text:
    The State of Ohio v. Nathan Guilford et al.
    Where a loss accrues to a trust fund through the default of one of five trustees, his co-trustees will not he held responsible for such loss if they have acted in good faith and exercised that vigilance over the fund which a man of ordinary prudence will exercise over his own property.
    This is a bill in chancery, reserved in Hamilton county.

      The bill charges that Thomas Hughes, formerly of Hamilton county, died in 1824, leaving a will, by which he devised cer tain property for the support of schools for destitute children in Cincinnati.
    The clauses of the will bearing on this matter, were as follows:
    “ It is my will, and I do order and direct, that all the rest and residue of my said land and property aforesaid, shall be appropriated and applied to the maintenance and support of a school, or schools in • the city of Cincinnati, for the education of poor destitute children, whose parents or guardians are unable to pay for their schooling.
    “ The said property, the management of the funds. arising therefrom, the appropriation thereof, and those who are to receive the benefit thereof, I do place under the control of a board of trustees hereafter to be named. And I do hereby nominate, constitute and appoint William Woodward, Jacob Williams, Nathan Guilford, William Greene and Elisha Hotchkiss, all of the city of Cincinnati aforesaid, a board of trustees to execute the trust aforesaid. * * * And I do hereby give and devise to the said trustees above named, and their successors forever, to be appropriated in manner aforesaid, all the rest and residue of my said land and property aforesaid, to be by them kept and the rents and profits thereof applied in manner aforesaid, and for the uses and purposes aforesaid, or to be by them sold and disposed of, and the avails thereof' to be funded, and the interest thereon to be appropriated for the uses and purposes aforesaid, as in their discretion shall best promote the means of education, as hereinbefore set forth.”
    The bill further states that Woodward died in 1833, and George P. Torrence was appointed his successor, and that Jacob Williams died in 1840, and Samuel Lewis was appointed to succeed him. That in July, 1835, money to the amount of $1,000 had come to the hands of the trustees, which they had failed to appropriate, and refuse to account for; that this sum was increased until, in July, 1840, the trustees had received $9,000 more than they had applied under the trust, which sums they directed to their own use, or so neglected the trust that the whole was lost; that Jacob Williams died insolvent, and Milo G. and Thomas Williams, are his administrators. The bill prays answers on oath; that the trustees may be compelled to pay the sums specified to the use of the will, and for further relief.
    Hotchkiss, one of the trustees, being absent from the state, was not served with process and has not answered.
    The answer of Samuel Lewis states that he was not a- trustee at the time of the transactions complained of, and denies that he is responsible for them.
    The answers of the administrators of Jacob Williams deny that he was guilty of any fraud, but admit the defalcation, and ask the court to ascertain the amount by deducting from the sums received by their intestate a reasonable compensation for his services.
    The supplemental answer of Nathan Guilford, filed February 25th, 1847, states substantially, that said Thomas Hughes was persuaded and finally induced by the said Jacob Williams, who had long been his intimate friend, to make the bequest named in the bill of complaint, and that the other trustees were appointed by said Hughes at the instance of said Williams, who at all times before his defalcation and death, exhibited a most active and laudable zeal in the object of such bequest and in the punctilious and faithful execution of the trust. That said Williams, having procured the bequest to be made, and well understanding the wishes and intentions of the testator in relation to the same, and being a man of active benevolence, of sound sense, and in high estimation for honesty and integrity, had deservedly much weight and influence with his co-trustees as to the disposition to be made of the property, and the application of the funds arising therefrom.
    Immediately after the probate of the will and the acceptance of the trust, the defendant and his co-trustees carefully examined the property bequeathed, and inquired into its capabilities, and the probable revenues it could be made to yield.

      Said property consists of a tract of land containing about thirty acres, north of and adjacent to the city of Cincinnati, a small portion of which lies at the foot of the hills on the plain of the city, but much the greater part, some twenty-three acres, runs over the precipitous hill which bounds the city on the north.
    At the time of the death of Hughes, in 1824, the settled part of the city had not extended into the neighborhood of this property, which was then - occupied as pasture land and considered of little value. Upon consultation, it was concluded upon by the trustees, to survey, lay off into lots, and sell on permanent leases the portion of said estate at the foot of the hill, and to rent the residue temporarily for pasturage. This plan was carried into effect. In the spring of 1827, the small portion on the plain was laid off into lots, some thirty or forty in number, and the lots were sold at auction on perpetual leases, for a yearly rent of from twelve to thirty dollars each.
    This defendant was at first appointed to collect the rents and keep the accounts with the tenants, and acted in that capacity for about two years, when the said Jacob Williams, then universally esteemed a man of wealth and of unquestionable honesty, was appointed in his stead. Said Williams continued to act as such collector, and most faithfully performed his duties as such for many years, and until the defalcation and fraudulent embezzlement referred to in the bill of complaint.
    That the rents which had accrued anterior to the 7th of July, 1835, had been for the most part appropriated to the support of indigent pupils at the Woodward High School, and at this date the said Williams reported a balance in his hands of something over eighty dollars. About this time, it was determined by the board that the fund should be suffered to accumulate for the purpose of ultimately erecting an edifice and establishing a High School for girls. In 1836, the residue of the land, about twenty-three acres, was sold to one Reeder, by lease, for ninety-nine years, renewable forever, at an annual rent of eighteen hundred dollars.

      But little if any thing was received on, this lease for two or three years after its execution, as said Reeder became embarrassed; and sold the same to McLeary & Bissell, who, failing in business,-assigned to Greenbury Dorsey, of New Orleans, who also becoming insolvent, assigned the same for the benefit ■of his creditors. The trustees, therefore, naturally considered the lease as forfeited, and made no order or arrangement for the investment of the funds arising from it.
    That said Williams received the rents due on the Reeder lease from the assignees of said Reeder, constituting the principal part, if not the entire amount of his defalcations, without the order of the other trustees, and without the knowledge or ■consent of this defendant, and without any other authority from the other trustees than what had been conferred upon him by his appointment of collector as before stated, of the •small portion of the estate first leased.
    And this defendant says, that soon after it was ascertained that said Williams had received the money, or a portion of the same, from the Reeder lease, the board of trustees held á meeting to determine upon the best mode of investing said funds, at which said Williams offered to allow six per cent, interest for the same on a loan to be secured by mortgage on his property ■on Main street. But as a majority of the board preferred to have the funds placed where they Could be commanded with certainty when wanted, they directed said Williams to place the amount in his hands in the trust department of the Ohio Life Insurance and Trust Company, at such interest as said •company w-oul'd allow.
    That at a subsequent meeting of the board, said Williams ■exhibited his bank book with said company, to show that he had ■complied with the order of the board.
    And this defendant says, that he had full faith and confidence in the integrity of said Williams until he was informed by the •defendant, Samuel Lewis, that said Williams had, in his opinion, converted a part or the whole of said funds by him received, to his own use; and although said Williams was generally es« teemed a man of property, and good for a much larger sum of money, yet at a meeting of the board held soon afterwards, an order was passed directing him to report the amount of funds on hand, where the same was deposited, how invested, etc.; and this defendant and his co-trustee, Wm. Greene, were appointed a committee to examine into the accounts and funds. This defendant and the said Wm. Greene, made frequent and urgent applications to said Williams for the report aforesaid, and for an inspection of his books of account, but were put off from time to time by said Williams, who said that he was not much of an accountant or book-keeper, but he would get his son to make out the account. After several fruitless attempts to bring said Williams to a settlement, or to get him to render an account, the said Samuel Lewis proposed to make application to the court of common pleas for a citation which would compel him to render an account, and to comply with the order of the court, which this defendant expected would be, that if said Williams had used any portion of the funds, he would be ordered to place the same in the Trust" Company, where the Board had .ordered them to be deposited. A citation, dated June 8th, 1840, was accordingly filed on the relation of the said Lewis. On the following 17th of the month after the date of said citation, the trustees held a meeting and passed an order directing said Williams forthwith to report an account current as to 'the state of the funds in his hands, and the disposition made of the same; and in pursuance of said order, said Williams, on the 20th of said month, made a report and exhibit prepared by the assistance of the secretary of the board of trustees, showing receipts to the amount of $6,255.87, and disbursements to the amount of $1,015.81, leaving a balance in his hands of $5,240.06. The president of the board was directed to file the report in court in answer to said citation. Said Williams was soon after taken suddenly ill, and died in a few hours, and before the hearing in said citation. He denies that he acted negligently or improvidently in the management of the trust, but claims that the'loss, if any, will accrue from a sudden and unexpected departure from the path of integrity, by one in whom a whple community confided, and in whom the defendant and his colleagues had a right to confide.
    The answers of William Greene and George P. Torrence, are in'substance the same.
    Replications are filed to these answers, and testimony is exhibited on either side, which does not materially change the state of facts claimed to exist by Mr. Guilford in his answer.

      Chase, Ball Soadley, and Carter, for complainant.

      V Worthington, Walker Kebler, and Coffin Mitchell, for defendants.
   Spalding, J.

We have approached the investigation of thia cause with deep solicitude, on account of the very peculiar circumstances by which it is surrounded.

It has once been determined by this court, that the respondents, Guilford, Torrence and Greene, should be held liable for the defalcation of their co-trustee, Jacob Williams, deceased, but at the instance of the defendants, a re-hearing was granted, and the case remanded to the county.

