author: *Birchard, J.

text:
    *Stiles R. Fox v. Josiah Hart.
    The public right to a highway may be lost by non-user.
    But where there has been a continued use of such highway, although its width had been encroached upon by the adjacent owner for eighteen years, the-right is not lost.
    The supervisor may open such road to its full width.
    This was a writ of error to the court of common pleas of Washington county.
    The original action was trespass, in which a verdict was rendered for the defendant.
    On the trial, a bill of exceptions was taken which showed that the plaintiff, “ having proved an actual possession in himself of the close mentioned in his declaration, and an inclosure thereof,, by a rail fence, and further offered evidence to prove the trespasses alleged to have been committed therein by the defendant, and the damages thereby, rested his case; and thereupon the defendant proved that he was supervisor of road district No. 6, in the township of Waterford, in the year 1838, and at the time of the alleged trespass, and that a certain road, running by the plaintiff’s close, was apart of, and within his district; and further offered, and gave in evidence, the plat and record of a road four rods wide (running along the bank of Wolf creek, parallel with plaintiff’s close), surveyed and established by order of the court ■of quarter sessions of said county, in the year 1794 ; and, further, offered evidence tending to prove that the fence of the plaintiff was within the line or width of the said road, as surveyed and platted, four rods wide, as above stated ; and that the defendant, as such supervisor, committed the alleged trespass, in abating the fence of the plaintiff, along and parallel to said road, as the same 'has been used and traveled by the public, and in entering upon the close of the plaintiff to the line of said road, as surveyed, in ■the year 1794.
    *“ And thereupon the plaintiff, to rebut the said evidence, on the part of the defendant, proved by witnesses, that the said road, as the same had been actually opened, used, and traveled by the public, to the said line, claimed by the said defendant, and to which he had so entered upon the close of the plaintiff, and opened the said road. Evidence was also given by the defendant, tending to prove that seventeen or eighteen years ago, the grantor of the plaintiff, and then owner of the close, moved his fence several feet into the said highway, and into a part thereof, which prior to that time had been used by the public as a road; but the defendant, in ■doing the acts complained of, not only moved that fence, but also other fences which stood within the established line of the road, but not within any part of the road which had been used by the public. It was also proved that, by the action of the water of Wolf creek, the road, as traveled by the public, had in some places become inconveniently narrow; and the plaintiff asked the •court to charge the jury, that if they should find, upon the evidence, that the said road was laid out forty years ago, along the bank of the creek, and had been opened and used during all that time, at a width less than the law required the road to be laid out, then, that the supervisor, the defendant, was not authorized to enter upon the adjoining close, and open said road to the width required by the law in force at the time of its establishment; which instruction the court refused to give; to which refusal of the court, so to instruct the jury, the plaintiff, by his counsel, excepted.”
    The errors assigned are:
    1. That the court of common pleas erred in refusing the instruction to the jury, asked for by the plaintiff, in the trial of the said cause in said court, stated in the bill of exceptions.
    2. That the judgment of the court of common pleas, was given for the defendant, when, by the law, etc., the same should have been given for the plaintiff, etc.
    Arios Nye, for plaintiff.
    Goddard & Converse, for defendant.
   *Birchard, J.

This case was supposed to present the question, whether the public right to a road is lost, by the encroachments of an adjacent owner for the period of twenty-one years. We think, however, it may be disposed of without deciding that point. The bill of exceptions does not show an actual adverse possession, by any person for a period of twenty-one years; and therefore the question, whether the public right can be barred by our statute of limitations, does not necessarily arise. Whether the maxim, “ nullum tempus occurrit regi,” is applicable or not to a highway, should be left to be determined when,- by a proper case, it is required.

As the road was laid out in 1794, and a part of its width only was used up to the period when the defendant found it necessary to open it to its full width, it is claimed that the public right to that part, which so remained unoccupied, was lost by non-user.

It is not doubted that a right to a highway may be so lost. The law would raise a presumption of-an extinguishment of the right, when the road had been abandoned for a long period.

But this record shows a continued use of the part of the road left open, and there is nothing to authorize the presumption, that any portion of it had been abandoned or would not be occupied as soon as the public convenience should require. The encroachments of the creek, at the time the transaction complained of occurred, rendered it necessary that the full width of sixty feet should be thrown open. The public had been deprived of a part of the original road for about eighteen years previous, by the encroachments of the adjacent owner. He had no reason to suppose such portion was lost by this encroachment, or the right to it in anywise impaired, nor was it so lost or impaired. The supervisor performed no more than his duty in opening it, and the court of common pleas did right in sustaining him.

Judgment affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    *Jeremiah Shelton et al. v. Joseph Gill et al.
    io enjoin a judgment at law, on the ground of illegal interest, the bill must show a tender of the amount equitably due.
    Illegal interest paid, can not be recovered back.
    A stipulation in a warrant of attorney to pay collection fees, in addition to-the principal debt and interest, is against public policy and void.
    This is a bill of chancery, from the county of Pike.
    The bill is filed by the complainants, setting forth a loan of money from the respondent, Joseph Gill, at a rate of interest of ten and twelve per centum per annum, and which the answer shows, from time to time, liquidated and paid, as the time was extended for the' payment of the original loan. The loan was $4,500, for which a bond was executed, with a warrant of attorney to confess a judgment for the amount due, with two and a half per centum, as attorney’s fees, for collection, and on which judgment was rendered for the balance due, nearly $5,000, with two and a half per centum, collecting fee. Execution was issued, and levied on the complainants’ property.
    An injunction was allowed on this bill, and the respondent restrained from the collection of this judgment; and the complainants pray that an'account may be taken of the loan, the amount of interest paid, and the attorney’s fees, and that the respondent be decreed to credit, on the execution, all excess over six per centum, and the attorney’s fees, for which judgment was taken, and for other relief. Gill answered, and the above allegations are substantially admitted.
    Creighton, Greene & Hunter, for complainants, contended:
    That the defendant was entitled to no more than the principal oaned, with legal interest. Bank of Chillicothe v. Swayne et al., 8 Ohio, 257. And, having obtained judgment on *the warrant for a larger amount, a court of chancery should restrain the collection, beyond what was justly due, for principal and interest. That the two and a half per centum, included in the judgment, was clearly illegal, and was so decided, in the State of Ohio v. Taylor and others, 10 Ohio, 378.
    That the defendant having answered, admitting the allegations of the bill, he waived his right to object to the relief claimed, and should have demurred. Rees v. Smith, 1 Ohio, 124. A tender of the amount due is not necessary.
    Le Grand Byington, for defendant:
    The bill must be dismissed, because:
    1. Upon its own showing, the complainants could have adequate remedy at law, by defense to the action before judgment, and, even after judgment, by having it set aside. Critchfield v. Porter, 3 Ohio, 518; The Bank of Mount Pleasant v. McKee, 7 Ohio, 175.
    2. A large amount is admitted to be justly due, which is not tendered, and therefore the complainants have not placed themselves in a position to demand relief.
    3. The interest, claimed to be illegal, was voluntarily paid, with a full understanding of the contract, and, being paid, can not be recovered back.
   Wood, J.

Are the complainants entitled to relief? It seems to us, upon one of the most familiar maxims of equity jurisprudence, the complainants make no case. He who seeks equity, must do equity. The complainants, in this bill, have no averment that they have offered to pay the amount which is admitted to be due, nor do they bring such money into court. Without this allegation, there is no pretense for sustaining this bill. In the many cases of this character, which have been adjudicated ■upon the circuit within the last few years, not one is within our recollection in which the bill has not contained this averment, or been dismissed for the want of it. It is true, in the case of Clark v. Brockway, 6 Ohio, 45, the bill does *not appear, from the report, to have distinctly set forth what has since been required; but that case seems to have rested upon its own peculiar circumstances. The judge who delivered the opinion remarks: “We should have been better satisfied if the complainant had proffered payment of the money due, and, if refused, had brought it into ■court; but the case, admitted by the demurrer, is so strongly marked, and the exactions, for the use of the money, so scandalous, that we are induced, without intending to establish a precedent, to overlook the omission.”

' There is also another objection to sustaining this bill, and equally fatal. The interest, excessive as it was, was paid ; and, whether we place the case upon the ground of an executed contract — or, as one which is against sound morals, or malum prohibitum, and the-parties, therefore, in pari delicto — we know of no principle by which it can be recovered back. And, in analogous cases, it has been repeatedly so held on the circuit, and in this court.

As to the two and a half per centum, attorney’s collection fees, which were included in the judgment, it is equally clear the place for its correction is not on the equity side of this, court. That such agreements are against sound policy, and void, was- decided in the case of the State of Ohio, for the use of the Fund Commissioners, v. Taylor, 10 Ohio, 378. The complainants,-however, have adequate remedy at law. ' The warrant of attorney, in which this two and one-half per cent, is contracted for, forms a part of the record; and the error, if any exist, is apparent on the record, and may be corrected, on motion to set aside the judgment, or by a writ of error. McKee v. Bank of Mount Pleasant, 7 Ohio, 175, pt. 2.

