text:
    Peter Long v. Vendever B. Moler.
    Where a deed of conveyance, with a covenant, that at the time of the enseal-' ing and execution thereof, the premises are clear and free of all incumbrances whatever, is executed subsequent to the day fixed by the statute when the lien of the State for the taxes of the current year attaches, such lien is an incumbrance within the scope of the covenant, and for which an action on the covenant will lie.
    Incumbrances known to the parties at the time of the conveyance, are not presumed to be excluded from the operation of such covenant.
    Parol evidence is not admissible to show an understanding of the parties that such incumbrances were excluded from the operation of the covenant.
    Petition in error. Reserved in tbe District Court of Montgomery county.
    The facts and questions in the case are stated in the opinion of the court.

      C. L. Vallandigham, for plaintiff,
    cited Tremain v. Siming, Wright’s Rep, 644; Porter v. Noyes, 2 Greenleaf 22 ; Townsend v. Weld, 8 Mass. Rep. 146 ; Harlow v. Thomas, 15 Pick. Rep. 68 ; 1 Greenleaf’s Ev., sec. 2812 Starkie’s Ev. 549 ; Dunn v. White, 1 Ala. Rep. 645 ; Bean v. Mayo, 5 Greenleaf Rep. 94 ; Hubbard v. Norton, 10 Cowen Rep. 431; and other cases cited in these.

      Lowe & Booth, for defendant,
    cited 3 West. Law Journal 309, and cases there cited, to the point that a grantor in a- deed does not warrant against known incumbrances.
   Brinkerhoff, J.

The facts in this case are these : On the 23d day of January, 1851, the defendant, by contract under seal, agreed to sell and convey to plaintiff a farm. A part of the purchase money was to be paid in hand, a part on the first of April following, at which time plaintiff was to have possession; and on the payment of the balance of the purchase money, or the execution of his notes therefor by the plaintiff, bearing interest from said first day of April, the defendant was to execute a good and sufficient deed for the premises. The payments having been made and possession given in accordance with the terms of, and at the time mentioned in the contract, the defendant, on the 18th day of June, 1851, executed to plaintiff a deed of conveyance containing full covenants of warranty. The taxes levied on the premises for the year 1851 not being paid by the defendant, the plaintiff paid them when due, and now brings his action on the covenant against incumbrances to recover the amount of those taxes. On this state of fact, two questions are presented for our determination:

1. Were these taxes an incumbrance, or lien on the premises at the time of the conveyance, to wit, June 18th, 1851 ? And if so,

2. Is that lien or incumbrance properly within the scope of the covenant against incumbrances embraced in the deed ?

The first of these questions seems to be settled, so far as express legislation can settle any question, by the twenty-first section of the act of March 14, 1831, “ pointing out the mode of levying taxes,” (Swan’s Revised Statutes of 1841, p. 913,) in force at the time of the execution of this deed, and which is as follows:

“ The lien of the State, for all taxes for State, county, school, road or township purposes, shall attach on all real estate, on the first day of March, annually; and such lien shall be perpetual, for the amount of all taxes which" heretofore have accrued, or which may hereafter accrue, with the interest and penalties in each case, until such taxes, interest and penalties shall be fully paid ; which lien shall in no wise be affected or destroyed by any sale or transfer of any such real estate.”

This enactment is plain, explicit and free from all ambiguity; and it fixes on all real estate subject to taxation a specific lien, dating from the first of March of each year, for the amount of the taxes of the current year and all prior delinquencies. The statute makes the taxes for the current year a debt chargeable on the land from that date, and from that date declares the existence of a lien. The fact that the amount of the taxes for the current year is not, at the date of the declared lien, ascertained, and cannot at that date be paid, surely cannot operate to avoid a lien fixed by express enactment. As between private parties, a mortgage lien, or a mechanic’s lien, may subsist in full force and unquestionable validity, and yet so dependent on contingencies arising out of the contract of the parties or the nature of the case, that the amount is neither immediately ascertainable or payable.

And what object or design could the legislature have had in the enactment of this statute ? As for anything to be attained by the State in connection with its financial policy, we can see no motive whatever for this enactment. The day therein named has no reference to the time of the assessment or valuation of property for taxation, nor the time for placing property on the duplicate. It does not fix the commencement or termination of a fiscal year. No reports of financial officers, nor settlements or adjustments of accounts, are made in reference to the first day of March. Yet we are neither inclined nor at liberty to suppose the enactment to be without design and senseless. What then was its design ? We can answer the inquiry only by supposing that the legislature contemplated the occurrence of just such cases as the one before us. That the question would arise between vendor and vendee of lands, and possibly between other parties, as to who were bound to pay taxes of a current year; and to enable parties to determine this question — in order that parties might know each other’s rights and duties, and regulate their contracts accordingly — this enactment was passed; and regarded in this light, the policy was wise and salutary.

2. The second question, aside from authority, is, in this case, answered by the language of the covenant sued on. It is this: “ That at the time of the ensealing and execution of said deed, the said lands are free and clear of all incumbrances whatsoever.” The covenant itself, in express terms, relates to the time of the execution of the deed containing it. The covenant embraces in terms, “ all incumbrances whatsoever,” and excepts none whatsoever. It was in the power of the parties, at the time of the execution of the deed, to have engrafted on the covenant an exception of the taxes of the current year, if such had been their agreement, and the statute above quoted afforded them all the information requisite to enable them to act intelligently. The parties may have had an understanding resting in parol, to the effect that the taxes of the current year were to be excepted from the operation of this covenant. But this we cannot know; for parol evidence is inadmissible to contradict or vary the plain provisions of the deed. The application of the rule may possibly, in this case, work injustice to the defendant. If so, we can only regret it; for the rule itself, being a salutary one, must be maintained.

It has been suggested that the lien of the State for taxes, was one which could not but be known to the parties at the time of the making of the deed ; and it is thence argued the covenant ought not to be held to extend to that lien. It is true there are cases which countenance the doctrine, that known incumbrances are presumed to be excepted from the operation of the covenant. But a majority of the court are of opinion that the weight of reason and authority alike are clearly the other way. Rawle on Covenants for Title 149, et seq. Nothing is more common, we apprehend, than for parties to make and accept covenants of this kind with a full knowledge of existing incumbrances; the covenantor relying on his ability to discharge them, and the covenantee on the security which the covenant affords; and “ the fact of a purchaser having notice of an incumbrance, is the very reason of his taking a covenant within whose scope it is included.” And for us to hold, contrary to the admitted general current of authority, and, we think, the general understanding of the profession, that known incumbrances are excepted from the operation of the covenant, would, by invalidating securities held in faith of a contrary doctrine, largely eventuate in consequences of most injurious character.

Judgment reversed.

Bartley, J., dissented.


source: Caselaw Access Project

author: J. R. Swan, J.

license: Public Domain

text:
    Marcus Miller v. The State of Ohio.
    In error to the Probate Court of Vinton county.

      Yaple & Wallace, for plaintiff in error.

      Attorney General, for the State.
   J. R. Swan, J.

In a trial upon an information under the fourth section of the “ act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” proof was given that a sale was made to a person in the habit of getting intoxicated, but under circumstances tending to show that the liquor was obtained under false pretenses, etc.

Held: That it is error to charge the jury that if the defendant was induced to sell the liquor to such person under an imposition practiced upon the defendant, so that the defendant had no intention to violate the law, he must, notwithstanding, be held to have sold to such person, at his peril, and must be deemed guilty under the statute.