Since that time, (Dec. Term, 1846) supplemental answers have been filed, and additional testimony has been taken, which serves to explain more fully and satisfactorily the transactions of the trust.

The prominent facts are not disputed. In 1824, Thomas Hughes devised some thirty acres of land, in the outskirts of Cincinnati, to trustees, for the support of one or more schools in that city, “for the education of poor, destitute children, whose parents or guardians are unable to pay for their schooling.” The defendants Guilford and Greene, together with Jacob Williams, deceased, the acknowledged defaulter, were among the trustees named in the will. Hughes and Williams were among the first settlers of Cincinnati, and had long been confidential friends. In fact, it seems to be conceded, that the foundation of this charity, so honorable to the memory of Hughes, was created by means of the active intercession of "Williams himself.

In the spring of 1827, a portion of the land, then entirely unproductive, was laid off into small building lots, and disposed of at auction, on perpetual lease, at rents varying from twelve to thirty dollars per lot. The tenants were, for the most part, from the poorer class of laborers, and consequently the collection of their quarterly rents was a business of the most irksome character. It was resolved by the trustees, at one of their first meetings, that the strictest economy should be used in the management of the fund, in order to make it available to its utmost capability, to carry into effect the benevolent purpose-of its founder. To this end, it was determined to save the expense of procuring leases to be drafted, and of employing collectors of rents, by substituting one of their own number to perform the respective duties, without compensation. Guilford swears, in his answer, that he drafted the leases for the lots first rented, and, until 1829, collected the rents without making any charge therefor.

At this time Williams was substituted for him in the capacity of collector and treasurer, and so limited was the income of the fund at that day, that in a period of six years, and up to the seventh of July, 1835, no more than $1512.37 came into his hands, for rents, pasturage and use of stone quarry, all combined.

Of this amount, Williams had disbursed the sum of $1315.-57 upon the orders of the board, mainly to defray the expense of tuition of indigent scholars in the Woodward High School. In 1837, the land which had not been subdivided, about twenty-three acres, was disposed of to one Eden B. Reeder, on a lease for ninety-nine years, renewable forever, at an annual rent of eighteen hundred dollars; and it was principally for money received by Williams on this lease, during the three succeeding years, that he became a defaulter to the trust fund j for which defalcation it is sought to make his co-trustees responsible.

Before I proceed to examine the only material question in the ease, that of the liability of Guilford, Greene and Torrence,, for the default of Williams, I may be permitted to remark that, .although it be conceded by counsel for the state that these three gentlemen are of high character, and eminently qualified by education and experience, to execute the duties of the trust, yet the nature of that trust is such as to enlist in its support all the finer feelings of the heart.

It need only to be mentioned that a fund devoted to the education of “ poor, destitute children,” has been diverted from its sacred purpose, and all our generous impulses take fire at once; thé coolness of reason gives place to the warmth of passion, and we are ready to denounce all who may have contributed to what we deem a sacrilege, by either acts of commission or omission.

It will be the fixed purpose of this court to guard most vigilantly the charities created within its jurisdiction, and in no one would we regard remissness of duty in the administrators, with keener jealousy, than in the management of a fund appropriated by true benevolence, to the elevation in the scale of humanity of the poor and helpless.

But we must, in this class of eases as well as in all others, apply to the individual transaction those general rules which are the offspring of wisdom and experience, and determine, upon the particular circumstance of the case, whether those rules attach a penalty or not.

It is claimed, in the case before us, that the defendants Guilford, Greene and Torrence, (and by the term defendants, I wish for the present to be understood as including none others,) must be held responsible for the loss of $6375.81, with interest thereon from the death of Williams. And for what reason ?

The counsel say they will not controvert or “ draw in question the acts of the trustees prior to the lease to Reeder.” But they claim that their conduct in yielding the whole revenues subsequent to that time, into the control of one of their number, without requiring á bond, or prescribing any mode of investment, or demanding any account, was marked by such supine indifference and gross negligence, that they must be held responsible for the loss.

The rule of responsibility which they wish applied to this case, is found in Story’s Commentaries on Equity, vol. 2, p. 517, sec. 1275: “ A trustee is to act in relation to the trust property, with reasonable diligence; and in cases of a joint trust, with due caution and vigilance, in respect to the approbation of and acquiescence in the acts of his co-trustees: for if he should deliver over the whole management to the others, and betray swpine indifference, or gross negligence, in regard to the interests of the eestuys que trust, he will be held responsible.”

The rule is cited with commendation by my learned predecessor, who pronounced the opinion of this court in 15 Ohio Rep. 593.

I recognize the rule in all its force, but while I have the author before me, shall take the liberty to extract two or three other paragraphs which I deem pertinent to the subject.

In section 1268, Judge Story says: “ In a general sense, a trustee is bound by his implied obligation, to perform all those acts which are necessary and proper for the due execution of the trust which he has undertaken. But as he is supposed merely to take upon himself the trust as a matter of honor, conscience, friendship or humanity, and as he is not entitled to-any compensation for his services, at least not without some express or implied stipulation for that purpose, he would seem, upon the analogous principles applicable to bailments, bound only to good faith and reasonable diligence ; and as in case of a gratuitous bailee, liable only for gross negligence.”

Again, in section 1280, Judge Story says further on this subject: “In cases where there are several trustees, the point has often arisen, how far they are to be deemed responsible for the acts of each other. The general rule is, that they are responsible only for their own acts, and not for the acts of each .other, unless they have made some agreement by which they have expressly agreed to be bound for each other; or they have, by their own voluntary cooperation or connivance, enabled the other to accomplish some known object in violation .of the •trust.”

It was remarked by Lord Hardwicke, the great chancellor •of England, in Ex parte Belchier v. Parsons, (Ambler’s Rep. 219,) that these rules should not be laid down with a strictness to strike terror into mankind, acting for the benefit of •others, and not for their own; and that as a trust is an office necessary in the concerns between man and man, and which, if faithfully discharged, is attended with no small degree of trouble and anxiety, it is an act of great kindness in any one to accept it. To add hazard or risk to that trouble, and to subject a trustee to losses which he could not foresee, and consequently not prevent, would be a manifest hardship, and would be deterring every one from accepting so necessary an office.”

If we apply all these rules to the facts in the case before us, ■can there be any doubt as to the proper determination ? I am not disposed to take the ingenious counsel at his offer, and shut my eyes upon all that part of the history of this trust fund anterior to the execution of the lease to Reeder. Much valuable instruction is derived from a consideration of its inception, rise and progress. In the beginning, Williams procured his friend Hughes to make this munificent devise in his will. He had conversed with the testator touching its nature and objects, .and had named • to him those whom he considered qualified to act as trustees. If, therefore, there was one member of the board who had the special confidence of the testator more than the others, that man was Jacob Williams.

The other trustees being aware of this, and knowing the ardent zeal with which Williams sought to carry out the plan ■of benevolence which he had originated, empowered him at an early day to execute, gratuitously, sundry commissions con nected with the trust.

He first superintended the laying out of the lots at the head of Main street, and the testimony shows that he exhibited as much interest in the matter as if the property was his own. He attended personally to the pasture grounds and stone quarry.

After Guilford declined the collectorship, in 1829, Williams took the irksome duty upon himself, and performed it most punctiliously for a series of years, without any reward or hope ■thereof. The rents during this time were collected as the poor tenants had the ability to pay, in some of them, five and ten dollars, amounting to about three hundred and fifty dollars per annum.

During all this period, Williams was esteemed by business men in Cincinnati to be a man of undoubted responsibility, and as to his character for probity, in the language of the witness, Judge Barnet, who knew him intimately from 1796 until his death, in 1840, “ he was reputed to be an honest, correct and upright man.”

Ought the defendants to have required a bond with sureties at the hands of Williams at any time anterior to the receipt of rents upon the Reeder lease ? He was their co-trustee, possessing character and responsibility, and performing their work gratuitously.

How was it after the execution of the lease to Reeder ? In the beginning of 1837, Reeder himself swears that he assigned this lease to McLeary & Bissell, who assigned to Greenbury Dorsy, and he becoming insolvent, assigned for the benefit of creditors.

In this posture of affairs, the co-trustees of Williams were led to believe that the rents were suffered to go unpaid, and at one time regarded the lease as forfeited for non-payment of rent. So soon as it was ascertained that Williams had any considerable sum of money in hand, they promptly and peremptorily ordered that a deposit of the same and of all moneys that should afterwards come into his hands, should be made In the trust department of the Life Insurance and Trust Company ; and this, too, although at the time Williams proposed to keep the money at six per cent, interest, and to give a mortgage to secure the same,' upon his house and lot on Main street. Subsequently, at a meeting of the trustees, Williams assured them that this order had been complied1 with, and voluntarily produced his “ bank-book ” in corroboration of what he said. By such conduct the defendants were thrown off their guard, and the loss ensued.

It is most probable that if their own private property, to an equal amount, had been thus managed by Williams, they would have taken no greater precautionary measures to insure its safety. So they swear in their answers, and I incline strongly to that belief. If this be so, these three defendants cannot be held liable for the default of their co-trustee under the rules laid down by Judge Story.

