author: Peck, J.

text:
    The Portage County Branch Bank v. Gustavus Lane.
    Where L., at the request of S. & Co., for the purpose of procuring from the plaintiff a loan for the benefit of S. & Co., joined them in a note for $3,000, payable to the plaintiff ninety days after date, and left the note with S. & Co. for negotiation, and the plaintiff knowing that L. was merely a surety, refused to discount the note at its face, but without the knowledge or consent of L., agreed with S. & Co. to loan them $2,000 upon it, and same day wrote across the face of the note — “ $2,000. This note was discounted for $2,000, which amount is due upon it — John H. Ebbert, Cashier,” — and the plaintiff, the note not haying been paid at maturity, brought suit against all the makers, describing it as a note for $3,000. Held:
    1. That the note, up to the time of its transfer and delivery by S. & Co. to plaintiff, had no legal validity as a promissory note for any amount.
    2. That the plaintiff, having refused to discount the note at its face, it never became operative as a note for $3,000.
    3. That the note, when thus delivered and indorsed, became, and was, in legal effect, a note for $2,000, and no more.

      4. That L. being merely a surety, and never having assented to the modification, was not liable upon it as a note for $2,000, nor for the money loaned, as upon request.
    5. Where, upon the whole record, it is apparent that on a re-trial no recovery can be had, a judgment in favor of- the defendant will not be reversed merely because the court below may have erred in their instructions to the jury.
    This is a petition in error to reverse a judgment of the District Court of Portage county.
    Suit was originally instituted in the Portage common pleas, by the plaintiff in error, against the defendant in error, L. A. Seymour, H. E. Judd and W. D. Mann, jr., on the following note:
    $3,005 [No. 453.]
    $2,000
    Ravenna, Ohio, July 25th, 1851.
    Ninety days after date, we jointly and severally promise to pay the Portage County Branch, in Ravenna, or order, at the American Exchange Bank, New York city, three thousand dollars, for value received.
    $31,00 Oct. 26. (Signed) L. A. SEYMOUR,
    H. E. JUDD,
    WM. D. MANN, Jr., GUSTAVÜS LANE.
    Three thousand dollars in figures, on the face of the note, was erased, and two thousand dollars in figures, in pencil marks, was put on the note.
    The following entry was made across the face of the note in red ink:

      “ $2,000. This note was discounted for two thousand dollars, which amount is due on it.
    “July 25, 1851. John H. Ebbekt, Cashier.”
    Lane and Seymour only, were served with process and pleaded to the action, and the suit resulted, in the common pleas, in a verdict and judgment in favor of the plaintiff" in error, as against Seymour for $2154.88, upon said note, and a verdict and judgment in favor of Lane. From this judgment the plaintiff" in error appealed to the district court, in which the cause has been twice tried. The plaintiff in error, at the first trial, recovering a verdict against both. Seymour and Lane for $2190.00; which verdict, on motion of Lane, was set aside, and a new trial awarded; and at the second trial the jury rendered a verdict in favor of Lane, whereupon the plaintiff in error moved the court to set aside the verdict rendered in favor of Lane, and to grant a new trial:
    1st. Because the verdict was against the law and evidence in the case.
    2d. Because the court erred in their instructions to the jury-
    The court overruled this motion and rendered judgment in favor of Lane, upon the verdict, to which rulings of the court the plaintiff in error excepted.
    To revei-se this judgment this petition in error is prosecuted, and the causes for reversal assigned ax-e, that the coux-t erred—
    1st. In instructing the jury as set forth in the bill of exceptions.
    2d. In overruling the motion of the plaintiff for a new trial.
    3d. In giving judgment for the defendant Lane, when, under the law and evidence, the judgment should have been for the plaintiff.
    4th. Other ex-rox-s.
    It appears from the bill of exceptions that the corporate capacity of the plaintiff, and the due execution of the note sued on, were admitted on the trial — that the note, with the erasures and the memox-anda thereon, were given in evidence to the jury — that the defendant Lane produced to the jux-y evidence tending to px-ove that he signed the note as surety only, and that this fact was well known to the plaintiff at and before the discounting of the note; that the note was first presented to the plaintiff for discount by Seymour, one of the defendants, and co-pax-tner of Judd and Mann, before it was signed by Lane, and that plaintiff refused to discount it, but offered to discount $2,000 upon it, provided additional security was obtained tbereon— tbat thereupon Seymour took the note and procured the signature of Lane thereto, and returned with the same to the plaintiff, who thereupon discounted thereon the said sum of $2,000, and, by its cashier, indorsed thereon the memorandum appealing across the face of said note — that said Lane was not present at either of the interviews between the defendant Seymour and the said plaintiff, and that the entire agreement, in respect to the discounting of said note, was exclusively between the said plaintiff and the said defendant Seymour — that the money discounted thereon was paid by said plaintiff to said Seymour; and there was no other or further evidence as to the knowledge of the defendant Lane in the premises, nor further evidence upon either side.
    Thereupon the court, among other things, charged the jury as follows:

      “ It is claimed that the writing- on the face of the note, in connection with the agreement made with Seymour at the time of the discount, as proved hy the cashier, is such an alteration of the note as avoids the note as against the surety.
    “ Upon this point, the court say to you, that if you find that Lane was merely a surety; that, the note when signed by him was a note for $3,000, and was executed by him for the purpose of being discounted by the plaintiff for that amount; that the plaintiff refusing to discount it for that amount, did, without the knowledge or consent of Lane, discount it for $2,000 only, the plaintiff proposing and Seymour assenting thereto; and the plaintiff, by its agent, the cashier, did thereupon, also without the knowledge or consent of Lane, make the writing upon the face of the note as thereon appearing, the same was in law a material alteration of the note, and the plaintiff is not entitled to recover against Lane.”