The injunction is dissolved, and bill dismissed. Bill dismissed*


author: Birchard, J.

text:
    *Saterlee, Masters and Bebee v. Horace Stevens
    A defective appeal bond, if it contain the substance of a bond, will sustain an appeal, so far as to justify an order to file a new bond.
    This was a motion to quash an appeal, from the county of Trumbull.
    Judgment had been rendered against the plaintiffs in the court of common pleas, and they gave notice of their intention to appeal t.o the Supreme Court. Within the thirty days, the following bond was filed in the clerk’s office :
    “ Know all men by these presents, that I, Jacob H. Baldwin, as. principal, am held and firmly bound unto Horace Stevens, in the penal sum of $100. That the payment of which may be well and truly made, we jointly and severally bind ourselves. Signed and sealed May 2, a. d. 1842. The condition of the above obligation is such, that, whereas, Horace Stevens, at the April term, 1842, of the court of common pleas within and for the county of Trumbull,. in the State of Ohio, recovered a judgment against-— for th© sum of-dollars,-cents, for his costs of suit in an action of assumpsit, from which said judgment-the said-has appealed to the next Supreme Court of the State of Ohio, to be held within and for the said county of Trumbull. Now, therefore, if the said--shall pay the full amount of the condemnation money, in the Supreme Court, and costs in case a judgment-shall be entered therein in favor of the appellee, then this obligation shall be null and void, otherwise to remain in full force and virtue in law.
    “ Jacob H. Baldwin.” [l. s.]
    The bond was indorsed by the clerk as follows:
    “ Saterlee, Masters and Bebee v. Horace Stevens.”
    “Appeal Bond.”
    “ Filed, May 2, 1842.”
    *At the September term of the Supreme Court, a motion was made by the'defendant to quash the appeal. The plaintiffs at the same time moved for leave to perfect their appeal by filing a new bond.
    Crowell & Abell, for plaintiffs.
    Taylor & Harris, for defendant.
   Birchard, J.

It was formerly held in this state that if a sufficient bond was not filed in due time, the appellate court had no jurisdiction of the case, and could neither permit a new bond to be filed nor make any other order in the case. Owing to carelessness of parties, and others in preparing and executing bonds, many appeals were consequently lost. To remedy the evil a statute waai provided, Swan’s Stat. 686, authorizing the appellate court to order a new bond to be given, if, on exception taken, the bond should be found defective either in form or in any other respect. This boing a remedial statute, should be liberally construed. The condition of this bond is defective. It does not name the suit. From its face, independent of the indorsement, it could not be ascertained that it belonged to any particular suit in court; yet giving the law a liberal interpretation, it may with propriety be called a defective appeal bond, and justify an order to file a new one. Taking the fane of the instrument in connection with the indorsement, there is something to amend by. It is under seal, and purports to bind J. H. Baldwin to Horace Stevens, in the sum of one hundred dollars. This makes it a bond. As the law now stands' any paper coming within the legal definition of a bond, employing the term in its largest sense, however defective in other respects, will, if filed in due time for that purpose, sustain an appeal. An instrument without obligor or obligee, or in blank, as to the sum, would be insufficient. The motion to quash overruled. Leave given to file a new bond.


author: *Wood, «T.

text:
    *George Job v. James Collier.
    Money paid on a judgment can not be recovered back -while the judgment remains in force.
    A judgment entered without objection, in the name of the plaintiff, as commissioner of insolvents, is, between the parties, evidence that the plaintiff was such officer.
    This was a writ of error to the Supreme Court of G-reene county.
    The original action was assumpsit. The declaration was on the common counts, the plea non assumpsit. At the May term of the Supreme Court, 1841, the cause came on for trial, and, by consent of parties, was submitted to the court without the intervention of a jury. The court found for defendant, and rendered judgment in his favor for costs. A bill of exceptions was taken, which showed the following facts:
    In 1824, James Collier, the defendant in error, was appointed commissioner of insolvents, under the law then existing, and was not thereafter reappointed. He was at no time appointed under the act of 1831. In December, 1832, Collier, holding himself out as commissioner of insolvents for Greene county, one Robert C. Poland, believing him to be such commissioner, made application to him for the benefit of the act for the relief of insolvent debtors, gave in his schedule,' made an assignment, took the oath, and gave the bond required, with George Job, the plaintiff in error, as one of the sureties. The proceedings were returned to the court of common pleas, there dismissed, and the bond forfeited.
    The bond was put in suit by Collier as commissioner, judgment rendered in his favor against Job for the penalty, and $800 has been paid by the plaintiff in error in part satisfaction. To recover back the sum so paid to Collier, this suit was brought.
    William Ellsberry, for plaintiff.
    A. Harlan, for defendant.
   *Wood, «T.

In rendering judgment for the defendant, upon the above facts, did the Supreme Court err?

To determine this, it seems to us unnecessary to refer to the act of 1831, repealing that of 1824, and re-enacting, among others, the same provisions. Whether Collier was, or was not, the commissioner of insolvents, when the bond was executed, dejure, or even defacto, is now of no import. The judgment, in his favor, quoad this plaintiff, establishes that fact sufficiently. If he were not such commissioner, the plaintiff in error should have litigated that question in the suit on the bond. Instead of doing so, he suffered judgment to pass, and paid the money on the judgment. It went to pay the debts of his principal, and now he seeks to recover it again out of the pocket of the commissioner, who was, doubtless, innocently acting under the belief that he was, de jure, the commissioner, whether he was so, or not, in fact.

But that judgment on the bond still remains unreversed, and the payment of money on it, is a payment by him, and a receipt by the commissioner, of the money, under authority of that judgment. It is equivalent to the payment of money into court, and can not be recovered back.

Judgment affirmed.


text:
    James McConnell v. James Collier.
   This was also a writ of error from Greene county, and stood upon the same grounds as the preceding case, the plaintiff in error being one of the securities on the same bond, for Poland.

Judgment affirmed.


text:
    Robert Montgomery v. The State of Ohio.
    It is error to admit evidence of dying declarations, without first finding that the deceased was conscious of his condition when malting them.
    It is not error to allow a witness to state the substance of competent dying declarations, although he may not he able to give the precise words.
    An intent to kill may he an ingredient of the crime of manslaughter, hut, under our statute, it is not a necessary ingredient.
    The right of a jury to judge of the law in a criminal case is not absolute, hut is to he exercised (agreeably to section 6, article 8, of the constitution), “under the direction of the court.”
    This is a writ of error to the court of common pleas of Ashtabula county.
    The plaintiff in error was tried and found guilty of manslaughter. On the trial, a bill of exceptions was taken to the ruling of the-court, on the admission of testimony, and to the instructions given to the jury. The bill shows that the court permitted the prosecutor to prove that Hackett, the deceased, just before his death, and while in extremis, said that, vvhat he had sworn to a few days before, on the trial of a complaint against the plaintiff in error, for an assault and battery, growing out of the quarrel in which deceased received the mortal injury, and also what he had told the witness, the morning of his death, touching the injury of which he died, “was G-od’s truth, and that the whole of those statements were true.” Upon this, the court allowed the witness to prove the substance of both statements.
    The assignment alleges that there was error in receiving this evidence without proof that Hackett was, at the time, conscious of immediate death; also, in receiving the substance only of the-testimony of Hackett, given on the trial for assault and battery.
    Other errors were assigned, which are noticed in the opinion of the court.
    *Wade & Ranney, for the plaintiff in error,
    argued that dying declarations can not be received without preliminary proof that the person making them was conscious of approaching dissolution. 1 Stark. Ev. 23; 2 Ib. 261; 2 Russell on Crimes, 683; Greenl. Ev. 188; McNally’s Ev. 174; Swift’s Ev. 124; State v.
      Moody, 2 Hayw. 31; Rex v. Crockett, 4 Car. & P. 544; Rex v. Woodcock, Leach’s C. L. 563.
    That the dying declarations did not relate to any facts or circumstances competent to be given in evidence, but only referred to former statements made by him. That those statements, even if competent, must be proven as made; their substance is not sufficient. 2 Evans’ Pothier, 293; Bliss v. Long, Wright, 351; Smith v. Smith, Wright, 648. They also insisted that the court erred in-charging that the jury were not exclusive judges of the law and fact, and in charging that an intent to kill was not essential to-constitute the crime of manslaughter.
    The reporter was furnished with no argument on the part of the state.
   Birchard, J.

We should not think that the court erred in permitting the substance of Hackett’s statements to be given in evidence, although the witness was unable to give the precise words, and in leaving the credit of the narration and the weight of the-evidence to the jury, were there no other objections. The deceased alluded to both statements at the time, and, by reaffirming them, he made them as much his dying declarations as if he had then repeated them at length. The substantial objection to the-proof, is, that it was received without a preliminary inquiry by the court, establishing the fact that the deceased not only made the declarations just before death, and while in extremis, but also-that he was conscious of his true condition. It is this consciousness, coupled with the condition of the party, which supplies the place of an oath, and peculiarly distinguishes dying declarations from hearsay. In omitting *this inquiry, a majority of the court believe there was error, and that, for that cause alone, new trial should be awarded.

In the charge to the jury the court said, “that intention to kill was not a necessary ingredient in manslaughter, arising from a-sudden quarrel; ” and this is assigned for error. We are all of opinion that in this there was no error. The point, however, is-urged with much ability, and it is claimed to have been twice decided by this court upon the circuit, to wit, in the State v. Turner, Wright, 27; and State v. Town, Wright, 76. Those were cases of murder in which this question was not necessarily made. From the recollection of one member of this court, before whom the: causes were tried, we are inclined to believe that they are so reported, as, on this point, to give an erroneous impression of the actual opinion of the court. That the crime of manslaughter may be committed by an intentional killing, upon a sudden quarrel, is not doubted; but that in all cases this precise intent must exist is what we are unprepared to admit. The statute provides for the punishment of one “who shall unlawfully kill another, without malice, upon a sudden quarrel,” and declares he shall be deemed guilty of manslaughter. Swan’s Stat. 228. Is it not clear if one strike another with a dangerous and unlawful weapon, upon a sudden quarrel, or beat him in a cruel and vindictive manner, so that death ensues, although there was no specific intent to produce death, that the crime would be manslaughter? If so, an intent to kill is not a necessary ingredient of manslaughter under this clause of the statute. Again, the court were asked to charge that the jury were judges of the law and facts. The court refused to instruct in this form ; but said the jury had the power, and, if ■they chose to exert it, the right to determine all questions of law and fact, so far as to acquit, and, if they did so, there was no power to correct any error committed by them in such acquittal, and that they were not exclusive judges of both law and fact, as a general rule, in criminal prosecutions; for, if they found the accused guilty, and it turned out that their finding was illegal, they bad no power, but the court had, to set aside thoir verdict and grant a new *trial. In this refusal to instruct, as requested, and in the instruction given, it is alleged there was error. It does not, however, appear to us that there was anything erroneous which could prejudice the rights of the plaintiff. We are aware that in some parts of the state, an opinion prevails that in all criminal trials the jury have a right, independent of the directions of court, to determine as well the law of a case as the facts.