But we are at no loss for adjudged cases analogous to the one under consideration, where a defalcation consequent upon the misfortune or bad faith of one trustee was not visited upon the heads of his co-trustees.

In Attorney General v. Randall et al., M. S. Rep. Trin. Vac. 1734, where three trustees were appointed by testatrix to receive a sum of money from her executors and build an alms house in Cornwall for the maintenance of five poor women, the money was paid by the executors to one of the trustees upon the receipt of them all. The one who received the money be'came insolvent, and a loss ensued to the trust fund of £250. On a bill for account against all three of the trustees, the Lord Chancellor said: “ Suppose all the money had been lodged in a banker’s hands, bona fide, and he had failed, should the trustees have been answerable ? And if they intrust one of themselves for convenience or necessity at a time when he is solvent, which is no more than making him their banker, shall equity punish where there is no default ? and he said he saw no reason why trustees may not make one of themselves their cashier where there is no fraud.”

He decreed the trustee who received the money to be alone-chargeable.

In Jones’s Appeal, 8 Watts & Sergeant’s Rep. 143, which’ was an appeal by one of two guardians, cited to settle his account, Chief Justice Gibson, in delivering the opinion of the-court, says: “ Parents, guardians, executors, receivers, and all who manage the estates of infants, are responsible as trustees, and held to the same diligence. * * * * The instances-in which a mere trustee has been charged with the defaults of his colleague, are comparatively rare. ***** q’jjg appellant, therefore, is not chargeable merely for having declined to meddle with the moneys in the first instance; and the next inquiry is, whether he ought to have interposed before he began to doubt his colleague’s solidity; or whether he ought to have been satisfied with the explanation given when he called-on him for information about the state of the property. The-result will depend very much on what is the proper degree of a trustee’s vigilance.

“ In Palmer v. Jones, 1 Vern. 184; Mann v. Ballet, Ibid 44, and Howard v. Webster, Select Ca. in Ch., 53, it is said that he is to be charged only for his own receipts, or for supine negligence, and when the proof of it is strong. * * * *

“ He inquired into the disposition made of the money, and was told by his colleague, whose truth had never been doubted, that the whole was invested in bonds, secured by a mortgage on a landed estate, which was pointed out.

To require him to have dealt with his colleague as a rogue, by calling for the securities, would require of him the highest and most exact vigilance ; a degree of it that would ruin every guardian. No rate of commissions would compensate the risk of such a trust, and no man of prudence would accept it. * * The principle of accountability for the omission of every meas ure of imaginary precaution which human sagacity might have foreseen, would be impracticable in a country where counsel ■cannot be consulted at every step without incurring an expense •that would often .swallow up the estate. * * * Here there was reasonable vigilance and good faith, and we direct the appellant to be charged with no more than his receipts.”

We make application of all these wholesome rules of conduct to the circumstances spread before us, and, upon the whole case, both in regard to the law and the evidence, after a careful examination, we find ourselves forced to the conclusion, that upon none of the grounds which have been assumed by coun sel for complainant, are the defendants Guilford, Greene and 'Torrence, to be charged with the loss sought to be fastened upon them. They have acted with entire good faith, and with reasonable vigilance. The bill as to these three defendants and Samuel Lewis will be dismissed with costs. A decree may be taken against the administrators of Jacob Williams, for the amount found due the Hughes fund from him at the time of. his death, with interest, after deducting the sum allowed him by the court of common pleas for his services.

Caldwell, J., having been of counsel, did not sit in the case.


source: Caselaw Access Project

author: Avert, J.

license: Public Domain

text:
    Samuel A. Barker and others v. The State.
    The charter of the town of MeConnelsville authorizes a tax for the improve ment of streets, etc., upon all the land embraced within the limits of thft corporation.
    This is an appeal from the decision of the auditor of state, from the county of Morgan.

      O. B. Gtoddard, John B. Manna, and Elijah Mayward, for appellants.

      W- T. Basoom, for defendant.
   Avert, J.

The decision of the auditor, which we are called upon to review, gives sanction to a tax which had been assessed upon the property of the appellants, in the town of McConnelsville, in Morgan county. And whether the determination was correct or not, depends upon the construction to be given to the charter of that town.

The tax was upon lands which were within the corporate limits of the town, but which had not been laid out into town lots and recorded as such. At least this is true as to all the parties complaining except McConnell & Adams, who assert that the tax against them was upon property neither designated nor known as lots or lands. The tax, however, was imposed under the 9th section of the charter, for the improvement and repair of the streets, passages, alleys, and side-walks of the said town; and this section, together with the 7th and 8th, will be found to embrace all the portions of the charter which need to be examined. The three sections are as follows:

“ Sec. 7. The mayor, recorder and trustees of said town, or a majority of them, shall have power to make and ordain, and publish such ordinances, by-laws and regulations, as they shall deem necessary to the health, safety, order, cleanliness, convenience, morals, and good, quiet and peaceful government of the town and the inhabitants thereof; to establish and regulate fire companies ; to regulate markets; to license or prohibit «hows or other exhibitions; to purchase a fire engine or engines ; to regulate, improve and keep open, unobstructed and in repair, all streets, side-walks, public lanes, alleys, and passages and commons within the corporation; to grade, gravel, and pave streets and passages, and to make side-walks; to make wharves; to cause the owners of lots to pave or gravel sidewalks, in front of their respective lots, on any street of said town, whenever the council shall have caused the adjoining street or passage to be turnpiked or graveled; to cause the owners of the lots and lands, adjoining to or within half a square of any street or passage, to turnpike and gravel the same in front of their respective lots, whenever the owners of two-thirds of said lands and lots shall make application therefor, in writing, to the council: Provided that the persons making such pavement or side-walk as aforesaid, shall be entitled to a certifi • ate for the value thereof, to be ascertained and assessed by disinterested persons appointed by the town council, which certificate shall be received for tax, for the improvement of said streets or alleys, to the full amount of the same. To authorize the levy of an annual tax, not exceeding two mills on the dollar, for corporation purposes, on the property within the limits of said town, returned on the grand levy, and made subject to taxation by the laws of this state; which tax shall be levied and collected in the same manner as is provided in the ninth section of this act; to borrow money, not exceeding fifteen hundred dollars, for the purpose of purchasing an engine and other apparatus, for the extinguishment of fire, at a rate of interest not exceeding eight per centum per annum, for any specified purpose, with the concurrence of at least five members of the council, the vote thereon to be taken by yeas and nays and recorded on the journal; to impose fines, forfeitures and penalties on all persons offending against the laws, ordinances and regulations of said town; to provide for the prosecution, recovery and collection thereof; to have a common seal, and alter ike same at pleasure; and to have perpetual succession, with power to sue and be sued, plead and be impleaded, and answer and be answered, unto any court of law or equity in this state; and when any suit shall be commenced against said corporation, the first process shall be a summons, an attested copy of which shall b,e left with the recorder.

“ Sec. 8. There shall be elected annually, at the same time and place that the council is elected, a corporation assessor, whose duty it shall be to appraise the lots and lands within the limits of said corporation, with the improvements thereon, and make return thereof on the first Monday of June, at which time the town council shall meet as a board of equalization, and shall have power to equalize the valuation made by the said assessor, either by adding to or deducting from his valuation such sum or sums as to them, or a majority of them, shall appear just and reasonable: Provided the council may, in any year, dispense with an appraisement.

“ Sec. 9. That for the general improvement and repair of the streets, passages, alleys and side-walks of said town, the town council shall have power to levy an annual tax on the valuation authorized by the preceding section of this act, not to exceed three mills on the dollar in any one year, of which ¿ax the recorder shall make out a duplicate, charging therein to each lot or tract of land an amount of tax in proportion to the value thereof, so assessed as aforesaid; which duplicate shall be certified and signed by the recorder, and delivered to the treasurer of said corporation, who shall proceed to collect said tax in the same manner and under the same regulations that county treasurers are required by law to collect state and county taxes; and, in the collection thereof, the said corporation treasurer shall have the same power to sell personal property as is given by law. to county treasurers: Provided that no real estate within the above limits shall be subject to taxation, for corporation purposes, except such as is or may be laid out into town lots, and then only from and after the time when the plat of such lot may be recorded.”

We interpret these sections as conferring authority to tax all • the lots and lands within the limits of the corporation, for the improvement' of streets, passages, alleys and side-walks.

The general grant of power to this corporation is contained in the 7th section, and amongst the powers there enumerated, •is one in the following words: “ To authorize the levy of an annual tax, not exceeding two mills on the dollar, for corporation purposes, on the property within the limits of said town, returned on the grand levy, and made subject to taxation by the laws of this state.” By this provision, personal property, as well as real, within the limits of the town, embracing every species of property liable to taxation under the general laws of the state, may be subjected to a corporation tax; but the tax cannot exceed two mills on the dollar, and is to be levied according to the language of the provision, for corporation purposes. After conferring this power to tax all property, real and personal, comes the direction in the 8th section, to cause an annual appraisement by the corporation assessor, of the lots and lands, that is, of all the territory within the limits ot the corporation.

Next follows in the 9th section the power to tax annually all this territory so appraised, for a specific purpose, that is, for the improvement of the streets, alleys and side-walks. The money raised by this tax cannot be applied as that collected under the 7th section, from both personal and real property may be, to the general uses of the corporation; it can only be expended in the way and for the particular purpose specified in the 9th section.