      J. S. H. G. JRanney, for plaintiff in error.

      Samuel Strawder, for Lane.
   Peck, J.

The regularity of the judgment below, in favor of the defendant, Gustavus Lane, and the propriety of its reversal, depend mainly upon the legal effect of the negotiation by which the plaintiff in error acquired the property in, and control over, the note upon which the suit is brought; for, if upon the whole record, it is manifest that the plaintiff is not entitled to a recovery against Lane, under the present form of pleading, or any amendment thereof consistent with the facts proved or admitted, the plaintiff' will not be entitled to a new trial, even though some of the positions assumed by the court should, in our opinion, be incorrect. In such case, the plaintiff has not been in law injured by the action of the court; as, in no event, under the law and the facts, would the plaintiff be entitled to a judgment.

In accordance with this acknowledged principle, the case has been argued, mainly, as to the legal effect of the note so far as Lane was concerned, under the circumstances surrounding its negotiation and transfer to the plaintiff in error. And I propose briefly to pursue the same line of inquiry and argument.

What, then, was the legal effect of writing across the note, upon its discount by the plaintiff', the words and figures “ $2,000. This note was discounted for two thousand dollars, which amount is due upon it. July 25, 1851. John H. Ebbert, Cashier?” Did it have the effect of reducing the note from a note for $3,000 to a note for $2,000, as claimed by the defendant in error, or did it still leave the note a promise on the part of the makers, or any of them, to pay the plaintiff in error the sum of $3,000 ?

It is to be borne in mind, as appears from the bill of exceptions, that the note was prepared, so far at least as the defendant Lane is concerned, to obtain from the plaintiff a loan for that sum, for the use and benefit of Seymour & Co.; that Lane was, as the plaintiff well knew, a mere surety; that such being the object and purpose for which it was prepared, it had no legal validity as against any of the makers while it remained in the hands of Seymour & Co., and was not an available security to any one until its delivery to, and negotiation by, the plaintiff, the payee named in it. Douglass & Dunn v. Davenport, 17 Wend. 431.

It was not, as seems to have been supposed when the ease was first tried in the district court, a valid and subsisting obligation, inter partes, for the sum of $3,000 or any other sum, prior to its negotiation to the plaintiff, which was or might be pledged by Seymour & Co. to the bank for $2,000, loaned on its security. It was, I repeat, so far as Lane was concerned, a note prepared to invite and secure a loan for $3,000, to be made by the plaintiff to Seymour & Co., and to become operative when the purpose for which it was drawn should be accomplished.

This purpose never was accomplished; the note never was discounted by the bank as a note for $3,000; the indorsement itself negatives the idea that it ever was received by the bank as a note for $3,000, or that the officers of the bank treated or regarded it at the time as a promise to pay to them, or any one else, the sum of $3,000 in any event. The indorsement is of the same date of the note, (July 25, 185Í,) and says, over the signature of the cashier, “ This note was discounted for two thousand dollars, which amount is due upon it.”

It is apparent, from the circumstances surrounding the making of this note, and its reception by the plaintiff, first, that prior to its reception by the plaintiff^ the note was not an available security to any one, or for any amount; and second, that on its delivery to the plaintiff, if operative at all, as against any of the parties to it, it was only operative as a note for $2,000, the amount for which the plaintiff had discounted it.

Clearly the note never became operative as a promise, on the part of Seymour & Co., and much less of defendant Lane, to pay to the plaintiff the sum of three thousand dollars on its maturity. In the very act of receiving it, the plaintiff says that it was discounted for only $2,000, and that only that amount is due upon it; and as a part of the same transaction, and in the presence of Seymour, who delivered it to plaintiff, the cashier writes this acknowledgment and limitation across the face of the paper itself. The expression, “ which amount is due upon it,” written by the cashier of the plaintiff at the time, has much significance, and clearly evinces that the plaintiff understood that, in legal effect, it was at that time a note for $2,000, and no more — “which amount is due upon it” —not whieh amount is due to us, and the residue to some other person. The plaintiff knew it was valueless in Seymour’s hands; that no portion of it had ever been paid, and specify its value when delivered to them. And the act of the notary in New York, when about to demand, and, if need be, protest for non-payment, in erasing the figures $8,000 in the left hand margin, and writing thereunder, in pencil, the figures $2,000, was in strict accordance with the legal effect of the instrument, and also indicates the construction put upon such instruments by the commercial world.

It was discounted for $2,000, that is, it was discounted as a note for $2,000, deducting the interest. This is also apparent from the figures $31.00, Oct. 25, 1851, noted at the bottom of the note, that being the interest for that period on the sum for which it was discounted.

"When was the $2,000 due or to become due on the note? Clearly at the maturity of the note, for the plaintiff had deducted the interest on the loan to its maturity.

