author: Williams, C. J.

text:
    Ex parte, Hiram P. McKnight.

      Extradition — Bights of prisoner under— Can only be tried for the crime for which he is extradited — When privilege not waived — Rabeas corpus— Office of writ of — When proper remedy to obtain discharge of prisoner.

    1. A person surrendered to the authorities of this state by another state or territory on extradition proceedings, cannot, while held in custody thereunder, be lawfully tried for a different crime than the one upon which his extradition was obtained, unless he voluntarily waives his privilege.
    2. The privilege is not waived by failure to plead it in abatement of the indictment for such different crime, nor by entering a plea of not guilty thereto, when, before the trial, the accused asserts his privilege and objects to the trial on that ground.
    3. While the writ of habeas corpus cannot properly be employed to review and correct errors committed by courts when acting within the sphere of their authority, it is the appropriate remedy to obtain discharge from imprisonment under an order or process of a court, which it was without jurisdiction to make or issue.
    (Decided November 17, 1891.)
    Habeas Corpus.
    Upon the application of Hiram P. McKnight, a prisoner in the Ohio penitentiary, who claims he is there unlawfully deprived of his liberty, a writ of habeas corpus was issued to inquire into the cause of such deprivation. The warden, to whom the writ was directed, in his return sets forth at large the cause of the imprisonment, and the warrant for the same.
    Both the petition for the writ, and the officer’s return, refer to the record in the case of Hiram P. McKnight v. The State, now pending in this court, and make that record a part of the petition and return. That is a case in error to reverse the judgment of conviction and sentence under which the prisoner is held. The facts shown by the record, so far as they are material to the present inquiry, are as follows:
    On the third day of December, 1890, the prisoner was indicted by the grand jury of the county of Wood, for the crime of forgery. The indictment contains two counts; one, for forging an indorsement on a bill of exchange, and the other, for uttering and publishing the same as true and genuine, knowing it to be forged. Upon this indictment an application was made to the governor of this state for a requisition on the executive of the state of New York, where the accused then was, for his surrender, as a fugitive from justice, to the authorities of this state. The application was accompanied by a duly attested copy of the indictment, as the statute requires, and was based upon no other charge. The requisition was accordingly made, reciting the indictment of the accused for the crime charged, and designating an agent to receive him and convey him to the county of Wood, for trial thereon. The requisition was honored, and the accused was arrested and delivered into the custody of the agent appointed for that purpose, by whom he was taken to the county where the indictment was returned, and there lodged in jail to await his trial. On the 4th day of Decem- ' ber, 1890, the same grand jury which had returned the indictment upon which the prisoner was extradited as above stated, also indicted him for the crime of obtaining property by false pretenses. The accused has had no trial on the first indictment. It appears, that when the case was called for trial, on the 9th day of March, 1891, he was ready and willing to proceed, but it was postponed on the application of the prosecuting attorney; and thereupon, at the request of the prosecuting attorney, the case upon the indictment for obtaining property by false pretenses was called for trial. Before entering upon the trial, the prisoner interposed the objection, that since his extradition he had been continuously imprisoned in the county jail without opportunity to return to the state from which he had been surrendered, and, therefore, he could not lawfully be subjected to trial upon that indictment, it being for a crime different from that for which he was extradited. Upon the hearing of the objection, the facts hereinbefore stated were established, and also, the prisoner’s continuous imprisonment since his extradition. The court overruled the objection, and, as the record shows, against the prisoner’s protest, “put him immediately on trial; ” whereupon, a plea of not guilty having been entered, the trial proceeded, and resulted in the conviction and sentence under which the prisoner is now confined in the penitentiary. He claims the proceedings are void, and his imprisonment unlawful.

      Hiram P. Me Knight, in person.
    It is too well settled for controversy, that while the writ of habeas corpus cannot be made to subserve the purpose of a writ of error, or petition in error; yet where a prisoner is held without any lawful authority, and by an order beyond the jurisdiction of the court making the same, this court will, in favor of liberty, grant the writ, not to review the whole case, but to examine the authority of the court to act at all.
    The doctrine of the writ was lately defined in Ex parte Terry, 128 U. S. 304, by the Supreme Court of the United States in the following language: “ While the writ may not be used to correct mere errors, or irregularities, however flagrant, committed within the sphere of the authority of the court, it is the appropriate writ to obtain the discharge of one imprisoned under the order of a court, which does not possess jurisdiction of the person, or subject matter.” Citing, 100 U. S. 371; 104 U. S. 604; 18 Wall. 163; 93 U. S. 18; 106 U. S. 371; 123 U. S. 443-445 ; 113 U. S. 713-718.
    Not only is such jurisdiction given to the judges, but when the person who is unlawfully deprived of his liberty makes his application to one of them, as provided in the law, for the benefits of the writ, it is made the duty of such judge forthwith to issue it. The exempted cases of convicted persons, before a court having jurisdiction of both the subject matter and the person of the prisoner, under a constitutional law, are the only restrictions upon the power of a single judge. Ex parte Collier, 6 Ohio St. 55-58, 59.
    Article 6 of the Federal Constitution provides that, “ This Constitution, and all laws passed by congress in pursuance thereof, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of the state, to the contrary notwithstanding.”
    Section 2, article 4, of the same constitution is the “ corner stone” for all authority for international extradition in the United States. In pursuance thereof, congress passed a law providing more in detail for such extradition. United States Revised Statutes, section 5278. Also the legislature of Ohio added thereto a further provision. Revised Statutes of Ohio, section 95.
    Article 14, section 1, of the Amendments to the Federal Constitution, provides among-other things: “Nor shall any state deprive any person of life, liberty, or property without due process of law,” etc.
    The only definition of “ due process of law,” as applied to international extradition in the United States, is to be found in section 5278 of the U. S. Revised Statutes, and section 95, of the Ohio Revised Statutes.
    According to these provisions due process of law is:
    First — An indictment found and a copy presented to the governor of-the asylum state.
    Second — Certificate of the demanding governor of its authenticity.
    Third — Affidavits of at least two persons to the facts constituting the crime, and those persons must have “actual knowledge thereof.”
    From these authorities, the crime must be specified, for which extradition is sought. Then to try a person and imprison him for another and different offense, after he is so extradited, would be to deprive him of his liberty without “ due process of law,” and therefore unconstitutional and void. U. S. Revised Statutes, section 5278: Revised Statutes of Ohio, section 95; 18 Ohio L. J. 195; State v. Hall, 40 Kansas 338; State v. Hall, 10 American State Report, 200, where a large collection of authorities are cited. In the Matter of Cannon, 47 Mich. 481; Com. v. Hawes, 13 Bush (Ky.) 697; Hope's Case, 12 Crim. Law Magazine, 314; Kerr v. People, 110 Ill. 627; also an article in 24 Law Bull. 244, where there are many authorities collected. In re Robinson, (Neb.) 45 N. W. Rep’ts 267; 13 Pet. 540.
    It has now become a settled rule, that as between nations, a person cannot be extradited for one offense and tried for another and different one, without first having ample opportunity to return to the country from which he was extradited. U. S. v. Raucher, 119 U. S. 407-431; Ex parte Royall, 117 U. S. 241-251.
    The same rights exist, and the same rules apply, in international extradition as in national extz-adition cases. Cooley’s Const. Law, at page 22, note 1. See Dicta in Work v. Corrington, 34 Ohio St. 65, 72; State v. Vanderpool, 39 Ohio St. 273; Wilder's Case, 40 Ohio St. 130.
    One very strózig reason why the rules applicable in one should likewise, with equal force, apply in the other, is, by a careful eoznparisozi of Uzzited States Treaty, etc., with section 5278, of U. S. Statutes, and section 95, of Ohio Statutes. We see that “ due process of law,” in national cases, requires nearly the same as due process of law iiz international cases, when the state of Ohio is one of the interested states, and vice versa.

