source: Caselaw Access Project

author: Scott, J.

license: Public Domain

text:
    William Evans v. The State of Ohio.
    A forged instrument of writing was in the following terms:
    “Mr. Davis Wen 19th.
    “ pleas let the boy have $6,00 dolers for me.
    “ B. W. EARL.”
    Held — That such instrument is prima facie an “order for the payment of money” within the meaning of the statute.
    This is a writ of error to the Court of Common Pleas of Jefferson county.
    At the October term, 1856, of that court, the plaintiff' in error was indicted for forgery. The first count of the indictment charged him with forging “ a certain order for the payment of money, which said forged order for the payment of money is as follows, to wit:
    “ ‘ Mr. Davis Wen. 19th.

      “ ‘ pleas let the boy have $6,00 dolers for me
    "'B. W. EARL.’ ”
    The prisoner was tried at the same term, and convicted under this count.
    Dp on the trial (as appears by a bill of exceptions made part of the record,) the state, after having laid the proper foundation, offered in evidence the instrument alleged to be forged, and which in all respects (save the mere spelling) corresponded with that set out in the first count.
    Counsel for the prisoner objected to the introduction of this paper because there was a variance between it and the paper described in the indictment.
    The objection was overruled, and the paper permitted to go to the jury. The prisoner excepted, and the admission of the paper as evidence is now assigned for error.
    It is not claimed that the instrument set forth varies from that offered in evidence, but the single point now urged is, that the instrument in question is not an “ order” for the payment of money, as named in the first count, but only a “ request.”

      P. S. Moodey, for plaintiff in error.
    No argument for plaintiff in error has come to the Reporter’s hands.

      G. P. Wolcott, Attorney General, for the state.
    The instrument set forth in the indictment is properly designated an “ order.” Such is not only its general and popular meaning, but the words “order” and “request” are frequently used in the law as exact synonyms. 2 Bl. Comm. 466; Chit, on Bills 1, 2; Kyd on Bills, 3; 3 Kent Comm. 44; Story on Bills 3, 4; Chit. Pl. 144; Saund. Pl. and Ev. 267.

      The English courts do not uniformity draw or recognize the nice and illusory distinction of the elder cases between “order” and “request.” Reg. v. Carter, 1 Car. and Kir. (47 E. C. L.) 471; Reg. v. Snelling, 21 Eng. Law and Eq. Rep. 600; Reg. v. Dawson, 1 Eng. Law and Eq. Rep. 590; Reg. v. Illidge, 2 Car. and Kir. (61 E. C. L.) 871; Reg. v. Roake, cited in 2 Russ. on Cr. 522; Reg. v. Vivian, 1 Car. and Kir. (47 E. C. L.) 719.
    In this country, the cases, with one exception, (People v. Thompson, 2 Johns. Cas. 352,) speak an uniform language ignoring or denying the distinction between “ orders ” and “requests.” Com. v. Fisher, 17 Mass. Rep. 46; Peoples. Shaw, 5 Johns. Rep. 263; State v. Cooper, 5 Hay Rep. (Conn.) 250; State v. Nevins, 23 Verm. Rep. 519; Haskins v. State, 11 Geo. Rep. 92-101; State v. Holly, 2 Bay 262, cited in 2 Russ, on Cr. 318, note.
   Scott, J.

If we look simply to the terms of the false instrument set out in the indictment in this case, a decision, either way, of the question presented, might be sustained by a copious reference to authorities.

The leading English cases would decide the question in favor of the plaintiff in error. Perhaps the instincts of humanity had their influence in those decisions; for under their statute, then in force, the question became one of life or death to the prisoner. Under the more humane criminal codes of an advancing civilization, the courts of this country have generally held a different doctrine.

It is by no means surprising, that this conflict of authorities should be found in relation to instruments similar in their terms. The language employed may be such that the legal character of the instrument would depend upon the relations subsisting between the parties and the circumstances of the case. These circumstances may have been such in the present case, as, had the paper been genuine, would have given Earl, the drawer, a right to expect and require the compliance of Bavis with its terms. He may, for instance, have had funds in the hands of Davis, subject to his own order; and, in such case, the instrument in question would naturally be regarded and treated by the parties as an “ order,” and would both in fact and in law he such, notwithstanding the civility and courtesy of the terms m which it is couched. The style alone cannot determine the legal character of the instrument, for a rude request may be more mandatory in its form than a courteous order.

In this case, there was no special finding of the facts by the jury, and the bill of exceptions does not purport to contain a statement of all the evidence, but seems ■ to proceed on the idea that this instrument, from its very terms, could not, under any circumstances, be regarded as a statutory “ order” for the payment of money. We think otherwise. Judgment affirmed.

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


author: Bartley, C. J.

text:
    S. & S. S. Clark v. Hanna & Hall.
    The right of appeal to the district court from final judgments of the common pleas, in civil cases, in which the common pleas has original jurisdiction, extends only to cases in which that court had actual original jurisdiction ; and not to suits brought originally before a justice of the peace, and appealed to the common pleas, although falling within the class of cases in which concurrent original jurisdiction, with justices of the peace, is given to the common pleas.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Hamilton county.
    Plaintiffs commenced a civil action before a justice of the peace, in Hamilton county, to recover of defendants two hundred and twenty-eight dollars in money, for the alleged conversion of personal property belonging to plaintiffs. A trial was had before the justice, and judgment rendered in favor of plaintiffs for eighty-eight dollars and costs. Defendants appealed to the court of common pleas, where a judgment was obtained in their favor. Whereupon, plaintiffs caused notice of appeal to the district court to be entered upon the journal of the common pleas, and asked the judge who tried the case, to fix the amount of the appeal bond, as prescribed by the statute regulating appeals to the district court, but he declined so to do. A sufficient appeal bond was, within the proper time, executed and delivered by plaintiffs to the clerk of the proper court, who accepted the same, and the cause was in due time docketed in the district court. At the April term, 1857, of the district court, on motion of defendants, the court dismissed the appeal, for want of jurisdiction.

      J. B. Baton, for plaintiffs.

      Jas. Peat, for defendants.
   Bartley, C. J.

It is assigned for error that the district court erred in dismissing the appeal for want of jurisdiction.

By the second section of an act to amend “ an act relating to the organization of courts of justice, and their powers aud duties,” passed February 19, 1852, it is provided, among other things, “ that the district court shall have appellate jurisdiction under such regulations as may be prescribed by law, from the court of common pleas, in all civil cases in which the court of common pleas has original jurisdiction.”

And by the first section of the act regulating appeals to the district court, passed March 23, 1852, it is provided, “ that appeals may be taken from all final judgments in civil cases at law, decrees in chancery,” etc., “ rendered by the court of common pleas, in which said court has original jurisdiction,” etc., “ to the district court.”

By the statute of May 1, 1854, extending the jurisdio tion of justices of the peace, their jurisdiction is made exclusive in any sum not exceeding one hundred dollars, and concurrent with the common pleas in any sum over one hundred dollars, and not exceeding three hundred dollars.

It is claimed by the plaintiff in error, that the appeal to the district court is given, in the class of cases in which the court of common pleas is capable of taking original jurisdiction. This, in our judgment, is not a correct interpretation of the statute. The cases in which the appeal is given from the judgment of the common pleas, are cases in which that court had actual original jurisdiction.

"Where a case, which falls within the class of cases in which the common pleas has concurrent original jurisdiction with the justice’s court, originates before a justice of the peace, it can only reach the common pleas by virtue of its appellate jurisdiction. Motion overruled.

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


author: Bartley, C. J. J. R. Swan, J.,

text:
    Hollister and Smith v. The Judges of the District Court of Lucas County.
    1. Every court, in the exercise of its supervisory and protecting charge over its records, and the papers belonging to its files, has the power to direct the clerk to correct not only clerical errors,'but such errors as may arise from any fraudulent or improper alteration or mutilation of its files or records.
    2. To make such correction, the court may hear evidence, and act on the proof; and it is not essential to the action of the court, that the judges act on their personal knowledge of the error.
    3. The judges of the court of common pleas are, by the constitution and laws of the state, judges of the district court, and, as such, empowered to exercise its authority.
    4. A writ of mandamus directed to a subordinate judicial tribunal, is properly directed to the judge or judges of such court.
    This is a motion for a peremptory mandamus.
    On the 23d day of February, 1857, an alternative writ of mandamus was issued out of tbe Supreme Court at the instance of Hollister and Smith, directed to the judges of the district court of Lucas county, commanding them to cause an order to he made (or show cause why they refuse so to do) directing the clerk of said district court to correct the record in a certain action which had been tried at the April term, 1855, of said court, in which action said Hollister and Smith were defendants, and John P. Reznor was plaintiff, by restoring to the hill of exceptions signed, sealed and filed in said case as a part of the record thereof, certain material words, which, as was alleged, the judge of the court of common pleas, who presided at said term of the district court, had improperly stricken out of the bill of exceptions, outside of the court room, after the final adjournment of the court, without personal consultation with either of the judges of said court, and without the knowledge or consent of Hollister or Smith, or their attorneys ; and which alteration, as was alleged, was not the act of the district court.
    To the alternative writ the following return was made:
    “ The undersigned, in obedience to the command of the annexed writ of mandamus, hereby certifies and returns, that he was one of the judges composing the district court within and for the county of Lucas, and State of Ohio, at the time the bill of exceptions mentioned in said writ was signed; and that the other two judges composing said court were Messrs. Otis and Starkweather; that the official terms of Otis and Starkweather have since then expired, and that they no longer hold the office of judge. The judges of the common pleas now holding the district court for said county, say they know nothing about the facts set forth in said writ of mandamus, and, as judges, have no power over the clerk in the premises, and can make no order that he is bound to obey. The writ being directed to them as judges of the district court, (when in fact they are only judges of the court of common pleas, and, as such only, authorized to hold a district court,) and not to the district court, they humbly submit whether the district court is called upon to obey the command of the writ. The district court have, therefore, not felt called apon to take any action in the matter, nor, as a court, to make any return to said writ.
    “ The undersigned, however makes this statement in order that the honorable Supreme Court may be advised that no disrespect or disobedience to said writ is intended on the part of the district court, or the judges composing the same.
    “ All which is respectfully submitted,
    “JOHN FITCH,
    “ Judgo of the Court of Common Pleas of the 4th Judicial District of Ohio.”