If, therefore, the note was ever operative as a promise to pay to the plaintiff any sum, it’ was never anything more than a promise to pay them the sum of two thousand dollars at the time and place specified in the note for payment. Douglass & Dunn v. Wilkinson, 17 Wend. Rep. 481.

The last case cited from Wendall, was one in which a note had been drawn by Norton, to be discounted for the benefit of Norton, Goodman & Co., and payable to Wilkinson, who was to indorse the same for the accommodation of Norton, Goodman & Co.; the note was drawn for $2,500 at ninety days. Wilkinson declining to become liable for the whole sum named, indorsed the note as follows : “ Mr. Olcott, pay on the within seven hundred and fifty dollars. S. Wilkinson.” And re-delivered the note to Norton. The amended declaration described tbe note as having been made for seven hundred and fifty dollars. Bronson, L, in commenting upon the note and its agreement with the declaration, uses this language: “This never was a valid note for anything more than $750, although drawn for a larger amount; the defendant refused to indorse it for anything beyond that sum. It was accommodation paper, and of no value whatever until negotiated by the bank. In legal effect, this was, I think, a note for $750, and no more; and as such, was a valid security to the bank, and one which could be enforced against the makers and all the other parties, as though originally drawn for that sum.”

So, in the case under consideration, the note being an accommodation note, and in the hands of the party for whose benefit it had been drawn, had no legal validity, as a note for any amount, until it had been delivered to, and discounted by, the plaintiff'. It was discounted as a $2,000 note, the plaintiff declining to discount it at its face, or for any larger sum.

The negotiation imparted to the note its legal vitality, and it then, by the united act of the principals, Seymour & Co. and the plaintiff, received the impress of a note for $2,000; and was, in legal effect, so far as they were concerned, a note for that amount, and no more.

In the case cited from 17 Wend, supra, the surety himself was a party to the reduction, and was, therefore, a party to the note in its altered form, and bound by its terms as altered. But in the case at bar, the defendant Lane, was no party to the reduction, never assented to the change wrought in the character and legal effect of the note, and is not, therefore, bound to pay it as a note for $2,000; while the plaintiff, by its own voluntary act, is now precluded from treating or regarding the note thus tampered with, as a note for anything more. In short, as a contract to pay the plaintiff the sum of $3,000, ninety days after the date thereof, the note sued on never had any legal existence and vitality; it became, on its negotiation, in substance and legal effect, a promise to pay to the plaintiff, or order, the sum of two thousand dollars, and no more.To this contract, the defendant Lane never, in terms, assented, and no agreement or assent on his part can, under the law, be implied.

The counsel for the plaintiff in error now assume that the note was a valid note of all the makers for $3,000, when delivered to the bank to be discounted, and have declared upon it as such; and that the bank, having advanced upon its security a sum less than its face, is entitled to recover from the surety, Glustavus Lane, the amount thus advanced, as it falls within the terms of his guaranty, as defined and limited by the accommodation note signed by him. It is claimed that he has no legal nor moral right to complain, inasmuch as the recovery asked falls far below the sum stipulated in the note which he was content to guaranty, and the arrangement between the principals and the plaintiff did not vary the parties to the contract nor enlarge its obligation, either as to the time or the manner of performance; and that the rule, that a surety can only be made liable by the terms, that is, the very letter of his contract, and that any alteration of the terms between the principal and creditor, without the consent of the surety, will avoid the obligation as to him, must, under the authorities, be restricted in its application to cases where the alteration either operates to change or alter the parties to the contract, or the time, place or manner of performance, or in some degree enlarges or increases the liability or amount to be paid by the surety, and has no application to a case like the present, where no change or alteration whatever is made, except to relieve the surety from the payment of a portion of the amount he, by the contract, had voluntarily assumed.

Admitting the'premises assumed by the plaintiff’s counsel to be true — that the note, in its original form, ever had any legal vitality or binding obligation as to Lane — the positions of the plaintiff’s counsel, as to the true construction of the surety’s engagement and his liabilities, would be difficult to answer, and might require us to pause before holding the surety discharged by such a modification of his liability, under the strict rule before referred to. But, as we have already seen, the contract, in its original form, never had any legal validity, as against Lane, and it therefore is not necessary for us to determine what would have been the effect of such a modification of a subsisting and valid agreement. It is enough to say, that the original note — being, so far as Lane is concerned, nothing more than a proposition for a loan, by the plaintiff, to Seymour & Co. of the sum of $3,000, neither more nor less — was never accepted by the plaintiff, nor any modification of that proposition ever assented to by Lane, the paper never had, as against him, any legal vitality; and to hold him liable thereon for any amount, or for the money actually loaned by the plaintiff, would be to create a liability of a surety, by mere implication, which all the authorities forbid.

The conclusion, then, to which we have arrived — that, under the circumstances surrounding the making, negotiation, and delivery of the note in suit, no right of action exists in favor of the plaintiff against the defendant Lane upon the note, or for the money loaned — renders it unnecessary for us to examine into the nature and effect of the charge delivered to the jury, by the judge presiding at the last trial in the district court; for even if that charge was erroneous, and found to be so, we could not reverse the judgment, because such reversal, under the law, as applied to the facts proved or admitted, could not result beneficially to the plaintiff.

