author: *Brinkerhoff, J.

text:
    *Phillis Williams v. William Robson.
    In order to the valid execution of a deed of conveyance, so as to bar the wife’s right of dower in the premises conveyed, under the act of February 24, 1820 (2 Chase, 1139), it is not necessary that the acknowledgment of husband and wife be jointly and simultaneously taken. A separate acknowledgment of the husband one day, and a separate acknowledgment of the wife on a subsequent day, are sufficient.
    Lessee of Fosdick v. Risk, 15 Ohio, 107, 108; Chestnut v. Shane’s Lessee, 16 Ohio, 599; and Card v. Patterson, decided at the last term, affirmed.
    This 'is a bill in chancery, filed on the 8th of June, 1849, in the court of common pleas of Hamilton county, and appealed to the, district court of that county, and reserved for decision here.
    The facts are sufficiently stated in the opinion of the court.

      William Phillips, Jr., and Woodruff & Hopkins, for complainant,
    cited 2 Chase’s Statutes, 1139, sec. 2; 7 Ohio (pt. 1), 194; 8 Ib. 79; 10 Ib. 231; 13 Ib. 116; 7 Mass. 21; Wright, 231; 7 Ohio (pt. 2), 165-168; 5 Ib. 190.

      Ira D. French, for defendant,
    cited Morran’s case, 1 H. Black. 1205; Stead v. Isard, 1 Bos. & Pull, (new) 312; Langhorne v. Hobson, 4 Leigh, 224; Montgomery v. Hobson, Meigs, 456; Ford v. Gregory’s Heirs, 10 B. Mon. 175; Glenn v. The Bank of the United States, 8 Ohio, 79; 1 Binney, 479; Lowden v. Blythe, 16 Penn. St. 541; Jamison v. Jamison, 3 Whart. 461; Bissett v. Bissett, 1 Harr. & McHen. 211; Ridgley v. Howard, 3 Harr. & McHen. 322; 16 Ohio, 604, 606; Haskins v. Newcomb, 2 Johns. 404; Jackson v. Croy, 12 Johns. 428; Kimball v. Eaton, 8 N. H. 392.
   *Brinkerhoff, J.

The complainant, Phillis Williams,-claims dower in the undivided two-thirds of a lot of ground, No. 155r as designated upon the original plat of the city of Cincinnati, situated at the- northwest corner of Walnut and Columbia streets in. said city, by virtue of a deed executed by Joshua L. Wilson and Oliver M. Spencer, as executors of the last -will, etc., of complainant’s uncle, John Eidd, deceased, to her husband, Lewis Williams, deceased, of which said lot No. 155, the lot in complainant’s bill described, is a part. Said deed from Eidd’s executors to JLiewis Williams, bears date September 10, 1820 ; and as respondent claims title under a deed from said Lewis Williams, there is no dispute but complainant is entitled to dower in said premises, as claimed in her bill,'unless she has, by her own voluntary act, in due form of law relinquished it.

Respondent, in his answers, claims that the petitioner is barred of her dower:

1. By the statute of limitations.

2. By the deed of release from Lewis Williams and complainant, to Elijah Pearson, dated September 7, 1820, and purporting to have been acknowledged by respondent on the 11th September, 1820.

•3. That he is an innocent purchaser without notice.

To the first claim set up in bar, complainant says, that Lewis Williams, her husband, died on or about the 11th day of August, A. d. 1831, and this suit was commenced on the 8th of June, 1849.

To the second claim set up in bar, complainant says, that if this-deed, purporting to be from Lewis Williams and complainant, to Elijah Pearson, was executed at all, it was under the act of the 24th of February, 1820 (2 Chase’s Statutes, 1139, sec. 2), which provides that all *deeds, etc., “ shall be signed and sealed by the [512 husband and wife, and the signing and sealing thereof shall be acknowledged by them in the presence of two subscribing witnesses, who shall attest the acknowledgment of such signing, and also be acknowledged before a judge of the court of common pleas, or a justice of the peace, and the judge or justice taking such acknowledgment, shall examine the wife separate and apart from her said husband, and shall read or otherwise make known,to her the contents of such deed, etc., and if upon such examination she shall declare she voluntarily and of her own free will and accord, without force or coercion of her said husband, did, and now doth acknowledge the signing and sealing thereof, the said judge or justice shall certify the same, together with the acknowledgment of the husband on the same sheet on which such deed, etc., shall be printed or written, subscribing his name and affixing his seal to said certificate,” etc.

And the certificate of acknowledgment purporting to be that of complainant, as set forth in said deed, by said respondent, and following that of her husband made on a previous day, is as follows:

The State of Ohio, Hamilton County, ss.
“ Before me, John Mahard, a justice of the peace; in and for said county, porsonally appeared Phillis Williams, wife of Lewis Williams, the within grantor, who being examined separate and apart from her husband, deposed that she voluntarily and of her own free will and accord, without any fear or coercion of her husband, did, and now doth' acknowledge the signing and sealing thereof. In witness whereof, I have hereunto set my hand and seal, this 11th day of September, 1820.
(Signed,) “John Mahard, J. P. [l. s.]”

1. The bar of the statute of limitations being clearly negatived 513] *by the proof, and not relied on in argument, we come at once to consider the principal question in the case, which is, was the deed of conveyance of the 7th September, 1820, from Lewis Williams and his wife, the present complainant, to Elijah Pearson, under whom the defendant claims title, duly executed, so as to bar the complainant’s right of dower in the premises described in it ?

The statute prescribing the manner of executing deeds of conveyance, in force at the time of the making of this deed, provides, as we have seen, that all deeds, etc., “ shall be signed and sealed by the husband and wife, and the signing and sealing thereof shall be acknowledged by them in the presence of two subscribing witnesses, who shall attest the acknowledgment of such signing,” etc.; and the attestation of the witnesses to this deed is, “ sealed and delivered in presence of us, Peter Britt, John Mahard ’’ — there being no express mention of the signature.

In Lessee of Fosdick v. Risk, 15 Ohio, 107, 108, this was held to be a sufficient attestation ; and we think with reason.

The act or the acknowledgment of sealing fairly imports and includes an acknowledgment of the signing also ; and to hold otherwise would open a door to frauds too monstrous to be tolerated.

The signature and sealing of the deed purport on its face to be the simultaneous and joint acts of both husband and wife; ic is duly attested by two witnesses; and, in the absence of satisfactory proof to the contrary, we will presume that the attestation is true. That the certificate of the justice of the peace taking the ac-> knowledgment of the deed is sufficient, although it fails to state that he read or otherwise made known to the wife the contents of the deed, is settled in Chestnut v. Shane’s Lessee, 16 Ohio, 599, and Card v. Patterson, decided at the last term of this court, and not yet reported.

*But it is contended, by complainant’s counsel, that the [514 husband and wife should both have been present at the time they acknowledged the deed, and that a joint as well as a separate acknowledgment by the wife, is necessary to give the deed validity so far as she is concerned. And in this case no such joint acknowledgment appears, to have been made. The only acknowledgment by the wife was - at a subseqirent time, and when the husband was not present.

We can see nothing in the phraseology of the law which requires a joiur acknowledgment of the deed by husband and wife. The language of the second section, which regulates acknowledgments by husband and wife, is identical with the language of the first section, which regulates acknowledgments generally. In both, the words are, “ such signing and sealing shall be acknowledged by them, in the presence of two subscribing witnesses, . . . and also be acknowledged before a'judge,” etc. As well may it be contended that, where there are two grantors, not husband and wife, their acknowledgment must be joint, and must be certified accordingly, as to apply the same rule to husband and wife. There is equal warrant (so far as the language of the statute is concerned) for either claim. The argument for a joint acknowledgment of the deed, by husband and wife, must rest upon some ground of policy or rule of law other than the letter of the statute.

Is there any such rule either of policy or law ?

The wife’s separate deed is void. To give it effect, the husband must join in it. For wvhat purpose, but to express his assent to the conveyance? And his assent is expressed no more completely by appearing, together with his wife, to acknowledge the deed before a magistrate, than it is by acknowledging it separately. It is enough, that ho joins in it as grantor.

■ To give effect to the wife’s deed, she must also acknowledge it ^separately from her husband. We can see no other possible [515 obiect of this provision of our law, but to protect the wife from the influence of the husband. And such is tho plain declaration of tho-statute, which requires her to acknowledge that she executed the deed “ without fear or coercion of her husband.”

And this end is quite as effectually accomplished where the acknowledgment of the husband and wife is taken separately, as when the acknowledgment of both is first taken jointly, and then that of the wife separately.

The officer taking the acknowledgment in this case, literally complied with the requirements of the statute, in certifying the acknowledgment of the wife, together with that of the husband, on the same sheet on which the deed was written or printed, etc.; and we can see no reason, either in the language or policy of the statute, why a joint as well as a separate acknowledgment should be required. And, in this view of the case, we are supported by the cases of Montgomery v. Hobson, Meigs, 437, and Ford v. Gregory’s Heirs, 10 B. Mon. 175, both of which present strong proofs of analogy to the present case.