      Waite Murray, for relators.
   Bartley, C. J.

The objections made to the correction of the alteration in the bill of exceptions, on behalf of the defendants, appear to be the following:

1st. That two of the judges know nothing about the facts.

2d. That they have no authority over the clerk in the .premises, and can make no order that he is bound to obey.

3d. That they are judges of the court of common pleas, and only as such, authorized to hold a district court.

4th. That the alternative writ was directed to them as judges of the district court, and not to the district court.

Every court of record has a supervisory and protecting charge over its records, and the papers belonging to its files; and may at any time direct the correction of clerical errors, or the substitution of papers in case the originals are purloined or lost; and, in the exercise of the same authority* in case the records or files should be fraudulently or otherwise improperly altered or defaced, may direct their correction and restoration to their original condition. And in making such corrections, the clerk is under the control and authority of the court.

Two of the judges, it is said, have no knowledge of the facts touching the alleged alteration of the bill of exceptions. This is no legal excuse for not doing the act directed, when they have the unquestionable authority to direct the relators and other parties interested, to produce their proofs in relation to the matter. The personal knowledge of the judge is not essential to the correction of a clerical error. He may inquire into the matter and inform himself by competent evidence, and act upon that, as he acts upon proof given in court in the performance of other judicial acts.

It is objected that the defendants are judges of the court of common pleas, and only as such, authorized to hold a district court. It matters uot in what fonn of expression the judicial power is conferred. The defendants are, by the constitution and laws of the state, constituted judges of the district court, and as such, clothed with full authority to hold the district court and exercise its jurisdiction and authority. And their authority to exercise chamber powers in vacation, touching causes pending in the district court, by allowing and dissolving injunctions, and performing other acts as judges of the district court, cannot be controverted. And the fact that they are judges of the common pleas does not, under the constitution and laws of this state, render them incompetent to act as judges of the district court.

There is nothing in the objection, that the writ is directed to them as the judges of the district court instead of the district court. The writ was properly directed. They are the judges of that court, and as such, clothed by the constitution and laws of the state, with power to hold that court and exercise its authority.

A writ of mandamus to a subordinate judicial tribunal is properly directed to the judge or judges of the court, and especially where there may be other judges authorized to hold or participate in holding the court. In case of disobedience to the mandate of the supervisory court, the authority to compel obedience is exercised over the judges personally having the power to exercise the functions of the court.

. Peremptory mandamus awarded.

Brinkerhorr and Scott, JJ., concurred.

J. R. Swan, J.,

dissented: Holding that a motion in the district court to correct its record, if overruled, could, on exception and petition in error, be revised; and consequently a mandamus is not, in such case, the proper remedy.


text:
    Chester W. Norton v. Edward McLeary.
    The right of appeal to the district court, from final judgments of the common pleas, in civil cases, in which the common pleas has original jurisdiction, extends only to cases in which that court had actual original jurisdiction; and not to suits brought originally before a justice of the peace, and appealed to the common pleas', although falling within the class of cases in which concurrent original jurisdiction, with justices of the peace, is given to the common pleas.
    The act of May 1,1854, “ to extend the jurisdiction of justices of the peace in civil cases,” etc., is not unconstitutional, although it makes no provision for the trial by a jury of twelve men, of actions commenced in virtue of such extended jurisdiction.
    Where a case is dismissed for want of jurisdiction of the subject-matter, the court can only strike the case from its docket, and can render no judgment for costs.
    Where, in such a case, the court erroneously proceeds, sua sponte, to render judgment against each party for his own costs, such judgments, and the proceedings to reverse them, are ex parte in their character; and the statutory provision as to costs, upon reversal in error, does not apply. The statutory rule (Code, sec. 527) must be held to apply only to proceedings of an adversary character; and such judgments will, therefore, only he reversed at the costs of the plaintiff in error.
    In error to the District Court of Lucas county.
    The defendant in error brought a civil action before a justice of the peace of Lucas county, to recover of the plaintiff in error, an amount of principal and interest exceeding two hundred dollars, due on a promissory note, and recovered a judgment for the sum of two hundred and twenty-one dollars, and costs. The plaintiff in error appealed to the court of common pleas, where a similar judgment was rendered, from which he attempted to perfect an appeal to the district court, by giving notice, filing an approved bond, etc.
    The district court, on motion of the appellee, dismissed the appeal for want of jurisdiction; and thereupon proceeded to order each party to pay his own costs, made subsequent to the rendition of the judgment in the common pleas, and execution to issue on their default.
    The plaintiff in error claims that the district court erred—
    1st. In dismissing the appeal.
    2d. In ordering the payment of costs.

      James Murray, for plaintiff* in ei-ror.
    1. The justice of the peace had no jurisdiction of the original cause of action, for the reason that the statute under which the proceedings were had, is unconstitutional and void, in making no provision for a trial by jury. Const. Art. 1, sec. 5; see also Flint River Steamboat Company v. Foster, 5 Geo. Rep. 194; Commissioners of New Town Cut v. Seabrook, 2 Strobh. Rep. 560; Ross v. Irving, 14 Ill. Rep. 179; Wells v. Caldwell, 1 Marsh 444; Harrison v. Chiles, 8 Litt. Rep. 195.
    The only effect of the appeal was to confer on the court of common pleas original jurisdiction, (vide Harrington v. Heath, 15 Ohio Rep. 486,) and from the judgment in that court either party had the right of appeal to the district ' court.
    2. That a court having no jurisdiction can render no judgment for costs, is too well settled to require any citation of authority. Vide Nichol v. Patterson, 4 Ohio Rep. 200; Harrington v. Heath, 15 Ohio Rep. 486.

      Charles Podge, for defendant in error.
   Scott, J.

In relation to the first point presented, it was held by this court, at its last term, in the case of Clark v. Hanna et al., (reported in this volume, page 199,) that, under our statute, an appeal will not lie to the district court, from a judgment of the court of common pleas, rendered in the exercise of its appellate jurisdiction. "We entertain no doubt of the correctness of this construction of the statute.

But it is argued, in this case, that the justice of the peace had no jurisdiction of the action; that the statute of May 1, 1854, “ to extend the jurisdiction of justices of the peace in civil cases,” which purports to give to justices of the peace concurrent jurisdiction with the court of common pleas, in any sum over one hundred dollars and not exceeding three hundred dollars, is unconstitutional and void, for the reason that it does not provide for a trial by jury, in cases embraced within such extended jurisdiction, of which this action was one.

Our state constitution provides, in sec. 5 of the bill of rights, that the right of trial by jury shall be inviolate; and if the act of May 1, 1854, is in clear conflict with this important constitutional provision, it is doubtless void, and as a consequence, the justice of the peace had no jurisdiction in this case, the judgment which he assumed to render was void, the appeal from it was a nullity, the whole proceeding before him was coram non judice, and the court of common pleas acquired original jurisdiction of the case by ■the voluntary appearance of the parties in that court. And an appeal, regularly taken by either party from its judgment in such a case, would clearly bring the cause within the jurisdiction of the district court.

But does the act of May 1, 1854, present a case of plain and dear conflict with the constitution, such as would authorize this court to pronounce the statute null and void ? Admitting the correctness and authority of the decision in the case of Work v. The State of Ohio, 2 Ohio St. Rep. 296, where it was held by this court that the term “jury” was intended, by the framers of the constitution, to mean a jury constituted, as at common law, of twelve men; yet it is certain that, neither under the constitution of 1802, which contained the same provision as to the right of trial by jury, nor under the present constitution, has legislative provision ever been made in this state for the intervention of such a jury, in the trial of civil actions before justices of the peace.

At common law, juries were no part of the machinery of such inferior courts. And it cannot be supposed that the framers of the present constitution, by adopting from the constitution of 1802 the provision relied on, intended any change in this respect.