By clear and definite language, then, power is given in one case to levy a tax on both real and personal property, for what the charter denominates corporation purposes; and in another case to levy a tax on real property only, for the improvement of streets. Not only in the two cases is there a difference in the subjects of taxation, and in the description of the purposes to which the money is to be appropriated; but in the first, the amount of tax is limited to two mills on the dollar, and in the second it is extended to three mills. Effect, therefore, is to be given, if practicable, to both the provisions.

Attached to the 9th section is a proviso in the following words : “ That no real estate within the above limits, shall be subject to taxation for corporation purposes, except such as is or may be laid out into town lots.” Our construction of the charter does not apply this proviso to the section with which it happens to be connected, but to the 7th section only, which we think it was intended to qualify; not alone because the same particular phraseology was used, corporation purposes,” but because the three sections taken together, seem to admit of no other reasonable interpretation. The 8th section, giving directions for the annual appraisement of the lots and lands, is useless and absurd, as to all the lots and lands not actually carried upon the record, unless it was intended to tax them, after put* ting upon them a separate valuation. And the 9th section, which provides in express terms for a tax upon the valuation directed in the 8th, and declares that each lot or tract of land shall be charged, must, as to these essential features, be construed away.

Under the view we have taken of this charter, all the lands within the limits of the town must be subject to taxation for street purposes, and the decision of the auditor of state in that respect is confirmed.


author: Caldwell, J.

text:
    John Myers and Wife v. Henry Warner and others.
    Where a father has made advancements in money to a portion of his children, such advancements cannot he taken into account on a partition of his estate among his heirs.
    This is a bill in chancery, reserved in Fairfield county, tho facts of which are stated in the opinion of the court.

      Hunter Son, for complainants.

      H. 0. Whitman, for defendants.
   Caldwell, J.

This bill is filed by a portion of the heirs of Samuel Warner, deceased, asking partition of his real estate.

The bill sets forth that several of the heirs have received large advancements in money, and prays that these advancements may be taken into account, and be deducted in the partition of the real estate from the share of such heirs respectively. The statute merely provides for taking into account, on partition, such advancements of real estate as have been made to the heirs. All the principles in this case which can be considered on a bill for partition were decided by this court at the present term, in the case of Administrator of Putnam v. The Heirs of Putnam. It was there decided that our statute did not make provision for an advancement of personal property, and that the court are not authorized by law to notice such advancement.

A question somewhat different from that involved in the other advancements, arises in the case of Oliver L. Read and wife. •At' the time they received their advancement, they gave a receipt to Samuel Warner, the ancestor, for it as a part of their share in the distribution of his estate. It is contended on the part of the petitioners that they are bound by this written contract. Whether the administrator of Samuel Warner or his heirs can take advantage of this contract in another form of action, the court think is not a question properly before them in this application for partition. So far as the present case is concerned we suppose it must stand on the same ground with the other advancements; and that it cannot, more than they, be taken into account in the partition of the real estate.

The case will be remanded to the court’ of common pleas óf Fairfield county for further proceedings.


author: Spalding, J.

text:
    Joseph Tope v. Mary Tope.
    Where the testator provides in his will that his wife “ shall have her maintenance off of the farm devised to his son Joseph, while she lives, * * that the said Joseph is to let her have the house while she lives; and that he, moreover, is to furnish her with everything necessary for her comfort while she lives,” if the widow shall refuse to occupy the mansion-house and receive her support on the farm, hut prefers to reside elsewhere, it will he the duty of the son charged with the maintenance, to pay her whatever sum it may he considered worth to support her on the farm, and no more.
    This is a writ of error to the Court of Common Pleas of Jefferson county.

      The original action was assumpsit, tried at the November ■ term, 1848, to a jury, and verdiet.for plaintiff $351.
    The bill of exceptions taken on the trial shows the following facts:
    John Tope, the husband of plaintiff and father of defendant below, by his last will and testament devised to the defendant a farm on which the testator then resided, and charged it with certain specific legacies which he was directed to pay, amongst which is a bequest to his wife Mary Tope, the plaintiff below, in these words: “ She is also to have her maintenance off of the farm on which I reside, while she lives. * * The said Joseph Tope is to let my beloved wife have the house in which I now live while she lives; also he is to furnish her with every thing that is necessary for her comfort while she lives.” John Tope died on the 28th day of October, 1844. The widow elected to take under the will, and Joseph accepted and took possession’ of the property devised to him immediately upon probate of the will.
    Mary Tope resided in the mansion-house after her husband’s death, until the 18th of January, 1845, when she removed and went to reside with one Roland, where she lived about one year. Since that time she had lived at sundry places, but at no time with the defendant, or in the mansion-house, having derived her support from other persons than Joseph. After the 20th of January, 1845, Joseph occupied the mansion-house and the farm. He went into the mansion-house by request of Mary, when she went to live with Roland, with whom Joseph made a contract for her support. This contract was terminated by Roland’s removal from the county, after which, Joseph repeatedly solicited her to occupy a room in the mansion-house, with a separate, out-door entrance, and offered to hire a girl to' take care of her, and purchased clothing and offered to her, and had always offered to provide her a maintenance, if she would come upon the farm and into the house — all of which-she steadily refused, insisting upon the whole house, and a suf ficient sum for her support wherever she chose to live.
    The court charged- the jury that the mother was not bound to reside upon the land to entitle her to a support; that she might- reside with whom and where she pleased, and that the defendant would be liable to her for an amount sufficient for her comfort, while she lived — that it was not a fulfillment of the obligation to be ready and willing, and to offer to furnish her with every thing necessary for her support, on the farm.
    The court also charged the jury that she was entitled to recover for the use and occupation of the house. These charges were excepted to by defendant’s counsel, and it is assigned for error that the court of common pleas erred in these instruc tions to the jury.

      It. S. Moody, and H. It. Uchley, for plaintiff in error.

      Stanton Mo Cook, for defendant.
   Spalding, J.

There can be no doubt that the testator con templated that his wife, after his death, would continue to reside in the mansion-house, and receive her support from the products of the farm; but this is not cumpulsory.

We cannot construe the will in such a manner as shall force her, either to reside upon the farm, or to lose the support provided for her by her husband.

The whole of the dwelling-house is given to her, and must be subject to her control.

In addition to this, it is the duty of Joseph to furnish her with necessary and convenient food and raiment, fire wood and candles, medicine and medical attendance, and whatever else may be necessary for her comfort during life, provided she sees fit to occupy the mansion-house and live on the farm. But if she prefers to take up her abode elsewhere, then the rent of the house will be hers, and she will be entitled, in addition thereto, to such a sum in money as will be equivalent to the cost of her maintenance in said dwelling-house, and upon the-farm.

The only error to be found in the charge of the court below is this: That she might reside with whom and where she-

pleased, and the defendant would be liable to her for an amount sufficient for her comfort while she lived.”

If Mary Tope chose to reside at the Astor House, in New York, we think the defendant would not be liable to her for an amount sufficient for her comfort while there. We think she may reside in New York or Philadelphia, however, and in that case Joseph will be liable to pay her whatever sum it may be considered worth, to support her comfortably in the mansion-house, and upon the farm devised to him.

As the charge of the court, in our opinion, goes beyond this, it is in that respect erroneous, and the judgment of the common pleas is, therefore, reversed.


author: Hitchcock, J.

text:
    Martin A. Collins v. Daniel Hatch.
    Power granted to a municipal corporation to enact such by-laws and ordinances “ as they shall deem necessary for the well-regulation, interest, health, cleanliness, convenience and advantage ” of the town .or borough, not inconsistent with the laws of the United States or of this state, does not confer upon the corporation the power to enact a by-law restraining horses, , cattle, swine, etc., from running at large.
    Nor is it conferred by the general power “ to require and compel the abatement of nuisances.”
    This power can only be exercised where it is specifically granted in the act of incorporation.
    This is a writ of error to the Court of Common Pleas of Ashtabula county.
    The original action was trespass, brought by Hatch against the defendant below, the plaintiff ir error, for taking and carrying away, and converting to his own use three hogs, the property of the plaintiff. The defendant pleaded specially, setting up as a defense that he had committed the act complained of under the authority of the corporation of Conneaut, which had enacted ordinances for the purpose of preventing hogs and other animals from running at large in the town; that the hogs of the plaintiff were found running at large in the town; that in accordance with said ordinances he had taken them up and sold them, at public sale, and that this was the trespass com plained of in the plaintiff’s declaration.
    To this plea, the plaintiff filed a general demurrer, and on hearing, the court overruled the demurrer and entered judgment for the defendant.
    To reverse this judgment, the writ of error is prosecuted, and the error assigned and relied upon is, that the court of common pleas erred in overruling the demurrer.

      It. P. Barney, and Brewster Bandall, for plaintiff in error.

      H. Wilder, for defendant.
   Hitchcock, J.

As the defendant in this ease attempted to justify under an ordinance of the borough of Conneaut, in the county of Ashtabula, as set forth in the plea, it becomes necessary to inquire whether the corporate authorities of that borough had power, under their act of incorporation, to adopt the ordinance in question. In determining the powers of municipal corporations it is right and proper to allow them the exercise of all powers expressly granted, and such others as may be necessary to carry the powers expressly granted into execution. Beyond this the court ought not to go, and should there be error in construing those powers, it is better to err, in lestricting than in extending them.