    Whezz a pez’son is extz’adited for a specified crime or offense, and then held on another and different one, habeas corpus is the proper remedy. Ex parte Royall, 117 U. S. 241, 251; U. S. v. Rauscher, 119 U. S. 407, 431; In re Fetter, 23 N. J. L. 311; 57 Aznerican Decisions, 382, and note to 389 to 400; 34 Ohio St. 520; 3 Bull. 763; 7 Am. L. Rec. 275.
    Jurisdictiozz of the person is as essential in the prosecution for crime, to the validity of a judgment, as jurisdiction of the subject-matter. If either is wanting the proceedings of a court az’e absolutely void ah initio, and not merely errozzeous, and are zzot a legal cause of iznprisonment. 100 U. S. 371, 339, 85; 128 U. S. 304; 104 U. S. 604 ; 18 Wall. 163; 93 U. S. 18; 106 U. S. 371; 123 U. S.‘ 443, 445; 124 U. S. 200 ; 2 Wall. 328, 245; 113 U. S. 713, 718; Ex parte Shaw, 7 Ohio St. 81; Ex parte Bushnell, 9 Ohio St. 183; Work v. State, 2 Ohio St. 296, 302.

      Record must show that court had jurisdiction. In the case at bar, one of the principal grounds upon which the writ is demanded is, that the court did not possess jurisdiction, and therefore jurisdiction is directly questioned and denied.
    When jurisdiction is directly drawn in question and denied, all presumption is against it, and it must be proved by the record itself, that the court actually possessed jurisdiction. 13 Ohio St. 439.
    Entering a plea to the merits of the case does not take away the right of the prisoner to object at anytime, (at least before the jury is sworn to try the case.) Jurisdiction in criminal cases is never waived by any act of the prisoner. State v. Turner, Wright 21, at page 23.
    Plea to the merits and to the jurisdiction, is not a waiver of right to object to jurisdiction, even in civil cases. Allen v. Miller, 11 Ohio St. 374.

      In re Robinson, supra, the court did not regard a plea to the merits as waiving anything whatever.
    Under this free government of the United States, there exist certain rights, which follow us through life, and of which we cannot be legally deprived, and foremost of these are:
    First — The right to the benefits of the writ of habeas corpus.

    Second — The right to trial by jury.
    Third — The right to a speedy, fair and impartial trial, by a court “having jurisdiction of the person and subject-matter.”
    It cannot be contended with reason, but the prisoner and petitioner in this case could have sued out habeas corpus before plea. This is admitted by all; then, “ if the right to habeas corpus once exists, it is never lost until liberty is regained.” 100 U. S. 371, 339, 85.
    There is no waiver to object to jurisdiction. Allen v. Miller, supra.

    Consent of parties cannot confer jurisdiction if either party desires to object.

      David K. Watson, Attorney General, and R. S. Parker^ Prosecuting Attorney, for the state, argued the case orally.
   Williams, C. J.

I. There is some conflict of authority upon the general question, whether, in a case of inter-state extradition the extradited person can lawfully be tried for any offense other than the one upon which he was surrendered, until he shall have had a reasonable time and opportunity to return to the surrendering state, after his trial and acquittal on the charge upon which he was extradited, or the expiration of his imprisonment under a conviction thereof; and there is, also, upon the same question, in cases of international extradition. It is not deemed necessary or important to enter upon an extended review or discussion, here, of the many cases on the subject. This court has held, that a person extradited under the treaty between the United States and Great Britain, known as the Ashburton treaty, cannot be prosecuted for a different crime than that specified in the warrant of extradition. State v. Vanderpool, 39 Ohio St. 273. And such has since been declared to be the law, by the Supreme Court of the United States. United States v. Rauscher, 119 U. S. 407. These decisions are based upon the interpretation of the treaty, and the acts of congress governing proceedings thereunder. The only provision of the treaty which relates to the extradition of criminals, is contained in the tenth article, which is as follows: “ It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice, all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other; provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offense had there been committed; and the respective judges and other magistrates of the two governments shall have power, jurisdiction and authority upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive.”

This provision of the treaty, and its effect, are discussed at some length by Mr. Justice Miller, in the opinion of the court in the case of the United States v. Rauscher, supra. After showing, that in' the absence of treaty, it was the recognized rule of public law that the country receiving the offender against its laws from another country had no right to proceed against him for any other offense than that for which he had been delivered up, and, that under the constitution, treaties made by the United States, become, like that instrument, and laws passed in pursuance thereof, the supreme law of the land, governing courts in appropriate proceedings for the enforcement of the rights of persons growing out of them, the learned justice proceeds to the discussion of the rights of a person extradited under the particular treaty in question. On that subject he says.: “ It is unreasonable to suppose that any demand for rendition framed upon a general representation to the government of the asylum, (if we may use such an expression,) that the party for whom the demand was made was guilty of some violation of the laws of the country which demanded him, without specifying any particular offense with which he was charged, and even without specifying an offense mentioned in the treaty, would receive any serious attention; and yet such is the effect of the construction that the party is properly liable to trial for any other offense than that for which he was demanded, and which is described in the treaty. There would, under that view of the subject, seem to be no need of a description of a specific offense in making the demand. But, so far from this being admissible, the treaty not only provides that the party shall be charged with one of the crimes mentioned, to wit, murder, assault with intent to commit murder, piracy, arson, robbery, forgery, or the utterance of forged paper, but that evidence shall be produced to the judge or magistrate of the country of which such demand is made, of the commission of such an offense, and that this evidence shall be such as according to the law of that country would justify the apprehension and commitment for trial of the person so charged. If the proceedings under which the party is arrested in a country where he is peaceably and quietly living, and to the protection of whose laws he is entitled, are to have no influence in limiting-the prosecution in the country where the offense is charged to have been committed, there is very little use for this particularity in charging a specific offense, requiring that offense to be one mentioned in the treaty, as well as sufficient evidence of the party’s guilt to put him upon trial for it. Nor can it be said that, in the exercise of such a delicate power under a treaty so well guarded in every particular, its provisions are obligatory alone on the state which makes the surrender of the fugitive, and that that fugitive passes into the hands of the country which charges him with the offense, free from all the positive requirements and just implications of the treaty under which the transfer of his person takes place. A moment before he is under the protection of a government which has afforded him an asylum from which he can only be taken under a very limited form of procedure, and a moment after he is found in the possession of another sovereignty by virtue of that proceeding, but divested of all the rights which he had the moment before, and of all the rights which the law governing that proceeding was intended to secure. If upon the face of this treaty it could be seen that its sole object was to secure the transfer of an individual from the jurisdiction of one sovereignty to that of another, the argument might be sound; but as this right of transfer, the right to demand it, the obligation to grant it. the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extradited, and of bad faith to the country which permitted his extradition.”