But admitting this, it is urged, in argument, that at the time of the adoption of the present constitution, the jurisdiction of justices of the peace was limited to sums not exceeding one hundred dollars; that the constitution was intended to secure the right of trial by jury as it then existed; and that the act of May 1, 1854, by extending this jurisdiction, impairs the right as it then existed. Had it been thought expedient to prescribe, by constitutional enactment, the limits of jurisdiction to be conferred on justices of the peace, it would probably have been done by direct and express provision. But that instrument leaves this matter to legislative discretion, and only provides that “ a competent number of justices of the peace shall be elected, by the electors in each township, in the several counties. Their term of office shall be three years, and their powers and duties shall be regulated by law.” Art. 3, sec. 9.

The case of Emerick v. Harris, 1 Binn. 416, is directly in point upon this question. Before the adoption, of the Pennsylvania constitution of 1790, justices of the peace in that state had jurisdiction in cases of debt or demand not exceeding £10; that constitution provided “that trial by jury shall be as heretofore, and the right thereof remain inviolate.” By an act passed in 1794, that jurisdiction was increased, in cases of the same kind, to an amount not exceeding £20. And in the case cited, this statute, upon full argument, was unanimously held not to be unconstitutional.

In all actions tried before a justice of the peace, under the extended jurisdiction conferred by the act of May 1, 1854, an appeal lies from his judgment to the court of common pleas, so that either party may secure the full benefit of a trial by jury. The record shows that the plaintiff in error only failed to obtain that mode of trial in the common pleas, by his own voluntary waiver. The constitution imposes no obligation to renew the tender of the privilege in another court. It is true, that the act of 1854 may subject a defendant to a trial, before a justice of the peace, before he can obtain a trial by jury; still, the right of trial by jury remains unimpaired and perfect. The mode of obtaining it may be more inconvenient than heretofore. But on this subject a discretion is given to the legislature, which must be so far abused, as to be clearly violative of the substantial right, before this court can interfere to nullify legislative action. We think the act under consideration does not present such a case, and, therefore, hold that it is not in conflict with the constitution; that it conferred jurisdiction upon the justice; and that the order of the district court, dismissing the plaintiff’s appeal, must therefore be affirmed.

But the court proceeded further, and ordered that each party should pay his own costs, within ten days, or that execution should issue therefor; and this is assigned for error.

We suppose it to be well settled, that a court having no jurisdiction of a cause, can only strike the cause from its docket, and can give no judgment whatever for costs. Walker v. Snowden, 1 Swan (Tenn.) 193; Mazange v. Slocum and Henderson, 23 Ala. Rep. 668; Strader v. Graham, 18 How. Rep. 602.

So it has been uniformly held in this state. Wilson v. Holeman, 2 Ohio Rep. 254; Nichol v. Patterson, 4 Ohio Rep. 200; Paine v. Comm’rs of Portage County, Wright’s Rep. 417.

The order of the district court, as to costs, having been made without jurisdiction, will therefore be reversed. Rut this order and award of execution were made by the court, s-ua sponte. They were against each party for his own costs, but in favor of neither party. Such an order, if valid, could confer no rights on either party as against the other. Neither of them had the slightest interest in the order made against the other. These orders, therefore, and the proceedings to reverse them, are of an ex parte character; and the statutory rule as to costs, upon reversal, which we regard as referring only to adversary proceedings, does not apply here.

Judgment, as to costs, reversed, at the cost of plaintiff in error.

Swan, Brinkerhoee, and Sutlife, JJ., concurred.


author: Sutliff, J.

text:
    David Campbell v. Solomon Beckett.
    It is error for a judge, during a recess of his court, in the absence of the party and his counsel, and without notice to them, to giro instructions to the jury to whom the case has been submitted.
    In Error to the District Court of Clermont county.

      Campbell sued Beckett for the rent of certain lands occupied and cultivated by one Arthur, during the season of 1854. The facts relating to the merits of the case are not stated, because not essential to an understanding of the point here decided.
    The issue joined was tried in the common pleas to a jury. At the close of the testimony, “ no instructions being asked by either party, the court ordered the jury to take the case and return such verdict as justice required, without giving any instructions.” After the jury had been in their room from sundown until about eleven o’clock at night, they were, at their request, brought into the court room, to have the court explain to them “ a point of law,” which was done, in the presence of the counsel for both parties; and the jury again retired to their room.
    On the next morning about nine o’clock, and during the recess of the court, “ the jury still failing to agree, again requested further instruction in the case,” whereupon the judge “ appeared before them in the court room,” and in the absence of both parties and their counsel, and without notice to either, instructed the jury upon a question of law materially affecting the rights of the plaintiff1; and the jury again retired, and, after further consultation, returned a verdict for the defendant.
    Thereupon the plaintiff moved for a new trial, on the ground, among others, of the irregularity of the judge in thus instructing the jury, in the absence of the parties and counsel, and without notice to either.
    The motion for a new trial was overruled, and judgment entered on the verdict, and plaintiff excepted.
    The district court, on error, affirmed the judgment of the common pleas.
    The plaintiff, for the foregoing cause, among others, now seeks to reverse the judgment of affirmance.

      Penn, Johnston &; Penn, for the plaintiff.
    O. T. Fishbaclc § Son, for defendant.
   Sutliff, J.

Numerous assignments of error were made by plaintiff’s counsel, in the petition in error, in relation to the instructions given to the jury, and the holding of the court upon the trial of the cause in the court of common pleas. Perceiving no just cause of exception to the instructions or holding of the court in respect to any of the other assignments of error, we do not think it necessary to take further notice of them here.

The assignment for error, of the court’s having proceeded to instruct the jury during its recess, in the absence of the party and counsel, and without notice to either, upon a question of law arising in the case, presents for our consideration an important question of practice.

It is provided by our code, sec. 266, that, upon the trial of a cause before a jury, “ either party may request instructions to the jury on points of law, which shall be given or refused by the court,” etc. It is also provided by sec. 270 of the code, that, “ after the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information upon the point of law shall be given; and the court may give its recollection as to the testimony on the point in dispute, in the presence of, or after notice to the parties or their counsel.”

We think these provisions of the code were intended to express, and do in fact correctly express, the common law rule of proceeding to be observed by the court in their instructions to the jury. This rule has never before been expressed by statute law in this state; but we recognize nothing novel in the rule as expressed, or different from that which, we think, has heretofore been generally regarded as the rule of practice in such cases in this state. Nor are we aware of any different rule of practice having obtained in any of the other states, or in England. The instruction of the court to the jury is an important part of a trial; frequently not less so than the evidence offered in the case, and ought not to he ex parte in character. The statute, giving a party the right of exception to the instructions of the court to the jury, impliedly gives him the right of an opportunity to hear the instruction so given. This right rests upon the same reason, independent of the statute, as does the right of hearing the evidence of his adversary in the case. If he deem the evidence of the adverse party untrue or exceptionable, he has the right to show the same by cross-examination, or by rebutting evidence, or exceptions thereto; and to the exercise of such right the presence of the party may be absolutely necessary. It might, perhaps, be sufficient in either case, to justify the court in proceeding with the trial, for notice to be given to the absent party, or his counsel, and thereby an opportunity of attendance given him. And if, afterward, it should appear that the absence had been by unavoidable necessity, such an occurrence might even then be regarded as a good reason for a motion for a new trial, rather than constituting a just cause for reversal upon error.

In the case of Benj. Cook v. Joseph Green, 1 Halst. Rep. 109, it was held by the supreme court of New Jersey, that notice given to the party or his counsel, and their neglect and refusal to be present justified the court in proceeding to instruct the jury in their absence. In that case, after the jury had been out a short time, they sent for the court to explain some point of embarrassment in the case; and the court thereupon called for the parties, when it appeared that the defendant had absconded, and his counsel refused to attend to hear any further instruction to the jury; the court thereupon, in the absence of the defendant and his counsel, proceeded to instruct the jury upon the point upon which such instruction was by them so requested in the case.

Eord, Justice, in delivering the opinion of the court in that case, says : “ If a jury, after withdrawing to consider the cause, get embarrassed on a question of law, they may, and in prudence ought, to ask for the opinion of the justice thereon; and it is his duty to declare the law to them. It should be done in presence of both parties, that they may except to the opinion for error, if they think it erroneous ; and, therefore, they ought to be called, and even sought for, by the constable, or other person, deputed by the court. But, if sought for honestly, at the place of trial, where they ought to be, they cannot be found, or being found, they, or either of them, refuse to attend, such absence or refusal does not release the justice from his duty to declare the law to the jury.”

In the case under consideration, the judge repaired to the court room, into which the jury was conducted, during the hours of recess of the court, when it was neither the duty nor custom of parties or their counsel to be in the court room. The parties and counsel were absent, and received no notice that the court was about to give any instruction to the jury in the case that had been submitted to them. Under these circumstances, we think it was irregular, and manifestly error,.for the court, in the absence of the plaintiff and his counsel, to proceed to instruct the jury in the case; and for this error the judgment of the court of common pleas should have been reversed by the' district court. "We think, therefore, that court erred in affirming the judgment of the common pleas; and, for this cause, the judgment of the district court must be reversed.