2. In the second place, it is alleged, by the complainant, that she was fraudulently entrapped into the signing of the deed to Pearson; that she never did, in fact, acknowledge it in any manner; and that the certificate of acknowledgment is false and fraudulent.

On this point it is only necessary to say that the proof does not satisfy us of the truth of these allegations. Britt, one of the witnesses to tho deed, swears, in effect, simply that he does not recollect tho execution of the deed by any one, nor the attestation by himself. Having never seen the deed, after its execution, and it not being before him at the time his testimony was taken, bis forgetfulness, after the lapse of so long a time, is in no way remark-516] able. *A daughter of the complainant undertakes to impeach the attestation and acknowledgment, by a somewhat minute detail of facts and conversations occurring more than thirty years’ prior to the time her testimony was taken, and the manner of her testimony is not such as to strengthen our confidence in tho accuracy of her memory. The fact, too, that the complainant slept on her claim some eighteen years after the death of her husband, affords at least some ground of presumption against its validity.

The conclusion of law and fact, to which we have already arrived, render it unnecessary to examine the other questions made in the argument. “ Bill dismissed.

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


source: Caselaw Access Project

author: Scott, J.

license: Public Domain

text:
    *David Dunkle v. Joseph O’B. Renick and others.
    Where the charter of a bank gives it power to loan money, buy, sell, and negotiate promissory notes and to discount, upon banking principles and usages, promissory notes and other negotiable paper, with a proviso that said bank shall not take more tban six per cent, per annum in advance, upon its loans and discounts; and such bank receives from its debtor, in. good faith, and in payment of a pre-existing debt, but at a rate of discount .greater than six per cent, per annum, the negotiable promissory note of a third party, the same being bona fide business paper, such transaction is not usurious, nor beyond the corporate capacity of the bank.
    Motion to strike answer from the files. Beserved in the district court of Pickaway county.
    The opinion of the court contains a sufficient statement of the facts in the case.

      Hedges & Cradlebaugh, for the plaintiff:
    The pretended answer should be stricken from the files, because m no point of view, allowing every stretch to argument, and even to unwarrantable inference and supposition, does it contain a prima facie defense to the case made by the petition; for
    1. Its pretended defense is based upon an alleged invalidity by way of usury, in the original consideration of the bill of exchange, when between the present parties, such consideration can not be inquired into. Story on Promissory Notes, sec. 191, and the .authorities referred to in note; Brown v. Dairs, 3 Term, 80; Roscoe on Evidence, 167; Chitty, Jr., on Bills, 100; Avery v. Hutchins et al., 4 Mass. 370.
    2. Even allowing such inquiry, no such usurious invalidity appears as is charged. The answer declares that the usury consists in the bank’s purchase of the Williams note, *at what appears [528 to be the market value of that paper. F.or a definition of usury see Bank of Utica v. Wayne, 3 Cow. 714.
    That the sale of a note in good faith may be lawfully made at less than its face, when not to cover a usurious transaction. See Parsons on Contracts, 421, note 13, where all the authorities are collected.
    The indorsement by the person transferring the paper does not make it usurious. 2 Parsons, 424.

      Power is given the bank to buy and sell promissory notes and bills of exchange. See Charter, sec. 2, 32 L. L. 344.
    3. But even granting that in the purchase of that commercial paper it was usurious to esteem Mr. Williams’ credit as of less value than gold in hand, yet even then the usurious act does not touch the bill of exchange, and can only affect the purchase which it concerned, that is, the ownership of the Williams note.
    4. The case made by the bill upon which this action is brought— a bill confessedly given to pay a debt justly contracted, and thus-based entirely upon a good and valid consideration — a bill which has been used as money by defendant, Renick, for his personal advantage — still remains unanswered, and therefore the pretended answer should be stricken from the files.

      H. H. Swayne, H. H. Hunter, and C. N. Olds, for the defendants,

      Mr. Swayne made the following points:
    I. (1.) I claim that the transaction in regard to the Williams note was usurious, and that it tainted and made void the original bill in the hands of the bank. The bank had no capacity to make such a contract. This is clearly so, if the transaction were usurious. 529] 8 Ohio, 228, 287-289; *1 Ohio St. 235, 415; 2 Pet. 298; Charter of the Bank, 32 Ohio L. L. 343, sec. 2.
    (2). But it is said the charter of the bank gave it authority to-take the Williams note upon the terms stated. This requires an examination of the charter.
    The provisions of the charter on this subject will be found in the-second section above referred to.
    It gives the bank power “ to loan -money, and to buy, sell, and negotiate bills of exchange, chocks, promissory notes, and other obligations for the payment of money,” provided that said barjk shall not take more than six per cent, per annum in advance on its loans and discounts.
    (a.) It will be seen by these provisions that the bank may loan money, but that it is limited to the rate of six per cent, per annumin advance.
    (5.) It may discount bills of exchange, promissory notes, etc. Here again it is limited to the rate of six per cent, per annum in advance.
    (c.) Discount is defined to be a “ counting off,” and so reducing the sum to be paid, or the sum called for in the paper to be transferred,

      Thus the merchant sells goods for certain prices, and discounts so much for cash payment. The creditor discounts so much for payment by his debtor before the debt is due, or for securing the debt, etc. A.bank “ counts off,” or discounts a given sum from a note or ■bill, which it takes from a customer. Tide Bouvier’s Law Dictionary, title “Discount;” Webster’s Dictionary, title “Discount;” Richardson’s Dictionary, idem.
    (3.) The bank may buy bills of exchange, promissory notes, etc. Here there is no limit to the rate in terms, and there is no upward limit in fact.
    That is, the bank may give for such paper the amount of its face, •and as much more as it chooses.'
    *(a.) An unquestionable sight-bill on New York is always [530 worth, in Ohio, its face, and frequently one or two per cent. more. This the bank may give.
    (6.) A promissory note payable in New York is worth as much, and the bank may give it.
    (c.) But at how much less than their face may the bank take such paper ?
    The moment it “ counts opr ” anything from the face of the paper, it becomes a discounting, as well as a buying (if a buying it be within the meaning of the charter), and the rate of discount must not, in any case, exceed six per cent, per annum in advance. If it do exceed that rate, the transaction is forbidden by the charter, and void. If this were not so, every shaving of paper by a'bank, would be called buying, and not discounting; and there would be no check or restraint upon them. This the law will in nowise permit.
    Here (as to the Williams note) there was clearly a discounting by the bank at more than the rate of six per cent, per annum in advance — whether it amounted to so much as has been suggested, is immaterial. The transaction was, in all respects, an ordinary discount. The answer avers it to have been a discount.

    II. But, granting these views’to be correct, it is insisted that they .affect only the transaction as to the note. We reply:
    (1.) That the answer avers that it was all one transaction.
    (2.) The very texture of the affair shows that it was so.
    (3.) If authorities be desired on the subject, see Schroepel v. Corning, 2 Selden, 167; Idem. 10 Barbour, 576, and the cases therein referred to.

      In the cases first above referred to in this brief, it is affirmed and; 581] reaffirmed that securities taken under such ^circumstances, by a bank are not merely voidable, but void for “ want of capacity on the part of the bank to make such a contract.”
    III. If the original bill were void, this bill, which was given in renewal of it, is equally so. Powell v. Waters, 8 Conn. 692, 696.
    IY. It is insisted that if this bill were void in the hands of the bank, it may, nevertheless, be enforced by the plaintiff, as the indorser thereof, by virtue of the act of January 12, 1848. Swan’s Stat. 481.
    We reply:
    (1.) That statute was intended to apply only to individuals, and: not to banks.
    (2.) Where a security is made void by statute, it is void in the hands of every holder, whether taken with or without notice. This-is so in all cases, whether the statute expressly or by implication makes the instrument void. Story, Prom. Notes, sec. 192, vide 1; 8 Price, 281; 5 Denio, 240; 2 Selden, 167; 16 Ala. 398; 2 Barn. & Ald. 588; 8 Conn. 678, 692, 696; 2 Sand. Sup. Ct. 85; 2 Pet. 43; 4 Idem. 205, 228; 14 Ala. 679; Chitty on Bills, 98, 108, 109; 8 Ohio, 263.
    This bill was utterly void in the hands of the bank.
    Indorsing it could not give it new validity, and make that valid which was before void. Such was not intended to be the effect of the statute.
    It was intended to apply only to paper taken and transferred by individuals, which never was held to be void in Ohio for usury, but only subject to a deduction to the extent of the usury. It would be contrary to the policy of all our legislation to give this statute' the construction contended for. It would enable a bank to shave on such terms as it might think proper to resort to, and then to realize the full fruits of its covin by transferring the paper, and 582] *with no responsibility on its part, but a liability to be sued for the excess taken over the lawful rate of interest.
    The contract was void, for want of power in the bank to make it. In this respect it is like any other contract of a corporation, which it has no power to make. It is void, and can not be made valid by a transfer. Reserving and retaining usurious interest has the same effect as taking it. 2 Peters, 538; 3 Halsted, 233; 2 Denio, 157.