Answering the view which some authorities in this country have advanced, that, because the treaty contains no express stipulation limiting the right of the country in which the offense was committed to the trial of the offender for the particular crime for which he was extradited, he is, when brought into the country, liable to be tried for any offense against its laws, the learned justice says: “ This proposition of the absence of express restriction in the treaty of the right to try him for other offenses than that for which he was extradited, is met by the manifest scope and object of the treaty itself. The caption of the treaty, already quoted, declaring that its purpose is to settle the boundary line between the two governments; to provide for the final suppression of the African slave trade; adds, ‘ and for the giving up of criminals, fugitive from justice, in certain cases.’ The treaty, then, requires, as we have already said, that there shall be given up, upon requisitions respectively made* by the two governments, all persons charged with any of the seven crimes enumerated, and the provisions giving a party an examination before a proper tribunal, in which, before he shall be delivered up on this demand, it must be shown that the offense for which he is demanded is one of those enumerated, and that the proof is sufficient to satisfy the court or magistrate before whom this examination takes place that he is guilty, and such as the law of the state of the asylum requires to establish such guilt, leave no reason to doubt that the fair purpose of the treaty is, that the person shall be delivered up to be tried for that offense, and for no other.”

When, upon a demand made by a foreign government upon this country, it has been ascertained on the inquiry had for that purpose, that a case is made for the extradition of the person demanded, it is made lawful for “ the Secretary of State, under his hand and seal of office,-to order the person so committed to be delivered to such person or persons as shall be authorized, in the name and on behalf of such foreign government, to be tried for the crime of which such person shall be accused, and such person shall be delivered up accordingly.” Revised Statutes of United States, sec-' tion 5272. And “ whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safe keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition and until his final discharge from custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land and naval forces of the United States, or the militia thereof, as may be necessary for the safe keeping and protection of the accused.” Revised Statutes of United States, sec. 5275.

These are the only provisions of the acts of congress referred to in the decision of the cases cited, as having any bearing upon the question in hand, and they are not referred to as controlling the interpretation of the treaty, but'rather as confirming and emphasizing the construction it should receive independent' of those provisions. After a careful examination of the various decisions of the Federal and state courts on the subject, Mr. Justice Miller concludes his opinion on this question in the Mausoher Case as follows :

“ Upon a review of these decisions of the federal and state courts, to which may be added the opinions of the distinguished writers which we have cited in the earlier part of this opinion, we feel authorized to state that the weight of authority and of sound principle are in favor of the proposition, that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings.” And Johnson, C. J., in the Vanderpool Case, by much the same process of reasoning, arrives at the same conclusion.

Some courts have attempted to distinguish between cases of international, and those of interstate extradition, holding, that while in the former, the extradited person cannot be tried for a different offense, he may be in the latter. This distinction is based upon a supposed guaranty of return contained in the treaty stipulations. The case of the State v. Stewart, 60 Wis. 587, was decided upon that theory. It is there said, that, “ Treaty stipulations between nations frequently guaranty to the fugitive the right to leave the demanding country after the trial for the offense for which the fugitive has been surrendered in case of acquittal, or in case of conviction after his endurance of the punishment. When not so guaranteed it is sometimes made the subject of executive pledge.” And it was held in that case, which was one of interstate extradition, that since the constitution and act of congress contain no provision securing to the fugitive the right of return, but are silent on the subject, the adjudications in cases of international extradition were not applicable. “ This distinction between international and interstate extradition,” says that court “seems to be very marked.” Notwithstanding this declaration of the court, we venture to inquire what foundation there is, if any, for the alleged distinction, especially between an interstate extradition and an extradition under the Ashburton treaty.

The provision of the constitution is, “ A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” Article 4, section 2, Constitution United States. Section 5278 of the Revised'Statutes of the United States, which is the act of congress relating to the surrender of fugitives from justice by one state to another, provides as follows : “ Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled, to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authorfly making such demand, or the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest,'the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing and transmitting such fugitive to the state or territory making such demand shall be paid by such state or territory.”

It is true, that neither the constitution, nor federal statute contains any express guaranty that the person surrendered shall not be tried for any crime except the one upon which he was surrendered, nor, that he shall be returned when discharged from custody on that charge. Neither does the Ashburton treaty contain such guaranty. The treaty, like , the constitutional and statutory provisions referred to, is silent on the subject; and its provisions are no more susceptible of a construction that will raise such guaranty by implication, than are those of the federal constitution and laws. Such construction of the treaty has never been claimed. The extent of the contention of those who assert the right of the demanding country to try the person extradited under it for an offense different from the one on which the extradition was procured, is, that because there is no express limitation in the treaty restricting the right of the country in which the offense was committed to the trial of the offender for the crime specified in the warrant of extradition, he may, therefore, be tried for any violation of its criminal laws. This view has been sustained by some courts, but is, as we have seen, at variance with the decisions of this court and the Supreme Court of the United States. Neither of these decisions recognize the existence of an executive pledge of return of the extradited person; nor is any contained in the treaty or law. Certainly none can be found in the provisions of the treaty, and it is equally clear that none is contained in the acts of congress. Section 5275, of the Revised Statutes of the United States, has no other purpose or effect than to empower the President to use all necessary measures to protect those extradited, from lawless violence, until a reasonable time after discharge from custody under the charge specified in the warrant of extradition.

There appears, therefore, to be no foundation for any distinction, on the ground of guaranty or pledge of return, between an extradition under this treaty, and one between the states, with respect to the right of those extradited to exemption from trial for any other crime than that upon which the rendition was obtained. Nor, do we think there is, upon any other ground. It is evident, both the constitution, and the act of congress, contemplate that the demand made by one state upon another, shall be for the extradition of the accused person to answer the specific crime charged, and, that his surrender shall be for that purpose. In the language of the constitution, it is “ a person charged with a crime ” who shall be delivered up to be removed to the state “ having jurisdiction of the crime.” And the federal statute requires the application for the surrender to be accompanied by an authenticated copy of the indictment or affidavit charging the crime. The Ashburton treaty is not more definite in its requirement that the extradition thereunder shall be for a specific crime therein named. And, if, as said by Mr. Justice Mileee, in Rancher’’s Case, it is unreasonable to suppose that any demand for rendition under the treaty, framed upon a general representation that the party was guilty of some violation of the laws of the country demanding him, without specifying any particular offense with which he was charged, would receive any serious attention, it is none the less unreasonable to suppose such general demand by one state upon another would be acceded to, or entertained.