Swan, Brmkerhoei? and Scott, JJ., concurred.


author: J. R. Swan, J.

text:
    Edward Sturges et al. v. Marshall Burton et al.
    1. When the plaintiff has but one cause of action, the facts cannot be subdivided so as to present, fictitiously, as might have been done under common law pleading, two or more causes of action.
    2. Where one cause of action is sot forth in two counts, as at common -law, the court may, on motion of the defendant, require the plaintiff to elect upon which count he will proceed.
    3. Where it appears, on the face of the petition, that the cause of action accrued at such a period, that, under the statute of limitations, no action can be brought, the defendant may demur to the petition, on "the ground that the petition does not state facts sufficient to constitute a cause of action. But if the objection does not appear on the face of the petition, and the answer does not set up the limitation, it must be deemed waived.

      4. The following provision in the charter of the Bank of Sandusky, makes the directors of the bank personally liable to an action of debt, at the suit of any creditor, for a penalty, measured by the amount of the excess therein mentioned:

      “ That the whole amount of debt which the said bank shall at any time owe, whether by bill, bond, note, or other contract, shall not exceed twice the capital stock actually paid in, exclusive of the sums due on deposits; and in case of any excess, this act shall thenceforth be null and void, so far as any privileges or advantages are by the same conferred upon the banking company thus created, and the directors under whose administration it shall happen, shall be liable for the same in their natural and individual capacities, in an action of debt against them or any of them, their or any of their respective heirs, executors or administrators, in any court proper or competent to try the same, by any creditor or creditors of said bank, and may be prosecuted to judgment and execution, any condition, covenant or agreement to the contrary notwithstanding, but this shall not be construed to exempt said bank, or the lands, tenements, goods, chattels or funds of the same, from being also liable and chargeable with such excess, and any director or directors who may be absent when such excess was contracted or created, or who may have dissented from the resolution or act whereby the same was contracted or created, may respectively exonerate themselves from being so liable, by having their dissent or absence entered on the records of said bank, and by forthwith giving notice thereof to the auditor of state, and to the stockholders, at a general meeting which they shall have power, and are hereby required to call, by giving ten days notice in a newspaper printed in the city of Sandusky, or having general circulation in Huron county, setting forth in such notice the cause for calling such meeting.”
    In Error to the District Court of Erie county.

      The statement of tbe case will be found in tbe opinion of tbe court.

      Goodwin, for plaintiffs.

      Sadler, Stone, and Beecher, for defendants.
   J. R. Swan, J.

This action was brought in the court of common pleas of Erie county to recover from the defendants, personally, being directors of tbe Sandusky Bank, a penalty under tbe third section of tbe charter of tbe bank, for the unlawful issue of certain bills of tbe bank held by tbe plaintiffs.

Tbe petition alleges two causes of action.

Tbe first count or cause of action states that during tbe year 1848, tbe Bank of Sandusky was a corporation, existing and doing business under “ an act to incorporate, etc., tbe Bank of Sandusky,” passed March 8, 1834. That during said year 1848, tbe defendants were tbe directors of said bank. Tbe petition then recites tbe third section of tbe charter of tbe bank, which is as follows:

“That the whole amount of debts which the said bank shall at any time owe, whether by bond, bill, note, or other contract, shall not exceed twice the capital stock actually paid in, exclusive of the sums due on deposits, and in case of any excess, this act shall thenceforth be null and void, so far as any privileges or advantages are by the same conferred upon the hanking company thus created ; and the directors under whose administration it shall happen, shall be liable for the same, in their natural and individual capacities, in an action of debt, against them, or any of them, their, or any of their respective heirs, executors or administrators, in any court proper or competent to try the same by any creditor or creditors of said bank, and may be prosecuted to judgment and execution, any condition, covenant, or agreement to the contrary notwithstanding ; but this shall not be construed to exempt said bank, or the lands, tenements, goods, chattels, or funds of the same, from being also liable and chargeable with such excess; and any director or directors who may he absent when such excess was contracted or created, or who may have dissented from the resolution or act whereby the same was contracted or created, may respectively exonerate themselves from being so liable, by having their dissent or absence entered on the records of said bank, and by forthwith giving notice thereof to the auditor of state, and to the stockholders at a general meeting, which they shall have power, and are hereby required to call, by giving ten days notice in a newspaper printed in the city of Sandusky, or having a general circulation in Huron county, setting forth in such notice the cause for calling such meeting.”

The petition then avers that in the year 1848, to wit, the 18th September, 1848, while the bank was under the administration of the defendants, “it did happen that the whole amount of the debts which the bank at said time owed by bills, notes and other contracts, did exceed twice the amount of the capital stock of said bank which was then paid in, exclusive of the sums due on deposits; and there was then an excess of indebtedness of said bank over and above the amount of its capital stock paid in.” That the plaintiffs are creditors of- said bank in the sum of five thousand dollars, “being the lawful holders and owners of sundry bank bills, amounting to the sum of five thousand dollars; which notes were issued during the year 1848,” which they file, etc., alleging an excuse for not filing copies. The petition then alleges, “that by reason of the premises, the said directors are liable in their natural and individual capacities for the above sum, which they say constituted a part of the indebtedness of said bank during the year 1848, and when said excess happened, and that they are liable to the action of the plaintiff for the recovery of the said five thousand dollars against them or any of them, or any of their respective administrators. The plaintiff, therefore, asks a judgment against the said defendants for the sum of five thousand dollars, and interest thereon at the rate of twelve per cent., from January 1st, 1849.”

As a second and separate cause of action, the petition alleges the same facts, except that “ the said sum of five thousand dollars constituted a part of the excess of said indebtedness, over and above the amount of stock,” etc., “ and that said excess of indebtedness amounted to more than fifty thousand dollars.”

On motion of the defendants, the plaintiffs were required by the court to elect upon which count they would proceed. To this ruling the defendants excepted; and elected to proceed on the first count.

The defendants demurred for the following causes: 1st, Not sufficient facts. 2. That it appears on the face of the petition that the cause of action is barred by the statute of limitations. 8. Because the indebtedness to the plaintiffs was created before the defendants were directors, and before the excess happened, etc., etc.

The demurrer was sustained by the district court, and the case now comes before this court upon petition in error.

I. As to the order of the court requiring the plaintiffs to elect upon which counts they would proceed.

By the provisions of the code, the plaintiff may unite in one action all causes of action arising from “the same transaction, or transactions connected with the same subject of actionand this includes causes of action legal and equitable, ex contractu and ex delicto. But if the causes of action do not arise from the same transaction, or transactions connected with the same subject of action, then causes of action ex contractu cannot, in general, be united with causes of action ex delicto. Code, sec. 80.

Whenever the facts set out in the petition constitute two or more causes of action, the facts of each cause of action must be separately stated and numbered. Code, see. 86. These separate and distinct statements of causes of action may, for convenience, be called separate counts. Each states the facts constituting a cause of action. If the plaintiff has but one cause of action, the facts cannot be subdivided so as to present fictitiously, as might have been done under common law pleadings, two or more causes of action.

The plaintiffs in this case had but one cause of action, the facts of which they could have set out in one statement. Pleadings under the code must be as liberally construed as the stating part of a bill in chancery by courts of equity; and hence there is no more necessity for stating the facts constituting a single cause of action, separately and in different forms under the code, than there was for courts of equity, or of admii’alty, to have adopted such a practice.

The plaintiffs insist, that the above section of the charter of the bank was susceptible of two interpretations. The first, that the word “ same,” in the sentence “ shall be liable for the same,” refers to the “ whole amount of debts,” etc. The second, that the word “same” refers to the “excess” of debts, over twice the amount of stock paid in; and that in the former ease, if there was an excess, then the directors were liable to a judgment for all the debts; but in the latter case, they are only liable for the amount of the debts, over and above twice the amount of the stock paid in at the time; and the first count was framed to meet the first construction, and the second count to meet the second interpretation. But the counsel truly say, that with “ either construction, the facts would entitle the plaintiffs to recover.” Besides, either construction would not change the facts constituting the cause of action. But we do not decide this question, simply, upon the fact that two counts were unnecessary in this action. The code does not authorize two or more causes of action to be separately stated, when there is in fact but one cause of action. The causes of action required to be separately stated are such as, by law, entitle the plaintiff to separate actions. We are therefore of the opinion that, as it was manifest on the face of the petition, that there was but one cause of action, the court below did not err in compelling the plaintiffs to elect upon which count they would proceed.

II. Can the defendants, on demurrer, interpose the statute of limitations?

The New York code provides that “the objection, that the action was not commenced within the time limited, can only be taken by answer.” No such provision is contained in our code. But it is said, in New York, that even this express provision refers only to cases where the objection does not appear upon the face of the petition, and that, in such case, if the answer does not set up the limitation, it must be considered as waived; but if the objection appears on the face of the petition, it is good ground for a demurrer. Van Santv. PI. (2d ed.) 688.