By the last clause of section 6 of article 8 of the constitution of this state, it is declared that “in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.” It would seem, from this, that the framers of our bill of rights did not imagine that juries were rightfully judges of law and fact in criminal cases, independently of the directions of courts. Their right to judge ■of the law, is a right to be exercised only under the direction of the court; and, if they go aside from that direction, and determine the law incorrectly, they depart from their duty, and commit a public wrong; and this in criminal, as well as in civil cases.

As the court erred in admitting the declarations of Haekett, without the necessary preliminary proof, a new trial must be awarded. Remanded for new trial.

       The jury are the judges of the facts, both in civil and criminal cases, but they are not, in either, the judges of the law. They are bound to find the law as it is propounded to them by the court. They may, indeed, find a general verdict, including both the law and the facts, but if, in such verdict, they find the law contrary to the instructions of the court, they thereby violate-their oath. Townsend v. The State, 2 Blackf. 151.


text:
    *The Treasurer of Perry County v. William F. Moeller and Thomas Hood.
    Under section 5 of the act pointing out the mode of levying taxes, a merchant, commencing business after the 1st day of March, is hound to report the' •whole amount of capital employed or invested by him in trade at the time of making report.
    A report of the average value of merchandise, or stook, on hand during the-year, is not a compliance with the statute.
    This is an action of debt, from Perry county, upon the following agreed case:
    “ The defendants commenced the business of merchandising at Somerset, in Perry county, as partners, after March 1,1841. Six. teen days after they so commenced, the defendant, Hood, went to-the auditor of the county, to make report of their capital, and was sworn by the auditor, to make true answers or statements, touching the capital employed by the defendants in merchandising; thereupon, the said Hood stated that he supposed the actual value of the stock of goods of the firm, then on hand, to bo about $5,000, but that the average value of the goods they would have on hand,, throughout the year, would be about $2,500, and insisted that the average value was the true standard for taxation, and that it should be taken by the auditor as the report, and refused to give in the $5,000 value as the report, or to allow the auditor to certify that value to the treasurer. The auditor treated this as no report, refusing to take the $2,500 value, and made no entry, nor gave to Hood any certificate to take to the treasurer. Hood, however, then went to the treasurer, and tendered thirty dollars, as the amount of tax, which was refused by the treasurer.”
    ■ H. H. Hunter, for plaintiff.
    Stanbery and Tan Trump, for defendants.
   *Birchard, J.

In this case the question is, did defendants report the capital employed by them, as required by law? The agreed statement shows that they did not, unless their capital, within the meaning of the act, was $2,500, instead of $5,000, for the agreed ease shows that they refused to allow the auditor to -certify the latter sum to the treasurer. It follows that if $2,500 was not the capital employed, there has been no such report as the law requires. This brings us to a consideration of what is meant by the words, “ capital by him employed,” as used in section 5. Swan’s Stat. 908. The plaintiff claims they mean the .amount of goods with which the trade has been commenced. The defendants claim that the average value of stock on hand during the year was the sum to be entered for taxation. Whatever may .be the rule of estimating merchants’ capital, under other sections of the statute, it appears to us that, under section 5, there can be little doubt but the legislature intended the merchant should report the aetual value of the goods with which he commenced trade. Whether obtained on a creditor for cash, it is his capital; he employs it in trade.

No matter into what form ho may change it, whether into money, book accounts against customers, or the produce of the ■country, or if ho retain it upon the shelves of his store, it still, in all its varied forms, is capital employed by him, and within the year of his commencement. Had the legislature designed to require only the sum that might be continued, at all times, on hand during the year, or only the average amount of the capital employed, the reasonable presumption is, that words more appropriate to convey that meaning would have been used. Such as “ the .average of capital intended to be employed until the next annual assessment.” But they say “ the amount by him employed.” When ? The natural reply would be, at the time when required to report. Not the sum he intends to use in future, or may probably employ prior to the next assessment, but what he begins with, or may have at the end of the month when required to make ■his report. It is *not contemplated that this report should be a matter of conjecture on the part of the merchant, but one of facts as they then existed. Judgment for plaintiff.


author: Wood, J. Lane, C. J.,

text:
    The State of Ohio, on relation of Napoleon A. Guille, Prosecuting Attorney, v. Samuel Chapman, Jr.
    The court of common pleas and Supreme Court have power to suspend an attorney from practicing in their respective courts, for official delinquency or base immorality.
    Conviction for crime would he good cause for such suspension.
    A record in an action of slander, where an attorney at law was plaintiff, showing that a plea charging him with the commission of crime, was found to he true, is not equivalent to a conviction for that offense.
    Evidence in cases of this hind must he confined to and establish the specification.
    This is a rule from the Supreme Court of Muskingum county, upon the defendant, to show cause why he should not be suspended from practicing as an attorney and counselor at law.
    The material facts are stated in the opinion of the court.
   Wood, J.

This case was reserved in the county of Muskingum, at-the November term, 1841. The Supreme Court for that county directed an entry to be made on the journal in these words:

“ Ordered, that the prosecuting attorney file an information in this court, preferring charges for malpractice against Samuel Chapman, Jr., one of the attorneys of this court; that notice, pur•suant to the statute, be forthwith issued and returned, and leave is given until the 25th of November inst. to take depositions, and this matter is adjourned to the next session of the court in bank for further order.”

*By virtue of this entry, the prosecuting attorney filed, in ■substance, the following specifications :

1. That on November 4,1840, a cortain suit was pending in the Supreme Court of Muskingum county, in which said Chapman was plaintiff, and Charles C. Converse defendant, and in which Chapman filed his declaration, and therein charged the said Converse with speaking and publishing of him, said Chapman, that he had stolen from the files of the court of common pleas of Muskingum county a certain indictment of the State of Ohio, against James Alexander and others, for the crime of robbery, and that, the said Converse, by way of defense and justification, set forth and charged in his second plea, that the said Chapman, on November 20, 1839, did take, steal, and carry away a certain indictment of the State of Ohio v. James Alexander and others, for the crime of robbery, etc.

That the said Converse, in his fourth plea to said action, charged and set forth, that the said Chapman, being retained as such attorney, etc., to defend the said Alexander and others on said indictment, on November 26, 1839, etc., improperly, dishonestly, furtively, wickedly, and contrary to his professional duty, did take away, secrete, and withhold from the custody of E. T. Cox, clerk of the court of common pleas, the said indictment, for the purpose of procuring the discharge of the said Alexander and others therefrom; that, at the November term, 1841, at the Supreme Court, etc., the aforesaid issues came on to be tried by a jury, and the jury, on their oaths, etc., did find and declare the matters and things in the said plea to be true, and, on which finding of the jury, the Supreme Court rendered judgment, etc.

2. Said Chapman, so being such attorney, etc., at, etc., did improperly, dishonestly, unlawfully, and wickedly take, carry away, and secreto and withhold from said Cox, clerk as aforesaid, the said indictment, etc., contraiy to his duty as such attorney, etc.

3. That said Chapman did steal said indictment, etc.

*4. That said Chapman took and secreted-said indictment, and withheld it from said Cox, to hinder and obstruct public justice, etc. These are, substantially, the specifications, of which Chapman insists he is not guilty.

The statute which is supposed to authorize this inquiry, is section 4 of the act entitled “an act to regulate the admission and practice of attorneys and counselors at law,” Swan’s Stat. 96, in these words: “ The supreme court, or court of common pleas, shall have power to suspend any attorney or counselor at law, from practicing in their respective courts, for misconduct in office, or for good cause shown.”

The statute, it will be observed, is broad in its terms, and casts upon us the protection of the moral and official integrity of the profession. This court should not hesitate for a moment to exercise the discretion with which it is clothed by the law, to purify the bar of official delinquency and base immorality.

This is due to its own dignity, and to preserve the character and integrity of the whole profession from scandal and reproach. The discretion, however, with which we are invested, is by no means arbitrary, but to be applied according to legal rules. The allegations and the proofs are to be considered in the usual way, and they must correspond, substantially at least, or the accused must go acquitted.

The first specification in this case must have been framed upon the belief, that the pleas of justification, in the action of slander, being found to be true, was tantamount to a conviction for a felony. If so, the rule is clear, as stated by the courts, that such a conviction is, per se, a forfeiture of the office of an attorney. In such a case, Lord Mansfield says, “ we have consulted all the judges, and, on application, struck the name of an attorney from the roll.” Rex v. Brownsell, Cowp. 830. We are of the. same opinion, that one, convicted of a felony, is an unfit person to continue in the profession ; and whether committed in his private or official character, it would be good cause for his suspension. The Bank of New York v. James Stryker, 1 Wheeler’s Cr. Cas. 330. Chapman, *however, does not occupy this position. He has never been prosecuted for larceny; but, if he has committed a larceny, though not. convicted, or if he have committed any offense of a base nature, or any act as an attorney, which his oath of office and his fidelity in the profession are not to be confided in, it is good cause of suspension within the provisions of the statute. 1 Wheeler’s Cr. Cas. 322; 1 Bac. Abr. 306; 1 Hawk. P. C. 277, 279.