Judgment reversed, and cause remanded.


author: Bartley, J.

text:
    The Atlantic and Ohio Railroad Company v. Michael L. Sullivant and others.
    A petition in error may be entertained in the Supreme Court, to revise the judgment of the probate court, in a proceeding for the appropriation of land by a railroad corporation for its right of way.
    The existence of a railroad corporation, and the right to make an appropriation of land for its road-way, under the statute authorizing and regulating such corporations, passed May 1st, 1852, depend on the legal validity of the certificate and public record of its organization.
    In a proceeding for the appropriation of land by a railroad corporation, and the estimating of the compensation to be paid to the owner, it is essential that the company give evidence of a certificate or public record of its organization in accordance with the provisions of the statute.
    Petition in error to reverse the judgment of the Probate Court of Franklin county.
    The original proceeding was instituted in the court below, April 19, 1854, by an association of persons under the name and style of “ The Atlantic and Ohio Railroad Company,” as a corporation, to appropriate the right of way for a part of the road of the plaintiff through Franklin county, and also to obtain earth for the construction of said road. The statement and application for the assessment of damages had been duly filed, and such proceedings were had before the probate court, that a jury was empanneled, and after an actual view of the premises sought to be appropriated, the cause came on for trial before the court and jury, and witnesses were examined, and the plaintiff gave in evidence the certificate of its organization as a corporation. On behalf of the defendants, a motion was made to rule out the certificate, for insufficiency and non-compliance with the statute authorizing such certificate. This motion was sustained, and the certificate ruled out. And, afterwards, on motion of defendants, the proceeding was dismissed for the want o£ any competent showing of the due organization and existence of the plaintiff as a corporation.

      The certificate of the organization of the corporation, separate from its due acknowledgment and authentication, was as follows:
    “ THE ATLANTIC AND OHIO RAILROAD COMPANY.
    “ The undersigned, citizens of Franklin county and State of Ohio, associating themselves together for the purpose of constructing a railroad, according to an act of the general assembly of said State, entitled ‘ an act to provide for the creation and regulation of incorporated companies in the State of Ohio,’ passed May 1, 1852, do certify:
    “ First. That the name of said company shall be ‘ The Atlantic and Ohio Railroad Company.’
    “Second. That the termini of said road shall be a point on the Ohio and Pennsylvania State line, in the county of Trumbull, in said State, of Ohio, and a point on the Ohio River in same State, in the county of Brown or Adams. And that said road shall pass through the following named counties in said State of Ohio, viz: Trumbull, Mahoning, Portage, Stark, via the town of Massillon, Wayne, it may be Holmes, Knox, Licking, Franklin, via the city of Columbus, or near thereto, Pickaway, or it may be Fayette and Madison, or one of them, Ross or Highland, and it may be through each of them, Pike, it may be Brown or Adams.
    “ Third. The amount of capital stock necessary to construct said road is six millions of dollars.
    “WM. NEIL, [Seal.]
    “JOHN MILLER, [Seal.]
    “JOHN F. BARTLIT, [Seal.]
    “ JOHN L. GILL, [Seal.]
    “S. MED ARY, [Seal.]

      “ Columbus, June 18th, 1853.”
    The act to provide for the creation and regulation of incorporated companies in the State of Ohio, passed May 1st, 1852, provides:
    “ Sec. I. That any number of natural persons, not less than five, may become a body corporate, with all the rights, privileges and powers conferred by, and subject to all the restrictions of this act.
    “ Sec. II. That any number of persons as aforesaid, associating to form a company for the purpose of constructing a railroad, shall, under their hands and seals, make a certificate, which shall specify as follows:
    “ 1st. The name assumed by said company, and by which it shall be known.
    “ 2d. The name of the place of the termini of said road, and the county or counties through which such road shall pass.
    “ 3d. The amount of capital stock necessary to construct said road.

      “ Such certificate shall be acknowledged before a justice of the peace, and certified by the clerk of the court of common pleas, and shall bo forwarded to the secretary of State, who shall record and carefully preserve the same in his office, and a copy thereof duly certified by the secretary of State, under the great seal of the State of Ohio, shall be evidence of the existence of said company.
    “ Sec. III. That when the foregoing conditions have been complied with, the persons named as corporators in said certificate are hereby authorized to carry into effect the objects named in said certificate, in accordance with the provisions of this act; and they and their associates, successors and assigns, by the name and style provided in said certificate, shall thereafter be deemed a body corporate, with succession, with power to sue and be sued, plead and be impleaded, defend and be defended, contract and be contracted with, acquire and convey at pleasure, all such real and personal estate as may be necessary to carry into effect the objects of the incorporation, to make and use a common seal, and the same to alter at pleasure, and do all needful acts to carry into effect the object for which it was created, and such company shall possess all the powers and be subject to all the rules and restrictions provided by this act.

      “ Sec. IV. Said corporation shall be authorized to construct and maintain a railroad with a single or double track, with such side tracks, turn outs, offices and depots, as they may deem necessary between the points named in the certificate, commencing at or within, and extending to or into any town, city or village named as a place of the termini of such road, and construct branches from the main line to other towns or places within the limits of any county through which said road may pass.”
    On behalf of the plaintiff it is insisted that the certificate of organization was sufficient, and that the court below erred in ruling it out.
    On behalf of the defendants it is claimed that the Supreme Court has no jurisdiction to review, on petition in error, the judgment of the probate court; and that the certificate of the company was insufficient and void, and that a valid certificate was essential to enable the plaintiff to institute the proceeding in the court below.

      P. B. Wilcox and John W. Andrews, for plaintiff.

      Page & Renick, for defendant Sullivant.

      Warden & Smith, and Dresel, for defendant Jaeger.
   Bartley, J.

In accordance with the settled rule of interpretation, that remedial statutes must be construed liberally, the provisions of the code of civil procedure, relating to error in civil cases, authorize a petition in error in the Supreme Court, to revise the action of the probate court, in the special proceeding for appropriating lands, and estimating the compensation to be paid the owner by a railroad corporation.

The right of persons associated as a company for the purpose of constructing a railroad, by virtue of the statute providing for the creation and regulation of incorporated companies in the State of Ohio, enacted May 1, 1852, to appropriate private property by the exercise of the right of eminent domain, for the purposes of their road, depends on the sufficiency and legal validity of the certificate and public record of the organization from which they derive their corporate powers.

It is essential to the validity of such certificate of organization, that certain and definite points be named or described therein as the termini of such road, and also each county in the State through which such road is to be located and constructed. And where such certificate has left the company the discretion to select through which of several counties named, the road may be constructed, and also provided simply that the termini of such road shall be a point, not designated, on the Ohio and Pennsylvania State line in the county of Trumbull, and a point, not designated, on the Ohio river in either the county of Brown or the county of Adams, in the State of Ohio, it is void for want of conformity to the statute.

In such proceeding for appropriating land, and estimating the compensation to be paid the owner, it is incumbent on the company, in order to show its right to make the appropriation, to give evidence of a certificate and public record of its organization in strict compliance with the requirements of the law.

Judgment of the probate court affirmed.

Swan, J., having formerly been of counsel, did not sit in this case.


author: Ranney, C. J.

text:
    John Dillingham v. The State of Ohio.
    The 83d section of the municipal corporation act of May 3d, 1852, confers upon the police court of cities of the first class jurisdiction to try and determine a charge of obtaining money or goods by false pretenses.
    Such charge may be preferred by information filed in that court, and by the prosecuting attorney thereof.
    The constitutional right of trial by jury is not infringed, when the option is given to the accused to have the issue tried by the court or the jury, and he submits the cause to the court.
    A false pretense, within the meaning of the statute, must relate to a past event or an existing fact. Any representation or assurance in relation to a future transaction, is not included.
    The indictment or information must aver all the material facts which it is necessary to prove to produce a conviction; and with such reasonable certainty as to advise the accused what he may expect to meet on the trial.
    Whether procuring by false pretenses the signature of a party to a negotiable promissory note or bill of exchange, which he is ultimately compelled to pay, is an offense within the statute — quei-e.
    In error to the Police Court of Cincinnati.