      The rights of the bank in respect of the original indebtedness of Renick are not necessary to be considered in this case-.
   Scott, J.

The plaintiff in this case sues as first indorsee of a bill of exchange, alleging indorsement before maturity, for full value, and protest for non-payment at maturity. The bill is set forth as follows:

“ $3,400. Circleville, O., September 2,1854.
“ One hundred days after date, or whenever thereafter presented at the office of Sturges & Ellis, New York, pay to the order of H. K. Lawrence, cashier,/thirty^-four hundred dollars for value received, first of same tenor and date being unpaid; acceptance waived.
“ J. O’B. Renick,
“ John Cochran,
“ J. C. Thompson.
“ To A. G-. Allen, Esq., New York.”

To the case thus made, an answer is put in by defendants, stating that on the bill in suit Renick is principal, and Cochran and Thompson sureties, and denying the liability of defendants, by reason of the following facts, which are set up as a bar to the action: That on May 27, 1854, Renick was indebted to the Bank of Circleville (of which H. K. Lawrence, the payee of the bill, was cashier), in the sum of $16,322.15, and that he agreed to pay and did pay this debt in the following manner:

*1. By'bill of exchange on New York for $3,558, at four [533 months, drawn by Renick as principal, and the other defendants as sureties, which was received by the bank, for.......................................................... $3,289 20

2. By the transfer and indorsement to the bank of the promissory note of one Edwin Williams, for $10,000, due March 1, 1855, taken by the bank for............... 8,938 27

3. By check on Renick’s own deposits in that bank...... 4,094 68

Making in the aggregate......................... $16,322 15

The bill on which suit is now brought was a renewal by the same parties of the bill above mentioned, which failed to be paid at maturity.

The answer further avers that the transfer of the Williams note, the giving of said bill on New York, and the cash payment by Eenick’s check, were dependent parts of the same transaction, done in pursuance of one and the same agreement; that the bank’s receiving said note at $8,938.27, when its face called for $10,000, March 1, 1855, was a discounting of said note at a rate of more than six per cent., and was therefore usurious; that the bank had no corporate power to make such a contract, and that as a consequence, the bill of exchange, which was drawn at the same time, and by virtue of the same agreement, was absolutely void in the hands of the bank and of the plaintiff.

A motion was made in the district court to strike this answer from the files, for the reason that it does not set forth facts sufficient to constitute a defense to the action; and this motion, by reservation, comes now before us.

It is insisted by counsel for the defense that the facts stated in the answer show the bill upon which the plaintiff sues to be abso534] lutely void, because the transaction in regard *to the Williams note was usurious; that this tainted and made void the original bill in the hailds of the bank, which had no power .to make such a contract; that the bill now in suit, being but a renewal of the original bill, is equally void, and that being thus void, it could not become valid by assignment to the plaintiff.

It could scarcely be necessary to inquire into the usurious character of the contract alleged in the answer, except for the bearing which the result of that inquiry may have on the question of corporate capacity in the bank. For, admitting that capacity, the plaintiff, as the bona fide indorsee of negotiable paper purchased before due, without notice of the usury, could not be affected thereby. Swan’s Stat. 481. The rule of the common law is the same, unless the usurious note is made void by statute.

The provisions of the charter of the bank which bear upon the question of its corporate capacity to make the contract, are to be found in the second section of the act by which it was incorporated, and read as follows:

“It shall be lawful for said bank to loan money, buy, sell, and negotiate bills of exchange, checks,-and promissory notes, and to discount, upon- banking principles and usages, bills of exchange, post-notes, promissory notes, and other negotiable paper or obligations, for the payment of any sum or sums, of money certain, . . . Provided, that said bank shall not take more than six per cent, per annum in advance on its loans and discounts.” 32 Ohio L. L. 343.

It is claimed in argument that the Williams note was discounted within the meaning of this section, and being so discounted at a rate exceeding that authorized by its charter, the contract by which such unauthorized discount was made, was wholly void.

It is true that the term “ discount ’ ’ may, in a general *sense, [535 be understood as a counting .off, an allowance, or deduction made from a gross sum on any account whatever. But in the section under consideration, this term is evidently used in a more limited and technical sense. It is applied in the proviso to transactions in which the bank may take interest in advance. The power to discount promissory notes, upon banking principles and usages, is given in terms as distinct from, and additional to the qiower to buy, sell, and negotiate promissory notes, which is also given in terms, and is unqualified. The restriction of the proviso was, doubtless, intended to define and prohibit usury by the bank, and must, as we think, be construed as applying only to transactions in the nature of a loan. Usury is defined by Parsons, in his Law of Contracts, to be “the taking of more interest for the use of money than the law allows.” And Bouvier, in his Law Dictionary, under the title •“Usury,” says, “To constitute a usurious contract, the following are the requisites: 1. A loan, express or implied,” etc.

It is well settled that the' bona fide sale of a note, bond, or other security at a greater discount than the limit of legal interest is not, per se, a loan, and the purchaser is not liable to the imputation of usury, although the note may be indorsed by the •seller, and he remains responsible. 7 Pet. S. C. 103; 1 Clarke’s Ch. 38; 2 Parsons on Contracts, 421.

In the case presented in the answer under consideration, the Williams note was transferred by Renick, and received by the bank in payment of a pre-existing bona fide debt owing by Renick to the bank; the note itself was business paper, valid in its inception ; 'it was a marketable commodity; and whatever may have been its value as ascertained by the agreement of the parties, usury can not be predicated of the transaction.

*There was neither a loan nor the continuance of an exist- [536 ing debt, but simply a payment and extinguishment of a previous indebtedness.

The contract does not therefore come within the operation of the proviso contained in the charter, as a loan or a discount.

Had the sale been merely colorable to disguise a loan, the law would be otherwise. But the answer charges nothing of that kind. It represents the transaction as a payment by Renick, and íx purchase by the bank. We think the motion of the plaintiff to strike the answer from the files must prevail.

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


author: *Bowen, J.

text:
    In the Matter of James Collier—On Habeas Corpus.
    The privileges of the writ of habeas corpus is secured to every citizen by the national and state constitutions, and can only be suspended or withheld, in case of rebellion or invasion, when the public safety may require it.
    The state courts and judges have jurisdiction to hear and determine all questions of imprisonment, without regard to the power which imposes it, or the process by which the captive is held.
    A proceeding in certiorari to reverse an order made by a state judge, discharging a prisoner on habeas corpus, is, in its nature, a civil proceeding, and, by the 530th section of the code, must be by petition in error, and not by certiorari
    On certiorari to the order of a judge of the court of common pleas of Jefferson county, made on habeas corpus.
    On the 16th of August, 1853, James Collier made application to a judge of the court of common pleas of Jefferson county for a writ of habeas corpus. ■ In his petition he alleged that he was detained, without legal authority, by Jabez W. Eitch, Marshal of the United States, for the district of Ohio.
    *An allowance of the writ was made by the judge, directed to said Eitch. On the same day, Eitch made return to the writ as follows:
    “ In accordance with the command of the within writ, I herewith produce the body of the within-named James Collier, and, for return, say, that I have this day taken the said Collier in. custody, to deliver him over to the marshal of the United States, for the northern district of California, by virtue of a warrant, to me directed, by Humphrey H. Leavitt, district judge of the United States for the district of Ohio.”
    To his return was appended a copy of the warrant referred to, which is as follows:
    “ United States of America, District of Ohio, to the Marshal of said district:

    “Whereas: It appears from an authenticated copy of the proceedings of the district court of the United States, held at the city of San Francisco, within and for the northern district of California, on the 30th day of June, in the year one thousand eight hundred and fifty-three, that the grand jurors of said district, returned into said court, as a true bill, an indictment, Charging, in the several counts thereof, in substance, that James Collier, dn the third day of April, one thousand eight hundred and fifty, at San Francisco, aforesaid, feloniously converted to his own use, and otherwise feloniously used and disposed of, a large amount of the public moneys entrusted to him, as collector of the customs, for the collection district of Upper California, in the State of California, as by reference to the said copy of the. said proceedings hereto attached, will more fully appear ; and whereas, application has been made to me, for a warrant to arrest the said James Collier, now a citizen of, and within the State of Ohio, and to remove him to the said northern district of California, to answer said charge. You are, therefore, hereby commanded to arrest the said James Collier, and to remove him to the said northern district of California, and there to deliver him into the custody of the marshal of said district, to be dealt with according to law. Hereof fail not, but of your service and this writ make due return.
    “ Given under my hand and seal, at Steubenville, this ninth day of August, one thousand eight hundred and fifty-three.
    “ H. H. Leavitt,
    “ Judge of the United States for the District of Ohio.”
    A copy of the indictment was, also, attached to the marshal’s' return, which contained, in substance, the finding, *by the [57 grand jurors, of the charge against Collier, named in the warrant.
    The hearing of the cause was, on motion of Fitch, continned to< the first day of the next term of the court of common pleas of Jefferson county.
    Collier was admitted to bail, by the judge, in the sum of $5,000,. for his appearance at the term to which the cause was adjourned..
    When the court convened, Fitch filed a motion to quash the writ,, for the reasons: 1. That the court has no jurisdiction of the subject-matter. 2. That the court can not discharge or let to bail a person held under process from a court of the United States.
    The judge overruled the motion to quash the writ, and decided that the “caption, imprisonment, and detention” of Collier, were unlawful, and ordered' him to be discharged from the marshal’s custody.
    The record of the proceedings before the judge of the common pleas court has been removed here by certiorari, issued at the instance of Fitch.
    It is assigned for error:
    1. That the court erred in allowing the writ of habeas corpus.
    2. In overruling the motion to quash the writ.
    3. In discharging Collier from the custody of the marshal.