The record in the slander suit, however, finding the pleas of justification true, is, in this ease, by no means conclusive evidence of the facts set up in those pleas. The record is not between the same parties, and if admitted at all, any presumption, arising from, it may be rebutted by other proof. The parties were aware of this, and a great number of depositions have been taken,, both by those-who prosecuted and by the accused. In the opinion of a majority of the court, the proof establishes the fact, that Chapman had the indictment in his possession ; that he kept it a long time; that ho was inquired of and denied all knowledge of it, and that he was, at the same time, the attorney for Alexander and others ; that he afterward returned the indictment to the clerk’s office, secretly, and placed it in the.¡proper files. If the evidence were to close here, there would be but one opinion — that of guilt; that the charge of larceny, of secreting the indictment, withholding it from the clerk, and attempting to obstruct and hinder public justice, wore sustained. It, however, appears from the evidence, equally clear, to a majority of the court, that Chapman neither stole the indictment» nor knew that he had it, when inquiry was made; that it was probably mislaid ; but, as soon as discovered, he replaced it secretly, upon the files. This return of the indictment, secretly, can not be commended. It deserves severe rebuke; but still, I can hardly think it evinces, under the circumstances, any criminal design. Had his intent boon criminal, Chapman would doubtless have destroyed the indictment, and not hazarded exposure by its return. He ought, truly and irankly, to have admitted his error, and delivered the indictment to the clerk. There had, however, been *crimination and recrimination; the whole elements of society seem to have been agitated and disturbed, and it is, after all, not very remarkable that Chapman had not sufficient moral courage (to admit he had the indictment, and to openly return it.

■ Lot us then, briefly, see how this case stands. Chapman is .charged with being convicted of stealing the indictment. He is ..charged with secretly taking it, with holding and secreting it .‘from the clerk, and with intention to obstruct and hinder public justice.

The truth is, he had it innocently, ho knew not it was in his ■possession, and denied having it; and when found, he returned it secretly, and, with this secret return, if criminal, immoral, or fraudulent, he is not accused. It is, therefore, the opinion of a majority of the court, (that the charges are not sustained by the proof, and that they should be dismissed. Rule discharged.

Lane, C. J.,

dissenting. I can not agree with my brethren in their conclusion. When two verdicts have found, in terms, that an individual .has stolen the records of a court, which verdicts have been approved by the tribunals where they were rendered, and which seem to be sustained by the testimony before us, I regard him as an unfit person to continue any longer a member of the Ohio bar.

       Browne’s case, 1 How. 303; Holding’s case, 1 McCord, 379; 3 Paige, 510; Brownsel’s case, Cowp. 829; Southerly’s case, 6 East, 143; Smith’s case, 5 Eng. Com. Law, 172; Kempton’s case, 2 Ves. & Beame, 352.


author: Lane, C. J. Read, J.,

text:
    *William S. Hamilton v. The State of Ohio.
    A person having possession, in this state, of property which he had stolen in another, may he convicted here of larceny.
    This is a writ of error, to the court of common pleas of Lawrence county.
    The plaintiff in error was indicted for horse stealing. The court charged the jury that if the horse was stolen by the accused in the State of Illinois, and brought by him into the State of Ohio, he might be convicted of the crime of horse stealing in this state. This charge is claimed to be erroneous.
    LeGrand Byington, for the plaintiff in error:
    The doctrine of a new larceny for every fresh asportation, as known to the common law, is confined to the limits of the sovereignty, and can not be extended beyond it. This is supported by the following considerations:
    1. The grade of the offense, the mode of trial, the quantum of punishment, and the process of expiation, would all be liable to be varied by the offender crossing a state line.
    2. It would subject the offender to trial in a tribunal powerless to compel the attendance of witnesses necessary to establish the time, manner, and° place of the original taking, and to explain the possession.
    3. It would render nugatory, as to this offense, the act of Congress providing for the surrender and delivery of fugitives from justice.
    4. It would abrogate the provision of the constitution that no one “shall be twice put in jeopardy for the same offense,” for the record of conviction or acquittal would not be binding in another state.
    5. *It subjects a person to penalties for an act not denounced by the laws of this state.
    All crimes punishable by the laws of this state are statutory. They can not exist independent of statute. The penalties are prescribed by statute; but in this state there is no statute making it an offense to possess property stolen in another or prescribing any punishment for such offense. Nor can it be necessarily presumed that stealing a horse in Illinois constitutes there an offense of the same grade and subject to the same penalties as in this State. Necessity furnishes no ground for our courts to assume jurisdiction in such case. For the act of Congress has provided ample means whereby an offender against the laws of one state found within the limits of another can be reclaimed and brought to justice.
    It is not sanctioned by the common law; for a larceny committed in Scotland or Ireland could not be tried or punished in the English courts until acts of parliament, 13 Geo. III, ch. 31, 54, and 44 Geo. III, ch. 92, 57, were passed. 4 Chitty’s Blackstone, 25, note 12.
    It has also been held, in various states in this Union, that a person can not be convicted of larceny upon bringing into one state property stolen in another, as in the cases of the People v. Gardner, 2 Johns. 477; People v. Schenck, 2 Johns. 494; The State v. Brown, 1 Hayward, 100. These cases are cited and referred to in 1 New York Digest, 102; 2 Russell on Crimes, 176, note 1.
    The charge of the court, therefore, is not sustained by the statute, the only foundation for criminal jurisdiction; and it is opposed to the common law and the practice in other states.
    S. M. Tracey, for the state:
    The cases in 1 Mass. 116; 2 Mass. 14; 5 Binn. 617; 3 Conn. 185, and 1 Root, 69, sustain the charge of the court.
    Of the cases cited on the other side, that of Gardner, 2 Johns. 477, is the loading case in this country. It is of *no authority, per se, because the court assign no reasons, but merely refer to 2 East’s Pleas of the Crown, 774, tit. Larceny and Robbery, sec. 157. East here states the common-law doctrine, “that possession of goods stolen by the thief is a larceny in every county into which he carries the goods; because the legal possession still remaining in the true owner, every moment’s continuance of the trespass and felony amounts to a new caption and asportation. To this, however, there are some exceptions; as where the original taking is such whereof the common law can not take cognizance. And the same exception prevailed till lately in cases where the original taking was in Scotland,” citing Rex v. Anderson et al., MS. case. “ But that by the statute (13 Geo. III), the exception had ceased to prevail. This statute of 13 Geo. III is declaratory of the common law doctrine.”
    Gardner’s case is not sustained by the authority to which it refers, and consequently imposes upon New York, also, the necessity of enacting a statute declaratory of,the common law. 11 Wend. 129. •
   Lane, C. J.

The question on the record is not new, but has often arisen here and elsewhere. In Tennessee, Kentucky, and Pennsylvania, possession, by the thief, of property in one state which has been stolen in another, is not held sufficient for conviction. Such has been the doctrine in New York, although against the opinion of a late chief justice; but the power to convict, in such cases, has now been given by statute. In Massachusetts and Connecticut, such convictions have always been sustained. In England, the original taking must be within the kingdom.

A majority of the court entertain the opinion that a long-sustained practice in the criminal courts of this state has settled the construction on this point and established the right to convict in such cases. But, if not settled by usage, we feel free to choose, between these conflicting practices, a course best sustained by analogy and best calculated to promote justice.

*It would afford a large immunity for crime if thieves from other states were exempted from any other penalty than the remote risk of being returned to the place where the crime was first committed. We feel no scruples in inflicting his punishment here, and are justified, as well by the cases cited as by holding each continued possession, in our jurisdiction, of property stolen within another, as a crime well deserving the penalty of the law.

Judgment affirmed.

Read, J.,

dissenting. In this case I am unable to concur with my brethren in the legal proposition, that a person stealing property in a sister state or a foreign jurisdiction, and bringing it within the State of Ohio, may be here indicted and punished for the larceny. It is from no over-sympathy with the criminal, but a belief that the law will not authorize this conviction. He may be sent back to the state where the offense was committed and there punished, but not here.

This question is not new. It has been held that larceny committed in one of the United States is not punishable in another, although the thing stolen be brought into the latter state. Such are the decisions in Pennsylvania, New York, Tennessee, and North Carolina. State v. Brown, 1 Hayw. 100; People v. Gardner, 2 Johns. 477; People v. Schenck, Id. 479; Commonwealth v. Simmons, 5 Binn. 617; McCullough’s case, Rogers, 45. To the contrary, the Commonwealth v. Collins, 1 Mass. 115; Commonwealth v. Andrew, 2 Mass. 14; State v. Ellis, 2 Conn.

The State of New York has since provided, by statute, for punishing such possession within her limits, upon which the decision in 11 Wend. 129, was made. True, Judge Savage remarks that it was his opinion such ease might be punished prior to the statute. But it must be recollected that he speaks in reference to himself as prosecutor, as he prosecuted the case of the People v. Gardner, when the court refused to sustain him.

*Upon what principle can such conviction be sustained ? Is it upon a constructive new taking in every state where the thief may be found in the possession of the thing stolen? This principle was applied to the possession of the thing stolen, at common law, in every county where the thief might be found in such possession, to authorize conviction for the original theft, but never as between independent jurisdictions or states. At common law, if a person stole goods in a foreign state, or even in Scotland, Ireland, or the Isle of Jersey, or at sea, and brought them into England, he could not, upon a constructive taking, be punished for theft in England. To meet cases within the united kingdom the statute of 7 and 8 Geo. IV, ch. 29, sec. 76, was passed. Even now, persons stealing within foreign jurisdictions or states, and found in possession of the thing stolen, are not punishable in England. Roscoe’s Crim. Ev. 589; 2 Eng. Crown Cas. 329.