The ordinance in question, is one by which swine, cattle, horses, sheep and geese, are prohibited from running at large in said borough. The general law of the state contains no prohibition of the kind, but on the contrary, by the first section of the “ act defining the duties of persons taking up astray animals,” etc.,.(Swan’s Stat. 870,) it is enacted that no person shall he allowed to take up any neat cattle, sheep or hogs, after the first day of April, and before the first day of November annually.”

The power to adopt the ordinance in question is supposed to be derived from the seventh section of the act of incorporation, (36 vol. local Laws 24.) This section provides, “ that the. mayor, recorder, and trustees, or a majority of them, of whom the mayor or recorder shall always be one, shall have authority to make, ordain and publish, all such by-laws and ordinances, consistent with the constitution and laws of this state and of the United States, as they shall deem necessary for the well regulation, interest, health, cleanliness, convenience and advantage of said borough and its inhabitants; to impose fines, forfeitures and penalties, (not exceeding fifty dollars,) upon each and every person offending against the laws and ordinances, which may be made as aforesaid,” etc.

This ordinance could not be adopted under this part of the section, as it is in contravention of the general law of the state which allows such animals to run at large.

Power is also conferred upon the corporation “ to require and compel the abatement of nuisances.” It has been supposed that this ordinance is authorized by this clause of the act of incorporation. But such is not the opinion of the court. Although it may be considered as a nuisance, that swine should be allowed to run at large in a town corporate, still it is manifest that such is not the nuisance here spoken of.

Besides, it is common in our legislature to grant expressly to towns corporate, the power to do what in this ease has been-attempted to be done. That is, the power to prohibit horses, cattle and swine from running at large. Such being the practice, it is right to presume, where this power is not expressly granted, it was intended it should not be exercised.

In the opinion of the court, the corporation of Conneaut had ■no power to adopt the ordinance in question, and the same is void. Such being the opinion of the court, it is unnecessary to consider the other points raised in argument.

Judgment of the common pleas reversed, and case remanded for further proceedings.


text:
    Daniel F. Cook v. Thomas W. Grange.
    .A woman who has been divorced is not competent to prove a contract made with her husband during coverture.
    This is a writ of error to the Court of Common Pleas of Lucas county.
    The action below was brought by the present plaintiff against Grange and William Gaily,-to recover rent reserved in a lease for certain real estate.
    The lease is under seal, dated February 9th, 1837, and is for the term of three years. Process was issued against both Grange and Gaily, but was returned not found as to Gaily. Grange and Gaily were both in possession of the premises untif the spring or summer of 1838, when Grange left; and Gallyi •continued in possession until 1840.
    The plaintiff, on the trial, gave in evidence the lease, and proved the possession by Grange and Gaily, and rested his case
    The defendant, Grange, then called as a witness Sarah •Gaily, who, at the time of the mailing of the lease, and up to November, 1846, was the wife of the said William Gaily; but who, in 1846, had been divorced. She testified that in November, 1837, Grange became dissatisfied and wished to leave •the premises; that the plaintiff being at the farm, it was agreed between Mm, Grange and Gaily, that Grange should be released from both the expired and unexpired terms of the lease; that Grange was to leave on the farm the property belonging to him and Gaily jointly; and that Gaily agreed to pay the rent due, and to become due, according to the terms of the lease; and that Grange left the premises and the property in the possession of Gaily, in accordance with the terms of this agreement.
    The plaintiff objected to the competency of this evidence on two grounds:
    1st. Because the witness was testifying to a contract made with Gaily, and in which he was interested, during the time that she was his wife ; and,
    2d. Because it was offering a parol agreement, without consideration, to discharge a lease under seal. The court refused to rule out the testimony, and permitted it to go to the jury. The plaintiff excepted. A verdict was returned for the defend-ant and judgment entered.

      Waite Sf Sail, for plaintiff in error.
    Mrs. Gaily was an incompetent witness to prove facts wMch went to establish a liability on her husband’s part, and release a joint contractor. The result of her testimony was to release Grange, and charge her husband, Gaily. True, her husband was jointly responsible, but he could have an action over against Grange for all over his proportion.
    Now, by Mrs.. Gally’s testimony, Grange can plead a former recovery, and no action can be maintained against him. The result of her testimony is to increase her late husband’s liability, and it is therefore inadmissible. We are aware this is a new question in this state, nor is it to be wondered at, common as are divorces, they have not become so common that we are perfectly familiar with the full extent of the effect of the decree upon the rights of the parties and of third persons. But when, during the pendency of a suit, the wife of one of the parties Is ground through our divorce mill, (where all that is necessary is to file a petition and make a show of testimony,) and divorced, and wheeled instantly upon the stand as a witness, to charge her husband, it is full time to inquire into the legal effect of the divorce. Nor do we in this matter grope our way in the dark. Adjudicated cases there are, satisfactory to us at least, that the court below erred.
    In Ratcliffe v. Wales, 1 Hill’s Rep. 62, Justice Bronson uses this language: “ For the purpose of promoting a perfect union of interest, and securing mutual confidence between husband and wife, the court have generally refused to admit the wife as a witness against the husband, even after the marriage contract has been annulled, when she was called to speak to any matter which happened during the continuance of the marriage, and which might affect the husband either in his pecuniary interest or character.”

      Monroe v. Twiselton, Peake’s Ev. 29. The action was assumpsit, and Mrs. Landen was called to prove the defendant’s promise; but, it appearing she was the wife of the defendant at the time the contract was made, she was rejected, although she had since been divorced by an act of parliament. Lord Alveny saying, “ to prove any fact after the divorce, this lady is a competent witness, but not to prove a contract or any thing else which happened during coverture. She was at that time bound to secrecy; what she did know, might be in consequence of the trust and confidence reposed in her by her husband, and miserable, indeed, would be the condition of a husband, if, when a woman is divorced from him, all the occurrences of his life should be divulged in a court of justice.” I make this lengthy quotation, as it seems clear and conclusive on this point.
    Stephens, in his Nisi Prius, sec. 1768, vol. 2, uses this language : “ Where a man or woman are divorced by act of parliament, a wife is not admitted to prove a contract made by the lusband previous to the divorce.”
    Greenleaf, in his most excellent Treatise on Evidence, vol. 1, pp. 837, 408, 650, says: “And even when a wife has been divorced by act of parliament, and had married another person, was offered as a witness for the plaintiff, to prove a contract against her former husband, Lord Alveny held her clearly incompetent.”
    And Starlde, p. 552, vol. 2, says: “ Even after a divorce, a vinculo matrimonii, the woman cannot prove any contract or' any other matter which arose during coverture.”
    In the 1st vol. of Tyler’s Yermont Reports 36, it was held,, that a woman divorced a vinculo, was a competent witness against her former husband, on an indictment against him for an offense committed during coverture. But in the 2d vol., Tyler, p. 374, this case was .overruled, and the old doctrine-established.

      Spink Hopkins, for defendant,
    submitted the case without argument.
   Caldwell, J.

The first and most important question that arises in this record is, whether Sarah Gaily was a competent witness to prove the facts testified to by her. This question comes before this court for the first time.

In examining the different decisions that have been made in this country and England on this subject, we have found it difficult to establish any general principle on which they can be-harmonized. The current of authorities goes to establish the principle, that facts that have come to the knowledge of the wife through the confidence of the marital relation, cannot be proved by her, even after the marriage has been dissolved by divorce, in any case where her husband is interested.

In the case of Ratcliff v. Wales, (1 Hill’s Rep. 64,) the court lay down the rule, that even after the marriage is at an end, the wife will not be permitted to testify against the husband in any matter which happened during the continuance of the marriage, and which might affect the husband either in his pecuniary interest or character. Although the court in that ■case permitted the wife, after divorce, to testify in favor .of her former husband as to the facts that occurred during the existence of the marriage, on the ground that the circumstances rendered it impossible that she could have acquired the knowl edge through her husband; and that she had no inducement to testify in his favor.

Greenleaf, in his Treatise on Evidence, (1st vol. 408,) says, that it matters not that the marriage be dissolved, the seal of secrecy is placed on all confidential communications between husband and wife.

To secure domestic tranquillity, it is necessary that the high est confidence should exist between husband and wife; that all •communications made in confidence, by the disclosure of which either party may be affected, should be considered as under the most sacred seal of secrecy. It would be highly dishonorable for either party, even after the marriage had been dissolved, to make disclosures of facts that had come to their knowledge •either by confidential communication, or in any way on account -of the marriage relation.

There is another consideration which we think entitled to weight in the determination of this question. The bitter feelings which generally exist between the parties after thé dissolution of the marriage; the feelings of revenge, for real or supposed injuries, unfit the mind for a candid and unbiased presentation of truth, and renders it very doubtful whethei such testimony would tend to the furtherance of justice.

The frequency of divorces at the present time, is a matter we think not to be overlooked. If either husband or wife could be made a witness against the other, as soon as a divorce was obtained, it might, in some instances, have a tendency to produce that result.

As we have before remarked, the decisions that have been made elsewhere on this subject, do not harmonize on any well defined principle, and as the question is undecided in this state, •the court feel authorized to adopt such rule as., to them, appears dictated by a sound policy, for the furtherance of justice.