The criminal laws of a state have no operation beyond its territorial bounds, and its jurisdiction to enforce them is equally limited. But for the provisions of the federal constitution, no state would be under obligation to surrender to another any person within its borders. The right of asylum in each, would be as complete and inviolable, as it is in independent nationalities in the absence of treaty stipulations. Extradition granted by one nationality to another*, in the absence of treaty, is matter of comity ; and, it is the settled doctrine, that in such case, the person surrendered can be held only for the offense for which he was extradited. And hence, we think, the reasons controlling the decisions of the Vanderpool and Rauscher Cases, and the grounds upon which those decisions rest, so far as they relate to the question before us, apply with equal force to interstate extraditions. And, in their application to the case under consideration, they lose none of their force if reference is had to our state legislation on the subject. Our statute providing for the surrender by the executive of this state, of fugitives from justice when demanded by any other state, requires the demand to be accompanied by a duly attested copy of the indictment or complaint, and also, by “ affidavits to the facts constituting the offense charged, by persons having knowledge thereof,” and “ by a statement in writing from the prosecuting attorney of the proper county, who shall briefly set forth all the facts of the case.” And before making the surrender, the governor may require the attorney general, or prosecuting attorney, to investigate the grounds of the demand, and report to him “ all the material facts which may come to his knowledge, with an abstract of the evidence in the case.” The statute further provides, that in case the governor complies with the demand, the accused when arrested shall be taken before a judge, “ to be examined on the charge ; ” which judge shall “ proceed to hear and examine the charge, and upon proof made in such examination, by him adjudged sufficient, shall commit” the accused to jail to be delivered to the agent appointed to receive him. It is further required, as a condition precedent to the delivery of the accused to the agent, that the latter deposit with the clerk of the court a sum of money “ equal to ten cents a mile from the place where the arrest has been made, to the proper place for the prosecution; ” and, “ in case the supposed fugitive should not be found guilty of the crime charged in the warrant for his arrest, such deposit shall be paid to him.”

There could be no reason for the particularity required in the investigation of the specific crime charged in the warrant for the arrest, previous to the surrender, if the accused, when extradited, might be put upon trial for any other offense. And, that it was not contemplated he could be so tried, is further indicated by the provision requiring a deposit of money to be made with the clerk, which shall be paid over to the accused if he shall be acquitted of the charge. This not only recognizes the. privilege of return, but also his right to the reimbursement of his expenses in so doing.

One object of these statutory regulations, if not the only one, evidently was to limit, so far as it is within the power of the state to do so, the right of the demanding state to the trial of the surrendered fugitive for the particular crime for which his extradition was obtained; and it cannot be admitted that the legislative intent and policy thus declared, will be violated, or disregarded by this state, when acting in similar cases. It is our opinion, therefore, that a person surrendered to the authorities of this state, by another state or territory on extradition proceedings, cannot, while held in custody thereunder, be lawfully tried for any other crime than the one upon which his extradition was obtained, unless he voluntarily waives his privilege.

II. Is the privilege waived by failure to plead it in abatement of the indictment for such different crime, or by entering a plea of not guilty thereto ? We think it is not, when, before the trial, the accused asserts his privilege, and objects to the trial on that ground. Properly speaking, the assertion by the accused of his privilege, or his objection to a trial on such indictment, is not in the nature of a plea in abatement. The office of that plea is to raise an exception to the indictment for some defect in the record which is shown by facts extrinsic thereto. Revised Statutes, sections 7248, 7250. But the privilege of the accused remains, though the indictment and record be unassailable. His right, is not to have the indictment set aside, but only to exemption from trial upon it. It is true, that in some cases of the kind, the plea in abatement has been resorted to as a mode of raising the question. But the manner of the. objection is not material, so it be interposed before the trial. Proceeding to trial without objection would undoubtedly be a waiver, for the privilege is personal and may be waived. But we are not satisfied that it is waived by failure to plead it in abatement, nor by entering a plea of not guilty. The maintenance of the privilege does not involve an attack on the indictment. ■ The court is simply without power to try the accused on such indictment against his objection. A plea that he is not guilty of the crime charged in the indictment, is not inconsistent with his right of exemption from trial upon it, and where that right is distinctly asserted in some mode, before trial, it comes, we think, in time. This was done by the prisoner before us, and his imprisonment is therefore unlawful.

III. The remaining question relates to the remedy; and that is, whether the prisoner can have an inquiry into the cause of his imprisonment, and a discharge therefrom, on habeas corpus. It is conceded that the writ cannot properly be employed for the review and correction of errors committed by courts while acting within the sphere of their authority. That must be done by a proceeding in error. But there can be no doubt that habeas corpus is the appropriate remedy to obtain discharge from imprisonment under an order or process of a court which it was without jurisdiction to mate or issue. The imprisonment of the petitioner in the penitentiary is of this character, and he is entitled to be discharged therefrom. But, as the indictment upon which he was extradited is still pending, he will be remanded to the custody of the sheriff to be held for further proceedings thereon.

Judgment accordingly.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Hart v. Murray.

      Justices of the peace, in cities of the second grade of the first class, during term of office, may maintain a civil action to collect fees, under sections 615 and 621, Revised Statutes.

      1. The act entitled “ An act supplementary to section 621 of the Revised Statutes of Ohio,” passed May 15,1886 (83 Ohio L., 168), is local in its character, and is not in violation of section 26, of article 2, of the constitution, which requires that all laws of a general nature shall have a uniform operation throughout the state.
    2. Under the above mentioned act, a justice of the peace, in a city of the second grade of the first class, may, during the term of his office, maintain a civil acción to collect the fees as provided in sections 615 and 621 of the Revised Statutes, such fees when collected by him being payable into the city treasury.
    (Decided November 17, 1891.)
    Error to the Circuit Court of Cuyahoga county.

      Arnold Green, for plaintiff in error.

      J. L. Murray, for defendant in error.
   By the Court.

J. L. Murray, the defendant in error, brought'an action against one Jam'es Balias, before William J. Hart, the plaintiff in error, a justice of the peace in and for Cleveland township, in Cuyahoga county, Ohio. The township embraces within its limits the city of Cleveland, a city of the second grade of the first class, whose territorial limits are co-extensive with those of Cleveland township. The action against Balias was dismissed at the cost of Murray, and thereupon, Plart, to recover his fees as justice of the peace, commenced an action against Murray, before • a justice of the peace. Hart appealed to the court of common pleas, and to his petition therein Murray filed an answer. A demurrer by Hart to the answer was overruled, and judgment was rendered on the answer in favor of Murray. On petition in error by Hart in the circuit court, the judgment of the court of common pleas was affirmed, and this proceeding is instituted to reverse the judgment of the circuit court.

The defendant in error, in his answer filed in the court of common pleas, set up as a defense to the action, “ An act supplementary to section 621 of the Revised Statutes of Ohio,” passed May 15, 1886 (83 Ohio L. 168).