Upon what principle can it be held, in Ohio, that a person found in the possession of a thing stolen in a sister state should be construed to have stolen the thing in Ohio? Not upon the common-law principle, for the common law espressly forbids it. Not upon a statute of this state, for there is none. Shall it be upon usage? This would be a novelty in a state where no man can be punished for a crime unless the offense be specifically defined by a statute of the state prescribing the exact punishment. Shall it be from the necessity of the case lest a rogue escape? Necessity con'ers no criminal jurisdiction, and is the well-known plea of tyrants.

If the conviction can only be sustained upon the ground that the prisoner actually stole the horse in Ohio, the reply is, he actually stole the horse in the State of Illinois. There must be an actual theft in Ohio, to violate our statute and to constitute theft — a taking and carrying away are both necessary. But there is no taking in Ohio. Withouta taking from the owner, there could be no larceny. To supply the want of an actual taking, it is contended that a mere taking is to be construed, from the wrongful possession, into a larceny, in every new jurisdiction where the property may be carried. Upon *which, then, is this prisoner convicted, the construction or the statute? To contend that every moment’s possession and wrongful detention of the stolen property from the rightful owner is, by the law, construed into a new and distinct taking or theft, might authorize the conviction of a man a hundred times for the same theft; for, if they are distinct thefts, conviction in one will be no bar to a conviction for the others. Now, at common law, whence this constructive doctrine is derived, it is only so held to give the count}'- where the thief is taken with the goods, jurisdiction to try and convict him of the one original theft, and this is a bar to any other conviction. The law does not make distinct larcenies by construction, but it is a mere fiction to give jurisdiction to the county. This construction is merely to give jurisdiction, and not to divide it and make one larceny into many; and this, too, merely to try and punish him under the same law which he violated in committing the theft. Apply this to different states, with laws prescribing different punishments for larcenies, and having the right to punish all offenses committed within their limits, and what follows ? You do not, by this construction, give jurisdiction to try the thief under the laws where the theft was committed, but by construction draw the offense to a new jurisdiction, and under a different law prescribing a different punishment.

The construction, then, creates the offense, when the statute only can do it, and creates a crime under a new law, instead of conferring jurisdiction to try tbe accused under the law which he has violated, It amounts to this : that there is a new larceny in each state where the thief may go with the property, and that he may be punished for tbe same larceny as many times as he may have been in different states with the thing stolen; for prosecution and conviction in one state is no bar to a prosecution and conviction in another. And, hence, a sort of custom, usage, or legal inference overturns, not only the principles of common justice, but the fundamental principle that a man shall be punished but once for the same offense. But will it be said, there is a great evil in permitting thieves to *live within our borders in the guilty possession of property which they have stolen in another state? True, but they must be delivered up if demanded ; and it would be very easy for the legislature to pass á law to punish a thief for having in his possession, within this state, goods which he has stolen in another. This the State of Now York has done, and so may every other state; and I trust that our legislature may pass such a law. The question is not whether there should be some law upon the subject, but whether there is any? And, feeling clear that there is none, I hold the prisoner to be confined without legal authority; and, moreover, that this court can not confer such authority. Even if it be doubtful, upon all principles of jurisprudence, that doubt should be resolved in favor of the prisoner. If the state may rely, for conviction, upon the usages of some states in which such convictions have been held to be right, why may not the prisoner rely upon the authorities in other slates where such convictions have been held to be wrong?

No principle of the common law warrants this conviction; no statute authorizes it; and, clearly, no usage or custom- can confer such authority, especially when it violates the soundest principles upon which criminal justice is known to be administered, and authorizes a man to be convicted more than once for tho same offense.

My confidence in my brethren would have induced me, if my convictions as to the law on this subject had not, in my own mind, been perfectly clear, at least to have acquiesced, deferring my doubts, if I entertained any, to their opinion.


author: ^Wood, J.

text:
    *The Lessee of Mary S. Perry v. Daniel Brainard.
    In this state the guardianship of a minor female expires, by operation of law, when the ward arrives at the age of twelve years.
    A guardian, appointed for such ward, when under the age of twelve years, can not, as such guardian, by petition filed after the ward arrives at the age of twelve years, sell the ward’s land.
    A sale, under an order of court upon such petition, is void.
    This case was reserved on the last circuit, from Sandusky county.
    It is an action of ejectment, to recover the possession of lot No. 144, in the town of Sandusky. The principal facts are agreed.
    At the May term, 1828, of'the court of common pleas of Sandusky county, Jaques Hulburd was appointed guardian for Mary S. Perry, a minor, who was then nine years and eight months old, and was seized in fee of the lot in question. At the May term, 1831, of said court, Hulburd, as guardian for Mary S. Perry, who was then twelve years and eight months old, filed his petition for the sale of said lot, setting forth that she was twelve years of age, that said lot was situated in Lower Sandusky, and was subject to taxation, and that the investment of the funds in wild land would be of greater advantage to the minor heir, etc., and praying a sale. At the October term, 1831, the court ordered a sale of the lot, and, at the March term, 1832, the guardian reported a sale of said lot to the defendant, Brainard. The report was approved, the sale confirmed, and the guardian ordered to make a deed to the purchaser. On August 25,1835, the guardian executed a deed of the premises to the defendant, Brainard. The record of Hulburd’s appointment recites that Mary S. Perry was, at that time, nine years old.
    The reporter was furnished with no arguments.
   ^Wood, J.

From the admissions and proofs in this case, the question first arises whether Hulburd was the guardian of this minor heir, the plaintiff’s lessor, when the petition for the sale of her land was filed. If not, there was a defect of power, and the subsequent proceedings conveyed no titje to the defendant, but it still remains in Mary S. Perry. This question must be determined principally by the construction of our own statute, and we have not been able to find any case strictly analogous in the reports of other states.

If this question be decided in the negative, there is clearly an end of the affair; it then becomes unnecessary to touch any other question raised, but judgment must be given for the plaintiff.

The statute provides that the court of common pleas shall have power, when they think it necessary, to appoint guardians for minors, and, on good cause shown, to authorize such guardians to sell such minor’s land. Swan’s Stat. 430. Section 6 enacts, “ that when those minors aforesaid, males above fourteen, and females above twelve years of age, or when any minors for whom the court have appointed a guardian or guardians, shall arrive at the respective ages aforesaid, such minors may severally choose a guardian or guardians, such as the court shall approve, and if such minors do not come before the court and choose a guardian or guardians after being notified by the court so to do, the court shall appoint a guardian or guardians for them as aforesaid.”

It seems to us the obvious construction of this section is, that the appointment of a guardian to a female under twelve years, though unlimited on the face of the appointment, ceases by its legal expiration when the ward arrives at the age of twelve years. At that age the law deems her of sufficient discretion and capacity to have a choice of the person who is to control not only her property but herself, subject, nevertheless, to the approval of the court; and it is then, only, after being notified to appear and make such choice, and refusal on her part, that the court are authorized and required to appoint a guardian if she is over twelve years of age.

*That the appointment expires by its own limitation when the ward arrives at the age of twelve years, was decided in the case of Campbell v. English and wife, Wright, 119. The court then held this language: “A guardian for a female under twelve years of age continues only until the ward attains to that age. A guardian, or a man that has been guardian, after his guardianship has expired, has no more power than if he had never been appointed.” We see no reason to question the soundness of this principle. It accords with our own views.

How, then, stands the case at bar? It is admitted the guardian filed his petition for the sale of the land after the ward had arrived at the age of twelve years, and at a time when the law had determined his guardianship. All the proceedings subsequent to, and including the petition for the sale of the lot, are therefore void, and convey no title to the defendant. Judgment for plaintiff.


author: Lane, C. J.