      A. E. Gwynne, and Chase & Ball, with whom was E. L. Pierce, for plaintiff in error.

      Attorney General, for the State.
   Ranney, C. J.

The plaintiff in error was accused by information in the police court of Cincinnati, of the offense of obtaining money by false pretenses. He pleaded not guilty to the charge, and elected to submit the trial of the issue thus made to the judge of that court, by whom he was found guilty and sentenced. The present writ is prosecuted to reverse that sentence; and in the numerous assignments of error, exception is taken to the jurisdiction of the court, to the regularity of its proceedings, and to the sufficiency of the information.

The argument of the case, as well as its investigation by us, has been very much complicated and prolonged, by a reference to various local enactments, at various times in force in Hamilton county. Whether these enactments are still in force, and if so, what possible bearing they might have upon prosecutions for this offense, we do not deem it important to discuss or consider; being fully satisfied that the general laws of the State are in force in that county, and that the present case must be disposed of in accordance with their provisions.

1. Had the court jurisdiction? By the 72d section of the municipal corporation act of May 8, 1852, (Swan’s Stat. 972,) the qualified voters of cities of the first class, are required to elect a police judge to hold his office for two years, and to have such powers and perform such duties as are prescribed in that act. By the 83d section, he is empowered to hold a court, to be styled the police court” which it is declared shall be deemed a court of record; and is invested with jurisdiction to hear and determine “ all cases of petit larceny, and other inferior offenses of every description, committed within the limits of the city, or within one mile thereof, and which the constitution, or some law of the State, does not require to be prosecuted by indictment or presentment of a grand jury.” And it is further provided, that, “ for the proper exercise of such jurisdiction, such police court shall have, in respect to the issuing of process, the preserving order, and punishing contempts, the administering oaths, the summoning and empanneling juries, or otherwise, all the powers incident to a court of common pleas, in the hearing and determining of like eases.”

Now, it is clear that this was a court, “ inferior to the Supreme Court,” established by the general assembly in all the counties of the State which contained a city of the first class; and it is equally clear, that it was constitutionally competent for that body to invest such a court with original criminal jurisdiction. Whether the court was well or ill qualified to discharge such duties, or whether its course of proceeding was summary or otherwise, were matters which should have engaged the careful attention of the legislature, but which are wholly unimportant in this court. With the authority to confer the power, the inquiry here must be confined to the question, has it been conferred ?

The plaintiff’s counsel insist that it has not: 1st, because the constitution required the prosecution for this offense to be by indictment or presentment of a grand jury; and 2d, because a statute law of the State, then in force, required that mode of prosecution. As the police court was not provided with a grand jury, and as it was only invested with jurisdiction over those offenses which neither the constitution, or any law of the State, required to be prosecuted by indictment, it is manifest that the jurisdiction cannot be sustained, if either of these positions is well founded in point of fact. But we think a careful examination of the constitution, and the statutes in force when this conviction was had, will show that they are not. By the 10th section of the 1st article of the constitution, a presentment or indictment of a grand jury is dispensed with, in cases of petit larceny and other inferior offenses.” How such offenses should thereafter be prosecuted, depended entirely upon legislative discretion. But, it is said, this dispensation only extends to offenses inferior in grade to petit larceny. We cannot adopt such a construction. Indeed, to do so, would be to leave the whole matter to mere conjecture. It is very evident that petit larceny is simply named as one of a class of offenses; and equally so, that the class was intended to embrace all offenses for which a punishment less than imprisonment in the penitentiary is provided. This was a classification so long used in our laws, and so well understood, as to leave no doubt that it was the one intended to be adopted by the convention.

The offense of obtaining money, etc., by false pretenses, was then, and still is punished by the 12th section of the act of March 8,1831. The 52d section of that act required all prosecutions under it to be by indictment in the court of common pleas. This section was expressly repealed by the 31st section of the act of March 14,1853, “ defining the jurisdiction and regulating the practice of probate courts,” which took effect July 1,1853. This prosecution was commenced after this act had taken effect. It is thus seen, that at.the time this prosecution was pursued, there was no law in the State requiring this offense to be prosecuted by indictment or presentment. How the question involved in this case might have stood, prior to the taking effect of this act, it is unnecessary to determine. Upon no fair construction, can the power conferred upon the police court be confined to cases in which no indictment was required at the time the municipal corporation act was passed. If at the time the jurisdiction is entertained no such requisition exists, the power of the court is fully established.

2. The case of Daily v. The State, 4 Ohio St. Rep. 57, has disposed of the question as to the constitutional power of the court, at the election of the defendant, to try the issue, and the subject needs no further discussion. It is there shown that the constitutional right of trial by jury is not infringed, when the accused may have it or not, at his election; and it is only necessary to add, that the expression of opinion in several cases under the former constitution, arose, not from any supposed infringement of the constitutional right, but because no law then existed conferring upon the court the power to try the issue upon the plea of not guilty.

8. The only remaining question in the case, relates to the suf-. ficiency of the information. As a general rule, there can be no doubt that an information must contain all the substantial requisites of an indictment; and just as little, that in accusations for this offense, it is not sufficient simply to follow the language of the statute. The particular pretense or pretenses by which the money is obtained, must be specifically stated, and the indictment or information must aver all the material facts which it is necesary to prove, to produce a conviction, and with such reasonable certainty as to advise the accused what he may expect to meet on the trial.

In the-construction of statutes like our own, this further proposition has come to be perfectly established — that the pretense or pretenses relied upon must relate to a past event, or an existing fact; and that any representation or assurance in relation to a future transaction, however false or fraudulent it may be, is not, within the meaning of the statute, a false pretense which lays the foundation for a criminal prosecution. Commonwealth v. Drew, 19 Pick. 185.

In the light of these well settled principles, we are now prepared to answer the question: Hoes the information in this case, with reasonable certainty, charge upon the accused an offense within the statute ? The information alleges that the plaintiff in error procured the indorsement of one David Carroll upon a bill of exchange, drawn by himself upon his son, C. M. Dillingham, by whom it was accepted, and which Carroll was ultimately compelled to pay. It is alleged that this indorsement was procured by fraudulently representing that the acceptor was engaged in an extensive spoke manufacturing business, and would be abundantly able to pay the bill when it should mature; that he, the plaintiff in error, could negotiate it in the Lafayette Bank, and would then, with the proceeds, pay a certain other bill, then about maturing, drawn, accepted, and indorsed by the same parties, and that this last bill of exchange was the only one then outstanding and unpaid, upon which Carroll was an indorser; and finally, that the business of the plaintiff in error was then becoming prosperous, and he should no longer require Carroll’s indorsement.

All these representations are negatived, except the first; in respect to which it is simply said, that his son, the acceptor, was not then “ engaged in an extensive spoke manufacturing business.” In view of the rule already stated, all that part of these representations which refers to what he could do with the bill, and what he would do with the proceeds, may be disposed of with a single remark. In the worst possible sense that can .be given them, they simply import an expectation which he did not believe would be realized, and a promise which he did not intend to fulfill. It is almost equally certain, that nothing can be predicated upon the representation of the character of the acceptor’s business, and his ability to pay the bill. To constitute a false pretense, within the purview of the statute, the representation must be such as, either with or without the cooperation of other causes, had a decisive influence upon the mind of the party defrauded, so that, without its weight, he would not have parted with his property. 19 Pick. R. 183. Now, the only possible thing in this representation, which could have influenced Carroll in giving his indorsement, is the statement that the acceptor was then, and would continue to be, abundantly able to pay the bill; and this is nowhere negatived in the information. It is entirely consistent with all its averments, that the acceptor was engaged in. the spoke manufacturing business, and was then, and continued to be, perfectly responsible ; but it is denied that this business was extensive.