Where the cause of action appears, upon the face of the petition, to be barred, there is, in law, no cause of action alleged; and in analogy with the practice in chancery, we see no objection, in such case, to the defendant interposing a demurrer, under the code. He may either demur in such case, or answer by setting up the bar. If he neither demurs nor sets up the bar in his answer, he waives it. So,

if the petition does not, on its face, show that the cause of action arose at a period creating a bar, then the defendant must set up the limitation in his answer. Where a new promise or acknowledgment has been made, the plaintiff may of course state the barred demand as a consideration of the new promise, and allege the new promise in writing, as the cause of action.

III. As to whether the third section of the charter was intended to authorize an action of debt for a penalty, or create a contract liability.

The section, in the first place, contains a positive inhibition against the bank creating any liability beyond a certain amount. A violation of this inhibition is vindicated in two ways: 1st. The charter is thereby forfeited. 2d. The directors, who participate in such violation of the law, are visited with an action of debt individually, for the excess of any such liability, which may be prosecuted by any creditor, or creditors of such bank, to judgment and execution.

Where a charter makes the individual stockholders or directors personally responsible for all, or any particular debts contracted by the corporation, in violation of the charter, the inhibited contracts of the corporation become, in general, by force of the charter, the contracts of such stockholders or directors; and the creditors may sue the latter and recover from them, as if the contracts were in fact made by them. The liability in such case, and the action, is upon the contract, and the creditor is limited by the terms of the contract, and recovers the amount of the debt remaining unpaid.

In the case before us, the directors are undoubtedly personally liable to the amount of any excess of contract indebtedness created by them. But the plaintiffs claim, futher, that this liability is a contract liability between the creditor, who brings his action of debt under the statute, and the directors; whereas the defendants claim that it is not a contract liability, hut a penalty, the amount of which is merely measured by the amount of the excess of indebtedness. It is very clear, that if the section of the charter under consideration does, by its own force, create a personal contract between the directors and creditor, who is authorized to sue them, then the action, being on a contract, must have been commenced within six or fifteen years — depending, as to time, whether the contract was by parol, or in writing.

There are these peculiar features in the relation of creditors who are authorized to sue directors under this section, and which, to a majority of the court, very clearly distinguish the ground of the action from contract, and show that the action provided for is a penal action:

1st. The section does not make the directors personally liable on the contracts of indebtedness which created the excess, but solely for the excess itself. 2d. The liability of the directors for the amount of this excess, is not to the persons who hold the contracts of indebtedness created in excess of the limitation, but to any creditor or creditors of the bank. Hence the ground of the action is not the original contracts with the creditors: those contracts simply give any of them the right or title to sue as plaintiff. 3d. The amount of the recovery by any creditor does not depend upon the amount the bank owes him, nor upon the nature of the debt due to him : under the statute, the creditor who sues recovers the amount of the excess, and that, too, whether the debt due the plaintiff forms a part of the excess or not. 4th. The liability of the directors is provided for as in penal statutes, to vindicate a violation of law. 5th. The action provided, is the usual action prescribed by penal statutes to recover a penalty. 6th. The action of the creditor must be debt, whether his contracts with the bank be such as to authorize such a form of action or not.

We hold, that the action provided for by the charter is penal, given to any creditor; for all are equally injured by a violation of the prohibition of the section; given for the benefit of all, and to create a fund for the indemnity of all; and the amount of the recovery is measured by the amount of excess of liability created by the directors.

The judgment below is affirmed.

Brinkerhoee, Scott and Sütliee, JJ., concurred.

Bartley, C. J., dissented.


author: Brinkerhoff, J.

text:
    Isaac P. Thompson, survivor of Charles C. Robey, v. Steamboat Julius D. Morton.
    1. A decree against, and sale of, a vessel in a proceeding in admiralty in a district court of the United States, after such vessel has been discharged on bond, under the act of Congress of the 3d of March, 1847, “ for the reduction of costs and expenses,” etc., where no rights of other parties in the meantime intervene, are not coram nmjudicc.

    2. Where such decree and sale have been fraudulently and collusively procured by the owner of such vessel, and he himself becomes, through his agent, the purchaser thereof, for the purpose of cutting off other claims - against the same, he holds her subject to such claims, the same as if such sale had not been made.
    In Error to the District Court of Lucas county.
    The original action was assumpsit, brought in the court of common pleas of Lucas county, under the act to provide for the collection of claims against steamboats and other watercrafts navigating the waters within and bordering on this state, and authorizing proceedings against the same by name.
    The suit was instituted by Thompson as the surviving partner of Robey, for materials, labor and supplies in the building, repairing, and equipping the boat.
    To the declaration, the defendant filed the plea of the general issue, and two special pleas. To the first special plea, the iffaintiff demurred; and to the second, filed a special replication, to which the defendant demurred. The case was appealed, on this state of pleading, to the district court, and was thence reserved to the Supreme Court, where it was decided at the December term, 1853. 2 Ohio St. Rep. 26. By the decision of the court, at that time, the plaintiff’s demurrer to the defendant’s first special plea was overruled, and the cause remanded for trial to the district court of Lucas county, with leave to the plaintiff to reply issuably to defendant’s first special plea, and to file an additional replication to defendant’s second special plea. The cause was then tried in the district court, on the demurrer of defendant to the two several replications of plaintiff to defendant’s second special plea. Both demurrers were sustained, and a final judgnient rendered for the defendant. To reverse that judgment this petition in error is filed.
    The substance of the second special plea, and the replications thereto, are set out in the opinion of the court.

      Murray $ Dodge, for plaintiff.

      W. Baker, for defendant.
   Brinkerhoff, J.

It is alleged that the court below erred in sustaining the demurrer of the defendant to the plaintiff’s two replications to the second special plea. The substance of that plea is, that after the debt for which the plaintiff sues was contracted, and before the seizure of the boat under process in this case, she was, for another debt, duly seized and sold to a third party, to wit, one Stephen Clement, under a proceeding in admiralty in the district court of the United States for the district of Illinois.

To this the plaintiff replies:

1st. That after the seizure of said defendant by said marshal under said process, the marshal, on the 17th day of May, A. D. 1850, received and accepted a certain bond, given by E. 33. & S. Ward, as principals, and Hiram Wheeler and Stephen Clement as sureties, approved in due form by the collector of the port of Chicago, and given in all respects as required by “ an act for the reduction of the costs and expenses of proceedings in admiralty against ships and vessels, approved March 3d, 1847,” and that said marshal having received and accepted said bond, duly returned the same into court, and released and delivered up said defendant, her anchoi’s, etc.

And the demurrer raises the question, whether the taking of the bond mentioned in this replication had the effect to convert all subsequent proceedings in the district court of the United States, from proceedings in rem to proceedings in personam only, and absolutely to discharge the boat from the jurisdiction of that court, so as to render its subsequent judgment against, and sale of the boat, coram non judice and void? To determine this question, we must look to the provisions of the statute under which the bond was given, which is the act of congress of the 3d of March, 1847, “ for the reduction of costs and expenses,” etc., and provides, “ that in any case brought in the courts of the United States exercising jurisdiction in admiralty, where a warrant of arrest or other process in rem shall be issued, it shall be the duty of the marshal to stay the execution of such process, or to discharge the property arrested, if the same has been levied on, on receiving from the claimant of the same a bond or stipulation in double the amount claimed by the libellant, with sufficient surety to be approved by the judge of the said court, or in his absenee, by the collector of the port, conditioned to abide by and answer the decree of the court in such cause: and such bond or stipulation shall be returned to the said court, and judgment on the same, both against the principal and sureties, may be recovered at the time of rendering the decree in the original cause.” Bright. Dig. 26.

In looking at the terms of this act, it is apparent that the object of its framers was to mitigate the injurious consequences which would naturally ensue to the owner or other rightful claimant of a vessel, from her arrest and detention, in the delay of his business, and in the interruption or breaking up of his voyage, by enabling him promptly to procure her discharge from detention pending “ the law’s delay.” But we can perceive in the terms of the act no intimation of an intention to divest the court ordeiing the arrest, of all jurisdiction over the vessel, and to revolutionize the whole proceeding, so that what had before been a proceeding in rem exclusively, should thenceforward be a proceeding only in personam. Indeed, the contrary intent is plainly apparent on the face of the statute. The act provides, that judgment on the bond, “ against principal and sureties, may be recovered at the time of rendering the decree in the original cause.” Here there is to be not only a judgment on the bond, but also “ a decree in the original cause.” What original cause ? If all jurisdiction over the vessel seized, ceases with the giving of the bond — if no proceeding in rem thereafter exists, then there is no original cause; there is nothing left but the new and supplemental cause on the bond and against the “ principal and sureties,” who are parties to it. But there was an original cause, which was a proceeding in rem against the vessel or boat by name, and this clause of the act is without meaning, unless the vessel or boat remains, constructively at least, subject to the jurisdiction of the court, so that a decree may be rendered against her by name, and that decree be enforced against her by sale, provided, that constructive jurisdiction can, under the of the court, be rendered an- actual one, and such sale can be made without infringing the rights of intervening parties. What would be the legal consequence of a seizure of the same vessel by other parties, on other claims, and under other process, after her discharge under this act, we are not now called on to determine. Eor, in this case, she was, it would seem, voluntarily replaced within the actual control of the district court of the United States, in submission to its process, and was actually sold under such process long before any proceedings were instituted against her in the case at bar.