How far, then, shall the incompetency of a witness, to speak as to facts which occurred during marriage, after divorce, extend? Shall it be confined to such communications as have been made in confidence ? or shall it embrace all transactions which occurred during the marriage, in which either party may be affected, either pecuniarily or in reputation: in other words, all transactions which, at the time they happened, the witness would have been incompetent to prove ? The latter, we think, is the true rule, and therefore adopted.

It is very difficult, if not impossible, to establish any rule discriminating between such facts as have been communicated in marital confidence, and such as have not. Indeed, there is no difference between facts related between husband and wife, and such as come to their knowledge on account of the intimacy of relation that exists between them. All are equally confidential.

In the case before us, the witness testified to ‘a contract, to which her husband was a party, made during the existence of the marriage, and which, at the time it was made, she was incompetent to prove, and as we think, always incompetent, not-; withstanding the divorce. We are of opinion, therefore, that the court of common pleas erred in permitting her testimony to go to the jury.

This view of the case renders it unnecessary to decide the other question, as to the validity of .the parol contract, as the proof of that depended entirely on this witness.

Judgment will be reversed.


text:
    Jacob L. Vance and others v. James Blair.
    A suit at law may be maintained for a breach, of partnership articles, where the business of the partnership has not been commenced, and accounts of the partnership have not been created which are in controversy.
    Where some of the parties to such articles have sold out their interest before the matter of controversy arose, they need not be made parties.
    Where it is necessary for the plaintiff to allege and prove a tender of performance, a day on which the alleged tender was made must be averred.
    This is a writ of error to the Court of Common Pleas of Miami county.
    The action below was assumpsit, brought by the present plaintiffs against the defendant. The declaration was demurred to, the demurrer sustained, and judgment rendered against the plaintiffs; and this is the error complained of.
    The declaration alleges, in substance, that on the 30th of July, 1838, the plaintiffs and defendant, together with David Cary and Ely Hyatt, entered into a written agreement, the purport of which was, that they should constitute a company, with equal interests and liabilities, for the purpose of obtaining a job or contract from the Ohio canal commissioners, for constructing to completion section sixteen of the Sidney feeder of the Miami canal. It was further agreed by said writing, that three bids should be put in; one of which should be in the name of Blair, Starr & Co., and that each of the parties should furnish an equal amount of money, and share equally in the liabilities, profits, and losses. It is stated in the declaration that a bid was made out in the name of Blair, Starr & Co., in accordance with the terms of the agreement, and intrusted te defendant Blair, who promised the parties that he would put in said bid, according to the terms of the agreement, into the office of the canal commissioners; but that, in violation of said promise, he copied the bid, and signed said copy James Blair & Co., and that on said bid, so changed by Blair,*the aforesaid section sixteen was awarded to him.

      It is further averred that, after the bid had been awarded to Blair, he .bought out the interest of Cary and Hyatt. It also avers that, immediately after said job had been awarded to Blair, they repaired to Sidney, having provided themselves with the money, teams, tools, materials, etc., and informed Blair that they.were ready and willing to commence the job, and demanded to be permitted to engage in the work, according to the terms of the contract; but that Blair refused, and prevented them from performing their part of the agreement. It is further stated that the job was a profitable one, and that Blair made forty thousand dollars on it.

      Crane Davis, and Gfrosvener £ Aylesworth, for plaintiffs in error.

      Conklin §■ Morris, for defendant.
    No arguments were received by the reporter.
   Caldwell, J.

It is contended, on the part of the defendant, that the demurrer was properly sustained, because the declaration shows a case of partnership; and, therefore, the plaintiffs must seek their remedy in a court of chancery. We do not think the case made in the declaration, comes within the general rule that requires partners to seek redress, against each other, in chancery. No part of the object which induced the parties to enter into the contract, had been accomplished by them — no accounts made that required settlement. It is a suit brought solely to recover damages for a breach of the partnership articles. In Story on Partnership, page 319, sec. 218, it is said: “ Wherever there is an express stipulation in the partnership articles, which is violated by any partner, an action at law, either assumpsit .or covenant, as the case may require, will ordinarily lie to recover damages for the breach thereof.” We think it a proper case for a court of law. It is contended that the declaration is demurrable, because the suit is- brought by the plaintiffs jointly, upon a several contract. Now we ¡know nothing of the terms of the contract, except what is stated in the declaration. It is alleged to be in the hands of defendant Blair. The declaration speaks of the parties agreeing in writing, that they should be a company in obtaining and performing this job; and that each was to bear his share of the expense, and to receive an equal share of the profits, etc. We think the declaration sets forth a contract both joint and several.

Another objection is, that Cary and Hyatt are not parties to the action. Cary and Hyatt, although parties to the contract, we think could not be parties to this suit. Before the work commenced, as can be fairly inferred from the declaration, they sold out, each his one-sixth of the right to the contract, to Blair. They have no cause of complaint against either party; nor can either party complain of them. They have not broken the contract, nor has either of the parties broken it with them. They cannot maintain a suit ■ against Blair, because Blair admitted to them their rights under the contract, and paid them what they were willing to take for those rights. The plaintiffs cannot maintain a suit against them, because they only claimed and received what they had a right to, under the contract — ^ the same that the plaintiffs are claiming in this suit. We think then, as they sold out before the work was commenced, and as all parties have acquiesced in that arrangement, they are properly left out of the case.

Another objection set forth by the special demurrer is, that it is not stated at what time the offer of the plaintiffs to perform their part of the contract was made.

It is a rule in pleading, that every material fact which is issuable and triable must be averred to have happened at a certain time and place, although it is not generally necessary to prove the time as laid. In this instance it was necessary that the plaintiffs should allege an offer to perform the contract on their part, and it was also necessary that that offer should be made in a reasonable time. The averment in the declaration is, that immediately after the job was awarded, etc., they offered, etc. Now it is true that if the plaintiffs, immediately after the award, made this offer and demand, it would, so far a3 time is concerned, be a good offer of performance. Still we believe it to be an inveterate rule of pleading that when an important issuable point, standing out by itself, has to be alleged, that a day on which it happened should be stated. This is the only defect that we have discovered in the declaration.

We think the common pleas decided right in sustaining the demurrer.

The judgment will he affirmed.


author: Avery, J.

text:
    Lessee of Franklin Morgan and others v. Isaac G. Burnet.
    Under the chancery act of 1810, and the act of 1812, supplementary thereto, the court acquired jurisdiction of the persons of non-residents by the publication of a notice for nine successive weeks in a newspaper.
    Courts of common pleas being courts of general jurisdiction, as to them, the existence of jurisdiction will be presumed, their records being silent upon the subject, whenever an attempt is made to impeach their judgments collaterally.
    The proceedings in such case will be held binding against minors, who ara made defendants, for whom no guardians have been appointed.
    Where there has been no complete record made up, the journal and docket entries, and all the files and papers properly connected with the case, are ad missible in evidence.
    This is a writ of error to the Supreme Court for Hamilton county.
    The original action was commenced in the court of common pleas of Hamilton county, for the recovery of a quarter section of land, where judgment was given for the defendant below, and the defendant in error.
    The case was taken to the supreme court on error, where the judgment of the common pleas was affirmed, and this writ is prosecuted to reverse the judgment of the supreme court.
    The bill of exceptions is very voluminous, and presents numerous questions, the errors assigned being fifteen in number, but so much only will be reported, as, in connection with the opinion of the court, will show- distinctly the points decided.
    The defendant derived title through a mortgage executed by the ancestor of the plaintiff’s lessors, given to secure a debt of $320 to Jacob Burnet, James Findlay and William McMillan, and certain proceedings in chancery by which the mortgage had been foreclosed.
    The plaintiff having made out a prima fade case and rested, the defendant gave in evidence the bond and mortgage, and there having been no record of the case in chancery ever made up, he also gave in evidence the original files, and the various journal and docket entries in- the case.
    The bond and mortgage had been lost, but were found after the commencement of the suit in ejectment. The statement ■of D. K. Este — subject only to the same objection as if it had been sworn to — was received in evidence for the purpose of showing when and under what-circumstances they were found. His statement is as follows :