"What it would require to make this business extensive, or ho^v much that might add to the responsibility of the person pursuing it, it is not easy to determine ; but it will be readily admitted that a man might be as good for $400 without doing such a business, as with it. The representation that the business of the accused was “ then becoming prosperous,” and the denial that it was “ then and there prosperous,” needs no further remark.

The averment of the information that the accused represented that he had paid off and taken up all other bills upon which Carroll was indorser, was certainly a material inducement to give his indorsement upon the particular bill; and, if it was averred with the requisite certainty, would undoubtedly bring the case within the statute.

But what other bills were left outstanding ? Who were the parties and for what amounts ? These facts must have been specifically proved to have warranted a conviction ; and yet, the information contains nothing definite upon the subject.

“ The nature and cause of the accusation ” are not sufficiently stated to enable the accused to know what he might expect to meet upon the trial; and it is neither consistent with general principles or constitutional safeguards, to allow a man to be thus put to trial upon a criminal charge in the dark. Upon the whole, we are all of the opinion that the information is insufficient, and that the judgment should be reversed.

We have not found it necessary to determine whether procuring by false pretenses, the- signature of a party to a negotiable promissory note or bill of exchange, which he is ultimately compelled to pay, is an offense within the statute or not; and we do not wish to be understood as expressing any opinion upon that question.

Judgment reversed.


text:
    Gershom N. De Forest v. William Wheeler.
    The 53d section of the road statute, (Swan’s Rev. Stat. 810,) requires two circumstances to concur to authorize the township trustees to vacate a township road. First, that the road shall have become useless — this is necessary to give the trustees jurisdiction; and second, that no injustice will be done by its vacation.
    Citizens for whose benefit a township road is established have an easement in it, and are bound to keep it in repair.
    Hence the private interest and convenience of citizens must be considered, and must operate very materially upon the determination of the question, whether a township road should be vacated or not.
    In error to the District Court of Trumbull county.
    It appears from the •recordjn this case, that De Forest, the plaintiff in error, and others, in October, 1851, petitioned the trustees of Brookfield township, Trumbull county, to vacate the east end of a certain township road, describing it, and that the defendant in error, William Wheeler, and others, living in the immediate vicinity of the road, remonstrated against the vacation of the same, on the ground that it was useful to them, and in fact used by them, and that its vacation would do them injustice.
    It appears further, that Wheeler and others in the vicinity of this road, did in fact use it more or less.
    The record shows further that two of the trustees proceeded to view, the road, and thereupon caused to be entered on the township records the following order, viz: “ Upon full view of the road proposed to be vacated, and after hearing the allegations and arguments of both parties present, and upon due consideration do consider that said road as now opened, is a great injury to Gersham N. De Forest, (being opened on ground much of the way aside some rods from the original surveyed township road,) and furthermore being satisfied that no injustice will be done by vacating said road, do hereby declare the said road, leading from Philip Homer’s house west to the new township road, vacated.”
    ° The record and proceedings of the trustees having been, at the instance of Wheeler and others, brought before the court of common pleas of Trumbull county on certiorari, said court, at its March term, 1854, affirmed the order of the trustees.
    Thereupon Wheeler filed his petition in error in the district court of said county, to reverse the judgment of the common pleas. And at its April term, 1855, the district court-reversed the judgment of the common pleas, as well as the order of the trustees.
    To reverse this judgment of the district court the present petition in error is prosecuted.

      Sutliff & Tuttle, and John Crowell, for plaintiff in error.

      M. Birchard, and Sutchins & Curtiss, for defendant in error.
   J. R. Swan, J.

Township roads are in many respects like private ways. The easement is paid for by those for whose benefit it is established, and they are bound to keep it in repair. Hence the private interests and convenience of citizens must be considered, and must operate very materially upon the determination of the question whether a township road should be vacated. The section of the statute referred to, (Swan’s Rev. Stat. 810, sec. 58,) requires two circumstances to concur to authorize the trustees to vacate a township road: Eirst, that the road shall have become useless; and second, thatmo injustice will be done by its vacation. The first is necessary to give the trustees jurisdiction; and it nowhere appears in this record, either by implication or otherwise, that the township road in question had become useless. On the contrary, the trustees seem to have been of opinion that the inconvenience of its location to some of the parties, simply over-balanced its usefulness to others. But whatever construction may be given to the statements of the trustees upon this subject, it is clear that the road was in common use by some of those through whose farms it passed, and that it had neither been abandoned as a township road, nor was it useless for the purpose for which it was established. The trustees had not, therefore, any jurisdiction in the premises. The order of the district court reversing the proceedings of the trustees, must be affirmed.


author: Brinkerhoff, J.

text:
    The City of Marietta v. Mary Emerson.
    In an action for the recovery of real property under the code of civil procedure, tried on appeal in the district court, the losing party is entitled to a new trial of course, in the same manner as in the court below.
    In estimating the number of trials to which the party may be, of right, entitled in the district court, no regard will be had to the number or the result of trials had in the court below.
    A motion for a new trial for cause, regularly filed by the losing party, after verdict and before the actual entry of judgment against him on the verdic^ is a sufficient demand of another trial and compliance with the statute requiring “ notice on the journal.”
    When the causes for a new trial assigned in the motion, are deemed by the court to be insufficient, the order awarding a new trial should, to furnish a basis on which to determine the rights of the parties to subsequent trials, show that it is awarded as matter of right under the statute, and not for the causes assigned.
    In error to the District Court of Washington county.
    The case is stated in the opinion of the court.

      C. B. Coddard, for plaintiff.

      Clark & Ewart, and J. W. Andrews, for defendant.
   Brinkerhoff, J.

This is a petition in error, filed here to reverse the order of the district court of Washington county, overruling a motion for a new trial, filed in that court by the plaintiff, who was also plaintiff below, in an action for the recovery of real property. The case was originally tried by a jury in the court of common pleas of Washington county, where a verdict was had for the plaintiff. Thereupon, on motion by the defendant, the verdict was set aside and a new trial awarded, as a matter of course, under the provisions of sec. 562 of the code of civil procedure, which is as follows:

“ In an action for the recovery of real property, the party against whom judgment is rendered, may, at any time during the term at which the judgment is rendered, demand another trial, by notice on the journal, and thereupon the judgment shall be vacated, and the action shall stand for trial at the next term.” The next succeeding section of the code provides that, “ No further trial can be had in such action, except upon appeal, unless for good cause shown, as in other actions.”

The case having been again tried by a jury in the common pleas, resulting again in a verdict and judgment for the plaintiff, the case was appealed by the defendant to the district court. The case being tried in the district court, there was a verdict for the defendant.

Thereupon the plaintiff, before the entry of judgment on the verdict, moved the court for a new trial for cause — the causes appearing in the transcript — but which, not entering into the determination of this case, are passed over. The motion was overruled ; and to reverse the order overruling the motion, is the object of this proceeding in error.

The act “ regulating appeals to the district court ” from the courts of common pleas, provides that causes appealed shall be again tried, heard and decided in the district court, in the same manner as though the said district court had original jurisdiction of the cause.” *

On consideration of this state of facts, in connection with the statutes above quoted, this court arrives at the following conclusions :

1. In an action for the recovery of real property under the code of civil procedure, tried on appeal in the district court, the losing party is entitled to a new trial of course, in the same manner as in the court below.

2. In estimating the number of trials to which the party may be of right entitled in the district court, no regard will be had to the number or to the result of trials had in the court below.