      D. O. Morton, district attorney for Ohio, apj)eared for Fitch.

      C. Cushing, attorney-general United States, submitted an argument on the same side.
    No counsel appeared for Collier.
   *Bowen, J.

We are asked to consider whether there was error in the allowance, by the judge of the common pleas, of the writ in this case? Whether he had any jurisdiction thus to interfere with the question of Collier’s imprisonment, inasmuch as he was detained ■on process issued by a judge of the district court of the United States, and for an alleged infraction of the law of Congress ?

This court is not prepared to assent to the argument of the district attorney for the United States. It denies to the state judiciary an important power, the exercise of which, if limited by the rule claimed by him, will endanger the personal liberty of the citizen, and open, dangerously wide, the door of oppression. The “privilege’’ of the writ of habeas corpus is secured by our national and ■state constitutions to every citizen It can only be suspended or withheld in cases of rebellion or invasion, when the public safety may require it. Subject to that reserved right of the national or state governments, to be employed in the extreme cases named, each citizen is vested with this ancient and sacred shield of liberty. To the judicial department of the government, is delegated the ■duty of enforcing applications for its invaluable benefits, when properly demanded. Our statute relating to the subject gives to the judges of the courts, separately, at chambers, jurisdiction of the subject-matter in all cases, except when the person is convicted of a crime or offense, and stands committed for it; or where he is committed-for treason or felony, the punishment whereof is capital, plainly expressed in the warrant of commitment. Not only is such jurisdiction given to the judges, but when the person who is unlawfully deprived of his liberty makes his application to one of them, as provided in the law, for the benefits of the writ, it is made the duty of such judge forthwith to issue it. The exempted cases of convicted persons who *stand committed, and of treason [59 or felony, punishable capitally, are the only restrictions upon the power of a single judge. The common-law courts are clothed with power adequate for those and for all other cases which may arise. In the exercise of this power by a single judge or a court, every case of unlawful imprisonment may be reached and examined into. It can make no difference whether the detention is by color or authority from a court of the United States; or from any officer, commissioner, agent, or other functionary of the federal government; or by virtue of any writ issued, or authority claimed by one of the states of this republic, or by a' foreign government. The true test of jurisdiction is, whether the relator is detained or imprisoned without legal authority? The source from which the imprisonment emanates, or the authority by which it is sought to-be enforced, operates as no barrier to the allowance and validity of the writ. The power exists to make inquiry into the cause of the caption and detention, and it may be pursued without regard to the origin of the imprisonment, or the condition of the imprisoned. In fine, we may well give our sanction to, and adopt the expressive and emphatic rule of Judge Coulter, in 7 Barr. 338: “No matter where or how the chains of captivity were forged, the power of the judiciary, in this state, is adequate to crumble them to the dust, if an individual is deprived of his liberty contrary to the law of the land.”

In thus stating the rule, we must be understood as referring solely to the power to grant the writ, and to examine into and decide upon the cause of caption and detention of the petitioner. But the view which we take of this case relieves us from the necessity of deciding whether the judge who discharged Collier was correct or incorrect in the conclusions by which he was governed in ^setting him [60 free. Upon that point we express no opinion.

This proceeding is brought here by the marshal, on certiorari. It is supposed that he relied, in the adoption of this form, on section 10 of the amendatory act securing the benefit of the writ of habeas ■corpus, passed February 8, 1847 (Swan’s Stat. 454), which provides: “ That the proceedings on any writ of habeas corpus shall bo recorded by the clerks, and may be reviewed on writs of error and certiorari, as in other cases now provided by law.”

At the time of this enactment, writs of error and of certiorari were, by law, the remedies in use for reviewing and correcting proceedings at law, in civil or criminal cases; but section 530 of the code, which took effect July 1, 1853, declares that writs of error and certiorari, to reverse, vacate, or modify judgments or orders in civil •cases, are abolished; and the petition in error is, by section 515 of the code, substituted in their place.

"We regard this in the nature of a civil jiroceeding. But if it be in the nature of a, criminal proceeding against a prisoner charged with crime, it is subject to the fatal objection that no such remedy ■can bo maintained in favor of the prosecution against the defendant. The right to prosecute a writ of error or certioi-ari against one who is indicted and tried for a crime or offense, is not given to the state, nor to those who. prosecute offenders under its laws.

Section 604 of the code enacts, “ That until the legislature shall otherwise provide, this code shall not affect proceedings on habeas corpus,” etc. It may be claimed that this clause, by its peculiar phraseology, saves the habeas corpus act, and all of the remedies .given by it, from the operations of the code. The word “proceedings” includes, we think, nothing mox'e .than the doings of the judge who allows the writ, and is limited to the hearing before him. The 61] filing of a petition in ei’ror is a proceeding before ^another tribunal. It is new in its character, and affects a review of the decision of the judge, without forming any part of the case before him.

The allowance of the writ; the bl'inging forward of the petitioner before the judge; the inquiry into the cause of his caption and detention ; the introduction of evidence, and the liberation, or other disposal of the relator; are all to be governed by the act relating thereto; and, as to other questions, to be determined by some other tribunal, though arising out of the case made on the writ, the code prescidbes the form by which they are to be governed.

We adopt this construction, the more willingly, as it secures uniformity of practice in cases of error in civil proceeding’s, which seems to be a prominent object of tbe code (see section 605); and, if carried out, will be found useful to the profession.

The writ is dismissed for want of jurisdiction.

Bartley, C. J„ and Swan, Brinkerhoee, and Scott, JJ., concurred.


author: Bowen, J.

text:
    The Portage County Mutual Fire Insurance Company v. William T. West and Abel K. West.
    The seventh section of the act of the general assembly inem’porating the Portage County Mutual Fire Insurance Company, by which a time is limited for commencing actions against the company for loss by fire, applies 600] *to cases where the directors, after examining a claim for losses, wholly disallow it.
    W. and W., members of the company, suffered a loss by fire, and duly notified the company thereof, and the directors refused to pay it, and gave due notice of their determination in October, 1852; and a court of common pleas was held in Portage county in February, 1853, and W. and W. neglected to commence their action against the company for their loss, until after the close of said February term of the court. Held, that their right of action is barred by said seventh section of the act of incorporation, which declares that the insured party may bring an action against the company for loss or damage, at the next court held in Portage county, unless said court shall be held within sixty days after the disallowance of the loss but if heid within that time, then at the next court held in said county thereafter.
    This is a petition in error to reverse the judgment of the district court of Portage county.
    The defendants in error brought an action on a policy of insurance to recover damages for loss by fire of certain buildings owned by them, and insured by the plaintiff in error. The insurance was effected August 21, 1848, and the loss occurred August 26, 1852. Notice of the loss was given to the plaintiff in error within thirty days, and payment requested. On the 5th of October, 1852, the directors of the company rejected the loss, and duly notified the insured of their refusal to pay it.
    The seventh section of the charter of the company provides “that in case of any loss or damage by fire happening to any member, upon property insured in said company, said member shall give notice thereof in writing to the directors, or some one of thorn, or to the secretary of said company, within thirty days from the time such loss or damage may have happened; and the directors, upon a view of the same, or in such other way as they may deem proper, shall ascertain and determine the amount of said loss or damage ; 601] and if the party suffering is not satisfied *with the determination of the directors, the question may be submitted to referees, or the said party may bring an action against said company for loss or' damage, at the next court to be holden in and for the county of Portage, unless said court shall bo holden within sixty days after said determination; but if holden within that time, then at the next court holden in said county thereafter.”
    A term of the court of common pleas was held in Portage county on the 12th of October, 1852, another on the 24th of February, 1853, and another on the 14th of June, 1853. The action to recover' the rejected damages was commenced August 12, 1853. The question of damages was not submitted to referees.
    The defendant below set up in its answer the neglect of the insured to bring suit until after the February term of the court, 1853, as provided for in said 7th section of the charter, in bar of a recovery, and requested the court to instruct, the jury that if they found there had been such failure to sue within the time aforesaid,, that the company was discharged from liability. The court refused" to give such instruction, but charged the jury that the plaintiffs below were not barred by said 7th section from maintaining their action, and that they might, notwithstanding any limitation contained in the company’s charter, or otherwise, under the facts supposed, bring their suit at the time they did, and in this regard maintain the same.
    The plaintiff in error tendered its bill of exceptions, which was allowed, and the refusal of the court to instruct the jury as requested, is assigned for error.