We think there was no error in the court below sustaining the demurrer to the first replication to the second special plea.

2. The second replication avers in substance that the decree of the court of admiralty was obtained by fraud and collusion between E. B. & S. Ward, then and theretofore the owners of said defendant, and one Stephen Clement, and that said sale of the defendant under said decree was made by fraud and collusion between said parties, for the purpose of cutting off the claims of other creditors of said boat, and that, in the purchase of said defendant, Stephen Clement acted only as agent of E. B. & S. Ward, and purchased for them, and at their request, the said E. B. & S. Ward then and theretofore being, and that they still are, the owners of said defendant.

The demurrer admits the truth of the facts stated in this replication, and so we are to consider them. What is the legal effect of the facts here stated ?

The plaintiff, in the proceeding in the district court of the United States, is not alleged to have been a party to any fraud; nor'is it sought here in any way to affect his rights. He is safe in the possession of so much of the proceeds of the sale of the boat as was necessary to discharge his demand against her.

If Clement had been a bona fide purchaser of the boat on his own account, he would, no doubt, have taken her free of all other claims. Ordinarily, to proceedings in rem in admiralty, all the world are deemed parties, and a sale of a vessel in such proceedings, conveys a perfect title to the purchaser. The Mary, 9 Cranch 144. This is the rule ; but its extent is to be determined by the reason and policy on which it rests. Idem. The reason and policy of the rule is, to secure, so far as may be, sales at fair prices by the protection of bona fide purchasers. To secure these ends, all the world are, in contemplation of law, deemed parties to a proceeding in rem in admiralty. But all the world are not in fact parties; and the rule seems to be but a legal fiction, which, like other legal fictions, will be applied for the advancement of justice, but never for its subversion. Wood v. Lessee of Ferguson, 7 Ohio St. Rep. 291. Tke plaintiff in this case was no party, in fact, to the proceeding in the district court of the United States. He received no portion of the proceeds of the sale there. ‘Whatever was left of those proceeds, if any, after discharging the decree and costs in favor of the plaintiff in that proceeding, was retained by the owners. In short, the real substance and effect of that proceeding were, that the owners of the boat, through the forms of law, paid off the claim against her in favor of the plaintiff in that proceeding, and left the title to the boat in statu quo; and this, collusively and fraudulently, for the purpose of cutting off' other claims against their boat. Whether the plaintiff can make good the averments of his replication in proof, may be a matter for trial hereafter. But, taking those averments as true, we think the boat ought to be held to stand the same as if it had voluntarily paid off the claim against it in the district court of Illinois; and that its owners can gain nothing, and ought to gain nothing, by their indirection.

The principle involved in this case seems to us to have much resemblance to that established in Douglass v. Dangerfield, 10 Ohio Rep. 158, where it was held, that one in the possession of lands, claiming title, and in whose name it is listed for taxation, can acquire no additional interest by suffering tbe lands to be sold for taxes and purchasing the same himself.

It is not necessary for us to hold that in no case will a purchase of his vessel at judicial sale by the owner, cut off other existing claims against the vessel; nor to decide what would be the effect of a sale by the owner, after such purchase, to other bona fide purchasers, prior to a subsequent seizure. But, it seems to us, that to hold that an owner may fraudulently and collusively procure or permit his boat to be sold under the forms of law, and himself become her purchaser, for the purpose of cutting off just claims against her, would be to permit the law to be defrauded through the medium of its own forms; and would open a way for resort to dishonest expedients, which it was a leading object of our watercraft law to prevent.

We are of opinion, therefore, that the court below erred in sustaining the demurrer to the second replication to the second special plea; for which cause the judgment of the district court ought to be reversed.

Judgment reversed, and cause remanded for further proceedings.

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


text:
    John Coen et al. v. Jonathan White et al.
    Under the “ act authorizing the trustees of townships to establish water courses and locate ditches in certain cases,” passed May 1,1854, where, upon appeal to the probate court, a commission of review has been appointed agreeably to statute, it is competent for such commission to report against the location of the proposed ditch in toto.

    Such report of the commissioners of review, if full, pertinent, and not impeached for fraud, is final in the case, and the judge of probate has no authority, under the statute, to set the same aside, supersede the commission, and appoint a second commission of review.

      Dr error to the District Court of Wood county.
    The case is stated in the opinion of the court.

      Murray § Dodge, for plaintiffs in error.

      J. II. Reid, for defendants in error.
   Scott, J.

From the record in this case, it appears that on the 11th of July, 1855, the trustees of Plain township, in Wood county, met, on the application of John Coen, and located a certain ditch, and apportioned the labor and expense of its construction, among those interested. This location and apportionment were completed on the 13th July. On the 3d day of August the defendants in error filed with the probate judge of the county, a petition for the appointment of commissioners of review, and on the same day gave bond according to law.

On the 6th day of August, 1855, the probate judge appointed John Bates, N. D. Blinn and George Powers, commissioners of review, and issued to them an order to meet at a certain time and place, and review the location of the ditch, etc. On the 7th day of September, they reported against making the ditch, on the ground that it was unnecessary, and would be of no benefit to the owners of the lands in its vicinity, whether located as had been done by the trustees, or as asked for by any of the parties, and that there was no outlet, nor any provisions for making one.

To this report the plaintiffs in error filed exceptions, among which are that the commissioners report against any ditch, when the order only authorized a change in the location; that the report in that particular did not conform to the provisions of the statute; and because the report was against a ditch on the ground of want of an outlet, when the reviewers took no level of the lands, and had no means of determining that fact except by the statements of the appellants. On the 25th of September, 1855, said exceptions came on to be heard before said probate judge and were sustained, and the report of said commissioners of review set aside.

The court then appointed Collister Haskins, John Johnson, and Henry Shively, commissioners of review in the room and place of those removed, and on the same day issued to them an order to review said ditch, and on the 3d October, 1855, they reported “that we would indorse the proceedings of the trustees of said township, believing that said ditch is necessary for the benefit of all concerned, and the apportionment and costs just and right.”

Thereupon the probate court confirmed said report, and rendered judgment against the appellants for costs and expenses of review.

A petition in error was then filed to reverse the order of the probate court, which was affirmed in the court of common pleas, at its March term, 1856.

A petition in error was then filed in the district court of "Wood county, and said court, at its May term, 1856, reversed the judgment of the court of common pleas, and the order of the probate court subsequent to the filing of the report of the first commissioners of review.

The plaintiffs in error now seek to reverse this judgment of the district court, and make the following assignment of errors:

1. That the district court erred in reversing the judgment of the court of common pleas.

2. In reversing the order and judgment of the probate court.

3. That the district court has no jurisdiction to review the proceedings of a probate court in civil cases.

4. That the district court erred in rendering judgment for the costs that had accrued in the common pleas and probate courts.

These last three alleged errors do not require separate examination. If there was no error in reversing the judgment of the common pleas, then, the code (sec. 526) clearly authorized the district court to “ proceed to render such judgment as the court below should have rendered.” If the court of common pleas should have reversed the order of the probate court, such reversal by the district court, and judgment for costs, were neither without jurisdiction nor erroneous. They were simply the judgment which the court of common pleas should have rendered.

Our inquiries, then, may be confined to the error first assigned.

The proceedings, in this case, by the township trustees, and in the probate court, were had under the “act authorizing the trustees of townships to establish water courses and locate ditches in certain cases,” passed May 1, 1854. Swan’s Rev. Stat. 333. The main question in the case is, as to the power of the probate court under this statute to set aside the report of the commission of review, and thereupon to supersede the commissioners, and appoint a new commission in their stead. It is said, in argument, that this was properly done, because the report of the commissioners was against the location of a ditch in toto, whilst under the statute, neither they nor the trustees were authorized to exercise any discretion on this question, but could only decide, in case of disagreement among the parties interested, where the ditch should be located and opened, and apportion the work and expenses equitably. Is this a proper construction of the statute? Ve shall not quote the provisions of the statute in detail, but it is clear that it permits any one person holding and owning lands which he may desire to have drained, to make application to the township trustees for the location and opening of a ditch for that purpose. Such proposed ditch may'affect the interests of twenty other persons.

The second section requires the applicant to give notice in writing to all persons interested, if resident within the county, or by publication in a newspaper if not so resident, before any action can be taken in the case by the trustees. All these other interested persons may regard the proposed ditch as wholly unnecessary. The trustees may be satisfied, upon examination, that it would be impracticable to locate the ditch so as to benefit any of the parties in a degree at all proportioned to the expense which the work would involve, or to the injury which it would inflict upon others. In short, they may regard the applicant’s project as wholly unreasonable. But are they notwithstanding bound, against all discretion, to proceed and locate the ditch? The language of the statute must-be clear, and unmistakable indeed, to justify a construction so unreasonable. But the language of the first section is, “said trustees shall cause said water course or ditch to be located and surveyed, if necessary.” The important clause, “if necessary,” may very fairly be construed as applying to the location as well as to the survey. The trustees are required neither to locate nor to survey, unless in their judgment it be necessary.