3. A motion for a new trial for cause, regularly filed by the losing party after verdict, and before the actual entry of judgment against him on the verdict, is a sufficient demand of another trial and compliance with the statute requiring “ notice on the journal.”

4. When the causes for a new trial assigned in the motion are deemed by the court to be insufficient, the order awarding a new trial should, to furnish a basis on which to determine the rights of the parties to subsequent trials, show that it is awarded as matter of right under the statute, and not for the causes assigned.

Judgment reversed and cause remanded.


text:
    In the matter of Mary Sinclair’s Will.
    The legislation of this State, as it now exists, does not permit a will lost, spoliated or destroyed, to he established, unless it existed subsequently to the death of the testator.
    This is a petition in error to reverse the judgment of the Court of Common Pleas of Monroe county.
    The record shows that Mary Sinclair, in her lifetime, made a will; that it was reduced to writing, and by her subscribed, and by two subscribing witnesses properly attested ; that she was of testamentary capacity, and died "without revoking the will; and that it was destroyed in her lifetime, and without her consent or agency; and that a “ true copy, in substance though not in form,” of said will, was produced to the court below.
    The common pleas, before which the matter had been taken by appeal from the probate court, upon this statement of facts gave judgment admitting the will to record as the valid last will and testament of Mary Sinclair, deceased.
    To reverse this judgment, an heir at law prosecutes this petition in error.

      C. C. Carroll and John Sinclair, for the heir at law.

      B. S. Cowen and Hollister & Oakey, for the legatees.
   J. R. Swan, J.

In the case of Morningstar v. Selby, 15 Ohio Rep. 345, it was held that a court of chancery had no jurisdiction in the establishment of a spoliated will. As to whether such a will could be admitted to probate by the court having jurisdiction of probate and testamentary matters, was by that decision left in doubt. That doubt arose from the fact that the law of 1840 relating to wills, pre-supposes throughout that the testamentary instrument is produced; and the statute makes no provision whatever for the proof of lost or spoliated wills. As the whole subject of proof, and the legal effect of wills when recorded, seemed to be provided for, and an entire omission on the part of the general assembly to provide for the recording and the effect of a record of the evidence relating to the contents of a will, a doubt as to the power of the probate court in such case might well be entertained. If, however, at the time of the decision of the case of Morningstar v. Selby, probate courts had taken jurisdiction, it must have been done on the ground that courts of other States had received proof of lost and spoliated wills ; that it was a subject of jurisdiction incident to a probate court; and that the legislature had inadvertently omitted to provide for it. Courts in England and in this country having received to record the depositions of witnesses proving the execution and contents of wills lost by accident and spoliated, as well before as after the death of the testator, our own courts, if they exercised jurisdiction at all, would, in the absence of all statutes, exercise it to the like extent; and inasmuch as a testator may voluntarily cancel or destroy his will during his lifetime, it is evident that in establishing a will lost or destroyed before the death of the testator, the court would be much more likely to be imposed upon, than when establishing a will which is shown to have existed after the decease of the testator. Bearing in mind this very obvious difference between establishing a will lost or destroyed before, and one lost or destroyed after the death of the testator, let us examine the law of the State relating to this subject.

The general assembly, at their next session after the publication of the decision of the court in the case of Morningstar v. Selby, passed a law containing the following recital (46 Ohio Laws 66) :

Whereas, doubts exist whether, by virtue of the provisions of the act relating to wills, etc., the courts of common pleas, as courts of probate, have power to take the proof and admit to probate duly executed last wills and testaments, which have been lost, spoliated, or destroyed, but not revoked, and which cannot be produced for probate; therefore, for the purpose of removing all'doubts upon that subject,” the general assembly then provided:
“ Sec. 1. That the several courts of common pleas in this State, * * * shall have full power and authority to admit to probate any last will and testament, * * * not revoked at the death of the testator, where such original will has been lost, spoliated or destroyed subsequently to the death of such testator, and cannot be produced in court,” etc. This section is the forty-seventh section of the present act relating to wills. Swan’s Stat., rev. ed., 1030.

After providing in this law for the mode of taking proof of the execution and contents of such lost or spoliated will, the fourth section provides:

“ If the court upon such proof shall be satisfied that such last will and testament was duly executed in the mode provided by the law, in force at the time of its execution, that the contents thereof are substantially proven, and that the same is unrevoked at the death of the testator, and has been lost, spoliated, or destroyed, subsequent to the death of such testator, such court shall find and establish the contents of such will, as near as the same can be ascertained, and cause the same, and the testimony taken in the case, to be recorded.”

Now, it is beyond all doubt, that the whole subject of lost, destroyed and spoliated wills, was before the general assembly for its consideration and legislation; and that, as expressly as language could do, they confined their legislation to wills existing at the decease of the testator, and subsequently lost, spoliated or destroyed. They prescribe the notice to be given of the proof of such wills, the mode of taking the proof, the final order of the court establishing the contents of the will, and the legal effect of the contents when so-found and recorded. If all this legislative machinery was to establish a will lost after the death of the testator, why is it that all provision whatever is omitted for the establishment of proof and record of a will lost before the decease of the testator ? The answer is obvious: The general assembly deemed it either impolitic, as opening the door to imposition and perjury, or unnecessary, to permit wills lost or destroyed before the decease of the testator, to be established.

This court cannot, by construction, enlarge the terms of a statute so studiously limited and circumscribed. Prior laws omitted wholly to provide for the subject; so that whatever doubt might be entertained of the jurisdiction of probate courts, when the case of Morningstar v. Selby was decided, the existing legislation was intended to cover the whole ground, and will not permit a W'ill lost, spoliated or destroyed, to be established, unless it existed subsequently to the death of the testator.

Judgment below reversed.


author: Bartley, J. Brinkerhoff, J.

text:
    Ferdinand Van Derveer v. John Sutphin.
    In a suit for defamation, evidence of actionable words, or distinct libels, not declared on, is competent to show the quo animo; but they cannot be made the foundation for a recovery of damages for any injury done by such words or libels; and so far as they can affect the damages, it is solely by showing the degree of the malice in the publication of the words or libel declared on.
    Under the plea of the general issue in an action for a libel, it is competent for the defendant, with a view of mitigating damages, to give evidence of a general or common report in circulation prior to the publication complained of, that the plaintiff was guilty of the charge imputed to him; but such evidence is only competent to rebut the presumption of malice, and not by way of affecting or attacking the character of the plaintiff.
    Under the plea of the general issue in such action, evidence of particular facts or circumstances calculated to have induced mistake, or to have misled the party in the publication of the slander, is competent in mitigation of damages by way of rebutting the presumption of malice, and that, too, whether the evidence tended to prove the truth of the charge or not.
    A notice that the defendant will prove the truth of the libelous charge in justification, must contain all the substantial averments of a special plea; and where the libel declared on contains multiplicity of matter, general averments in the plea of the truth of the publication, in order to avoid prolixity of pleading, are not admissible; but the particular acts done, which the defendant relies on as constituting the charge, must be set out, so that the court may determine whether the facts warranted the charge.
    A plea or notice of justification must aver the truth of the material and substantial charges, or of each substantial and libelous charge, in language as broad as the charge in its full and legal sense; and although where there are separate and distinct charges in the same libel, it is allowable in the same plea or notice, to plead the general issue as to a part, and justify as to the other charges, yet it is essential that a plea or notice should substantially answer the whole count or ground of action declared on.