The judge, in his charge, after alluding to the manner in which, and the purpose for which, the note in suit had been prepared, submits to the jury the question, whether the note was altered by the plaintiff and Seymour, without the assent of Lane, by the writing appearing on the face of the note, and instructs them that, if it was so made, it amounted to a material alteration, and would exonerate tbe defendant Lane.

We entertain a decided opinion, that, by tbe facts alluded to by tbe judge, in bis charge, the note was changed from a note for $3,000 to a note for only $2,000, and that Lane is not hable on it as a note for $3,000, because it never was, in legal effect, a valid note for that amount; and that he is not liable on it as a note for $2,000, because he never assented to the making of such a note. We do not, then, pronounce the note sued on void as to Lane, because it had been altered, but because the note executed by him never had any legal validity.

The other errors assigned, that the verdict is contrary to the evidence, etc., have not been argued by the counsel, nor our attention called to the points wherein any further errors are said to exist; and entertaining, as we do, the decided opinion that, upon the whole record, the plaintiff is not entitled to any recovery against the defendant Lane, we hereby order and direct that the judgment of the district court be and the same is hereby affirmed, with costs.

Sayan, C. J., and Brinkerhoee, Scott and Suture, JJ., concurred.


source: Caselaw Access Project

author: Sutliff, J.

license: Public Domain

text:
    Irad Kelley et al. v. John Vincent.
    Taking a writ of execution from the clerk’s office by the judgment creditor or his attorney, and returning the same to the clerk, without delivery to the sheriff, is not suing ont an execution within the meaning of section 101 of the statute of March 8,1831, so as to prevent the judgment becoming dormant.
    The suing out execution expressed by the statute requires an actual or constructive delivery of the writ to the sheriff.

      In Error, to the Court of Common Pleas of Geauga county. Reserved in the District Court.
    The facts are substantially as follows :
    . On the 31st of March, 1846, Vincent obtained a judgment on confession against Kelley and others, in the court of common pleas of Geauga county.
    On the 24th of April, 1855, an alias vendi exponas on this judgment was issued, and certain of Kelley’s lands were sold. Thereupon the judgment debtors filed their motion to set aside this writ, on the ground of the dormancy of the judgment. The court of common pleas overruled the motion, and the plaintiffs in error excepted. A further motion was made to set the sale aside, for reasons set forth, which motion was sustained in part and overruled in part. To so much of the ruling of the court as confirmed the sale of a part of the land, the plaintiffs in error excepted, and to reverse that ruling filed their petition in error in the district court; and the question as to the dormancy of the judgment thereby presented, was reserved to this court for decision.
    Erom an abstract of entries on the execution docket of Geauga county, and on the foreign execution docket of Cuyahoga county, the following facts are shown, viz:
    March 31st, 1846, is the date of the judgment.
    April 3d, 1846, a fi. fa. was issued to the sheriff of Cuyahoga county and delivered to Vincent’s attorneys, and by them returned October 28,1846. No money was made, and no proceedings were had on it.
    October 28th, 1846, an alias fi. fa. was sent to Cuyahoga county and placed in the sheriff’s hands, and levied on Kelley’s lands.
    December 28th, 1848, a fi. fa. was issued against Vincent for his costs, which were satisfied.
    August 18th, 1851, a. vendi. exp. was issued and sent to . Vincent’s attorneys, and returned by them July 29th, 1853, “no service made by sheriff by order of plaintiffs’ attorneys, no fees charged by sheriff'.” There is no trace of this writ on the foreign execution docket of Cuyahoga county.
    July 30th, 1853, an alias vendi. exponas was issued to the sheriff of Cuyahoga county and sent to Yincent’s attorneys by mail. There is no trace of this writ upon the foreign execution docket of Cuyahoga county, but on the execution docket of Geauga county there is the following entry of the return of said writ: “March 10th, 1855, plu. vend. ex. returned no indorsement.”
    March 12th, 1855, an “al. plu. vend, ex.” was issued to the sheriff of Cuyahoga county, and returned by the sheriff April 23d, 1855, with an appraisal of parcels of the land previously levied on.
    April 24th, 1855, the alias vendi. exponas, upon which the sale was made, was-issued.
    The execution docket of Geauga county does not show that any executions ever issued to any other county than those issued to Cuyahoga county, above mentioned.

      M. C. Canfield, for plaintiffs in error.

      Williamson £ Biddle, for defendant in error.
   Sutliff, J.

The question presented is, whether five years intervened between the 28th day of October, 1846, the date of the writ which was levied on Kelley’s lands, “ and the time of suing out another writ of execution” on said judgment, within the meaning of the following section of the statute then in force. (Swan’s Stat. 1841, sec. 101, p. 671):

That if execution shall not be sued out within five years from the date of any judgment that now is, or that may hereafter be rendered in any court within this state, or if five years shall have intervened between the date of the last execution issued on any such judgment obtained as aforesaid and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.”