But the order which the trustees may make in the case, if unsatisfactory to any of the parties, may be vacated by an appeal to the probate court. The tenth section provides that “when any person shall feel aggrieved by the location of any such ditch or water course, or the award and apportionment of such labor and expense by the township trustees, he or she may, within ten days next ensuing, give notice in writing, to all other persons interested in the same, of his intention to appeal from the decision of the trustees as aforesaid, to the probate judge of the proper county, and shall, within fifteen days thereafter, make application to said judge of probate, setting forth his or her grievances, and praying him to appoint a commission to review the same.”

The eleventh section requires the appellant to file a bond with sureties in the penal sum of one hundred dollars, conditioned for the payment of all costs that may accrue in consequence of such, application for a commission of review.

The twelfth section requires the probate judge thereupon to “ appoint a commission of three disinterested freeholders of said county, not residents of the township or townships in which such proposed ditch shall be located, who shall, within-days thereafter, examine and review said proposed ditch or water course, and the land adjacent thereto, and forthwith make a report of their proceedings to said probate judge.”

The thirteenth section provides that “ if it shall appear from the report of the commission of review that said ditch or .water course was properly located, and equally awarded in labor and expense by said township trustees, the said ditch or water course shall be cut or opened in said location; and if, from the report of said commission, it shall appear that the said proposed ditch or water course was improperly located, or improperly awarded or apportioned, either as to labor, expense or damage, the same shall be changed and located as shall by the said commission be deemed just.”

¥e think it apparent from these provisions of the act, that the appeal from the decision of the township trustees vacates that decision throughout, upon every question which came properly before the trustees. Their whole action in the case may be reviewed. The appellant may have “ felt aggrieved ” mainly because the trustees decided that a ditch should be located. And if so,, he had a right to have that decision reviewed.

The probate judge having once regularly appointed commissioners of review, who accept the appointment, and discharge their duties under it, his power, quoad hoc, would seem to be exhausted. His final order in the case must conform to the report of the commissioners, regularly made, upon the subject-matter confided to their discretion and judgment, which the statute makes final. He can only look to this report in determining all questions as to the location of tbe ditch, and the apportionment of the work and expenses among the parties. He has no power to review the exercise of the discretion conferred on the commission, much less to supersede the commission and appoint a new one in its stead. His jurisdiction in the case is special, and limited to the statutory grant of power. But we look in vain through this act for any authority to appoint a second commission of review. s

"We do not mean to say that the probate judge could not, after the appointment of the commission, fill vacancies occurring in the body, by death or otherwise, before it became functus officio. No such question is before us. The commissioners in this case fully dischai’ged their functions ; they presented a pertinent report, decisive of the matter in controversy. Their discretion may have been unwisely exercised, but the statute makes their decision final nevertheless, and permits no farther contest, unless by a proceeding de novo.

The proceedings under the second commission of review were, therefore, coram non judice, and the orders made therein were properly reversed by the district court.

Judgment of the district court affirmed.

Swan, Brinkerhoee and Sutliee, JJ"., concurred.


text:
    William Affleck’s Administrator v. B. Snodgrass’s Administrator, Widow and Heirs et al.
    A mortgage was executed by S. and X, his wife, to A. Upon the decease of S., his administrator, in 1845, filed a petition for the sale of the real estate of S., including, as a part of the real estate, the premises mortgaged; alleging that A. held a mortgage, and making him and the widow and heirs of S. parties defendant, and further alleging that the widow was entitled to dower. A. was duly served with process; dower for the whole real estate was assigned in that portion of the premises which was covered by the mortgage; sale made of the same, subject to the dower assigned, and proceeds thereof paid to A.; and the residue sold free of dower.
    Held: On petition of A. to foreclose, etc., the mortgage, that he was concluded, as against the widow, etc., in respect to the dower assigned to her.
    Reserved in the District Court of Washington county.
    This, is a petition for the sale of mortgaged premises, to pay the debts secured by a mortgage which was executed by Snodgrass and his wife, now Julia Ann Douthitt, wife of John Douthitt, two of the defendants.
    The answers of Snodgrass’s administrator, and of Douthitt and'Wife, set up that the administrator of Snodgrass, the mortgagor, in 1845, petitioned to sell all the real estate of Snodgrass, including the mortgaged premises, to pay the debts due from his estate. Affleck, the mortgagee, was made party defendant, and duly served with process; an order to assign dower and appraise was made, and the dower of Julia Ann Douthitt in all the decedent’s real estate was assigned in 35 acres of the mortgaged premises. All the lands were sold free of dower except the 35 acres; that was sold subject to dower, and the proceeds thereof paid to Affleck, the mortgagee.
    The plaintiff claims that he is entitled, in this petition, to have the whole of the mortgaged premises sold as if no sale had been made, and the proceeds applied, first, in refunding purchase money to Julia Ann Douthitt, the purchaser at the administrator’s sale, and balance in satisfaction of his mortgage; or that the dower estate of Julia Ann Douthitt, being a life estate in 35 acres of the mortgaged premises, be sold, and the proceeds applied in satisfaction of the mortgage.

      Clark ij1 Ewart, for plaintiff, insisted:
    1st. The court of probate had no power to assign dower in lands mortgaged, where the dowress joined her husband in the mortgage, until the mortgage was satisfied; and hence the proceedings set up in the answer are void.
      Sheafe v. O’Neil, 9 Mass. Rep. 9 ; Inhabitants of Raynham v. Wilmouth, 13 Metc. Rep. 415; Gilliland v. Administrator of Sellers, 2 Ohio St. Rep. 223.
    2d. The rights of dower in an equitable interest in lands, which was the interest of Snodgrass’s estate in the mortgaged premises, must be assigned in rents and profits in the equity, that is, the value of the premises after satisfaction of the mortgage. Swan’s Rev. Stat. 385, sec. 151.
    3d. The widow was a party to the mortgage, and a party to the proceedings of the administrator, set up in the answer; and in accepting her dower in land, in which she knew she had relinquished dower in the mortgage, accepted dower at her own risk and subject to all incumbrances. Jones et al. v. Brewer, 1 Pick. Rep. 314.
    4th. Nothing short of payment or sale of the mortgaged premises can discharge a mortgage. Davis v. Maynard, 9 Mass. Rep. 242.

      Whittlesey & Towne, for defendants Douthitt and wife, insisted:
    The purchaser at the administrator’s sale, took the land discharged of the mortgage lien. St. Clair v. Morris, 9 Ohio Rep. 15; Ewing v. Higby, 7 Ohio Rep. 201; Bank of Muskingum v. Carpenter’s Adm’r, Ib. 71.
    The dower estate of Mrs. Douthitt is not subject to sale to relieve the plaintiff. If he is aggrieved by the assignment of dower, his first step should be to have the order for the assignment of dower set aside and reversed.
   J. R. Swan, J.

The facts of this case show that the mortgagee was made a party defendant to the petition of the administrator', for the sale of the decedent’s lands, and was duly served with process. The petition of the administrator alleged that the widow was entitled to dower in the whole premises. The mortgagee did not answer, and the court ordered dower to be assigned; and dower was assigned in that part of the premises which were mortgaged, as well in satisfaction of the right of dower in the mortgaged premises, as also of the right of dower in premises not covered by the mortgage. The administrator then proceeded to sell, as unincumbered by dower, the premises not covered by the assignment of dower; and sold, subject to dower, the premises assigned to the widow, and paid over to the mortgagee the avails of the last mentioned sale. Now, if the mortgage still remains operative and unaffected by the assignment of dower, the widow must either lose her dower in all the premises, or the title of the purchaser from the administrator must be subjected to the dower estate.

That the court of common pleas, upon petition for the sale of decedent’s lands, may assign dower, is not a matter that can be questioned. The statute provides, that “ if the deceased left a widow entitled to dower, the court shall appoint three judicious, disinterested men of the vicinty to set off and assign, hy metes and bounds,” etc., “ the dower of the widow of the deceased.”

The cases determined in Massachusetts, it will be readily perceived by comparing their statute with ours, and the decisions in this state as to the legal estate of a mortgagee in lands, can have no application to the case before us. Besides, the jurisdiction of the court of common pleas over the assignment of dower, was complete, independent of its probate jurisdiction.

The question before us is not whether, where a mortgagee, who is not made a party to a petition for the sale of lands and assignment of dower, is affected or concluded by the assignment; but whether, if made a party, and dower is assigned in the mortgaged premises without objection, he can afterward assert that his claim to the premises is free from dower. We are of the opinion that he is concluded. The question whether the decedent left a widow, and whether she was entitled to dower, was a proper subject of inquiry as between the parties to the petition; and as against the widow and the purchaser at the administrator’s sale, the matter must be considered as judicially determined.

We are referred to the case of Gilliland v. Sellers’s Adm’r, 2 Ohio St. Rep. 223, as intimating by analogy, that the court, upon petition for sale of decedent’s lands, had no authority to determine whether the widow was entitled to dower or not. In that case, coupled with a petition to sell lands, the administrator asked and obtained from the court a decree, not simply determining the priorities of liens of mortgages, and the application of usurious interest to the discharge of a mortgage debt of the intestate, but also a decree “ for the cancellation of the mortgage securities.” The court say, and they decide only, that, upon a petition for the sale of lands, the administrator cannot proceed against creditors of the estate, to settle and adjust their claims by decree; and that a decree in such case, of a probate court, for the cancellation of mortgage securities, is beyond its jurisdiction.