    In error to the Common Pleas of Montgomery county.
    In 1850, Sutphin instituted an action on the case against Yan Derveer, in the common pleas of Butler county, for a libel; to which the defendant pleaded the general issue, and filed sundry notices in justification. Upon the trial in Butler county, the jury failed to agree. Afterwards the venue was changed, and the cause removed to Montgomery county, where, in December, 1852, the cause was again tried, and a verdict rendered in favor of the plaintiff, in the sum of eight hundred dollars, on which, after the hearing and overruling a motion for a new trial, judgment was entered. To reverse this judgment, the proceeding in error now before the court, was instituted.
    The libel declared on is set out in the first count of the declaration as follows : “ The course of superintendent Sutphin (meaning him the said plaintiff) has become so notorious for depravity,, recklessness and peculation, that whiggery, almost to a man, is found signing petitions for his immediate removal. Rumor says that it has been an every-day occurrence in the business arrangements of this officer (meaning him the said plaintiff), by false and duplicate receipts, to obtain large sums of money from the State treasury for the ostensible purpose of paying laborers, but in fact for private use.”
    The second count avers that the defendant composed and published the libel in the Hamilton Telegraph newspaper, of which defendant was editor, and that said publication was made “ of and concerning plaintiff as superintendent on the Miami Canal, duly appointed, and as such then and there acting as aforesaid.”
    The third count avers that the plaintiff was a superintendent on the Miami Canal, duly appointed by the board of public works, etc.
    On the trial,, several bills of exceptions were taken by the defendant below to the rulings of the common pleas, fully embodying the facts, which are sufficiently stated in the opinion of the court to give the grounds upon which the questions made in the case were decided on error.

      Woods, Clark, Smith, Vallandigham, and Millikin, for plaintiff in error.

      Scott, Haynes, Walker, Vance, and Howard, for defendant in error.
   Bartley, J.

The record in this case shows that the libelous charges against the plaintiff in error were presented on the trial, in the common pleas, under circumstances of some aggravation. And the attempts in justification, as well as those in mitigation, on the part of the defense, all tended still further to wound the character of the defendant in error, and therefore, to be available in law, should have been well pleaded, and clearly founded in fact. Numerous errors are assigned upon the rulings of the common pleas, on the trial of the cause.

1st. It is insisted, that the court erred in permitting the defendant in error to give in evidence several extracts, taken from the newspaper published by the plaintiff in error, being separate and independent libels, not declared on, but offered for the purpose of proving express malice or showing the quo animo.

The question here presented was distinctly decided in the case of Stearns v. Cox, 17 Ohio Rep. 590, against the plaintiff in error. And this case of Stearns v. Cox overrules the obiter opinion expressed by the judge delivering the opinion of the court, in the case of Fisher v. Patterson, 14 Ohio Rep. 418.

True it is, that the adjudications in England and in this country, touching the competency of evidence of words actionable, or distinct libels, not declared on, have not been entirely consistent; and various qualifications of the rule have been insisted on. That which has led to this conflict of decision, and the attempted qualideations of the rule, has arisen from the supposed difficulty of preventing two recoveries for the same wrong. Upon principle, nothing can be clearer than the competency of such evidence. The gist of the action for libel or slander is the malice, or intention of the defendant to injure or destroy the character of the plaintiff. And, although the malicious intention is implied or inferred by the law, from actionable words; yet the degree of malice, or extent of the defendant’s disposition to injure the plaintiff’s character, cannot always fully appear from the words declared on themselves, and therefore it is, that, in this kind of a case, as well as others, resort is had to the conduct and conversation of the party, to prove intention, knowledge, and disposition. In the case before us, it appears that although the language declared on was libelous, the defendant below insisted that he made the charge in the laudable discharge of his duty as the publisher of a newspaper, and from a disposition to advance the public interests. It was therefore proper, although not essential to the action, that the plaintiff should show express malice on the part of the defendant. Actionable words, or distinct libels, not declared on, when introduced to show the quo animo, cannot be made the foundation of a recovery of damages for any injury which the plaintiff may have sustained in his character by those words or libels; and, so far as they can affect the damages, or amount of the plaintiff’s recovery, it is by showing the degree of the malice, or extent of the malicious intent of the defendant in the publication declared on. For this purpose, and to this extent only, is such evidence competent. And so far, it is highly proper, and does not allow the party two recoveries for the same injury. It is rare, indeed, where there is a suitable recovery in one action, that a party resorts to a second action to vindicate his character for words spoken before the trial of the first case. And in the .event of a second action, the recovery could be only for the injury done by the words declared on; and, so far as’ exemplary damages could be claimed, in the second action, the amount of the recovery in the first action would inevitably have its effect on the consideration of the jury.

The qualifications of the rule, that words actionable, or distinct libels, not declared on, but introduced to show tbe quo animo, should be limited to publications made after suit brought, or more than a year before suit brought, or to cases where there is ambiguity in the language, and doubt as to the malicious intent, have been wholly discarded in Ohio. There was no error, therefore, in the ruling of the common pleas on this point.

2d. It is further insisted, that the common pleas erred in refusing to require the plaintiff below, in reading to the jury one of the libels offered by way of showing the quo animo, consisting of the editorial remarks of the defendant below, to read an addi tional article, published in connection therewith, consisting of a corroborating extract from the Ohio Statesman, another newspaper. This additional article, the reading of which was asked, in no wise tended to explain the libelous meaning or intention of the article read by the plaintiff below; on the contrary, its only tendency was to give point and weight to the matter already offered in evidence against the defendant below, and which, if it could not be justified, would have tended to aggravate the libelous charge. The plaintiff in error, therefore, cannot complain that the'common pleas did not require the defendant in error to make out, on the trial in the court below, a more aggravated case against him than that which was offered in evidence.

3d. It is alleged that the common pleas erred in permitting parol evidence, to show, not only that Sutphin had been acting as the superintendent on the Miami Canal, but also that he had been appointed to that office by the board of public works. The record evidence of Sutphin’s appointment was certainly not requisite in this case, wherein the plaintiff in error had admitted and charged upon the record, by his pleadings, that Sutphin was such superintendent on the Miami Canal.

4th. The fourth ground of error insisted on, is, that the common pleas ruled out certain items of evidence tending to prove the truth of the publications, on the ground of insufficiency in the notices of justification.

A notice that the defendant will prove the truth of the libelous charge in justification, must contain all the substantial averments of a special plea; and where the libel declared on contains multiplicity of matter, general averments of the truth of the publication, in order to avoid prolixity of pleading, are not admissible ; but the particular acts done, which the defendant relies on as constituting the charge, must be set out, so that the court may determine whether the facts warranted the charge. And a plea or notice of justification must aver the truth of the material and substantial charges, or of each substantial and libelous charge, in language as broad as the charge, in its full and legal sense ; and al though j where there'are separate and distinct charges in the same libel, it is allowable in the same plea or notice, to plead the general issue as to a part, and justify as to the other charges, yet it is essential that a plea or notice should substantially answer the whole count or ground of action declared on.

Upon this view of the requisites in pleading such a defense, the notices of justification, under which the plaintiff in error offered this evidence, were fatally defective, and therefore the common pleas ruled correctly in this regard.

5th. On the trial in the common pleas, the defendant, for the purpose of rebutting malice, and in mitigation of damages, offered to prove, under the general issue, that, prior to the publication declared on, and at the time thereof, there were in existence, and in general circulation, of and concerning the plaintiff, common reports of the truth of various matters alleged to be libelous in the publication given in evidence on the part of the plaintiff. This evidence was, however, on objection, excluded by the common pleas ; and to this ruling exception was taken, and as to it error is assigned.

Under the plea of the general issue, in an action for a libel, it is competent for the defendant, with a view of mitigating damages, to give evidence of a general or common report in circulation in the neighborhood where the plaintiff is living, prior to the publication complained of, that the plaintiff was guilty of the charge imputed to him. If a slanderous report so far gains credence or belief as to be relied on as a general or common report in the neighborhood where a man is living, at the time, it affects his character, and is calculated to mislead persons not having a personal knowledge of the facts. Evidence of such reports, however, is only competent to rebut the presumption of malice, and not to affect the right to the recovery of compensatory damages, or by way of attacking the general character of the plaintiff.