It is provided by section 2 of the “ act further defining the duties o.f sheriffs and coroners,” passed March 1,1838, (Swan’s Stat. 1841, p. 862) as follows:

That there shall be kept in the sheriff’s office, in the several counties of this state, a book which shall be furnished at the cost of the proper county in which the sheriff or coroner shall forthwith, upon the receipt of the same, make an entry of every execution, order, decree, or other process issuing from any court of any county in this state, other than that in which such sheriff or coroner may reside, and to him directed, commanding and requiring a sale to bo made of property in his county ; which entry shall be made in double form, giving the name of the plaintiff or plaintiffs, the date of such execution, order, decree or other process, when received by him, whether sheriff or coroner, from what court or county issued, ihe date and amount of the judgment, order or decree, and, in case of a levy on real estate, the date of the levy, with a pertinent description of the premises upon which levied; and such entry, when so made by such sheriff or coroner, shall be taken and held to be notice to all subsequent purchasers, and incumbrancers of the matters stated in such entry.”

It appears frcrai|the record that no entry upon the book so provided to be kept in the sheriff’s office of Cuyahoga county, shows any execution'received by either the sheriff or coroner of that county upon this judgment after the return of the execution of October 28th, 1846, levied upon the land, and previous to the execution of March 12,1855, except the execution against the plaintiff for his costs issued upon a special provision of the statute, and which could not, of course, be regarded as a writ of execution on the judgment against the defendant. If, therefore, the evidence of the issuing of the executions to Cuyahoga county is to be deduced solely from the sheriff’s books of that county, it would follow that more than five years had intervened between the date of the fi. fa. of October 28th, 1846, and the time of issuing the next writ of execution, the vendi. exp. of March 12,1855, which is the next execution upon the judgment against the defendants, noted upon the sheriff’s book. But while the sheriff’s book is to be regarded as correctly showing the fact and date of all executions issued upon the judgment to that county, we do not think its showing should be held conclusive. It does not, like a record, import such absolute verity as to preclude the party from showing, aliunde, the fact of an execution having been issued to a sheriff or coroner of Cuyahoga county. Nor is it necessary that the execution should have been issued to Cuyahoga county. It is sufficient to show that an execution issued upon the judgment to a proper officer of any other county.

But in this case, no other proof was given in relation to the issuing of an execution, except what is afforded by the entries upon the execution docket in the case, at Geauga county. The issuing of the fi. fa. of Oct. 28,1846, to the sheriff of Cuyahoga county, and the return of the same by the sheriff, March 80, 1847, levied upon lands, appears upon that docket. There is only one entry upon the execution docket of a vendi. thereafter having issued, made within the next five years after the fi. fa. so levied, and that is in the words and figures following: 1851, Aug. 18, vendi. exp. issued, sent to Bishop & Backus, plaintiff’s attorneys. Returned July 29, 1853. No service made by sheriff by order of plaintiff’s attorneys. No fees charged by sheriff.”

This entry upon the execution docket, although used in evidence by consent of the parties, can hardly be said to prove any fact disproving the correctness of the sheriff’sentries in his execution book in Cuyahoga county. It does not purport to be a return of that sheriff inconsistent with his record kept upon his foreign execution docket. Indeed, it is not pretended that the sheriff’ of Cuyahoga ever received the vendi. exp. of August 18,1851, nor is it proved, as it might have been if it had been the fact, that the sheriff made the memorandum on the execution; and not purporting to be signed by the sheriff, it cannot, contrary to his record in his foreign execution docket, be presumed to have been made by him. The clerk doubtless gave or sent the writ upon their request to the plaintiff’s attorneys; and the same seems to have been by them returned to the clerk without service or even delivery to the sheriff.

The sole question, therefore, presented to us by this record is, whether making out and delivering an execution to the plaintiff or his attorneys, is a “ suing out ” a writ of execution upon the judgment, within the meaning of the statute. If so, the judgment was not dormant at the time of the vendi. exp. of April 24,1855, issuing, and upon which the lands were so sold; but if the making out and delivering to the plaintiff’s attorney the vendi. exp. of Aug. 18, 1851, did not constitute a suing out an execution, without any further evidence of a delivery, or an intention to deliver the same to the sheriff, then more than five years had intervened between the date of the last execution previously issued, to wit, the execution of Oct. 28, 1846, and the time of suing out the next writ of execution upon the judgment.