That act, by section 1, provides as follows:

“Be it enacted by the general assembly of the state of Ohio, that the following sections be enacted supplementary to section 621 of the Revised Statutes of Ohio, with sectional numbering as herein provided:
“ Sec. 621a. In all cities in this state of the second grade of the first class, each justice of the peace, for services rendered, shall receive in lieu of all fees, a salary of eighteen hundred dollars and six hundred dollars for clerk hire, and not exceeding three hundred dollars for office rent, per annum, payable out of the city treasury, in quarterly payments on the first Saturday in January, April, July and October in each year.
“ Sec. 6215. It shall be the duty of each justice of the peace in all cities of the second grade of the first class, to collect the fees as provided in sections 615 and 621 of the Revised Statutes of Ohio, and make return under oath to the city treasurer on the first Saturday of January, April, July and October of each year, of all fees collected by him, and pay the same into the city treasury; he shall also make a return to the city treasurer at the same time of all fees due and uncollected ; he shall within five days after the expiration of his term of office, make an itemized statement under oath to the city treasurer of all fees uncollected by him, and it is hereby made the duty of said city treasurer to collect said unpaid fees, out of which he is authorized to retain ten per centum’ of the amount collected for his services, and account for the balance as other funds of such city coming into his hands as treasurer.”

Under the act of May 15,1886, a justice of the peace, in a city of the second grade of the first class, may, during the term of his office, maintain a civil action to collect the fees as provided in sections 615 and 621 of the Revised Statutes of Ohio, such fees when collected by him being payable into the city treasury. It is made his duty to “ collect the fees,” and make return of the same to the city treasurer; as it is made the duty of the city treasurer — after the expiration of the justice’s term of office — to “ collect unpaid fees ” uncollected by the justice. But while fees and costs in civil suits and proceedings before a justice of the peace are usually collected either by execution issued on the judgment, or by executions issued against the parties respectively who make the costs, the unqualified language of the act under consideration should not, we think, be exclusively confined, in every case, to such mode of collection.

But it is contended that the act of May 15, 1886, is a law of a general nature which does not have a uniform operation throughout the state, and is therefore in violation of section 26, of article 2, of the constitution. The act, in our view, is local in its character. Its design is to regulate the amount of compensation to local officers, and does not come within the constitutional inhibition. Cricket v. The State, 18 Ohio St. 9; The State ex rel. v. The Judges, 21 Ohio St. 1.

In Cricket v. The State, White, J., in delivering the opinion of the court said: “ There is nothing in the constitution prohibiting appropriate local legislation. And, for myself, I will say, that it seems to me the amount of compensation to be attached to a local office, is a question in its nature local, and that a law to regulate such compensation cannot properly be regarded as a law of a general nature.”

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


author: Bradbury, J.

text:
    Railroad v. Henly.

      Negligence — New device for coupling cars — Not negligence per se, to adopt such, without discarding those in use — It is a risk incidental to the service — If the sole cause of injury, company not liable.

    1. It is not negligence per se for a railroad company to adopt a device for coupling cars, not before in use on its road, without discarding those already in use by it, although the use of the two together may be more hazardous than would the use of either alone.
    2. That the railroad company may exercise this right, is a risk incidental to the service of one who is engaged in coupling cars, and if the sole cause of an injury to one so engaged be the concurrent use of the two devices, it imposes no obligation on the railroad company to compensate him therefor.
    (Decided December 1, 1891.)
    Error to the Circuit Court of Mahoning county.
    The defendant in error recovered a judgment against the plaintiff in error in the Court-of Common Pleas of Mahoning county, on account of injuries sustained by him in coupling freight cars while employed by the plaintiff in error as brakeman in one of its yards. This judgment was affirmed by the circuit court, and thereupon these proceedings were brought to obtain a reversal thereof.

      James P. Wilson, for plaintiff in error.

      William A. Maline and James Kennedy, for defendant in error.
   Bradbury, J.

One of the grounds assigned for a new trial, in the motion made in the court of common pleas to set aside the verdict of the jury, was that the verdict was not sustained by sufficient evidence; that contention is urged in this court, and if sound, will dispose of the case and render a consideration of the other errors assigned, unnecessary.

While this court will not undertake to determine the weight of the evidence in cases where there is testimony pro and con respecting material facts in issue at the trial, yet, where the evidence, whether disputed or admitted to be true, does not create an inference of the existence of a fact essential to support the judgment rendered, it will be deemed by this court to be a sufficient ground fox its reversal. In the case at bar, plaintiff in error contends that the evidence of the plaintiff below, failed to show any negligence or failure of duty on its part. This makes it necessary to ascertain what negligence or violation of duty was charged against it, and to consider the proof which was introduced to establish it.

The plaintiff below, after setting forth in his petition that he was in ihe employment of Thé Pittsburgh & Lake Erie Railroad Co. (defendant below) as brakeman, from August 12,1889, to the 12th day of October following, in the night of which day he received the injury complained of, averred that he received it under the circumstances following:

“ That on the 12th day of October, 1889, at or near the hour of midnight of said day, while plaintiff was so employed as a brakeman on the line of defendant’s railroad at Chartiers, while in the performance of his duties as a brakeman, and in the making up of a train of freight and coke cars at Char-tiers, and while connecting or coupling two coke cars of said defendant company, he was injured by having his left hand crushed and mutilated so that his thumb and his two fingers, next to the thumb of his left hand, were completely severed, and the use of his left hand thereby permanently destroyed.
“ That the said railroad company, before and during plaintiff’s said employment as a brakeman, had adopted and had in general use, upon its freight and coke cars upon said line of railroad, a coupling link, two coupling pins, and what are known as standard drawheads to make connections or couplings between the cars composing their freight and coke trains.
“ That said standard drawheads were constructed of a uniform size and pattern, and were so constructed that when two of said drawheads would come together in the coupling of cars, they would touch each other at the tops and bottoms, and were concaved or hollowed out between the tops and bottoms that came in contact with each other, so as to leave a large space between them for the purpose of affording the brakeman, whose duty it became to insert the link between the drawheads, a safe and proper method of performing said duty; that the links used in said standard drawheads were of a uniform size,'and were so made as to easily enter the drawhead the}r were used in connection with.
“ Plaintiff further says, that the defendant company carelessly and negligently furnished one of the two cars which he was attempting to couple at the time when he received his said injury, with a defective, dangerous and insufficient drawhead, and of a different pattern and shape than those known as standard drawheads, then in general use on said company’s line of'railroad.
“ That said drawhead, so negligently furnished by defendant company, was of such size and form that it would not meet the standard drawhead so as to leave sufficient space for the brakeman’s hand in making a coupling.
“ That said drawhead was defective, dangerous and insufficient, and defendant was negligent in furnishing the same as aforesaid; also for the reason that the hole in the end of the same was insufficient in width to admit the coupling link used by said company on its cars in connection with their standard drawheads.
“ That in the performance of his duties of coupling said two cars, and in the attempt to insert the link of the standard drawhead on one of said cars into the defective, dangerous and insufficient drawhead of the other car, so negligently furnished by defendant company, the link was jammed and forced against said defective drawhead and could not enter said drawhead because of its narrow opening, and by reason of the insufficient opening in said drawhead, said link was suddenly forced against the plaintiff’s left hand by the train of cars that was moving, in such a manner that it was caught, firmly held and crushed between the said link and said defective drawhead.
“ That by reason of the negligence of the defendant in furnishing, as aforesaid, the defective, dangerous and insufficient drawhead for coupling the said cars the plaintiff was injured, as hereinbefore stated.”

These averments of the petition were denied by the answer.