      Mc Clure & McKinney, for plaintiff in error.

      L. S. Beecher, for defendants in error.
   Bowen, J.

The only question raised in argument is ^whether [60S' the plaintiffs below were barred from maintaining this action by the 7th section of their charter, which is above set forth.

The claim for loss was rejected by the company on the 5th of October, 1852, and the insured parties duly notified of such rejection. A term of the court of common pleas was held in Portage county in February, 1853. The plaintiff in error claims that a failure by the defendants to sue at or before that term of the court, is a bar to any action afterward commenced by them to recover' the aforesaid loss. ’ ■

This court, at a former term, in the case of the Portage County M. F. Ins. Co. v. Stickey, 18 Ohio, 455, held that a suit against the ■ company, by one of its members, can only be brought in Portage ■ county. A construction of the 7th section was thus given as to the place where the action must bo brought. The words, “ may bring an action in Portage county,” were held to determine and limit the place of suing; and now it is contended that the remaining portion of the sentence, “ at the next term of the court,” should be held to determine and limit the time in which suit may be brought. It is difficult to perceive any reason which can authorize the former construction that will not with equal propriety sanction the latter.

But it is said this is a disabling statute, and in violation of the general law of the limitation of actions, and should receive a restricted construction, and not such an one as w-ill exclude the party injured from the right of suing within the term fixed by the general act. To this it is only necessary to reply that the clause of of the 7th section in question is founded on public policy, and not like ordinary statutes of limitation, upon presumption of payment, and affects not the remedy merely, but the right of the party to sue. .The case is analogous to those contracts in which there is a positive 608] stipulation to do some act, provided specific ^demand bo made within a specified time, or provided some other precedent condition be performed. The limitation is contained in the very act of incorporation ; it is, in effect, a part of the contract between the whole company in the aggregate, and every individual member. In the • event of a loss which is not adjusted by the corporation to the satisfaction of the sufferer, and if no reference shall be agreed on, the former becomes liable to a suit at law, provided such suit be instituted within a short but definite period, adjusted to its business exigencies. If the prescribed time be suffered to elapse without suit, ■there remains no longer a legal liability in any form. 20 Vt. 222.

The reasons why all claims for loss or damage against a mutual insurance company should be adjusted as speedily as is consistent, are quite obvious. All the individuals who become interested in the company, by insuring therein, become members thereof during the terms of their respective policies, but no longer. It is impossible for the directors to settle and determine the distinct sums to be paid by the several members of the company as their respective proportions of the losses, until they have been liquidated in some one of the wavs- pointed out in the 7th section. In the construction of a statute we must always have regard to the intention of the makers of it; and this intention, many times, is to be collected from the occasion, object, or necessity of making it, or some particular provision in it. When the intention is once discovered, it should with reason be followed in giving effect to it, even though such construction seem somewhat opposed to other general legislative enactments. 7 Vt. 369.

The act in question, containing as it does a limitation of the right, to sue, as among the members of the association, can not be treated as unmeaning or idle legislation in *that respect. The object [604 of the provision, as we have already shown, rests upon sound policy, and grows out of, and is peculiar to, the nature of the corpora-’ tion, and its mode of doing business. Such being the construction which we feel constrained to give the 7th section, it follows that the district court was at fault in its instruction to the jury, and that the plaintiff’s liability to a suit, by what we have seen should be treated as terms of the contract, which the insured accepted for-their protection against the loss, was limited to a period of time clearly specified, and that it could not, after that limitation expired, be held answerable to the defendants on their policy of insurance.

The judgment of the district court is reversed, and the cause remanded.

Bartlet, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.


text:
    Benjamin Tappan, Jun. v. Oella Tappan.
    The district court has no jurisdiction to review, on petition in error, the proceedings of the court of common pleas, in cases of divorce and alimony. The decree of the court of common pleas, in such a case, is not, by the laws of this state, subject to judical revision.
    It seems that the “act concerning divorce and alimony,” passed March 11, 1853, does not permit an appeal to the district court from any judgment or order of the court of common pleas, in cases of petition for divorce and alimony, or of petition for alimony alone. The Uth section of said act was intended to permit appeals in cases arising under the fourteenth section of the same act.
    Error to the district court of Jefferson county.
    The opinion of the court contains a statement of facts sufficient for a proper understanding of the questions determined.

      M. Birchard, for plaintiff in error,
    argued, in substance, as follows:
    If the district court had no jurisdiction to review the judgment of the common pleas granting a divorce and alimony, it could not give a judgment of affirmance. 9 Wheat. 650; 1 Doug. 390.
    The district court erred in holding that a decree for divorce and alimony can not be modified or reversed on ^certiorari. Sec. [65 511 to 516 of title 16 of Code; also sec. 604 Ohio Constitution, art. 1, sec. 16.
    Writs of error, when the proceedings are according to the course of the common law, and of certiorari, where the proceeding was special, to correct the errors of an inferior tribunal, have ever been writs of right, grantable “ exdibito justitice.” 4 Mass. 171; 11 Ib. 462; 2 Ib. 35, 142, 441; 2 Salk. 504; 9 Peterdorff, 2; 2 Burr. 1040; 1 W. Black. 281; 1 Mod. 45.
    Suits in error to correct decrees for alimony, so far from being unknown, are common to the practice of those states in which inferior courts exorcise jurisdiction in cases of divorce. In New York such cases are frequent. 7 Hill, 207; 2 Gilman, 72; 1 Day, 111; 4 Littell, 251; 7 Humph. 440, 183; 8 Black. 60, 218, 561; Shelford on Marriage and Divorce, 596; 1 Watts, 263; 3 Harr. 136.

      M. Birchard argued the case further, orally.

      George W. McCook, for defendant in error:'
    I. A decree for divorce, or divorce and alimony, can not be reviewed or reversed, in whole or in part, in Ohio. Bascom v. Bascom, 7 Ohio (pt. 2), 125; Laughery v. Laughery, 15 Ohio, 405.
    II. The act of March 11, 1853, concerning divorce and alimony (Swan’s Rev. Stat. 325), does not disturb the well-settled law which declared the decree once pronounced forever conclusive.
    III. The code of civil procedure does not change the law on this subject. Section 604 of the code withdraws the whole proceeding from the operation of the code.

      William Kennon argued, orally, for defendant.
   Scott, J.

This case comes before us on a motion for Heave to file a petition in error, on proceedings of the district court of Jefferson county.

A petition was filed in that court, with a transcript of proceedings in a case prosecuted by the defendant in error in Jefferson common pleas, for divorce and alimony, on which errors were assigned. On the hearing, the district court affirmed the judgment •of the common pleas, gave judgment against the plaintiff in error for costs, and ordered a mandate to the common pleas, to carry the judgment into execution.

To reverse this judgment of the district court, the plaintiff asks leaveD to file a petition in error.

Counsel have agreed, “ that if the court, on hearing, grant leave ■to file the petition in error in this case, a formal issue of summons and citation is waived, and appearance entered, so that the court may, at once, proceed to pronounce judgment.”

And the ease having been fully and ably argued by counsel, upon its merits, we shall proceed to _ consider and dispose of it, as upon hearing of the petition. The first question which presents itself in this case, is: Can a decree for divorce, or for divorce and alimony, be reviewed in Ohio ?

This question was first’brought before the former Supreme Court in bank, in the case of Bascom v. Bascom, 7 Ohio (pt. 2), 125. This was in 1836, when no right of appeal could exist in such cases, for the Supreme-Court had the sole jurisdiction of the subject-matter.

In that case, Lane, J., delivered the opinion of the court in the following emphatic language:

“ The statute of March 1, 1834, declares that all proceedings' under the act concerning marriages and divorces, shall be as in chancery. Under this law it is claimed that all the incidents of a suit in chancery attach to these proceedings, and among others, the right of review.
*“ It seems plain to us that such could not have been the [67 intention of the legislature. Where a divorce is granted, upon which one of the parties contracts new relations, and a third party acquires rights, it Can not be, that a process could be had to reverse a decree, the consequence of which would bo a severance of all those new relations. Such anomalous mischief can not be ingrafted on the practice of our courts, except by clear and explicit legislative enactment. That, we feel confident, can never take place.”