What, then, is meant by suing out an execution as provided by the statute ? It is contended by the defendant’s counsel, that the provision of the statute, as expressed by the words used, may be complied with by the clerk so writing, sealing and giving to the plaintiff or his agent, a writ of execution upon the judgment in due form. Put this seems to us a more restricted meaning than intended by the legislature, and than the words as used would seem to import. A writ of execution is a written command or precept to the sheriff or ministerial officer, directing him to execute the judgment of the court. It is the command of the court, addressed to the ministerial officer in writing, and under the seal of the court, containing with more certainty the command of the court, and expressed with more solemnity, than if uttered verbally by the court. It is nevertheless the command of the court to the officer to proceed and execute the judgment of the court. When, therefore, we recur to the meaning, nature and office of a writ of execution, and regard it as it really is, simply a precept addressed by the court to the sheriff, it would seem to follow that such a precept could hardly be said to be sued out or issued, without having not only emanated from the court, the party issuing the command, but also emanating to the officer commanded; otherwise the command or precept could not properly he said to have issued. Ve do not suppose that an actual delivery to the officer is necessary to constitute the suing out of a writ of execution. The law authorizing the issuing of an execution to any county within the state, precludes the idea that only an actual delivery of the writ, by the clerk to the sheriff, is contemplated. Nor do we doubt the propriety of the clerk’s giving or intrusting the writ of execution to the plaintiff or his attorney, to be by such party in interest delivered to the sheriff. But we do hold that the plaintiff cannot properly be said to have sued out a writ of execution, a precept to the sheriff, until he has caused the same to be actually or constructively delivered tó the sheriff. A writ of execution, enclosed by letter, properly directed to the sheriff, and sent by mail within the time limited for issuing or suing out the writ, would doubtless be a sufficient delivery to the sheriff; and in such case, even though not actually received by the sheriff until after the expiration of the five years, the suing out of the writ might perhaps be well held to take effect by relation, or the delivery regarded as made by the clerk on mailing the letter. Nor is it necessary that the mail or any other particular mode of transmitting the writ of execution to the sheriff be adopted. It will be sufficient, doubtless, if the plaintiff deliver the writ to a messenger sent with the bona fide intention of a delivery to the sheriff for the purpose of having it served; or, if it be sent by any other reasonable agency, with the intent of having the writ without unnecessary delay, and with reasonable certainty, delivered to the sheriff for service, it would probably be held sufficient.

Having the writ of execution delivered to the officer, attended with the usual effort to make service and the return thereon by him, affords a reasonable public claim, on the part of the plaintiff, that the judgment remains in full force, which would be wanting, by dispensing with the writ being issued to the sheriff.

The reasonableness of this interpretation of the provision of the statute is well illustrated by this case. By reason of the vendi. exp. not having been delivered to the sheriff, no evidence was afforded to those interested in ascertaining the continuance of the judgment lien acquired by the levy of the execution of Oct. 1846, until the vendi. exp. of March 12, 1855, was delivered to the sheriff.

Third persons might, from the long intervening time, have well supposed that the judgment was satisfied, and had ceased to be a lien at any time after the expiration of five years from the date of the fi. fa., as shown upon the foreign execution docket of the sheriff. Indeed, third persons in interest, wishing to purchase or obtain liens upon the land so levied upon, at any time previous to the entry of the last vendi. exp. (of 1855) would, in all probability, have only examined the sheriff’s foreign execution docket of that county to the date of five years anterior to the time of making such examination; and, finding no evidence of a writ of execution within that limit, he might reasonably conclude no foreign judgment was a lien upon the land. So, too, the owner of the land, if a judgment surety, might himself be entirely misled by the same state of facts, and be thereby led to believe the judgment satisfied by his principal, and no longer a lien upon the lands.

"We think, therefore, the judgment was dormant at the time of issuing the vendi. 'exp. upon which the lands were exposed to sale by the sheriff, and that the court of common pleas erred in confirming the sale; and for this cause the order of confirmation must be reversed and set aside.

Judgment accordingly.

Swan, O. J., and Brinkeriioee, Scott and Peck, JJ., concurred.


author: J. R. Swan, C. J.

text:
    James M. McKinney et al. v. Thomas McKinney et al.
    Some of the original surveys in this state having been made by the magnetic and some by the true meridian, a call “ due west,” made in a contract for the subdivision of an original section, has not a determinate meaning fixed by judicial interpretation. Where the original survey has been made by the magnetic meridian, and subdivisions of the section have afterwards been made, there arises a strong, perhaps conclusive presumption, that such subdivision lines were intended to be run by the magnetic meridian. But even when the original survey was made by the true meridian, new subdivision lines, unless so made in reference to the original courses as to manifest an intention to be controlled by the original courses, would, in general, be run by the magnetic meridian, as that is the general usage in running lines. The question, however, must be deemed, in general, a mixed one of fact and law, to be determined by the texms of the calls and extraneous circumstances.
    Where two causes of action are properly joined, but not separately stated or numbered in the petition, and the defendant, without objection by motion, answers both, and proceeds to trial, he waives the objection.
    Where the cause of action is in the nature of an action of ti’espass for mesne profits, and the petition claims damages for nineteen years rent preceding the commencement of the suit, the defendant, to have the benefit of the statute of limitations, should insist upon it as a bar, in his answer, or as a specific ground of demurrer. If, instead of doing so, the defendant, by answer, simply denies the allegations of the petition, he cannot, on the trial, also insist upon the bar of the statute.
    In Error, to the District Court of Miami county.
    The original action was for the recovery of real estate, under the code. The petition alleges that the plaintiffs have the legal estate in, and are entitled to the possession, and that the defendants wrongfully withhold the possession from the plaintiffs of a certain tract of land described in the petition, and that for nineteen years the defendant has wrongfully kept the plaintiffs out of the possession of said land. The land is described, in the petition, as commencing at the southeast corner of a certain tract; “ thence north four rods, with the east line of section thirty-two, in Miami county,” etc.; “ thence due west to the place of beginning,” containing about thirty-eight acres. The prayer of the petition is for judgment for the land, and one thousand dollars damages for being kept out of the possession.
    The two causes of action are not numbered, or otherwise separately stated.
    The answer denies “ the claim of title set up by the plaintiffs, and also the wrongful detention, as set forth in the petition,” etc.
    By the original record introduced on the trial in this case, it appears that John R. McKinney, in his lifetime, owned, in common with his brother Thomas McKinney, all the remaining part of fractional section number thirty-two, township one, range twelve, between the Miami Rivers, being in Miami county, Ohio, more or less, bounded on the north and east by the section line, on the south by lands of William Campbell (being originally part of same fraction), and on the west by the Great Miami River; that upon the 26th day of June, 1884, Thomas McKinney, holding the legal title as aforesaid, executed a bond, conditioned to convey to the heirs by good and lawful warranty deed in fee simple, upon certain conditions, the following tract of land, it being in fraction number thirty-two, township one, range twelve, between the Miami Rivers, “ beginning at the center of the east line of the land owned by the said Thomas McKinney, thence running due west to the Great Miami River, containing, or supposed to contain, one hundx’ed and fifty-nine acres, be the same more or less,” in such way and manner that the same may be divided, among the said widow and heirs, ixi the same way that it might and would have been had said deed been made in the lifetime of John R. McKinney.
    In August, 1835, a decree was rendered, on petition filed by said heirs of John R. McKinney against Thomas McKinney, to make title, in the language of the bond aforesaid, or that upon failure, the decree should operate as a conveyance; and upon this title so decreed, and its opex’ation as a conveyance, this suit was brought.