The petition, it will be observed, charges that the plaintiff in error furnished one of the two cars that he was coupling with a drawhead different in pattern from that in general use on its road, and with which the other car was provided; that said drawhead was defective, dangerous and insufficient, and that, plaintiff in error was negligent in furnishing tire same; also that the hole in its end was not sufficient in width to admit the coupling link used by the railroad company in connection with the drawheads in general use on its cars. These averments being denied by the answer, must be proven. There is no material, if any, conflict in the evidence respecting these matters. The drawhead on one of the cars being coupled, was known as “standard drawheads ; ” their ends were concave ; the end of the other was square ; the hole in the end of the former to admit the coupling-link was larger than the hole in the end of the latter. There was no evidence tending to show that either drawhead was an imperfect one of its kind, or in any way out of repair, and in the absence of such evidence, and without considering that of the car inspectors, or others, tending to show that both were in good repair, we cannot infer that either drawhead was a bad or defective one of its species; nor was any evidence produced to show that the railroad company had not within easy reach, coupling links adapted to coupling cars having drawheads of different kinds, such as the cars had which defendant in error was coupling when injured. The averments, therefore, that the drawhead of either car was defective, or that proper coupling links were not provided by the plaintiff in error, are not established by the evidence. It clearly appears, however, that the draw-heads attached to the two cars defendant in error was coupling, were unlike, one being known as the “ standard ” drawhead, the other the “saw-mill run” drawhead. The evidence fairly establishes that coupling cars using the “ saw-mill run ” drawhead is more hazardous than it is to couple those equipped with the “standard ” drawhead, and that to couple a car provided with one of these two drawheads with another car using the other kind, is still more hazardous, and therefore the question is fairly presented, whether the plaintiff in error was negligent in equipping its cars with drawheads of different patterns as it did in this instance.

Was the plaintiff in error bound to provide couplings for its cars of uniform pattern and of the safest character? or may it adopt and use couplings of different types, though the hazard of coupling cars may be increased thereby? This question has not heretofore been considered by this court, though it has frequently come before other courts of last resort, and has been discussed in the text books.

It is generally held that a railroad company is not bound to provide the best or most approved appliances but may use such as are reasonably fit for the purpose, or that may be in general use on well managed railroads. 2 Thompson on Neg., 989, note 6; Patterson’s Railway Accident Law, 301; Railway Co. v. Gildersleeve, 33 Mich. 133; Whitman v. Railway Co., 58 Wis. 408.

To require that railroad companies shall provide uniform couplings on all their cars, would cripple every effort looking towards improvement. No change could be made, no new appliance tested, and its utility determined, without incurring a liability no prudent company would care to assume. The occupation of one whose duty is to couple cars, is at best highly hazardous, and it accords with a sound and enlightened public policy to encourage such attempts as may be made to introduce devices designed to diminish this danger. But, were that not so, it, nevertheless, would be of little or no practical benefit to one engaged in coupling cars, to require a railroad company to have all its couplings uniform, so long as the exigencies of commerce require that cars of other railroads shall be transported over it, with couplings as varied as human ingenuity, and the taste and judgment of the managers of the railroads of the country may choose to make them. We therefore hold that the fact that the drawheads of the two cars that the defendant in error was coupling at the time he was- injured, were of a different pattern ; that one was somewhat smaller than the other, and required a smaller coupling link, in the absence of proof that suitable links were not provided, was not negligence. The plaintiff in error had a lawful right to adopt one device without discarding all others differing from it; that this right might be exercised was a risk incidental to the duties in which defendant in error was engaged, and was assumed by him in entering upon the performance of them.

Judgment reversed.


author: Minshall, J.

text:
    Keeper v. Wood.

      Limitations — Note made by partner, after dissolution, for balance of an account with firm before dissolution — Effect of, on the account, as to the other partners — Effect of payments made by such partner.

    1. A promissory note executed by a member of a firm, after its dissolution, in consideration of the balance due upon an account with the firm prior to dissolution, is not, in the absence of express authority to execute it, such promise in writing as will, under the provisions of § 4992, Revised Statutes, take the demand on the account out of the statute of limitations, as against the other members ; and this is so, although the business of the firm was conducted, and the note executed, in a state by whose laws the one executing the note has power, as liquidating partner, to execute a note in settlement of the business of the firm that will bind the other members.
    2. The law is the same as to payments made by such liquidating partner.
    (Decided December 8, 1891.)
    Error to the Circuit Court of Hamilton county.

      The suit below was upon an account against the member of a dissolved firm. Service was obtained upon one of them, the plaintiff in error, Kerper; no service was had upon the other, he being a non-resident. The answer, for one of its defenses, relied on the statute of limitations. The plaintiff in reply, averred payments made after' the dissolution by Parker, as liquidating partner under the laws of Pennsylvania ; also, the execution of a promise in writing to pay the same, and that the payments and promise were within six years of filing the petition. On the trial to the jury, the court at the close of the evidence for the plaintiff, directed a verdict for the defendant. The plaintiff excepted and placed the evidence on record by a bill of exceptions. A motion for a new trial was made, overruled, and judgment rendered for the defendant, dismissing the action; which, on error, was reversed by the circuit court.
    The present suit is prosecuted to reverse the circuit court and affirm the common pleas.

      Ramsey, Maxwell Ramsey, for plaintiff in error.
    Brief of Lawrence Maxwell, Jr.

    I. Payment or acknowledgment made after notice of dissolution, by a partner who has taken the assets and assumed the debts of the firm, will not interrupt the running of the statute of limitations. The question is settled in Ohio by —Palmer v. Dodge, 4 Ohio St., 21; Hance v. Hair, 25 Ohio St. 349. And in Pennsylvania by —Levi v. Cadet, 17 S. & R. 126; 17 Amer. Dec. 650 (A. D. 1828); Reppert v. Colvin, 48 Pa. St. 248; McCowin v. Cubbison, 72 Pa. St. 358; Wilson v. Waugh, 101 Pa. St. 233.
    In 2 Bates on Partnership, sec., 704, note 3, will be found a collection of twenty-six cases from sixteen different states and from England, in support of the proposition. Hackley v. Patrick, 3 Johnson 536.
    The argument which, under our statute, leads to the conclusion that a partner cannot, after dissolution, make an acknowledgment which will toll the statute,' is plain. Mar