If, in the case of Gilliland v. Sellers’s Adm’r, the probate court had, by reference to a master or otherwise, determined simply the priorities of mortgage and judgment liens, as the statute authorizes — Swan’s Rev. Stat. 385, sec. 148 — instead of settling by decree, as in chancery, not only the contested rights of creditors as to the amount and validity of the debts secured by those liens, but decreed the cancellation of securities, it is probable the judgment of the court would have sustained the proceedings of the probate court. Be that however as it may, we cannot find any thing in the facts or opinion of the court, in the case of Gilliland v. Sellers’s Adm’r, to authorize us to hold that the probate court had no jurisdiction of the question^ whether the widow was entitled to dower or not in the mortgaged premises.

Judgment for defendants.

Brinkerhorr, Scott and Sutlire, JJ., concurred.


text:
    John Hamor v. John R. Moore’s Administrators.
    The defendants’ intestate executed the following paper : “ For value received, I promise to pay to Mrs. Hamor, wife of John Hamor, the sum of $300, as a small recompense for the kindness shown to mo by her. The executors of my last will and testament are hereby directed to pay the above to Mrs. H., or her sons, Moses and John, after my decease. “Attest: Philip Eraos. JOHN E. MOORE.
    “Feb. 28, 1850.”
    And delivered the same to the subscribing witness with injunctions to deliver it to Mrs. Hamor after his death; which was done. Held:
    1. That this was not a gift inter vivos, nor a gift causa mortis, nor was it good as a testamentary disposition.
    2. That the “kindness” mentioned in the paper, being acts of friendship and hospitality merely, done and accepted at the time as gratuitous, does not, in law, constitute a good consideration to support the express promise.
    Motion for a new trial. Reserved in the district court of Hamilton county.
    The facts are stated in the opinion of the court.

      F. A. Ferguson, for plaintiff.
    The plaintiff’was entitled to recover because:
    1st. The facts show a consideration sufficient to support the promise of the deceased. Hatch v. Pursel, 1 Fost. (N. H.) Rep. 544; Livingston v. Rogers, 1 Caines Rep. 584; Comstock v. Johnston, 7 Johns. Rep. 87; Sanders v. Pope, 1 Ohio Rep. 488; Parish v. Stone, 14 Pick. Rep. 207.
    2d. There was a sufficient delivery of the note. Riggs, in holding the note, acted as the trustee of Mrs. Hamor, and not as the agent of Moore. Moore v. Darton, 7 Eng. L. & E. Rep. 184.
    Sd. It is not material whether the note was delivered before or after the death of Moore. The note .is evidence of a recognition, upon his part, of an indebtedness and of an obligation to pay, with an express promise to do so.

      Fox § French, for defendants.
    No recovery could be had upon the note :
    1st. Because it never was, in fact, delivered; and, therefore, never became a contract in the lifetime of Moore.
    2d. If it had been delivered to Mrs. Hamor by Moore, in his life, it was wholly without consideration, and therefore void.
    3d. It cannot be in part recovered on, upon the ground that there was some consideration. 1st, because there is no proof that Moore was indebted to Mrs. Hamor; 2d, because the note was not delivered in the lifetime of Moore, and was therefore not an obligatory contract for any amount.
    4th. It cannot be recovered on on the ground of its being a donatio causa mortis, for the reasons already urged. Parish v. Stone, 14 Pick. Rep. 206; Holliday v. Atkinson, 5 Barn. & Cress. Rep. 501; Halley v. Adams, 16 Verm. Rep. 206; Smith v. Kittridge, 21 Verm. Rep. 238; Raymond v. Setlick, 10 Conn. Rep. 486; Harris v. Clarke, 2 Barb. S. C. Rep. 96; 3 Comst. Rep. 110; Craig v. Craig, 3 Barb. Ch. Rep. 116.
    5th. "We submit to the court whether, under our statute, a donatio causa mortis can be recognized at all in Ohio ; whether any disposition of a man’s estate can be made in his last sickness, unless by will, either written or nuncupative, as provided by our statute; no such disposition was recognized by the common law. By the civil law such a disposition was protected, provided five witnesses were present. Is not our statute, providing for a noneupative will, a substitute, and the only substitute provided by our law, for the civil law provision for gifts made during the last sickness? See 2 Kent’s Com. (old ed.) 444; Ward on Legacies 56; 4 Kent’s Comm. 576, old ed. 517; Ib. 555; Cotleen v. Missing, 1 Mad. Ch. Rep. 107; Dale v. Lincoln, 31 Maine 424; Sims v. Walker, 8 Humph. Rep. 505.
   Brinkerhoff, J.

This is an action of assumpsit, brought prior to the adoption of the code of civil procedure, in the commercial court of Cincinnati; and the declaration contains only the common counts on promises by the intestate in his lifetime, and like counts on promises by the administrators. The case having been appealed to the district court, was submitted, on the evidence, without the intervention of a jury; and the court having found the issue of non-assumpsit for the defendants, the plaintiff moved for a new trial, on the ground that the finding of the court was against the law and the evidence. That motion was reserved for decision here.

The testimony embodied at length in the bill of exceptions, discloses substantially the following state of facts:

The defendants’ intestate, Moore, was an aged man, and a widower, residing on his farm in the near neighborhood of the farm and residence of the plaintiff, Hamor and his wife. The old man was a very frequent visitor at the plaintiff’s house — as often, on an average, perhaps, as twice a week. He came and went with much the same freedom and familiarity as if he were a member of the family, and was always received with cordial kindness and hospitality. "When present, he always had a seat at the table, and, in the preparation of food, the plaintiff’s wife took pains to consult and gratify his tastes and appetites. She also often sent cakes and other delicacies to the old man at his residence; and, in harvest time, he frequently got liquor from the plaintiff for himself and his harvest hands.

Shortly before his death, the intestate executed a paper writing, of which the following is a copy:

“ For value received, I promise to pay to Mrs. Hamor, wife of John Hamor, the sum of $300, as a small recompense for the kindness shown to mo by her. The executors of my last will and testament are hereby directed to pay the above to Mrs. Hamor, or her sons, Moses and John, after my decease.
“Attest: Phiiup Riggs. JOHN E. MOOKE.
“ Feb. 28th, 1850.”

Moore placed this paper in the custody of Biggs, the subscribing witness, with directions to deliver it to Mrs. ITamor, after his (Moore’s) death; which was done.

Biggs had previously drawn a will for the old man, and was named executor therein; but for some cause, not disclosed in the case, the same has never been proved and admitted to record.

On the foregoing state of facts, did the court below err in finding that the plaintiff was not entitled to recover ?

1. Here was no gift inter vivos, for there was no delivery during the life of the intestate, and no such delivery was intended by him; and to a valid gift inter vivos, delivery and acceptance, either actual, cozzstruetive, or symbolical, are every where held to be essezrtial. And had the paper, by the intestate or his order, been delivered in his lifetime, nothing would have passed to the donee but the title to the paper as paper; for, if there was no legal considez’ation, the promise would be void; while, on the other hand, if there were a good consideration to sustain the promise, it would not be a gift — it being essential to a gift that it should be voluntary and without consideration.

2. Nor do the facts present the case of a gift causa mortis. A delivery during the life of the donor, and subject only to his implied power of revocation during life, is as essential to a good gift causa mortis as to a gift inter vivos. And even if there had been a delivery of the paper during the life of the donoz’, “ the gift of the makei-’s own note is the delivery of a promise only, and not of the thing promised, and the gift, therefore fails.” Kent’s Com. 438. Harris v. Clarke, 3 Comst. Rep. 93.

3. The paper is not good as a testamentary disposition; because it is not executed in the manner which the statutes prescribe.

4. But the plaintiff’s counsel contend, that the paper is evidence of a promise by the intestate; that the case discloses a consideration in law to support such promise; and that assumpsit, therefore, may well be supported upon such, promise. "We do not think so., The generous kindness and hospitality displayed by the plaintiff and family towards the intestate, were, doubtless, truly commendable, and laid a just foundation for the gratitude which he manifested ; and it may be a matter of regret that his gratitude should be baffled by legal objections; but it does not appear that the plaintiff ever made, or intended to make, any charge against the intestate for the benevolence of which he was the object, and, in view of the whole evidence, the contrary is very apparent. Had it been intimated that these acts of kindness were done with a view to a pecuniary reward, both parties would, probably, have resented the imputation as a slander on the motives of their author. And it seems now to be the settled doctrine of the courts, that a mere gratuity, which, without a special promise, would not, in law, imply a promise to pay, is not a good consideration to support an express promise to pay —or, in other words, a mere moral obligation, where a legal obligation never existed, is not a good consideration for an express promise. 1 Pars, on Contr. 358, and notes.

Motion for new trial overruled, and judgment on the. finding of the court.

Swan, Scott and Sutliee, JJ., concurred.