      Upon the trial in the district court it is claimed that there is error in this—
    1st. The court rejected all testimony “aliunde” the above mentioned record, to explain the intention of the court of common pleas in using the terms “ due west.”
    2d. That the court refused to charge the jury, that by the terms “ due west,” was meant a west to be ascertained by the meridian; and did instruct the jury, that the terms “ due west” as used in said decree, meant a west according to the bearings of the surveyor’s compass at the time of the decree.
    3d. The court erred in limiting the recovery of rents and profits to four years.

      Thurman and Fullerton, for plaintiffs in error, insisted—
    That “due west” is a line at a right-angle to the true meridian.
    The rule that, in general, the calls in a grant are presumed to be for magnetic courses, is a rule of those states, or districts, in which the original surveys were so made. But there is no such general rule where the original surveys were made by the true meridian, as in the case of congress lands. Act of May 18,1796, Swan’s L. L. 35.
    Counsel further insisted, that the lands in controversy were, by the laws of congress, directed to be surveyed by the'true meridian.

      Odlin and Warden, for defendants in error, insisted—
    That the words “west” and “due west” are relative terms, and, in common acceptance, have relation to “west” and “ due west” as ascertained by the compass, it being the point indicated by the working instrument of the surveyor, the true meridian being the exception for all practical purposes.
    Now the court, in defining the requirement of “west” and “ due west,” will judicially take notice of the legislation of congress as to the mode of survey, upon which all our titles rest, and the actual practice in running of lines under this legislation in the district and section, which is the subject-matter of dispute; and if the court find a construction given to the term “west” and “due west,” they must give the language that construction, irrespective of evidence of quantity.
    Counsel further insisted, that the lands in controversy were, by the laws of congress, directed to be surveyed by the magnetic meridian.
   J. R. Swan, C. J.

Counsel for the plaintiffs, we think, lay too much stress upon the words “ due west.” In this state two meridians have been adopted in the survey of the public lands. In the Virginia military district the original surveys were made by the magnetic meridian. Most of the congress lands were surveyed by the true meridian. In contracts and private surveys the magnetic meridian has been generally adopted.

Where an original survey has been made by the true meridian, and contracts are made and deeds executed for parts of such surveys, calling for and adopting the calls of parts of the original lines of the survey in the description, it, is clear that such calls of the original courses mean the true meridian; and if the contracts or deeds thus made call for courses originally surveyed by the magnetic meridian, it is equally clear that such calls mean the magnetic meridian. In the subdivision lines, and in contracts of sale and deeds for parts of sections originally surveyed by the true meridian, subdivision lines, having no reference to the original lines, would, in general, be surveyed by the magnetic meridian, as such is the usual mode of surveying lands in all parts of the state.

It is manifest from all this, that, in respect to surveys in this state, “ west ” or “ due west,” in one class of original surveys, means a line at a right angle to the true meridian; and in another class “ west ” or “ due west ” is west according to the bearings of the surveyor’s compass at the time of the original survey. In giving, then, an interpretation to these words, a fixed, determinate, judicial construction cannot be adopted, and their meaning must frequently depend upon and be controlled by extraneous facts.

In the case before us, the fact that the original section was owned in common; that the calls of the courses of the original survey were for the true or the magnetic meridian; that the original purchasers from the government, or their representatives, in using the words “ due west,” were or were not doing so with a View to a subdivision of the section between them, and with reference to the original courses, were proper subjects of inquiry and consideration for the jury, under the direction of the court, to determine the disputed line.

The court below seem to have been of the opinion that in consequence of the decree made on the contract of Thomas McKinney to convey, the question of the construction of the words “ due west,” should be confined to their interpretation as used by the court, without reference to the contract upon which the decree was made; and that, therefore, in construing the words, no evidence showing the surrounding circumstances under which the contract was made, and the words were used by the parties, could be received. In this we think the court were mistaken. The decree was not of an adversary character. It merely confirmed, a contract and rendered it operative; and the description of the premises in the contract and in the decree is identical. The decree is the language of the parties adopted by the court, and the decree must be construed in view of the whole record. The court use the words as the parties had used them, and in affirmation of their contract set forth in the record, and upon which the decree was made.