text:
    The Commercial Bank of Lake Erie v. The Western Reserve Bank et al. The Western Reserve Bank v. The Commercial Bank of Lake Erie et al.
    A judgment creditor may not, unnecessarily and without cause, relinquish a levy to the prejudice of purchasers, but embarrassments upon the title, difficulties in making a fair sale, or the probability of not making the money from it in consequence of earlier incumbrances, are sufficient causes.
    The relation of principal and surety continues after judgment.
    Lands lying under a judgment lien, which have been sold to purchasers, must he sold to satisfy the judgment, in the inverse order of the dates of the purchase.
    These suits are a bill and cross-bill in chancery from Cuyahoga county, to settle liens and priorities between creditors, by judgment and otherwise, of Clarke and Willey.
    *Tbe Western Reserve Bank recovered judgment, by cognovit, against James Clarke, Willey, and Edmund Clarke, on May 12, 1837. Edmund Clarke is really a surety, but the judgment is entered against the defendants generally, without any certificate of the fact. On June 19, 1837, a writ of error was prosecuted, by which proceedings were stayed until affirmance of the judgment, in August, 1838. In November, 1838, execution was issued on this judgment, and levied on lot No. 51, in Ohio City, and on lot No. 95, in Cleveland. In April, 1839, the levy, under this execution, was set aside at their instance. A partial satisfaction of the judgment was then obtained by the sale of other property, in proceedings not necessary to be further noticed. Another execution, on August 26, 1839, was levied upon seventeen lots of land, of which six belong, jointly, to Clarke and Willey, two to Willey, three to J. Clarke, and six to B. Clarke. After the judgment was obtained by the Western Reserve Bank, before execution, and while proceedings were suspended by the writ of error, those lots, of the seventeen, which belonged to Clarke and Willey, or to either of them, were mortgaged or sold to other defendants.
    Oct. 9, 1837. Three of them were mortgaged to the Commercial Bank.
    Oct. 17, 1837. One was mortgaged to L. Kendall.
    Oct. 18, 1837. Throe to the Bank of Cleveland.
    April 2, 1838. Two to Fanny Willis.
    April 3, 1838. One to Williams & Fitch.
    April 10, 1838. One to P. M. Weddell.
    June 9, 1838. One to Clarke, Raymond & Clarke.
    Upon this state of facts, the claims of the parties may be classified as follows:
    The Western Reserve Bank insist on the right to have satisfaction of their execution, from any of the seventeen lots, whether in the hands of purchasers from Clarke and Willey, or belonging to Edmund Clarke.
    The surety, Edmund Clarke, and the purchasers from Clarke and Willey, unite in declaring that the lots they own shall be ^discharged from the lien, because the plaintiff set aside its first levy on lots 51 and 95.
    Edmund Clarke relies on his right, as surety, to have the lands of Clarke and Willey, although in the hands of purchasers, first subjected to the judgment.
    The purchasers deny to Edmund Clarke the privileges of a surety, and require that satisiaction of the judgment be first sought irom his land before theirs.
    If the Western Reserve Bank has lost no lien, and if Edmund Clarke is permitted tq avail himself of his privileges as surety then questions arise between the purchasers as to the order in which the lands shall be sold.
    The questions were elaborately discussed by counsel for the respective parties. There is room only to insert the authorities adduced.
    H. Foote, for the Bank of Lake Erie, cited:
    Douglas v. Houston et al., 6 Ohio, 156; Miami Exporting Co.
      v. Turnpin, 3 Ohio, 514; McCormick v. Alexander, 2 Ohio, 65; Reynolds et al. v. Rogers’ Ex’rs, 5 Ohio, 169; Piatt v. St. Clair’s Heirs, 6 Ohio, 227; The Bank of Muskingum v. Carpenter’s Adm’rs, 7 Ohio, 21; 1 Hopkins’ Ch. 460; 4 Johns. Ch. 123; 19 Johns. 486; Arnold v. Fuller’s Heirs, 1 Ohio, 458; Jackson v. Loomis, 18 Johns. 81; Ford v. Commissioners of Geauga County, 7 Ohio, 148; Neimawitz v. Gahn, 3 Paige’s Ch. 614; Ib., 11 Wend. 123; 2 Chit. 125; 18 Eng. C. L. 273; Bay v. Tallmadge, 5 Johns. Ch. 305; Lenox v. Prout, 3 Wheat. 520; Sir William Herbert’s Case, 3 Co.; Harvey v. Woodhouse, Sel. Cas. in Chan. 3, 4; Fleetwood’s Case, Hob. 45; Gill v. Lyon, 1 Johns. Ch. 447; Clowes v. Dickinson, 5 Johns. Ch. 235; Ib., 9 Cow. 403; Goverman v. Lynch, 2 Paige’s Ch. 300; Guion et al. v. Knapp, 6 Paige’s Ch. 35; Skeel v. Spraker et al., 8 Paige’s Ch. 182; Coddington v. Bay, 20 Johns. 637; Waddell v. Howell, 9 Wend. 170; *Rosa v. Brotherson, 10 Wend. 85; Ontario Bank v. Worthington, 12 Wond. 600; Riley et al. v. Johnson et al., 8 Ohio, 526; Dickinson v. Tillinghast, 4 Paige’s Ch. 215; 4 Kent’s Com. 168; 22 Pick. 231; Sugden on Vend. 302; 1 Story’s Eq. 595; Dorr v Shaw, 4 Johns. Ch. 17; Ex parte Kendall, 17 Ves. 520.
    Bishop & Backus, for the Western Keserve Bank,
    cited 10 Ohio, 508; 12 Johns. 252; 19 Johns. 492; 1 Madd. Ch. 251; 6 Ves. Ch. 714; 4 Johns. Ch. 20; 19 Ves. Ch. 527; 5 Ohio, 173; 4 Mass. 402; Norton v. Beaver et al., 5 Ohio, 178; 1 Ohio Cond. 256, 655; 6 Ohio, 162; 3 Ohio, 62; Patton v. Sheriff, etc., 1 Ohio Cond. 417; Brinkerhoff v. Marven, 5 Johns. Ch. 320; 4 Johns. Ch. 17; 17 Ves. 520; Lennox v. Prout, 3 Wheat. 520; Bay v. Tallmadge, 5 Johns. Ch. 305.
    Peter Hitchcock, for Williams & Fitch, and for Clarke,
    Raymond & Clarke, cited Hubble v. Perrin & Hinkle, 3 Ohio, 287; Grosvenor v. Austin’s Adm’rs, 6 Ohio, 113; Lennox v. Prout, 3 Wheat. 520; 3 Johns. Ch. 305; Swan’s Stat. 481.
    Bolton & Kelly, for George Williams and Raymond & Clarke,
    cited 5 Johns Ch. 403; 9 Cow. 403; 19 Johns. 486; 1 Hopk. Ch. 460; 6 Ohio, 242; Hays v. Ward, 4 Johns. Ch. 123; 1 Paige’s Ch. 228; 5 Johns. Ch. 235; Coop. Eq. Pl. 5; Ib. 7; 7 Wheat. 522; 11 Pet. 229; 6 Johns. Ch. 564; 1 Story’s Eq. 626; 3 Ohio, 288.
    Wade & Hurlburt, for the Western Reserve Bank,
    cited Patton v. Sheriff of Pickaway County, 2 Ohio, 395; Norton v. Beaver, 5 Ohio, 178; Vincent v. Goddard, 7 *Ohio, 188; 1 Johns. Ch. 409; Sug. on Vend. 322; 2 Vern. 286; Warnock v. Warnock, 3 Atk. 291; Warloy v. Scarborough, 3 Atk. 392; Mountford v. Sivet, 3 Madd. Ch. 34; Cheeseborough v. Willard, 1 Johns. Ch. 409; Connecticut v. Braddish, 14 Mass. 296; 2 Sug. on Vend. 257, n.; The United States v. Shultz, 3 Ohio, 61; Ib., 2 Ohio, 471.
    Payne & Willson, for E. Clarke,
    cited Story’s Eq. 595; Ex parte Kendall, 17 Ves. 520; Dorr v. Shaw, 4 Johns. Ch. 17, 20; Story’s Eq. 598; Ib. 321, 322; Ib. 477; Ib. 480; Ib. 592; Aldrich v. Cooper, 8 Ves. 388; Goverman v. Stone, 1 Ves. 329; Cheeseborough v. Willard, 1 Johns. Ch. 413; Hayes v. Ward, 4 Johns. Ch. 130; 10 Johns. 524; Ib. 529; Stevens v. Cooper, 1 Johns. Ch. 430; Robinson v. Wilson, 2 Madd. Ch. 569; Ex parte Rushforth, 10 Ves. 410; Wright v. Mosely, 11 Ves. 22; Parsons v. Ruddock, 2 Vern. 608; Wright v. Simpson, 6 Ves. 734; 2 Fond. Eq., B. 3, ch. 2, p. 56, n. i; Sterling v. Forester, 3 Bligh, 590; Story’s Eq. 82; Ib. 475, 480; 5 Ves. 92; 14 Ves. 159; 2 Bos. & Pul. 268; Dixon v. Ewing’s Adm’rs, 3 Ohio, 280; 3 Ohio, 533; Ford v. Commissioners of Geauga county, 7 Ohio, 148; 2 Madd. Ch. 437; Miller v. Ord, 2 Binn. 382; Mahen v. Crickett, 2 Swanst. 185, 191; 4 Ves. 833; Capel v. Butler, 2 Sim. & Stu. 457.
   Lane, C. J.

It is first necessary to determine the character of Edmund Clarke. He came into the debt as surety, has signed the cognovit without designating his position, and suffered judgment to be taken without any certificate of the fact. Whether a surety can claim his privileges after judgment is a point which has given rise to conflicting opinions, and, in recent cases, the doctrine is doubted or denied. 16 Eng. Com. Law, 273; Bay’s Adm’r v. Tallmadge, 5 Johns. Ch. 305; Lennox et al. v. Prout, 3 Wheat. 520. But I am instructed *by my brethren to announce it as the opinion of a majority of the court that they entertain no doubt of Clarke’s right to assert this privilege in this case. They direct me to place this opinion, not only on the basis that judgment was taken on process which did not necessarily afford an opportunity of obtaining the statute certificate, from the uncertainty of the time and place where it was to be enterod; or, on the higher foundation, that a former decision of this court, Dixon and Hawk v. Ewing’s Adm’rs, 3 Ohio, 280, has furnished a rule, ever since acted upon, and too late to change. Assuming, then, the continuing existence of E. Clarke’s suretyship, it gives him the privilege of requiring from the creditor a faithful effort to obtain satisfaction from the principal debtor.

The relations between the surety and the purchasers from the principal debtor, depend on other considerations. The surety’s privilege is an equity, attaching to and following the debt, and under certain forms and conditions (1 Story’s Eq. 477), he may claim in chancery the benefit of every security, or aid, or moans of payment, which the law, or the providence of the debtor, or the vigilance of the creditor, has provided for its payment. 4 Johns. 130.

Among those the most obvious is, to drive the creditor to exhaust the judgment lien. His equity attaches to this, and he may thus appropriate all its advantages to his protection. The lien, in this case, upon all the lands which the debtors jointly or separately then held, commenced in April, 1837. It was suspended, but not destroyed, by the writ of error. It might have been defeated by a junior judgment, or a subsequent levy, but it remains paramount to the title of a purchaser, while the judgment continues in force. Norton v. Beaver, 5 Ohio, 178; 10 Ohio, 75. The application of these principles enable Edmund Clarke to screen his own property from the judgment, by throwing its burden on the purchasers.