      “ The mortgage with a bond enclosed, given by Enoch Morgan to Burnet, Findlay and McMillan, with the interest of McMillan transferred to Wm. H. Harrison, on which a decree was rendered at the December term, 1816, of the court of common pleas of Hamilton county, were, on the 4th day of February last, discovered by me amongst the files of c.ases in which judgments and decrees were rendered, or marked as rendered, at that term. Some time since, perhaps more than a year, I was called on by C. Fox, Esq., making inquiry about the mortgage — stating that it could not be found .amongst the papers, and requested me to examine my papers. I made careful search, but could not find it. Recently, some three weeks since, I. Gr. Burnet, Esq., called on me, and said the mortgage had not been found, and that the county records had been searched, and no such mortgage could be found on record. I inquired of him if search had been made amongst all the papers of the term when the decree was rendered, or of the term when the bill was filed. He said he did not know. I observed to him, that I thought it would be advisable to do so, as papers were sometimes mislaid. He said to me, as you were the attorney in the case, I would feel greatly obliged if you would make the examination. I replied that I would; and in a few days I called at the clerk’s office and requested Mr. Jas. McMaster to get the files of papers of the- term the decree was rendered, stating to him the object. He delivered the files to me to be examined. I immediately commenced the examination, and when I opened the papers in the case of Wm. H. Harrison and John C. Short, executors of J. C. Symmes, dec’d, against John Bradley, I discovered two mortgages, one on which the judgment was rendered in that case, and the mortgage of Enoch Morgan with the bond enclosed. I handed them to the clerk, requesting him to note the fact and take charge of the papers. D. K.' Este.
    “ Cincinnati, March 8, 1847.”
    The bond and mortgage corresponded exactly with the description of them in the bill in chancery.
    The subpoena issued in the chancery case was returned not found.
    On the docket of the court were the following .entries: “Jacob Burnet, Jamies Findlay and W. H. Harrison, v. Betsey Morgan et alias Heirs of Hnoch Morgan, deceased, page 126. In chancery non sunt inventi, for publication agreeably to law. Continued, — page 184. Jacob Bur-net and others v. Betsey Morgan and others. In chancery. No answer filed. Plaintiffs by their attorneys appear. Bill taken pro confesso, and for decree is continued.”
    On the journal is the following:
    “ The above complainants having filed their petition in chancery in the court aforesaid, praying that said defendants may be decreed to pay and satisfy to said complainants a certain sum of money therein mentioned, etc., and in default thereof, that the said Betsey, Mercy and Franklin, the heirs of the said Enoch Morgan, deceased, etc., may be foreclosed of and from all equity of redemption or claim in or to a certain tract of land estimated to contain 160 acres, situate, lying and being in the county of Hamilton aforesaid, and it appearing to the satisfaction of the court that said defendants are not residents of the county of Hamilton aforesaid: Therefore, on motion of the complainants’ attorney, it is ordered that notice of the pendency of said petition be given by publication, that unless the said defendants do appear in said court of common pleas to be holden at Cincinnati on the first Tuesday of April next, and plead, demur or answer to the said complainants’ said petition, the same will be taken as confessed against said defendants, and the matters therein decreed, as the court shall think equitable and just.”
    Upon what is called the “ blotter,” or “ minutes,” were similar entries, together with the following:

      “ Complainants by their attorney appear, and the defendants not having filed their answer to said bill, or in any way appeared, but having failed to file a plea, demurrer or answer, to the said bill or petition, and it appearing to the satisfaction of the court that notice of the pendency of said petition in the Western Spy newspaper, agreeably to law, etc., court do consider the petition as taken pro confesso by defendants, etc., and cause is for decree continued.”
    Among the papers introduced in evidence, was one purporting to be a decree. If was signed by the president judge, and indorsed as filed by the clerk. It is as follows:
    “ The bill of the complainants having been regularly taken pro confesso in the above cause agreeably to the statute in such case made and provided, after publication having been regularly made in a public newspaper as required by law, the court pro ceeded to examine the papers and documents exhibited by the counsel for the complainants, and it appearing to ¡the satisfaction of the court that there is now due to the complainants from the defendants, the sum of five hundred and seventy-two dollars' and sixty cents, the payment of which sum has been vexatiously withheld from the complainants. The court think proper to order and decree, and it is hereby ordered, adjudged and decreed that the defendants pay to the complainants the sum of five hundred and seventy-two dollars and sixty cents, aforesaid, together with all the costs of this suit, on or before the first day of August, in the year eighteen hundred and sixteen, and in-default thereof it is further ordered, adjudged and decreed, that the said Betsy Morgan, Mercy Morgan, and Franklin Morgan, children and heirs of Enoch Morgan, deceased, their heirs and assigns, and all persons claiming under them, be wholly and forever foreclosed of all equity of redemption of the aforesaid premises, in the complainants’ bill specified,” etc.
    All this testimony was objected to as incompetent, and parts of the errors assigned are based upon the ruling of the court of common pleas in permitting it to go to the jury.

      James Riley, for plaintiff in error.

      J. Burnet, jr., for defendant,
    cited the following authorities:
    1. As to the effect of ancient instruments of writing: 1 Greenleaf on Ev., section 21, 144, 570, 575; 1 Bos. & Pul. Rep. 360; 11 Johns. Rep. 64.
    2. As to the admissibility of original entries where no final record has been made: King v. Kenny, 4 Ohio Rep. 82; 1 Cranch’s Rep. 161; 10 East’s Rep. 850; Ohio v. Dawson et al., 6 Ohio Rep. 253; Mitchell v. Eyster, 7 Ohio Rep. 1st part, 258; Irvin’s Lessee v. Smith, 17 Ohio Rep. 233; Cochran’s Heirs v. Loring, 17 Ohio Rep. 432; Osburn v. The State, 7 Ohio Rep. 1st part, 214; Harvey et al. v. Brown, 1 Ohio Rep. 268.

      3. As to the effect of the decree, finding that notice had been given: Irvin’s Lessee v. Smith, 17 Ohio Rep. 243; Kay v. Watson, 17 Ohio Rep. 30.
    4. As to the question of jurisdiction, and the legal inference that the court of common pleas, being a court of general jurisdiction, will be presumed to have rightfully obtained jurisdiction : 10 Wheat. Rep. 199; 5 Cranch’s Rep. 185; 6 Cranch’s Rep. 267; 2 Peters’ Rep. 163; 10 Peters’ Rep. 472; 3 Peters’ Rep. 200; Foot v. Stevens, 17 Wend. Rep. 483; 15 Vermont Rep. 46; 2 Scammon’s Rep. 269; 4 Scam. Rep 84; 17 Mass. Rep. 67; 2 Scammon’s Rep. 263, 279; 3 J. J Marshall’s Rep. 603; 3 Monroe’s Rep. 266; Greenl. on Ev. section 19; Adams v. Jeffries, 12 Ohio Rep. 271; Robb v. Irwin, 15 Ohio Rep. 699; 1 Peters’ Rep. 340; 4 Peters’ Rep. 472.
    5. As to the right of a mortgagee in possession, or his assignee, to defend in ejectment against the mortgagor: 2 Mason’s Rep. 540; 1 Sumner’s Rep. 115; 2 Sumner 129; 10 Johns. Rep. 480; 7 Cowen’s Rep. 20; 20 Wend. Rep. 264; 11 Mass. Rep. 135; 16 Ohio Rep. 140.
   Avery, J.

Enoch Morgan, a citizen of Massachusetts, came out to Ohio sometime previous to the 8th of February, 1803, and on that day purchased of Jacob Burnet, James Findlay, and William McMillan, the tract of land now in controversy. He took a deed in fee simple for the land, and at the same time executed to the grantors a bond and mortgage, to secure the payment of §320. He returned soon afterwards to Massachusetts, and died there on the 7th of January, 1804, leaving three children his only heirs. The mortgage debt remaining unpaid, a bill to foreclose the equity of redemption was filed in the court of common pleas of Hamilton county, on the 8th day of November, 1814. This bill was in the name of Burnet and Findlay, survivors of McMillan and William H. Harrison, who had purchased McMillan’s interest, and taken an assignment from his executors. This suit was brought against the three children of Enoch Morgan, who were all minors at the time, and the' only persons named as defendants. They were all then, and still are, residents of Massachusetts. At the April term, 1816, a decree passed against them foreclosing their equity of redemption, unless they should pay, by the first of August then following, the sum found due by the court upon the mortgage.

Numerous points have been made and discussed in the argument, by the counsel upon both sides; and the court have given attention to them all, though they need not all be here particularly adverted to.

Against the kind of proceeding adopted by the complainants, to wit, a bill to foreclose the equity of -redemption, and against the form of the decree as it was actually rendered, no valid objection, in the opinion of the court, can be urged. In the exercise of ordinary chancery powers, such relief as was actually given, might, at the time, upon a sufficient case made, have been granted in favor of a mortgagee. No remedy furnished to him in a court of law, whether by seire facias or in any otjier mode, unless made exclusive, by statute, could deprive him of his right to go into equity. The statute (1st Chase 685) m force when the proceedings were instituted, and which gave to the court of common pleas general chancery jurisdiction, contained no clause that could be understood as denying the remedy, by a bill to foreclose. And a decree of foreclosure, instead of a decree for the sale of the mortgaged premises, was valid at the time ; though it was afterwards determined that such a decree could not be rendered by the court, if the debt were less than two-thirds of the value of the mortgaged premises. 1 Ohio Rep. 106; Higgins v. West, 5 Ohio Rep. 654. Such a decree would at all times have been held valid and binding until reversed upon a bill of review, and could not therefore have been properly excluded from the jury, upon the objection which has been above considered. But whether the decree in the present case, and the proceedings in chancery offered in evidence, are to be deemed valid, and-¡sufficient to uphold the title claimed under them, depends upon uther facts and considerations which will be noticed hereafter.