Subsequently, jurisdiction of divorce cases was conferred on the common pleas, and the statute then permitting appeals to the Supreme Court from all final judgments and decrees, a question as to the applicability of this provision to divorce cases arose upon an appeal by a third party, on whose lands the alimony allowed had been charged.

Judge Hitchcock, in delivering the opinion of the court sustaining the appeal as to the third party, says:

“ The first question which presents itself for consideration, is, whether the case is one which could be brought into this court by appeal ? Had it been a mere petition for divorce, or for divorce and alimony under the statute, no matter what the decision of the court of common pleas might have been, there could be no appeal. Although, the proceeding in such case is in form as in chancery, yet this court have long since decided, that when the decree has been made, there could be no review (Bascom v. Bascom, 7 Ohio, 125); and surely, if there could be no review, there could be no appeal.” Laughery v. Laughery, 15 Ohio, 405.

These cases may be regarded as settling the question that, as the law then stood in Ohio, the decision of the court on the hearing of a petition for divorce was final, and beyond the reach of judicial revision.

*How far, then, has this question been affected by the subsequent change of our constitution and laws ?

The plaintiff claims that this right of review is secured to him, first, by the common law, and, second, by the 16th section of our-present bill of rights. But the common law was recognized as well .under our former judicial system as the present, and the 16th section of the bill of rights is copied from the constitution of 1802.

Proceedings in divorce, or for alimony' alone, have ever been wholly regulated, in this state, by special statutes. The “act concerning divorce and alimony” now in force, was passed March 11, 1853, and provides, in the 16th section, “ That in case of petition for divorce, or petition for alimony alone, no appeal shall be allowed from any judgment or order of the court of common pleas to the district court.”

It is true that there is an apparent discrepancy between this section and the one immediately following, which reads thus: “In cases arising under the eleventh section of this act, either party may appeal from any final judgment or order of the court of common, pleas to the district court, as in other cases; but when such an appeal is taken by the petitioner, she shall not be required to give bond.” Now, as the eleventh section prescribes the mode of conducting the proceedings on a petition for alimony alone, the seventeenth section would seem to permit appeals in such cases, while the-sixteenth section expressly prohibits such appeals. But we are satisfied that the reference in the seventeenth section was intended to> be made, not to the eleventh, but to the fourteenth section. That a similar mistake occurs iifthe fifteenth section, is quite apparent; for, “cases where the petition is filed under the eleventh section” are-there mentioned as a class entirely distinct from cases where the 69] ^application is for alimony. Besides, the eleventh section does-not provide for the filing of a petition in any case; it is the tenth section which authorizes a petition to be filed for alimony alone.

The whole act recognizes and provides for but three classes of ■cases: 1. Petitions for divorce, and, as incident thereto, alimony, where the husband is the aggressor; 2. Petitions for alimony alone; 3. Petitions which seek to enjoin the husband from wasting his wife’s property. Authority to file a petition in cases of the first class is given by the third section; in -cases of the second class, by the tenth section; and in cases of the third class, by the fourteenth section. The provisions of the fifteenth section were manifestly intended to apply to all these classes of cases. And while the seventeenth section was designed to permit either party to appeal from the final judgment or order of the court of common pleas in the third class of cases, the sixteenth section expressly declares, as to eases of the first or second class, “ no appeal shall be allowed to the district court."

This construction renders the whole act sensible, and its several parts consistent; and the sixteenth section is thus left to mean precisely what its language imports. Indeed, such has ever been the legislation of this state; for the act of 1843, which first gave to the common pleas concurrent jurisdiction with the Supreme Court, declares, “That in all cases” (whether of divorce, and alimony, or of alimony alone) “commenced in the court of common pleas, no appeal shall be obtained from the decree, but the same shall be final and conclusive.” 41 Ohio L. 64.

With full knowledge of the decisions of the Supreme Court denying the power of review, the general assembly of 1853 re-enacts the provision prohibiting appeal, and provides no other mode of revision. We think the inference *fair, that such revision was [70 not contemplated. Nor do we find in the code of civil procedure any thing to repel this inference.

That clause of the 602d section which declares that “ the provisions of this code shall apply after a judgment, order, or decree, heretofore or hereafter rendered, to the proceedings to enforce, vacate, modify or reverse it,” etc., would seem, from its very language, to'be limited in its application to such judgments, orders, and decrees, as might, independently of the code, have been vacated, modified, or reversed, by proceedings previously authorized. The Torm of the remedy, the mode of asserting rights previously existing, is changed; but where no right of review previously existed, we think this section does not confer it.

But an examination of section 604, which declares that “until the legislature shall otherwise provide, this code shall not effect . . . proceedings under statutes relating to dower, divorce, and alimony,” etc., together with the consideration that the statute' specially regulating proceedings for divorce and alimony bears the same date with the code, will justify the conclusion that the whole subject-matter was intended to be excluded from the operation of the code. Besides, we find nothing in the “ act concerning divorce and alimony,” nor yet in the code of civil procedure, discriminating, as to the right of review, between the decree for divorce and the decree for alimony. The right, if conferred at all, is conferred by general terms, which include the one as well as the other; and yet we do not understand it to be claimed that that portion of the decree which annuls the marriage contract can be reversed.

Whether such discrimination might not properly be made, and a review of that part of the decree which relates to alimony and the custody of children, be permitted on terms which would secure the 71] rights of both partios, *may be a proper subject of legislative consideration. But we can not believe that a proper construction of existing laws would justify us in regarding the husband as forever released from the obligations and duties growing out of the marriage contract, by a decree which his own aggression has demanded, while the injured wife is left, without means, to contest, in protracted litigation, her right to a maintenance.

We are, therefore, of opinion that the district court of Jefferson county had no jurisdiction to review the decree or proceedings-in the case between these parties in the common pleas, and the judgment of the district court must therefore be reversed.

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


author: Brinkerhoff, J.

text:
    Major Foster et al. v. William Robinson.
    In case of a lease of farming lands, 'whether by deed or in parol, from the first of April in one year to the first of April in the next year, the contract of lease being silent in respect to an away-going crop, and containing nothing, either expressly or by fair implication, to negative a customary right of the tenant to such crop, a general custom, established in the place where the parties reside and the demised premises are situate, giving to the tenant the right to the away-going crop, annexes such right, by way of incident, to the contract of lease. ’
    *Error to the court of common pleas of Jefferson county. Reserved by the district court of said county.
    The original action was replevin for “ two stacks of wheat.”
    Plea, general issue.
    At the August term, 1851, of the court of common pleas, the cause was tried to a jury, who returned a verdict for the plaintiff below, and assessed his damages at five cents.
    The defendants below moved to set aside the verdict, and for a new trial, because the verdict was against the evidence, and because the court erred in admitting evidence, and in their charge to the jury; which motion the court overruled, and entered judgment on the verdict.
    On the trial, a bill of exceptions was taken by the defendants below, which was made a part of the record, and set out all of the evidence as well as the rulings of the court.
    This writ of error was prosecuted to reverse said judgment.
    The bill of exceptions discloses the following state of facts :
    In the fall of 1849, Robinson was in the possession of land that belonged to David Poster, one of the defendants below, under a contract.
    It does not appear, very clearly, what the nature of this contract was, further than that, by its terms, Robinson had the right to the possession of this land until the 1st of April, 1850.
    In the fall of 1849, Robinson contracted with one Peter Thomas 92] to put thirty acres of this land in wheat, on the ^shares. Thomas put in the wheat, and Robinson remained in possession until March, 1850, when he left, and the defendants below went into' possession of the land. At the harvest of 1850, the wheat put in by Thomas was cut and shocked — Thomas taking his share, and leaving Robinson’s share on the ground. The share left for Robinson was taken by the defendants below, and constituted the “two stacks of wheat ” which were the subject-matter of the action ofreplevin.
    On the trial of the case in the common pleas, Robinson, to maintain the action on his part, called a number of witnesses to prove that it was the custom, in the neighborhood of the locus in quo, for a tenant, from year to year, whose term expires on the 1st day of April, to have and take the away-going crop — the contract under which Robinson went into possession, being silent on this subject.
    To the admission of this testimony, the defendant below objected ■, but the objection was overruled by the court, the court deciding “that the plaintiff might give in evidence any general usage or custom in the neighborhood of the land in question, between landlord and tenant, as to way-going cropsto which decision the defendants below excepted.
    The defendants below requested the court to charge the jury as follows :
    “ 1. That a tenant under a lease from the 1st of April of one year, to the 1st of April of the next year, is not, by the law of Ohio, entitled to the way-going crops.”
    Which the court charged was the law.
    “ 2. That the evidence of a contrary custom in the locus in quo, being conflicting and contradictory, is not sufficient in law, to entitle the plaintiff to the way-going crop.”
    Which instruction the court refused to give, and charged that *such was not the law. And the court further charged the [9S jury as follows:
    *“ If the jury are satisfied, from the evidence in the cause, that the plaintiff was in possession of the farm on which the wheat in question grew, under a contract with the owner for the use and occupation of the farm from April 1, 1849, to April 1, 1850, and that there» was no express agreement between the plaintiff and the owner’ of the land, as to putting in a crop of wheat in the fall of 1850 ; and if the jury shall be well satisfied, from the evidence in the cause, that the general usage and custom where the land is situated, was, at that time, that the tenant,'under such circumstances, should have the away-going crop, the plaintiff will’ be entitled to your verdict.”
    To which charge the defendants below excepted.
    The plaintiffs in error assign as error:

      I. That the court erred in admitting the testimony as to custom.
    II. That the court erred in refusing to charge the second point requested by the defendants below.
    III. That the court erred in their instructions to the jury.