But both surety and purchaser may justly demand from the judgment creditor the pursuit of the debtor’s unincumbered property. If the creditor unnecessarily, and without cause, forego the means of satisfaction from him, he will not be permitted *to claim it afterward from them. 8 Ohio, 148, pt. 2; 10 Ohio, 76. This, leads us to inquire if the Western Reserve Bank has lost its right to recur to the property of the surety, or to the lands sold by the debtors, after the discharge of the first levy.

In November, 1838, the execution of this creditor was levied upon two lots, No. 51, in Ohio City, and No. 95, in Cleveland. The Ohio City lot is described, in the levy, as lot No. 51, 250 feet front on the river, and 200 feet deep. It lies on the-west side of the river, but its beginning corner is to be found by the establishment of a very doubtful and unsettled line on the east side of the river. From this uncertainty, and from the peculiar bends of the river, the lot admits being surveyed, with about the same apparent justice, in five or six different forms; but in any of these forms, a part of a lot, having the described front, never belonged to the judgment debtors; and water, ten or twelve feet deep, covers a considerable portion of the remainder. There is a slender chance that property so situated can be properly appraised, or brought to a fair or speedy sale, unless the boundaries and title are first established by the chancellor.

Lot No. 95 consists of a lot and block of buildings in Cleveland, and was appraised at $22,000. It was incumbered by a previous mortgage for $4,000. An execution may lawfully be levied on mortgage lands, but the sale is attended with great disadvantages and risks. There being no authority, at law, to take an account of the sum due, the land must be appiaised, without regard to the mortgage, and the whole avails of the sale applied on the execution, leaving the whole burden of the mortgage to be borne by the purchaser, in addition to the price, unless he can obtain satisfaction for the mortgage from other sources. Baird v. Kirtland et al., 8 Ohio, 22; Bank of Canton v. Commercial Bank, 10 Ohio, 71.

The law imposes no duty on the judgment creditor, to encounter the expense or delay of a suit in chancery, to ascertain incumbrances, or define boundaries, of his debtor’s lands. His rights are plain, at law, to have satisfaction of his judgment, *from anything bound by its lion. They whose interests are subordinate to his, by paying the debt, may substitute themselves for him, and take upon themselves the administration of his remedies, 1 Johns. 409, 430; 4 Ib. 130; but they are not permitted to interfere with his pursuit, unless they can point out property of the debtor, upon which the burden will fall more equitably, and which will yield the means of adequate satisfaction, without embarrassment, expense, or delay. “'La caution qui requiert la discution (du debiteur principal) doit indiquer au creancior, les biens du debiteur principal, et avancer les deniers suffisans pour faire la discution.”

“Elle ne doit indiquer ni les biens du debiteur principal sitúes hors do l’arondissement de la Cour Eoyale, du lieu, ou le payment doit etro fait, ni des biens litigieux, ni ceux hypothéqués a la dette qui ne sont plus en la possession du debiteur.” Code Civil Nap. 2023.

The circumstances of this case, therefore, afford the creditor sufficient ground for abandoning the levy upon the two lots first seized, and for extending their new execution upon any property liable to the judgment lien; and. the seventeen lots, notwithstanding the sales of a part, are fairly within his reach. The relations-among all the defendants seem to us to create no exception to the general rule, that the property of the debtor shall be sold before that of the surety, and that, among the purchasers, the lots must be exposed for sale, in the inverse order of the dates of the purchases.

The exception attempted to be set up, under the law of partnership, does not extend to this case. That arises where a fund is to be distributed, or a burden to be shared, among those whose equities are entirely equal; and the partnership obligations, in such case, fail upon partnership property; and separate obligations upon separate property, not only because the presumption arises, that partnership obligations were incurred to increase partnership property, while the separate liabilities enhanced the property of the individual, but chiefly from the peculiar relations between the partners themselves. Grosvenor v. Austin, 6 Ohio, 113. *Where joint debtors sell lands subject to the judgment lien, they confer an equity upon the purchaser to exempt what he purchases from the burden, until all the other lands, subject to the lien, whether held jointly or severally, shall be exhausted. Subsequent purchasers acquire the same equity, but subordinate to that of elder purchasers, because posterior in time. The distinction, therefore, between joint and separate property, is of no moment in the present case, since the same lien and the same equities extend to both, and leave unimpaired the right of the earlier purchaser to impose the burden upon him whose interests are acquired later than his.

The decree may be taken, declaring the rights of the parties, and providing for a sale, in the first place, of the lands belonging-to the principal debtors, in the inverse order of the dates of the purchases from them. Decree accordingly.


author: Read, J.

text:
    George Sperry v. Walter Johnson.
    A subscription for the construction of a road will be considered as a contract to pay the person by whom it shall be constructed for work and labor.
    And when the road is completed he may recover from the subscribers the amount of their subscription, on the common count, for work and labor.
    This is a writ of error to the Supreme Court of Trumbull county.
    M. Sutlieee, for plaintiff in error.
    Tod & Hoeeman, for defendant.
   Read, J.

The original action was to recover the amount subscribed by plaintiff in error, for the construction of a road. The subscription paper recites that the road was for the private ^benefit of the subscribers, as well as of the-public. The several amounts subscribed were to be paid to Johnson, the plaintiff in the action below, who was to make the road. Sperry, the plaintiff in error, subscribed twenty-five dollars to be paid in labor or stock, in one year, and twenty-five dollars in two years. The bill of exceptions shows that Johnson completed the road, and expended in the works his own money, in the faith of the subscriptions. Sperry, though often requested, never paid his subscription. The action was in assumpsit, upon special and common counts. On the trial, the defendant called upon the court to charge the jury, that if the subscription paper sjiecially declared upon, varied Irom that set out, the jury must find for the defendant; and that there could not bo a recovery under the common •counts. The court held, that the subscription paper might, in view of the facts above seated, be received to support a recovery under the common counts.

The judgment in the common pleas was afterward affirmed in the Supreme Court, and this writ of error is brought to reverse both the original judgment and the judgment of affirmance.

Numerous errors have been assigned upon this record, but the ■consideration of the third assignment will dispose of such of the remainder as it is material to consider. It raises the question, merely, as to the right of recovery under tho common counts. If the court should regard this, from the facts, as an executed con-bract, the objection that demand of payment was not made, during the performance or immediately upon the completion of the work, is immaterial, and disposes of the fourth error assigned. And the second error, complaining that the court did not direct a nonsuit, would fail, as the record shows that there was evidence offered in this view to support, at least, the common counts. The court never directs a nonsuit if there be any competent evidence to support the issue. The competence of evidence is with ihe court, its effect with the jury. The court will never presume to decide upon its sufficiency, however slight it may be; this is for the jury.

*But did the court of common pleas err, in permitting a recovery upon the common counts ?

The plaintiff below had constructed the road, for which the defendant had promised to pay him the amount subscribed. The work had been wholly performed, and money advanced by the plaintiff upon the faith of this and other subscriptions. Is a subscription to pay the money, for the completion of a given work anything other than a contract for work and labor ? If such be its nature, and the work be performed, what remains but the naked duty of the payment to the extent of the amount subscribed ? And such being its character, this case comes within the simplest principles distinguishing between special and common counts, and the rule as to executed and executory contracts. If the contract has been executed, and the work performed which it required, and payment is the only question, in an action for its recovery, the common counts are the appropriate and known forms of declaring.

The fact, that a part of this subscription was to be paid in labor or slock, does not affect the case; the obligation was to pay fifty dollars in labor and stock on request; being requested, and not performing the labor, or tendering the stock, it becomes, in law, a mere money demand.

Those principles are all recognized and expressly decided, in Newman v. McGregor, 5 Ohio, 351. The Supreme Court, therefore, did not err in affirming the judgment below.

Judgment affirmed.


author: ’•‘Birchard, J.

text:
    *Susannah Woods, Vernon Goff, et al. v. Israel Dille et al.
    An objection to the examination of a defendant in chancery as a witness,, without special order, comes too late at the final hearing and after cross-examination.
    Where a parol contract for the purchase or sale of lands is admitted by the-defendant in his answer, without relying upon the statute of frauds as a defense, performance will be decreed.
    Possession, obtained under a contract of purchase, does not become adverse to the vendor, while the contract is acted upon, and payment made.
    What protection will be extended to a bona fide purchaser, without notice, ia a question which does not arise where .neither party has the legal title.
    As between equities, the elder will prevail.
    This is a bill in chancery from the county of Licking.
    This bill is filed by the widow and heirs of George Wood,, deceased, to compel the conveyance of their interest in a tract of land, purchased in 1811, by George Wood, from Erkurius Beaty and Samuel H. Smith. Wood paid $400 of the purchase money, entered into possession, and while on his death bed, in 1824, assigned the contract, by an absolute indorsement thereon, to Abram Pence. The object of the assignment, and the agreement, of Pence, was, that he should take the contract in trust, for the purpose of paying the residue of the purchase money, receive a. deed in his own name, and hold the title for the benefit of the complainants, and, after reimbursing himself, to convey to them their several interests. Pence paid $190, the balance of the purchase money, and obtained a deed of conveyance, in his own name, from the widow of Beaty, who was administratrix of his .estate. He held possession of the land from the time of Wood’s death, in 1824, until 1831, when he mortgaged the premises to Messrs. Brice & Co. Under a proceeding to foreclose this mortgage, Dille became the purchaser of the premises, and conveyed to-Francis Riley. It is allegation that the mortgagee and the purchasers under the sale had notice of complainants’ equity.
   ’•‘Birchard, J.