      ienthal v. Mosler, 16 Ohio St. 566, 569. Hance v. Hair, 25 Ohio St. 349, 352.
    It is true that under the law of Pennsylvania what is there known as a “liquidating partner,” has authority to make an acknowledgment which will toll the statute in that state. But — 1. Parker was not a liquidating partner under the law of Pennsylvania. All the authorities in that state show that a liquidating partner is one who is authorized by the partners to close up the business as their agent and on behalf of all. See especially Reppert v. Colvin, 48 Pa. St. 248; McCowin v. Cubbison, 72 Pa. St. 358; Wilson v. Waugh, 101 Pa. St. 233; Watson v. Woodman, L. R., 20 Eq., 721; Bullitt v. Methodist Episcopal Church, 26 Pa. St. 108, 110.
    2. But the law of Pennsylvania is immaterial. The question is one under the statute of limitations of Ohio, and must be settled by the lex fori. Bank of U. S. v. Donnally, 8 Pet. 361, 370, 372; Alliance Bank v. Carey, L. R., 5 C. P. D., 429; Bank v. Hemingray, 31 Ohio St. 168.
    The question at bar is whether such an acknowledgment was made as brings the case within Revised Statutes of Ohio, sec. 4992, and the acknowledgment relied on being one made by a former partner, the court will determine whether the partner had authority under the agreement of dissolution to make such an acknowledgment as is contemplated by sec. 4992. There is no statute in Pennsylvania fixing the authority of partners after dissolution. The question is simply one of construction of the agreement of dissolution, and that question this court must determine for itself.
    II. If it be true, as claimed by counsel for defendant in .error, that Parker was a liquidating partner and authorized to give the firm note in settlement of the account, the judgment of the court of common pleas must, nevertheless, be sustained. It may be that the note was not taken in payment of the account. But during the currency of the note given in settlement of the account, suit could not be brought on the account, nor could suit be brought after maturity, without surrendering the note. In this case the note was uot returned, and could not be, for the reason that judgment had been taken on it in Pennsylvania against Parker.
    There cannot be two subsisting causes of action against the same firm with respect to the same debt, both maintainable ; one on a note and the other on an account. There may be one or the other of the two actions, at the election of the creditor, but not both. Here the plaintiff had made his election bj' suing one of the partners to judgment on the note. He could not thereafter sue Parker on the account. If not, he cannot sue Kerper on the account; for Kerper’s liability, if it exists, is a joint liability. As a partner he cannot be liable otherwise than jointly with Parker, and if the liability on the account does not exist jointly against both, it does not exist at all against either.
    We are not now denying Kerper’s liability on the note, or insisting that his liability thereon is barred by the judgment recovered in Pennsylvania against his co-obligor. It may be- that under Revised Statutes, sec. 5366, he can be sued on the note, notwithstanding that judgment. That question is not before the court. It cannot arise until he is sued on the note. We are simply insisting that his liability, if any, is on the note, and that an action cannot be maintained against him on the account.
    The fundamental doctrine that the liability of partners on all firms obligations is joint, and joint only, and not joint and several, except sub moda for purposes of administration of assets in case of death, is discussed with great clearness in the house of lords, in the important case of Kendall v. Hamilton, 4 App. Cas. 504.
    In Pennsylvania it is settled that the liability of partners is joint, and not joint and several. Smith v. Black, 9 S. & R. 142.

      Kittredge ¿- Wilby, and Avery Holmes, for defendant in error.
    Did Parker have power to so bind Kerper at that date ? Whether he did or did not have such power is not a question of Ohio law, but of Pennsylvania law. There is no conflict here between different statutes of limitation. It is not, therefore, a question of the law of the forum, but a question of agency or power to contract, and is to be determined by the law of the place where the act of agency was performed or the contract entered into.
    Parker as liquidating partner had power to bind Kerper by the firm note after dissolution. The evidence tended to show that Parker was the liquidating partner. He took the assets, and was to settle up the business, and continue at the old stand. Being the liquidating partner, he had, by the law of Pennsylvania, full power to bind Kerper as his agent, although after dissolution, by giving a written acknowledgment of a pre-existing firm indebtedness.
    The law of Pennsylvania as to this power of a liquidating partner was a question of fact to be proved like any other issue of fact in the case. To prove it plaintiff offered testimony of experts; the defendant offered no evidence to the contrary. Williams v. Findlay, 40 Ohio St. 342; Ennis v. Smith, 14 How. 400. And the following reported cases fully sustain the testimony of plaintiff’s witnesses. Parsons’ on Partnership, 3d ed., 423; Estate of Davis Desauque, 5 Whart. 530; Hauser v. Irvine, 3 Watts & Serg. 345; Robinson v. Taylor, 4 Pa. St. 242; Fulton v. Central Bank, 92 Pa. St. 112; Wilson v. Waugh, 101 Pa. St. 233; Siegfried, v. Ludwig, 102 Pa. St. 547.
    If the evidence tends to prove all the facts which it is incumbent on the plaintiff to establish in order to maintain his action, he has a right to have the weight and sufficiency of the evidence1 passed upon by the jury, and it is error for the court to render judgment against him. Stockstill v. D. & M. R. R., 24 Ohio St. 83.
    Plaintiff in error in his brief, however, makes the statement that Wood cannot recover against Kerper on the account if it be true that Wood got a judgment upon this note of Parker & Kerper against Parker alone.
    We deny the propositions of law involved in this statement. But, even if they were sound, it cannot disturb the judgment of the circuit court, because the only question here raised on the record is as to the action of the common pleas in arresting the cause from the jury on the first and fourth defenses. But the propositions are not sound. Whether or not the note was given in extinction of, or as collateral to, the account is a question of fact. The plaintiff offered evidence tending to show that it was given and received simply in acknowledgment of Wood’s claim. That question of fact could not be taken from the jury. But, even if there were no testimony offered expressly tending to show that the note was given and received in acknowledgment of, and collateral to, and not in extinction of, the debt on the account, the presumption is, in the absence of any contrary showing, that it was not in extinction of the debt, and the burden is upon the party alleging that it was received in extinction of the debt. Hunter v. Moul, 98 Pa. St. 13, 15; Leach v. Church, 15 Ohio St. 169; Bank v. Green, 40 Ohio St. 431, 439, 440; Freeman on Judgments, sec. 463 ; Estate of Davis & Desauque, 5 Whart. 530; Walstrom v. Hopkins, 103 Pa. St. 118; Drake v. Mitchell, 3 East 251, 258; Wright v. Lathrop, 2 Ohio 33; Lord v. Bigelow, 124 Mass. 185; Fairchild v. Holly, 10 Conn. 474; Colebrooke on Collat., secs. 108, 109, 110.
    But section 5366 of the Revised Statutes, which is the “ joint debtor act ” in Ohio, disposes of any embarrassment that might otherwise arise from proceeding on the account against Kerper subsequent to a judgment on the same cause of action in another jurisdiction against Parker. For it is thereby provided that where judgment is rendered on a joint contract outside of the state of Ohio, against one of two joint debtors, the plaintiff may bring suit upon such contract or instrument, against the debtor not summoned, in any county in Ohio where such party resides or may be summoned.
    This is also the law of Pennsylvania. Moreover, in the absence of any proof, the law of Pennsylvania upon the subject will be presumed to be the same as the law of Ohio, which we have just quoted. McCulloch v. Norwood, 58 N. Y. 567; Hickman v. Alpaugh, 21 Cal. 226.
   Minshall, J.