      Stanton & McCook, for plaintiffs in error.

      Moodey & Elliott, and J. S. Miller, for the defendant in error:
    This case presents the simple question, whether the court of common pleas erred in admitting evidence to prove a custom, that a tenant from year to year, whose term expires on the first day of April, is entitled to the away-going crop, where the lease is silent on the subject.
    The right to show such a custom was recognized in England, in the time of Lord Mansfield, in the case of Wigglesworth v. Dallison, 94] Doug. 201, and has been subsequently *affirmed by a uniform series of decisions. Hutton v. Warren, 1 Mees, & Wels. 466.
    In Pennsylvania, New Jersey, and Delaware, a lessee for a time certain, is, by the custom, entitled -to the away-going crop, though such right may not be recognized in the contract. Stultz v. Dickey, 5 Binn. 285; Diffedorfer v. Jones, cited by Justice Yates, Id. 289; Comfort v. Duncan, 1 Miles, 231; 2 Binn. 487; Demi v. Bossler, 1 Penn. 224; Biggs v. Brown, 2 S. & R. 14; Van Doren v. Everett, 2 South. 460; Templeman v. Biddle, 1 Harr. 522.
    In Maryland, also, this rule has been held. Dorsey v. Eagle, 7 Har. & Gill, 321.
    In Van Ness v. Pacard, 2 Pet. 138, the court, per Story, J., said : “Every demise between landlord and tenant, in respect to matters in which the parties are silent, may be fairly open to explanation by the general usage and custom of the country or of the district where the land lies; every person, under such circumstances, is supposed to be cognizant of the custom and to contract with a tacit reference to it.”
    The doctrine of “ annexing incidents,” and the rule as claimed by defendant in error, is very clearly and fully recognized by Greenleaf, in his Treatise on the Law of Evidence. 1 Greenl. Ev., sec. 294.
    Reference is also made to Roberts v. Barker, 1 Cr. & M. 808; Wilcox v. Wood, 9 Wend. 346; Legth v. Hewit, 4 East, 154; Senor
      v. Armitage, Holt, 197; Webb v. Plummer, 2 B. & Ald. 750; Holding v. Pigott, 7 Bing. 465.
   Brinkerhoff, J.

There was a motion for new trial after verdict in the court below, which was overruled; but this ruling was not excepted to ; it is not especially assigned for error, nor is there any general assignment of error; it may, therefore, be considered as out of the case.

*The charge which the court below was asked by the defend- [95 ant to give to the jury in the trial, and the refusal of which is made the ground of the first assignment of error, seems, in effect, to have required from the court an expression of opinion on the weight and credibility of testimony. If so, it was certainly right for the court to refuse it. And if this was not its object, the point was fairly covered by the charge which the court did give, and there was no error in the refusal.

But the principal question here presented is, whether, in case of a lease from the 1st of April of one year to the 1st of April in the next year, the contract of lease being silent in respect to an away-going crop, and containing nothing to negative, either expressly or by fair implication, a customary right of the tenant to such crop, a general custom, established in the place where the demised premises are situate, giving to the tenant a right to the away-going crop, annexes such right, by way of incident, to the contract of lease ?

The affirmative of this question was directly held by the court of Kings Bench in Wigglesworth v. Dallison, Douglass, 190, and which was afterward affirmed on error. In that case Lord Mansfield, delivering the opinion of the court, said : “We have thought of this case, and we are all of the opinion that the custom is good. It is just; for he who sows ought to reap, and it is for the benefit and encouragement of agriculture. It is, indeed, against the general rule of law concerning emblements, which are not allowed to tenants who know when their term is to cease, because it is held to be their fault or folly to have sown, when they knew that their interest would expire before they could reap. But the custom of a particular place may rectify what otherwise would bo imprudence or folly. The lease being by deed does not vary the case. The custom does *not alter or contradict the agreement in the case; [96 it only superadds a right which is consequential to the taking, as a heriot may be due by custom, although not mentioned in the grant or lease.”

In Hutton v. Warren, 1 Meeson & Welsby, 466, decided in the court of exchequer as late as 1836, and involving a similar question, the English cases up to that time are reviewed, and the doctrine of Wigglesworth v. Dallison is reaffirmed. Parke, B., there says: “ It has long been settled that in commercial transactions extrinsic evidence of custom and usage is admissible to annex incidents to written contracts, in matters with respect to which they are silent. The same rule has also been applied to contracts in other transactions of life in which known usages have been established and prevailed; and this has been done upon the principle of presumption, that, in such transactions the parties did not mean to express, in writing, the whole of the contract by which they intended to be bound, but a contract with reference to those known usages.”

The like doctrine is held in Pennsylvania; and it would seem that, in that state, no proof of local custom is required, because the customary right of the tenant to the away-going crop is recognized as being established throughout the state. Briggs v. Brown, 2 S. & R. 14; Demi v. Bosler, 1 Penn. 224; 1 Miles, 229; Comfort v. Duncan; Stultz v. Dickey, 5 Binn. 285. So in Delaware. 1 Harrington, 522, Templeman v. Biddle. The doctrine of Wigglesworth v. Dallison is also recognized in Maryland; Dorsey v. Eagle, 7 Gill & J. 331; by the Supreme Court of the United States, in Van Ness v. Pacard, 2 Pet. 148; and, so far as we can ascertain, has not been denied by any of the courts of this country. The question, as applied to contracts of lease, seems not to have been, heretofore, de97] cided by the Supreme Court in this state; but in Wayne *v. Steamboat General Pike, 16 Ohio, 421; Steamboat Albatross v. Wayne, Id. 513, and Inglebright v. Hammond, 19 Ohio, 337, the general doctrine was recognized as applicable to contracts of bailment.

The doctrine of Wigglesworth v. Dallison seems to have been uniformly held, whenever or wherever the question has been presented. It appears to us to be reasonable and just in itself, and tends to the promotion of agriculture; and we can see no reason why contracts of lease should not, as well as mercantile contracts, be construed in reference to general and well-established customs prevalent where the parties to the contract reside, and the subject-matter of the contract is situate. We are of opinion, therefore, that there was no error, either in the admission of the testimony excepted to, or in the charge of the court to the jury.

Judgment affirmed.

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


author: Spear, J.

text:
    Kunneke v. Mapel.

      Partnership — Partner cannot maintain action against co-pariner— On claim of partnership debt — Before final accounting — Unless subject-matter had been withdrawn from partnership account— Defendant required to set up all matters of defense.

    1. A partner can not maintain an action for a money judgment against a co-partner upon a claim of payment of a partnership debt before a final accounting of partnership affairs has been had, except upon showing that that particular transaction had, by agreement, been withdrawn from the partnership account. And, in the absence of such showing, it is a defense which will bar a recovery to show that the partnership has not been dissolved and that no final accounting of the partnership affairs has been had.
    2. It is a principle of general application that a party defending is bound to set up all matters which are strictly matters of defense. Swensen v. Cresop, 28 Ohio St., 668. And if, in such action by a partner, the defendant neglects to' make such de-. fense and pleads only that the plaintiff, for a valuable consideration, assumed himself payment of the whole of the deist, and final judgment is rendered against him on that issue, he cannot afterwards maintain an action for an accounting, and to recover thereon.
    (Decided March 14, 1899.)
    Error to the Circuit Court of Putnam county.
    The action was brought by Thomas J. Mapel against' John H. Kunneke for an accounting as partners. He averred that in June, 1891, plaintiff and defendant entered into a partnership as dealers in dry goods, etc., plaintiff contributing $2,650 to the capital and defendant $1,950, and they were to share in the property and profits in the ratio of such contribution. Defendant was to and did manage the business. He has refused to render an account of his management and of the proceeds and property. About October 18, 1891, the partnership ceased to do business, but was not finally dissolved, and at and prior to that date defendant took a large amount of the partnership property ■and refused to account for the same. No division has ever been made, and no final account had.. Defendant has retained a much larger share of the proceeds than he is entitled to, and refuses to account for the same, or pay plaintiff his share. Wherefore plaintiff demands an accounting, and for all proper relief.
    By his answer, defendant denied that he converted any of .the firm property to his own use; denied that he refused to account, but has always been willing and .anxious for an accounting; admitted that plaintiff put in $2,625, and averred that he put in at the time they entered into business $1,975, and that he put in property, money, time and note, more than $2,582.