In excluding this evidence, therefore, the common pleas erred.

6. The last ground of error relied on is, that the defendant, on the trial in the common pleas, offered to prove, under the general issue, in order to rebut the presumption of express malice, in mitigation of damages, facts and circumstances which came to his knowledge prior to the publication, tending to prove the truth of the charges contained in the libel declared on ; but the common pleas excluded the evidence as incompetent.

It has been long and well settled that in an action for slander or libel, under the plea of the general issue, evidence of particular facts or circumstances calculated to have'induced mistake, or to have misled the party in the publication of the slander, is competent in mitigation of damages by way of rebutting the presumption of malice, or proof of express malice. But this rule has been subject to the two following material qualifications, which do not appear to be well founded in reason, or to tend to the purposes of justice : 1st, That such evidence is incompetent, if it tend to prove the truth of the slanderous charge ; and 2d, That it is incompetent if it establish the truth of the charge, or in other words, unless it fall short of proving the truth of the charge.

Malice is presumed from the falsity of the charge, and to this the plaintiff is allowed to superadd proof of express malice, and thus aggravate the damages. It would seem just to allow the defendant to meet the plaintiff’s case, on the question of damages, by proof repelling the presumption of malice, or proof of positive malice. But of course facts and circumstances calculated to mislead him into the belief of the charge, must be such as would have some tendency to prove it to be true ; and the exclusion of such evidence precludes the defendant from the most essential means of rebutting the proof of malice in mitigation of damages. This amounts to nothing less than a sacrifice of justice, for the. sake of a mere rule of pleading. Upon this subject, Mr. Justice Selden, in the case of Bush v. Prosser, 1 Kernan’s Rep. 362, says:

“ The rule is merely an unforseen consequence of that which excluded proof of the truth of the charge under the general issue in mitigation of damages ; a rule which originated with the case of Underwood v. Parks, (2 Strange’s R. 1200.) The courts have implicitly followed that case, without even seeming to consider that the rule it laid down was not only a departure from the principles of the common law, and a pure piece of judicial legislation, but that in its consequences, it must necessarily deprive defendants of all power to mitigate the verdict. Prior to that case, defendants in this class of actions were permitted to prove not only the absence of malice, but the bmth of the charge itself in mitigation. This is shown by the case of Smithies v. Harrison, (1 Lord Ray. 727.) The reception of this evidence was in perfect accordance with the principles of law. Courts have sometimes, in their speculations on this subject, seemed to suppose that there was some inherent legal objection to proving, in mitigation merely, that which might amount to a justification ; and have applied the rule which excludes proof of the truth of the charge in mitigation, as though that were its foundation. This, however, is an obvious error. It was never any objection to evidence in mitigation, that under a different state of the pleadings it would amount to a full defense. The rule in Underwood v. Parks was not put on any such ground. That was an action for slander. The defendant, under the plea of not guilty, offered to prove the words to be true, in mitigation of damages. The Chief Justice refused to permit it, saying, that ‘At a meeting of all the judges upon a case that arose in the common pleas, a large majority of them had determined not to allow it for the future, but that it should be pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words.’ The very terms here used, show that this was the introduction of a new doctrine by the common consent of the judges. It is clear from the reason given, that the intrinsic propriety or impropriety of the evidence had nothing to do with the adoption of this rule. It was a rule of pleading merely, having no other object than to prevent plaintiff’s from being taken by surprise upon the trial, by evidence of the truth of the charge. It was not designed to deprive defendants of the benefit of such evidence, or any evidence ; but simply to secure due notice to the plaintiff of what he would be required to meet. This was all very well in cases where the defendant was prepared to justify, which cases alone the judges had in view in adopting the rule. But when the doctrine came to be applied to cases where all the defendant could, or desired to do, was to mitigate the damages by showing the absence of malice, it operated unjustly. It took away the right altogether, since the rules of pleading did not allow anything short of a complete defense to be spread upon the record. The whole difficulty would have been obviated, if the judges had simply added to this rule a clause permitting defendants to give, with the general issue, a notice of the facts intended to be proven in mitigation of damages. It would have been no greater stretch of power to have done this, than was required to prescribe the rule itself. But they evidently failed to foresee the conflict which must necessarily arise between the conceded right, of the defendant to mitigate the damages by showing the absence of malice, and the rule they adopted ; a conflict which can be clearly traced from that day to the present. The right and the rule were directly repugnant to each other; and no question has ever given rise to a more protracted struggle.”
“ The courts of England, under a sense of the admitted right, have in a number of cases, decided that facts and circumstances falling short of proving, although tending to prove the truth of the charge, might be received in mitigation. (Knobell v. Fuller, Norris’s Peake, Append. 32; Leicester v. Walter, 2 Camp. 251.) But the courts in this State and in Massachusetts, with less justice but better logic, have uniformly held that a rule which excluded proof of the truth of the charge, must necessarily exclude evidence tending to prove it. But it is a little surprising to observe how often judges have asserted in the same paragraph, both the right to mitigate by disproving malice, and the rule which effectually precluded the exercise of the right, without any apparent consciousness of the conflict between the two.”

To these views of Mr. Justice Selden, may be added the language of Chief Justice Church on this subject, in Williams v. Miner, 18 Conn. Rep. 464: “ We are not satisfied that a defendant should be deprived of the benefit of mitigating circumstances, for no better reason than that they conduce to prove the truth of the charge, while they fall short of it. We see no sufficient cause why he should not be permitted to prove such facts as well as any other, showing innoeency of motive, and which can only be proved under the general issue.”

It has been said that a defendant could avoid the difficulty of this rule, by putting in a plea of justification, and thus introducing his evidence, which, although it might not fully support the plea, would be considered by the jury in mitigation of damages. This would, however, introduce a fallacious principle in pleading. And besides the plea of one defense as a sham to enable the party to give evidence of another and different defense, it would subject the defendant to all the consequences of a repetition of the slander, which would perpetuate the charge upon the public records without proper and justifiable cause. A plea of the truth of the slanderous charge, when made in good faith, if unsustained by the evidence, always tends to aggravate the case and increase the. damages. And when the truth of the charge is plead, and spread upon the record wantonly, or unnecessarily and improperly, it entitles the plaintiff to what would amount to exemplary damages according to the circumstances of the case. When, therefore, a party has made the charge under an honest but mistaken belief of its truth, induced by circumstances which came to his knowledge tending to show it to be true, it would be a denial of justice to compel him to incur the consequences of a plea of justification in order to introduce evidence which, although it might not sustain a plea of justification to the satisfaction of the jury, would greatly tend to mitigate the damages by repeling the presumption of malice.

The reason assigned for the rule that the plaintiff must be notified by a plea of justification, before a defendant can introduce evidence tending to prove the truth of the charge, may be sufficient where the truth of the chargq is relied on as a 'bar to the action ; but it is wholly unsatisfactory and insufficient to justify a denial of justice, where the purpose of the evidence is to mitigate the damages by disproving malice. The party who institutes an action for slander or libel, always informs himself of the means of the defendant to establish the truth of the charge. In the absence of a plea of justification, evidence tending to prove the truth of the charge, offered for the purpose of repelling proof of malice, even if it went so far as to prove the truth of the charge to the entire satisfaction of the jury, could not prevent the plaintiff from recovering damages to some amount. No plea or notice of matter in mitigation is requisite; and this circumstance ought not to effectuate a denial of justice, when the evidence in mitigation, by way of repelling the proof of malice, tends to prove the truth of the charge.