On the trial of the ejectment before the court of common pleas, the plaintiff introduced, without objection, his title deed and the other evidence necessary to establish his right to a recovery. When the defendant was called upon for his proof, he offered, first, the bond and mortgage before spoken of. To ¡the admission of these papers in evidence the plaintiff objected, but they were admitted by the court. And it is now claimed that they were properly admitted, upon the ground that their ■execution was sufficiently proved, and that they must be regarded, either as independent evidence of legal title in the mortgagees, if the proceedings before the foreclosure were void, or as part of the record, if they were not void. The papers .appeared, upon inspection, to have been executed more than forty years before. Now, in order to establish the genuineness of the instruments, and in support of the presumption arising from their antiquity, as well as to show a disposition of the instruments consistent with the claim of the mortgagees, proof was given of the signature of one of the subscribing witnesses and of his death; and proof, further, as to the other subscribing witness, also long since dead — that he bore the name of a person who was the grandfather of the witness upon the stand, and it was a part of the family history, that the grandfather .resided in Cincinnati, about the date of the documents, but that he was long since dead. Proof was further given, of the hand writing of the officer before whom the mortgage appeared to have been taken; of the loss of the documents, and of their having been recently found amongst the papers in a case in the ••common pleas, where the same William H. Harrison was one of the parties. Furthermore, these documents bore minutely the description of the bond and mortgage, upon which was founded the above mentioned bill for a foreclosure, and would, ■therefore, as papers belonging to the clerk’s office, be properly left by the mortgagees amongst the files of the common pleas.

Upon the supposition that the bill in chancery, and all the subsequent proceedings, are a nullity, not operating to extinguish the bond and mortgage in a higher security, I can discover no principle which would justify their rejection by the court, or prevent their being received as evidence of legal title in the mortgagees. But that question need not here be determined ; and, waiving any further comments upon it, we will proceed to consider whether they were admissible upon another ground, that is, as a part of the records in the chancery suit.

It is insisted, that they were not admissible in the last mentioned view; because,

First: In the attempt to foreclose the mortgage, the court never acquired jurisdiction; that all their' proceedings in the case, therefore, were void, and their record no evidence; and,

Secondly: If the proceedings are not void, these loose papers are not on record, and consequently are not to be received as record evidence.

The defendants to the chancery suit all resided in Massachusetts, when the proceedings against them were commenced, and until after they were terminated. Jurisdiction over the person, therefore, could not have been obtained by the issue and service of a subpoena, the usual mode of bringing defendants into court. But our statute had then, as it has had always since, a provision for making a non-resident a party defendant, and subjecting him to the operation of a decree, without personal service by subpoena or otherwise. The act in force at the date of these proceedings, was the act directing the mode of proceeding in chancery, passed February, 1810, (1st Chase 685,) and the act supplementary thereto, passed December, 1812, (2d Chase 786.) By the original act it was provided, that if any person shall file a petition against a defendant or defendants, residing in this state, in which it shall be proper or necessary to join other defendants, residing out of the state, whether in the United States or any other country, the complainant, on service of notice on such other defendant or defendants, or inserting, after such petition is filed, the notice aforesaid, either in such newspapers, for nine weeks successively, or in any other manner, as the court shall direct,” was authorized to proceed in his suit. And upon proof that such notice had been given personally, or by advertisement as aforesaid, the non-resident defendants were held to be in court, and subject .to all the orders and decrees in the case. By the supplemental act, where all the defendants were out of the state, the chancery courts might direct any mode of giving notice to the non-residents, which should be consistent with the usages and practice of courts of chancery. The original act gave to the courts power to acquire jurisdiction over non-residents, (even though residents of a foreign country,) for all the purposes contemplated in the act, by the mere publication, as it will be observed, of notice in the newspapers.

It was indispensable that something of the kind should be done — that some practice should be established, by which nonresidents owning lands.here, or some interest in them, should be made parties to suits respecting such lands, without the service of process; for officers could not serve process without the limits of the state. An act, therefore, was passed, for such and other cases, directing publication (perhaps the court ought to say in what paper) for nine weeks; but it named cases only, where the non-residents were but a part of the defendants. Probably under that act a bill might, in most cases, be so shaped as to conform literally to the terms of the act. This could often be done, either by joining some as defendants, who could as properly be made complainants, or by naming a resident defendant, who could not otherwise be an indispensable party to the-suit. But’if in case of a bill filed under that act, it should appear that all the defendants were non-residents, there seems to me to be no sufficient reason for denying that the court had acquired jurisdiction; more especially when the bill is for the foreclosure of a mortgage. . But if jurisdiction could not have been obtained under the original act, the supplementary act must be held sufficient for that purpose. This latter does not seem designed to take away any right secured under the former provision, which, authorized nine weeks publication of notice; nor does it expressly repeal any part of the act; its object, on the contrary, as it appears, is to give larger power and discretion to the court, in all cases requiring jurisdiction over nonresidents.

If, then, in the chancery proceedings under examination, there was, after the filing of the petition, an actual newspaper publication of notice for nine successive weeks, and proof furnished of such publication, the court rightfully obtained and exercised jurisdiction in the case. That there was such publication and proof, appears from the facts set out in the bill of exceptions; if such facts may be established by the original papers and entries, without the production of the book of records, or an authenticated transcript from it.

Can such papers and entries be given in evidence ? It is shown in the case now before the court, tha,t no record was in fact kept, or rather that no complete record was ever made up. by the clerk. If such a record were in existence, it would be itself the only evidence of facts required by law to be put upon record. But when no complete record has been made, it has been held that journal entries may be given in evidence; and that the contents of petitions and papers which had once been filed, might, if lost or destroyed, be proved by parol. 5 Ohio Rep. 548, Young v. Buckingham and others. It may, I think, be considered as settled by the practice and adjudications of this court, that the journal and docket, and all the papers on file properly connected with a case, are admissible in evidence where no other record exists.

It will appear, it must be admitted, upon an examination of the bill of exceptions in the present case, that many of the entries, in fact, nearly all of the clerk’s entries, are but short memoranda; but if they furnish the means, as we consider they do, of determining with certainty what has been done in the court, a complete record, if directed, could be made up from them. It must be remembered that no inconsiderable' portion of journal entries are usually copies from form books; and, therefore, from brief minutes, with the aid which can be derived from the writ, declaration, and other papers on file, the clerk cannot often be at a loss'in making up the perfect record. Amongst the earliest published decisions of this court, (Harvey v. Brown, 1 Ohio Rep. 268,) the daily entries upon the minute book were treated as memoranda, from which the record might be made up; and a short entry in these words, “judgment,” etc., was enough to authenticate a complete record to be made up by the clerk, after the rising of the court.

The papers and documents, therefore, such as the bill in chancery; the bond and mortgage, with the transfer indorsed thereon ; the written decree; the minutes; issue; docket, etc., appearing in the bill of exceptions, were properly offered and received upon the trial before the court of common pleas as record evidence.

After the evidence was decreed, the court of common pleas charged the jury, that notice would be presumed to have been given to the defendants, until they proved that they had not been served nor notified. No ?rror is perceived in this charge to which the plaintiff in error can object. The charge that notice would be presumed, is based upon the distinction taken between certain inferior courts of limited jurisdiction and courts ■of general jurisdiction. The first are required to show that jurisdiction was rightfully exercised;, but as to courts of general jurisdiction, the record being silent upon the subject, it will be presumed that jurisdiction existed. 2d Howard’s Rep. •'341. The court of common pleas is a court of general jurisdiction, and its proceedings must be viewed under the force of that presumption. The records of that court are to be taken as true, if they contain the statement that service of process has been made upon the defendant: that defendant came into court and entered his personal appearance, or that he confessed a final judgment; and also when they state that publi- ■ cation of .notice has been proved. All these statements, if found upon the record, it will doubtless be admitted, are to be received as true, and not to be contradicted by proof.

Numerous other objections were made to the charge as given to the jury, and as to the refusal of the court to charge as requested, but it has not been thought necessary for the decision of the case, further to notice them, as none of the objections are deemed to be valid.

On the return of the verdict, as it was against the plaintiff, he moved for a new trial, but his motion was overruled, and a judgment entered on the verdict.

To this judgment, a writ of error was taken to the supreme court for Hamilton county, where it was affirmed; and to review this judgment of the supreme court, the present writ of error is presented.

The bill of exceptions, which is before us, contains all the facts of the case.

The bill in chancery, which was in evidence to- the jury, the bond and mortgage, the journal and docket entries, the written decree, and other evidence, all taken together, can leave no doubt upon the mind, that there had formerly been, as was claimed upon the trial, a suit pending in chancery, between the complainants and respondents for the foreclosure of the equity of redemption; that the requisite nine weeks’ notice by publication had been given, and a final decree for the foreclosure rendered.

Upon the whole, we are of the opinion, that under the general chancery act of 1810, and the act supplementary of 1812, the court of common pleas, in the case before them, against the heirs of Enoch Morgan, acquired jurisdiction of the persons of the respondents: that our courts of common pleas are courts of general jurisdiction; and as to them, whenever an attempt is made to impeach, collaterally, their judgments, decrees and proceedings, the existence of jurisdiction will be presumed, their records being silent upon the subject; that they will be held binding in such ease against minors, for whom no guardians have been appointed, as well as against others, and that where no record of the proceedings of such court have been made up, the journal and docket entries, and all the files properly connected with the case, are admissible in evidence to show such proceedings.

We hold, therefore, that upon the trial in the action of eject ment, there was proof to show that the legal title of the premises was in the mortgagors, the complainants to the bill in chancery; and that the defendant in ejectment was so connected with the legal title, that he could set it up to defeat the action of the plaintiff; consequently, the judgment of the supreme court sustaining the judgment of the common pleas, will be affirmed.