      For a second defense he averred that plaintiff and defendant, to secure a debt of the partnership, executed their joint promissory note July 1, 1891, to one Phoebe M. Croninger for one thousand dollars, with, seven per cent, interest. Prior to August 20, 1892, said Croninger sold and assigned the note to the Farmers’ National Bank, of Find-lay. August 20, 1892, the bank commenced suit on the note against plaintiff and defendant in this court, and October 24, 1892, recovered a judgment on the note against the plaintiff and defendant for the sum of $1,112.06 and costs. Afterwards an execution was issued out of said court on said judgment, directed to the sheriff of Putnam county, and defendant was compelled to and did pay the full amount of said judgment, interest and costs. At the time of the payment of said judgment by defendant there was no other outstanding indebtedness of said partnership, and there has been none since. On January 2, 1894, this defendant commenced an action in this court, being cause number 6653, against said plaintiff, to recover from plaintiff the one-half of said judgment, interest and costs so paid by defendant. In said cause the defendant' therein (plaintiff herein) was duly served with piocess, and filed an answer admitting that said note was a debt of the partnership, and putting in issue his liability on the note. The cause was tried on the issues joined and a judgment rendered at the November term, 1894, in favor of plaintiff (Kunneke) and against defendant, (Mapel). Said judgment is in full force, unreversed and unsatisfied. All the matters and things in connection with the accounting -and dissolution of said partnership were in issue in said cause, 6653, and should have been litigated in said cause, and they were litigated in said cause. By reason of the premises plaintiff is estopped from prosecuting this action for an accounting, and all of said matters and things have been once adjudicated.
    The reply denied every allegation of the answer. Upon trial the court found that the matters and things alleged in the said second defense are each and all of them true, and that all of the matters and things in connection with the dissolution and accounting of said partnership were in issue in said cause number 6653, in the court of common pleas, and should have been and were determined in said cause, and that by reason thereof the plaintiff in this ease is estopped from prosecuting further his suit. Thereupon judgment was rendered, dismissing the petition, and that defendant recover costs of plaintiff.
    A bill of exceptions was taken at the trial, embracing all of the evidence and error was prosecuted by Mapel to the circuit court. That court found and held that the court of common pleas erred in holding and deciding that the matters and things set up in the petition of plaintiff were or should have been heard and determined in said cause number' 6653, and that said court erred in overruling the motion of plaintiff below for a new trial. A judgment of reversal was, thereupon rendered and the cause ordered remanded to the court of common pleas for further proceedings according to law.
    A reversal of this judgment and an affirmance of that of the common pleas is now asked.

      Handy, Ogan dk Unverferth, for plaintiff in error.

      Bcdley <& Bailey, for defendant in error.
   Spear, J.

The question presented by the record is whether or not the issue sought to be made in the case below was made and disposed of in the former case between the same parties. We think it is to be determined by applying to the controversy familiar rules in relation to partnerships, and that the proper solution is not difficult.

The bill of exceptions sets out the entire record in the former case, and shows that, notwithstanding Mapel’s denial, in his reply in this case of Kunneke’s second defense, (which included a denial of the allegation as to the origin of the Croninger note), it was in fact a partnership note. The petition in the former case stated a good cause of action, but it was a straight action at law. The answer, however, alleged that prior to and for a long time after the date of the note, plaintiff and defendant were partners; that the note was the debt of the partnership and of the partners; that at the dissolution of the partnership, on or about February 4, 1893, plaintiff, for good and valuable considerations, moving from defendant to plaintiff, assumed and agreed to pay said note and all other’ debts of the partnership. The reply admitted that plaintiff and defendant were partners as alleged and that the note was the debt of the partnership and partners. The suit, therefore, was one by a partner against his co-partner to recover one-half of a partnership debt which had been paid by the former. Whether or«not he could recover did not depend alone upon whether he had in fact paid such debt, for it might be that in doing so he had not paid more than was his proper proportion to pay. This could be determined only by a marshalling of accounts, by an accounting, and an ascertainment of how each partner stood with respect to the partnership. The fact, if it were such, that the partnership had not been finally dissolved, although it had ceased to do business, and that no accounting had been had between the parties and no final or full division of the partnership assets and proceeds had been had, (all which facts were alleged in Mapel’s petition in the case below), would have been a complete defense to any right of Kunneke to recover at law by reason of his payment of the joint note. That is, had such issue and none other been made, and had the evidence stopped with proof of that fact, it would have been the duty of the court to dispose of that controversy at once by a judg-ment for defendant. This by reason of the well established rule that one partner cannot, in the absence of a showing that, by some special agreement, the particular matter has been withdrawn from the partnership account, maintain an action at law against another to recover an amount claimed by him by reason of partnership transactions, until there has been a final settlement of the business of the partnership. Before such settlement his only remedy is to allege the pertinent facts and ask a dissolution and accounting and an ascertainment of the balance, and for a recovery upon such accounting. The reasons for this 'rule are so apparent, and the rule itself so well understood, that it seems unnecessary to take space to state the reasons, or to cite authorities in support of the rule. It may, however, be proper to add that the above principle follows as an immediate corollary from the rule declared in Oglesby, Exr., v. Thompson, 59 Ohio St., 60.

If therefore, Mapel did not present, as a defense, the fact of continuing unsettled partnership relations between himself and Kunneke, he placed himself in the - position of a litigant who, having full knowledge of facts that would make for him a valid defense, fails to assert them at the proper time, and submits to a final judgment against him arrived at without consideration of such facts. That such omission is to be treated as a waiver which will be conclusive of any right to subsequently avail himself of such defense, is well settled in this state. Hites v. Irvine’s Admr., 13 Ohio St., 283; C. & C. Bridge Co. v. Sargent, 27 Ohio St., 233; Roby v. Rainsberger, same vol., 674; Rindskopf v. Doman, 28 Ohio St., 516; Petersine v. Thomas, same vol., 596; Swensen v. Cresop, same vol., 668; Hixson v. Ogg, 53 Ohio St., 361; Cincinnati v. Emerson, 57 Ohio St., 132. We have not overlooked the case of Cramer v. Moore, 36 Ohio St., 347, nor Porter v. Wagner, same vol., 471. The doctrine of those cases has no application here for reasons which we think must be obvious upon a comparison of the facts involved.

It was argued by counsel for defendant in error that the claim of Mapel, as set out in the petition below, would have been, had it been presented in the former case, a set-off or counterclaim, and that the only result of a failure to set it up in that case would have been to prevent a recovery of cos-ts in the subsequent action, as provided in section 5073, Revised Statutes. We think not. If the case made in the petition in the former suit was an action at law, then as already found, allegations showing that defendant was entitled to an accounting’ would have been a complete defense; if, on the other hand, considered in connection with the answer and reply, the plaintiff’s case was to be treated as a demand for an accounting, then the issue was directly made and the judgment disposed of it finally. In either aspect, it was incumbent upon Mapel to then make the defense.. Had the claim of Kunneke been one wholly independent of the partnership dealings, then the right to an accounting would have been a set-off available upon a showing of the plaintiff’s insolvency, and Mapel could have set it up or not as he might choose. True, the claim for an accounting partook somewhat of the nature of a counterclaim, yet, since it was impracticable to determine whether Kunneke was entitled to recover without an inquiry into the affairs of the partnership, it was primarily a defense. Nor would there have been any inconsistency between an allegation of promise to assume a partnership debt, and an averment that there had been no dissolution and no accounting, for, as already indicated, partners may withdraw a special matter from the partnership business, and deal with it by itself.

But whether or not we are correct in holding that the issue as to the subsisting partnership and the rights of the partners upon a settlement, ought to have been presented in the former case, the bill of exceptions shows, as we think, that it was in fact presented by the evidence and without objection. Mapel assumed the affirmative and by his own testimony and that of others gave evidence showing the origin, conduct and conclusion of the partnership enterprise. The proofs, as a whole from both sides, tended to show what each partner put in, what each drew out, what had been done with the partnership property, what debts were created, who paid them so far as paid, and what remained unpaid, and what the residue of the property was worth, and what became of it. The special point of contention was whethér Kunneke had agreed to pay all the partnership debts, Mapel testifying that he had so agreed, while Kunneke denied this and claimed that it was only certain debts, those which were liens on the property which he took in the effort to wind up their affairs, that had been assumed by him. And whether, taken togethér, the evidence would or not have enabled an accountant easily td state a satisfactory account between the litigants, the parties undertook to state facts which disclosed their entire partnership transactions. It is enough to know that the inquiry embraced the entire partnership matters.

It follows that the judgment of the circuit court should be reversed and that of the common pleas affirmed.

Reversed.