The proof of the payment of $400 of the. purchase money by Woods is clear. The express trust set forth in the original bill, is substantially proved, if the deposition of A. Pence is to be received as evidence. That is objected to, on the ground that he can not deny the validity of his mortgage, and ■that, as one of the respondents, his testimony is not competent, inasmuch as it was taken without an order of the court directing his examination. To this last objection it may be said that it ■comes too late after cross-examination, and especially when we first hear of it on the final argument. It is an objection only to the regularity of the proceeding, and should have been made within a reasonable time. It is not reasonable to allow a party to lie by without objection until a case is submitted to a court of last resort, and then sustain an objection of this nature. There is nothing in the objection to the competency of Pence. He had filed his disclaimer before he was sworn, and, although the circumstances in which we find him placed, by his own conduct, might well impair his credit, yet, corroborated as he is by other proof, we believe he took the assignment of the article as trustee, in the manner stated by the bill.

The next objection is, that the assignment of the contract by Woods, being absolute, the statute of frauds will not permit it to be varied by a contemporaneous parol agreement. The statute of frauds was designed to establish a wholesome rule of evidence. But there are several exceptions which may take a case out of the statute, and leave the contracts of the parties to be enforced in the same manner as if it were never enacted; as when the plea of the statute, if allowed, would consummate a fraud. Such would be this case, if the statute operated to defeat these heirs, who were defrauded by Pence’s neglecting to convey to them their several interests in these lands, and by his mortgaging the same as his own property, in violation of their rights as cestuis que trust. Pence has, however, admitted the trust on oath, and does not rely upon the statute. As against him, the court could and would decree on this admission. Story’s Eq. 590. The same rule will apply to these ^holding under him, with notice of the trust prior to the assignment of the legal title. This is the condition of the respondents, Dille and Eiley, unless it be found, as claimed by them, in the next place, that Pence, at the time of the execution of his mortgage to the Messrs. Brice & Co., had a legal title to the premises. It is certain that the deed of Mrs. Beatty only transferred title to her dower estate, and that the fee still remains in the heirs of Erkurius Beaty, unless the possession of Woods & Pence, prior to the mortgage, had ripened into a good title by lapse of time.

James R. Stanbery, for complainants.

H. H, Hunter and H. Stanbery, for defendants.

This question should be tested in the same manner it would' have been in an action of ejectment brought .by the heirs of Beaty against Pence at the time this bill was filed. If Pence could have defended such an action at law, then the defendant, Dille, could avail himself of the possessory title here. How are-the facts? Woods entered under a contract in 1811, and thereby acknowledged the title of Beaty. Pence entered under Woods in--1824, and, after that, paid $190 of the purchase money to Beaty, thereby treating Beaty as the owner, and acknowledging his holding under him. When did the possession become adverse to-the heirs of Beaty? Not while it was consistent with their title. The case of Boone v. Chiles, 10 Pet. 177, we apprehend,. does not sustain the position contended for by the respondents-But even if the court had held, that possession, under a contract of sale, in a case like this, could become adverse to the vendor at any time while the purchaser was claiming the benefit of his contract, and making payments upon it, we should feel constrained to say that such rule would be different from what has heretofore-been held in this state by our own court; and, upon the authority of that able and enlightened tribunal, we should hold that the-construction put by our own court, upon a statute of Ohio, is the-highest evidence of what is the law of this state.

What protection the law affords to bona fide purchasers, for valuable consideration, without notice, has been much discussed by counsel. But as between these complainants and the respondents. Dille and Riley, that question does not arise. *Each party is without a legal title. As between equities the eldest is preferred, and, therefore, the trust estate of complainants, which dates from 1824, must prevail over any equity arising under the-mortgage of 1831. Decree for complainants.


text:
    The Canal-boat Huron v. Charles W. Simmons.
    The act providing for the collection of claims against steamboats and other water-craft, authorizing proceedings against them by name, extends the right of recovery to provisions, and all other necessary articles furnished for the use of the boat.
    The statute substitutes the boat for the owner, and authorizes suit against it by name, for all money demands against the owner, arising from debts contracted on account of, or for the use of the boat, or for injuries resulting to passengers or property by the boat, or from misconduct of the officers and crew.
    This is a writ of error to the court of common pleas of Trumbull county.
    The action below was against the canal-boat Huron, to recover the price of provisions, furnished to the master, for the use of the .boat, by Simmons.
    The record shows, that the supplies furnished consisted of sugar, flour, potatoes, bread, and similar articles, to said boat, while navigating the Pennsylvania and Ohio canal, within the borders of the State of Ohio.
    It further appears, that the boat belonged to Clarke & Co., of Beaver, Pennsylvania, who had hired Stevens, as master, to navigate the same by the month, and to furnish such ^articles as are named in the plaintiff’s bill of particulars, at his ow.n cost.
    The action was prosecuted, under the act providing for the collection of claims against steamboats, and other water-craft, authorizing proceedings against them by name. Swan’s Stat. 209.
    Motion was made to nonsuit the plaintiff, on the ground that the statute did not extend to provisions furnished the boat.
    The court overruled the motion, and gave judgment for the plaintiff.
    This is assigned for error.
    Tod & Hoeeman, for plaintiff in error.
    Taylor & Harris, for defendant.
   Read, J.

The determination of this case involves the consideration of the first section of the act for the collection of claims against steamboats, and other water-craft, which provides:

“ That steamboats, and other water-craft, -navigating the waters within, or bordering upon this state, shall be liable for debts contracted on account thereof, by the master, owner, steward, consignee, or other agent, for materials, supplies, or labor, in the building, repairing, furnishing, or equipping the same,” etc. Swan’s Stat. 209.

Do the provisions of the act extend the remedy against the boat, to caSes ox px’ovisions, and articles of food,.supplied for the use of the crew and passengers, to be consumed in the use and navigation of the boat?

The counsel for the plaintiff in error contend that the statute only gives remedy against the boat for such supplies and materials, or articles as are employed in the building, repairing, furnishing, or equipping of the boat, such as become a part of her, and not such as are daily consumed and replaced.

*This construction is too narrow to meet the intention of the legislature.

The mischief intended to be remedied, was the difficulty of collecting debts due from the owners of boats, for articles furnished for their use, and for the recovery of damages sustained to persons or property by boats, and by the conduct of the crew.

The difficulty of hunting up the owners of-the boat, induced the legislature, in all cases, to substitute the boat, in their stead, and treat her, for the purposes of a suit, as a person, and sell her out to satisfy the judgment which might be recovered. And, further, make the boat responsible for any injury done to any passenger, or property on board. >

The ease with which persons navigating our waters could escape legal pi’ocess; avoid the payment of debts contracted for the use of the boat; and the impunity with which the persons navigating them could inflict injury upon pei’sons and property; the irresponsible character, oftentimes, of the officers and crew; the difficulty of obtaining names, and of identifying persons, induced the legislature, wisely, to make the boat itself responsible lor the payment of all debts, and the good conduct of the officers of the boat.

To limit the statute, as the plaintiff claims, would to a great extent defeat this object; for it is known that the supplies for the tables upon our boats is a very important item of expense; and is absolutely necessary for the use of the boat. The legislature could hardly have intended to make them an exception.

But do not articles of provision come within the very words of the statute? The boat shall be liable for debts contracted “by the master, owner, steward, and for materials and supplies, etc., in building, repairing, furnishing, etc., the same.” For debts contracted by the steward, for supplies in furnishing the boat. Is a boat furnished that has on board no provisions? What supplies does the steward furnish ? Only the chairs, tables, etc., of the boat ? All understand, when speaking of supplies furnished by the steward of a boat, that it relates to the supplies of the table. It is his duty to oversee the culinary department; *to furnish and supply the boat with eatables, and all articles for the use of the table. Such being the ordinary understanding of the'whole community, when speaking of the steward and his supplies, it can not be presumed that the legislature intended to use these words in any other than their ordinary sense.

But it is said our statute is copied from a statute in the State cf New York, entitled “an act directing the mode of proceedings for the collection of demands against ships and vessels,” and that they have construed their statute to relate to only such things as enter into and become a part of the vessel. Johnson v. The Steamboat Sandusky, 5 Wend. 510. The words of their statute are: “ For work done, or materials or articles furnished in this state, toward the building, repairing, fitting, furnishing, or supplying such vessel.” For such provisions and stores furnished within this state, as may be fit and proper for the use of such vessel at the time when the same were furnished. The words “ steward ” and “supplies” are not in this statute.

It is presumed if the legislature intended to adopt this law, that they were aware of its construction, and inserted the words, “steward” and “ supplies” to avoid it; if not, why not adopt the statute in its very words ? But our statute and the Now York statute are very dissimilar. The New York statute is nothing but a lien law, authorizing the seizure of the boat. Our statute treats the boat as a person, and makes it responsible in its own name for all debts contracted for its use, and for all injuries committed against person or property on board by her officers or crew. We feel ourselves forced to the conclusion, both by tho words and the object of the statute, to say it extends to debts contracted for provisions and supplies for the table, and to everything necessary to be supplied for the use. of persons on board the boat. This statute is equitable in its object, making it the interest of owners to intrust their boats only to responsible officers and crews, and will receive a liberal construction to carry the design of its enactment into .effect,

*The boat is treated as a person capable of contracting debts, and becoming liable for money demands. Her responsibility is n:t in the nature of a lien. Her departure from the place where she contracted the debt is no discharge of the responsibility, but she will be liable to be called upon whenever she may return or be found within our jurisdiction.

This answers the objection taken that the boat had been permitted to depart after she had contracted the debt, and engage in her ordinary business before she was called upon to pay it This can not be set up as a defense. Judgment affirmed.