, changed. In effecting this change of line, the company has hitherto avoided the performance of a condition prescribed by the statute as precedent to a change; to wit, the payment of damages, “when any have been caused by such change, to the owner or owners of the 139] *lands upon which such road was heretofore constructed.” And this seems to us to suggest an answer to the next and last inquiry, which remains to us in this case. Are we at liberty to-adopt a remedy by compensation ?

The analogies, spirit, and policy of the statutes before quoted, seem to point to such a remedy, and we are strongly impressed with the conviction that the equities of the case demand it.

The particular remedy by injunction, prayed for by the complainants in this case, is in the nature of, and is sought by the complainants, in order that it may operate so as to enforce, a specific performance of the contracts between them and the railroad company.

It seems to be well settled that where it is found that a complainant was originally entitled to a specific performance, but pending the litigation, the very subject-matter of the agreement, to which the complainant is found to be entitled, is abstracted or destroyed, a court of equity will not turn him over to seek his damages in a court of law, but will afford a remedy by compensation. Story’s Equity Jurisprudence, sec. 794, notes, and cases there cited.

Now the case before us seems to come fairly within this principle. The complainants demand the continued use of the line of railroad by way of Bellevue. To this, by the terms and spirit of their contracts, they were fairly entitled. But pending the proceedings, this line has gone to decay; the means and credit of the-company have been elsewhere exhausted ; the repair of the old line would involve the necessity of an immense expenditure, which the company, even if we were to decree the injunction prayed for,, would have no interest in making, and which we would have no power to enforce. In this way the subject-matter of the contracts has been substantially annihilated; and nothing ^remains to [140-us but to award the complainants a remedy by compensation.

A decree will therefore be entered, dissolving the provisional injunction, and referring the case to a special master for this purpose to inquire and report:

1. The amount, up to the first day of March, 1857, of the par value of complainants’ stock in the Mad River and Lake Erie Railroad Company, and unpaid dividends thereon, provided the complainants shall file with said master, and to his acceptance, a transfer, in writing, of their stock aforesaid, to said company.

2. The value of the lots which complainants donated and conveyed to said Mad River and Lake Erie Railroad Company; such value to be estimated at the date of the location of said road through. Bellevue, with interest on such value from the date of the filing of ■the original bill in this case until the 1st of March aforesaid.

3. The dimunition in value of complainants’ two warehouses and .side-tracks, occasioned by the construction and use of the Sandusky City and Indiana Railroad.

4. Compensation to complainants for the right of way through ■their land, to be computed according to its value, when the Mad River and Lake Erie Railroad Company commenced the use of the ■ Sandusky City and Indiana Railroad ; and up to a time from which the said Mad River and Lake Erie Railroad Company shall release and quitclaim the same to complainants, by deed, to be filed with, .and to the acceptance of, said master; and if said company shall fail to file with said master, and to his acceptance, such deed of release and quitclaim, then said computation to be made on the assumption that such right of way is to be perpetual in said company.

5. That said master report at the present term of this court. 141] *And, following out a remedy analogous to the requirements of the eleventh section of .the act of May 1, 1852 (Swan’s Stat. 202), which makes the payment of compensation a condition precedent to the right to change the location of the road, and for the purpose of securing the payment of the compensation awarded ■to the complainants, an alternative decree will also be entered, enjoining the Mad River and Lake Erie company against the use of ■the Sandusky City and Indiana road, to take effect after a reason.able time, to be named in the decree, in case of default in the payment of the compensation awarded, and to continue during such •default.

Bartley, C. J., and Swan, Bowen, and Scott, JJ., concurred.


author: Bartley, C. J.,

text:
    John Robinson v. The State of Ohio.
    In error to the probate court of Ross county.
    The record of the proceedings of the probate court shows that on "the 1st day of July, a. d. 1854, the prosecuting attorney of Ross ■county filed, in said court, an information against the plaintiff in error, charging him with a violation of the first section of the act of May 1, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio.”
    The information was indorsed as follows : “ This information was filed on a transcript from the docket of William Skerritt, mayor of the city of Chilicothe. John H. Ware, prosecuting attorney.”
    The record does not contain a copy of the transcript of the mayor.
    *The plaintiff in error appeared in the probate court and [142 plead not guilty to the information; and at the August term, 1854, the issue was tried by a jury, and a verdict of guilty rendered.
    The plaintiff in error moved for a new trial, which was overruled, and judgment entered on the verdict.
    To reverse this judgment this proceeding in error is prosecuted. And it is assigned for error :
    1. That the probate court had no jurisdiction in the premises, because the information aforesaid was filed without a preliminary examination of the charges therein contained by any mayor or justice - of the peace.
    II. The record nowhere shows that any mayor or justice of the-peace had found said charges to be true, or had recognized the said John Robinson to appear in said probate court, or committed him for want of a recognizance.
    III. The record contains no transcript, or even statement of any such preliminary examination, finding, recognizance, or commitment, or of either of them.
    IT. It does not appear that any such transcript was ever filed-in said probate court.

      A. G. Thurman, for the plaintiff in error, cited
    Miller & Gibson v. The State, 3 Ohio St. 475, 477, 489; Gates & Goodnoe v. The State, Ib. 293, 296, 297, 301; Aultfather v. The State, 4 Ohio St. 13; Ohio, 219; 1 Ohio St, 188; Ib. 234; 1 Chitty’s Or. Law, 719; Wright, 33; 17 Ohio, 225; 16 Ohio, 172.
   Bartley, C. J.,

held: 1. The probate court could not take original cognizance of violations of said act of May 1, 1854, at the time this .information was filed.

2. The record of the probate court in a criminal case ^should [Mil contain a copy of the' transcript of the examining magistrate, in. •every case in which, a preliminary examination is necessary to give the probate court jurisdiction.

3. A mere indorsement upon the information, by the prosecuting attorney, that it is filed upon a transcript from the docket of- a •certain magistrate, naming him, is insufficient.

Judgment reversed.

Swan, Brinkerhoee, Bowen, and Scott, JJ., concurred.