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

Brinkerhoff, J.

As to the conclusions of the court in respect to the assignment of error last considered in the above opinion, he doubted. He inclined to the opinion that at common law such evidence was not admissible, unless the particular facts proposed to be proved were alluded to in the slanderous or libelous words declared on.
      Note. — The Judge delivering the opinion of the court in this case directs the Reporter to state that the case of Reynolds v. Tucker and Wife, in 6 Ohio St. Rep., which was reported before the opinion in this case had been published, was not designed to change or qualify the rule laid down in this case ; and also that the syllabus in this case distinctly announcing the principle here settled, was before the court at the time of the decision in the case of Reynolds v. Tucker, and that that case was not intended to be at variance with this.


text:
    Adam Wolfe, survivor, etc. v. Cyrus Brown.
    In an action upon a guaranty indorsed on a note, thus : “ We guaranty the collection of the within to Cyrus Brown,” evidence maybe received that the defendant was injured by the delay of notice that the note guarantied could not be collected.
    This is a petition in error to reverse the judgment of the District Court of Morrow county, affirming the judgment of the Common Pleas.
    A. & A. Wolfe, partners, held a note, of which the following is a copy:
    “ Dne A. & A. Wolfe, or order, forty-eight dollars and two cents, for value received. July 1, 1841. G. SALISBURY.”
    On the 24th of March, 1843, A. & A. Wolfe, (the defendant below being survivor,) transferred this note to the plaintiff below by indorsement, thus: “We guaranty the collection of the within to Cyrus Brown. March 24,1843. A. & A. Wolfe.”
    On the 4th of April, 1843, Brown, for his use, and in the name of A. & A. Wolfe, obtained a judgment on the note, and on the same day execution was issued, and return made by the constable April 10,1843, “ no property found whereon to levy.” July 25,1843, another execution was issued with like return.
    In 1852, Brown brought an action upon the guaranty. On the trial the defendant below moved the court to nonsuit the plaintiff below, because he gave no evidence tending to prove that he had given the defendant below notice that the note was not collectible. The court overruled the motion. The plaintiff in error then offered to prove that from and after the issuing of the. execution in July, 1843, until 1846, Salisbury continued to have personal property sufficient to satisfy the above judgment; and that, in the fall of 1846, Salisbury, by reason of loss sustained by fire, became insolvent, and thereafter remained insolvent. This testimony, on motion of the plaintiff below, the court refused to permit it to go to the jury. The verdict was for the plaintiff below, and judgment was entered thereon.
    The plaintiff in error claims, that it was error to overrule his motion for a nonsuit, and to exclude this testimony.
    The district court on error affirmed the judgment of the common pleas, and the judgment of affirmance is now sought to be reversed.

      S. Kirkwood, Beebe & Burns, and Powell & Buck, and J. W. Stinchcomb, for plaintiff in error.

      Beebe & Burns, cited the following authorities:
    1st. As to notice by assignee to assignor. Green v. Bodge et al., 14 Ohio Rep. 346 ; Parker v. Biddle, 11 Ohio Rep. 102; Frasier v. Johnson, Wright’s Rep. 131; Belmont Bank of St. Olairsville v. Beebe, 6 Ohio Rep. 497; Foote v. Brown, and Lewis v. Brewster, (2 McLean) U. S. Dig., 2d Sup.,p. 93, sec. 15 ; Thrasher v. Eley, 2 Saunders and Marsh. (Miss.) Rep. ; Patterson v. Beed, (Watts & Sergeant) U. S. Dig., 2 Sup., p. 93, sec. 129.
    2d. As to due diligence required in the collection of promissory notes negotiable according to Swan’s Stat., pages 587, 588. Bavis v. Per rick, 6 Ohio Rep. 55 ; Vanderveer v. Wright, (6 Barb.) U. S. An. Dig., Yol. 4, p. 246, sec. 13; Williams v. Oollins, (2 Murphy N. O.) U. S. Dig., 2d Sup., p. 92, sec. 94 ; Sylvester v. Bowner, (3 Washburn, 18 Yt.) U. S. An. Dig., Yol. 1, p. 290, secs. 4, 5, and 6.
    3d. As to contract for further time. Bever v. Butler Pall, Wright’s Rep. 367; Beddish v. Pentheuse et al., Ib. 538 ; Mc-Oomb v. Kettridge, 14 Ohio Rep. 348; Bank of Steubenville v. Leavitt ¿f- Carroll’s Administrators, 5 Ohio Rep. 131.
    4th. As to loss by assignor not receiving due notice of non-collection. Powe v. Nichols, (9 Shipley) U. S. Dig., 2d Sup., p. 94, secs. 120,121.

      Olds & Dalrymple, for defendant in error:
    On the part of defendant in error it is claimed,
    1st. That upon the return of nulla bona by the officer on the execution, Wolfe became liable without notice. Kyle v. Green, 14 Ohio Rep. 490.
    2d. The return of nulla bona by the officer is conclusive in this case. Kill v. Kling, 4 Ohio Rep. 135; •Winchell v. Stiles,

    15 Mass. Rep. 230; Bott v. Burnell, 11 Mass. Rep. 163; Lawrence v. Pond, 17 Mass. Rep. 433 ; Beam v. Parker et al., 17 Mass. Rep. 591.
    3d. That to release the guarantor by an agreement to delay after return of nulla bona against the maker of the note, there must be a contract for a valid consideration, to wait a definite time, and must be such a contract as would tie up the hands of the guarantor, and prevent him from paying the debt and proceeding against the maker of the note. Bank of Steubenville v. Carrol’s Administrators, Ohio Cond. Rep., Yol. 5, p. 131; Jenkens v. Clarkson, 6-7 Ohio Cond. Rep. 265.
   J. R. Swan, J.

The case of Bashford v. Shaw, 4 Ohio St. Rep. 263, determines the question raised in this case upon the motion for a nonsuit.

The guaranty in this case was conditional, and no liability could accrue upon it against the defendant below, if the note against Salisbury could by reasonable diligence have been collected. The “collection” named in the guaranty required the plaintiff below to sue Salisbury to judgment, if the note could not be otherwise collected.

The law relating to demand and notiee to charge indorsers of commercial paper, has no application to a case of this kind. This guaranty is a special agreement, to be enforced according to its terms. Demand upon the principal, and notice of non-payment to the guarantor, are in general required, because the terms of the guaranty are such that the guarantor was not to be liable unless upon certain conditions, of which he should have notice. The notice in such case need not, in general, be given with the same promptness as is required by mercantile law in respect to commercial paper ; and the delay to give the notice, affords the guarantor no defense, if in fact he could not have been injured by the delay.

In the case before us, the plaintiff below was bound to sue the note within á reasonable time. Notice that the note could not be collected, should also have been given within a reasonable time; and if so long delayed that the defandant below was prejudiced thereby, it is clear that the defendant below must be discharged, at least to the extent that he may have been prejudiced thereby. It is true, that if the plaintiff below, immediately after the execution against Salisbury was returned “ no goods,” had given the defendant below notice under the guaranty, the return of the constable might have been, in the absence of all collusion, conclusive evidence that due diligence had been used to collect the note ; and the subsequent solvency or insolvency of Salisbury would not have affected the right of the plaintiff below to recover upon the guaranty. But the plaintiff below had, down to the year 1846, three years after the constable had made a return of “ no goods,” omitted to give notice that he had not collected the note. The defendant offered to prove that at this time (1846) Salisbury had personal property subject to levy and sale on execution, and that in the fall of that year, by reason of a loss by fire, he became insolvent. This testimony was overruled by the court. We think it should have been received, as it tended to show that the defendant below had been injured by delay in giving him notice that the note could not be collected.

Judgment reversed.