James H. Parker and George B. Kerper, as partners under the firm name of Parker & Kerper, carried on the business of a tannery in the state of Pennsylvania, from some time in 1870 to July 1, 1875, at which time the partnership was dissolved. At the time of the dissolution the firm was indebted to John S. Wood in the sum of several" thousand dollars upon an account. On May 8, 1876, notice of the dissolution was given Wood by Parker, and that he “ was settling up the concern.” On March 20, 1882, the plaintiff, Wood, commenced an action in the Court of Common Pleas of Hamilton county, upon the account, claiming a balance of $8,777.16 to be due him. Service was obtained upon Kerper, but not upon Parker, he being a non-resident of the state. The last item in the account before the dissolution was of the date of March 4, 1876. Other pajments had been made by Parker subsequent to that time and within six years of the commencement of the suit. The defendant answered, pleading, among other things, the statute of limitations ; to which the plaintiff replied, that the defendants had made payments on the account within six years next preceding the filing of the petition, and, also, within the same time, had delivered the plaintiff a written promise to pay the same. The case was tried to a jury, w'hieh at the close of the plaintiff’s evidence, rendered a verdict for the defendant by direction of the court. The testimony disclosed that the only payments that had been made upon the account after the dissolution, had been made by Parker, and that the only written promise to pay the account was a promissory note, dated Jauuary 1, 1878, made by Parker in the firm name and delivered to the plaintiff. It was also shown (but not pleaded) that by the law of Pennsylvania, where the partnership had been formed and its business carried on, “ a partner who, after dissolution, remains in possession of the store or place of business, and attends to the collection of the debts due the firm, may give a note in the name of the firm for a debt due by the partnership, which will bind all the partners, although he may have no express authority to settle the business.”

If the pajunents made by Parker on the account after the dissolution of the firm, may be treated as payments made by Kerper; or, if the note executed and delivered by Parker can be regarded as a note executed and delivered by Kerper, or his authority, then the'court of common pleas erred in directing the jury to return a verdict for defendant, and its judgment was properly reversed. And it is plain, as we think, that if the note cannot be so treated, then the payments should not. Payments are, at most, but evidence from which a promise may be inferred. And if an express promise by one member of a dissolved firm, has not the effect of extending the running of the statute of limitations as against the others, plainly a promise that is simply inferred from a payment cannot be given any greater effect. Shoemaker v. Benedict, 11 N. Y. 176, 185.

The question so far as it is controlled by the laws of this state, can hardly be regarded as open to discussion. Our statute of limitations fixes a period in which every action, according to its class, must be commenced. It is a statute of repose and not of presumption; and, unless the suit is commenced in the time limited, cannot be maintained: It is said to be barred. When, however, the demand is founded on contract, and a payment has been made, or a written acknowledgment thereof, or a promise to pay the same “has been made and signed by the party to be charged,” an action may be brought in the time limited by the statute, “ after such payment, acknowledgment, or promise.” § 4992 Revised Statutes. In giving a construction to this provision, it is said by Dav, J., in Marienthal v. Mosler, 16 Ohio St. 566, 569, “ By comparing this section with the one for which it is substituted in the limitation act of 1831, and the judicial construction given to the act of 21 James, it is apparent that the legislature did not intend to enlarge the facilities for taking cases out of the statutory bar.” And, as to payment, it was there held, that it “ must be made by the party to be affected thereby, or by an agent authorized for that express purpose.” And, by a like construction, it was held, in Hance v. Hair, 25 Ohio St. 349, that, “ a partial payment on a joint and several promissory note, by one of tbe several makers, will not prevent the running of the statute of limitations as to the other makers.” These decisions give emphasis.to the reason and language of the statute. A payment, an acknowledgment, or a promise in writing, will not avail to take a case out of the statutory bar, unless made by the party to be charged thereby, or by an agent authorized for that express purpose.

Conceding to the fullest the power of a partner during the continuance of the firm, by virtue of his ’ agency, to bind it by acts of his own done within the scope of the business and intended to bind it, it is well settled in this state, that such power is revoked by dissolution; and he can no longer execute a note that will bind the other members without an express authority to do so. Palmer v. Dodge, 4 Ohio St. 21. And it was also held, in the case just cited, that no such power could be inferred from an authority given by one partner to the other, to settle, liquidate, and close up the affairs of the partnership. That his duty in such case is “ to close up and settle the partnership liabilities, and not to prolong them by new credits; to deal with the existing creditors of the firm and not to make others; to discharge its existing indebtedness, and not to add to it.”

And in this inspect the law of Ohio is the same as that of most of the states of the Union. Van Keuren v. Parmelee, 2 Com. 523; Shoemaker v. Benedict, 11 N. Y. 176; Bell v. Morrison, 1 Peters 351. Bates on Partnership, §704, and notes.

“ Each partner,” says BiíONS«N, J., in Van Keuren v. Parmelee, “ when acting within the scope of the partnership, is deemed to be the authorized agent of his fellows. The authority is presumed from the nature and necessity of the case; for without it, third persons would not be safe in dealing with one of the associates, and the business of the partnership could not be carried on with success. Now how long does this presumed agency continue? Clearly, not longer than the necessity for it exists; and for most purposes, the. necessity ceases with the termination of the partnership. When that is dissolved, there is no longer any ground for presuming an agency, except as to such things as are indispensable in winding up the concerns of the company. If there be no agreement to the contrary, it may be .presumed that each partner still has authority to dispose of the property, to collect, adjust, and pay debts. But there is no ground whatever for presuming a power to make new promises or engagements in the name of the firm, even though they only change without increasing the prior obligations of the partners.”

The question then remains whether by the law of Pennsylvania, where the business of the partnership was conducted and the note executed, the rights of the parties are varied. We think not. Statutes of limitation relate to the remedy, and are, and must be, governed by the law of the forum ; for it is conceded, that a court which has power to say when its doors shall be opened, has also power to say when they shall be closed. There was no evidence to show that by the terms of dissolution Parker, was given any express authority to bind Kerper by executing new obligations in the name of the firm. His authority was simply to settle the business of the firm, and was so disclosed in the notice of dissolution sent to Wood by Parker, so that the only authority he did have to bind Kerper by the note relied on as a promise in writing, taking the action on the account out of the primary limitation of the statute, was, at most, an implied one, attached by the law of Pennsylvania to the power of Parker as liquidating partner; it was not an express authority. This does not answer the purpose of our statute, which, in view of the decisions that had been made following Whitcomb v. Whiting, 2 Doug. 652, and the uncertainty of the law on the subject of such payments, acknowledgments and promises as would prolong the running of the statute of limitations, fixes a definite and certain rule, confining it to such payments, acknowledgments and promises as are made by the party to be charged; and further requiring the acknowledgment or promise to be in writing and signed by the party.

The fact that payments were made, and that the note was given by Parker, within six years of the commencement of the suit and before the action was barred, can make no difference in the application of the statute, as, whether payments were made or a premise given before or after the demand was barred, in either case, it is a question of the authority of the one making the payment or promise to bind the other, and if the authority is not express, the other is not bound, nor affected thereby. Shoemaker v. Benedict, supra. Again, whether by the laws of Pennsylvania Kerper would be liable on the note is immaterial, as the suit is not on the note but on the account. His liability on the note, if at all, results from an implied promise attached by the law of Pennsylvania to the act of appointing a liquidating partner on the dissolution of the firm of which he was a member, which, as we have shown, is not sufficient in this state to sustain an action on a demand that is otherwise barred.

There was, then, no evidence tending to show that the bar of the statute in favor of Kerper in an action on the account, as it existed at the time of the dissolution, had been tolled by any act of his; and the court, trying the case, properly directed a verdict for the defendant.

Judgment of the circuit court reversed, and that of the common pleas .affirmed.