Some of the lands in Ohio, which the act of congress required to be surveyed by the true meridian, were surveyed by the magnetic meridian. Am. State Papers, Lands, vol. 1, 83. If the maps of the state conld be regarded as evidence, the lands in Miami county would seem to indicate that they were not surveyed by the true meridian. But whether they were or not was a fact, slight it may be, but one to which the parties were entitled in giving construction to the words “ due westthe courts being precluded from giving them, in every case, a uniform judicial interpretation, inasmuch as the magnetic and true meridian have been adopted in different surveys.

The fact that an original survey was made by the magnetic meridian would raise a strong, perhaps a conclusive presumption that all deeds and contracts, referring as well to the original as subdivision lines, had reference to the magnetic meridian. And even where the original survey was made by the true meridian, calls of courses of new subdivision lines, unless so made in reference to the original courses as to manifest an intention to be controlled by original courses, would in general be run by the magnetic meridian, as that is the general and customary usage in running lines; hut each case must depend so much upon the calls, the connection of the subdivision lines with the original true meridian lines and other facts and circumstances, that no definite general rule of construction can he prescribed.

It is unnecessary to say more, or to find, indeed, that the court below erred as to the construction of the words under consideration upon this part of the case, as the judgment below, we think, must be reversed at any rate upon another assignment of error.

As to the limitation of the action for mesne profits.

The limitation of actions prescribed by the code does not apply to cases where the right of action had accrued before the code took effect; and the statutes theretofore in force are applicable to such cases according to the subject of the action, and without regard to the form. The code has substituted for the action of trespass for mesne profits which was limited to four years, an action which is described in the code as a claim for “ damages for withholding real property and for the rents and profits.” Such cause of action may, under the code, be united with an action for the recovery of real property. These two causes of action are separate, and should have been separately stated and numbered in the petition. The defendant, however, did not think proper to object by motion on this account; and having answered both causes of action, and proceeded to trial, he has waived all objection to this informality.

We have already held, at the present term of this court, that where the petition on its face discloses that the cause of action is barred, the defendant may, by demurrer, specify that the petition shows a cause of action barred by statute.

This ruling is in analogy to the practice in courts of equity. Like rules of equity pleading, however, require a defendant, where the cause of action is so stated in the petition that he cannot demur, to plead the bar, otherwise he waives the defense. So, under the code, the defendant in this case should have insisted by his answer upon the bar of the statute, and by not doing so, waived that defense.

The court below, therefore, erred in allowing the defense of the statute of limitations upon an answer simply denying the allegations of the petition.

We do not deem it necessary to decide the other questions made by the petition in error.

The judgment below will be reversed and the cause remanded for a new trial.

Brinkekhoff, Scott, Sutliff and Peck, JJ., concurred.


author: Scott, J.

text:
    Phebe Jones v. David Devore.
    A valid sale and conveyance of lands by the county auditor, for the non-payment of taxes, bars all preexisting rights of dower, inchoate or perfect.
    The 39th section of the act of March 12, 1840, “ prescribing the duties oí county auditors,” does not make the deed of the county auditor prima facie evidence of a valid title, unless it be shown to have been made in pursuance of authority given by law. Lessee of Carlisle v. Longwarlh, 5 Ohio Rep. 369, followed.
    Petition for dower. Reserved in the District Court of Brown county.
    The plaintiff in this cause filed her petition in the court of common pleas of Brown county, claiming dower in certain premises, as the widow of Tarpley Jones, deceased, and setting forth that the defendant is entitled to the next immediate estate of inheritance.
    To this petition the defendant answered, denying the plaintiff’s right to dower in the premises, and claiming that he holds the legal title to the premises, free and clear of such right of dower. He avers that he purchased the premises for taxes, and that he has a deed for the same, made to him by the auditor of Brown county, upon his said tax purchase, which invests him with a perfect title, free of any dower claim; and sets up said deed as a bar to the claim of plaintiff. He further avers, that his said, tax title is in all respects perfect and regular,
    To this answer a general demurrer-was interposed by the plaintiff
    The court of common pleas sustained the demurrer and decreed accordingly. And upon appeal to. the district court, the questions presented by the pleadings were reserved for the decision of this court,

      Marshall § White, for plaintiff

      David Gr. Devore, for defendant.
   Scott, J.

The defendant in this case does not deny the coverture, seizin and death of the husband, alleged in the petition, but sets up as a bar to the right of dower, resulting, prima facie, from these facts, a special title in himself, derived from a sale for taxes. The plaintiff’s demurrer must be regarded as referring either to the matter of this defense, or to the manner in which it is pleaded.

And, first, as to the matter of the defense, the question arises, whether dower is barred by a valid sale and conveyance of the premises for the non-payment of taxes.

All the proceedings under the statute, for the sale of lands for non-payment of taxes, are in rem, and not in personam. They operate, if at all, upon the land itself, and not merely upon the title of the person in whose name it may have been listed for taxation. The statute which regulates this subject, after prescribing the mode in which the preliminary proceedings shall be conducted, and the sale and deed made by the auditor, declares, in section 39, “ that the deed so made by the auditor, shall vest in the grantee, his or her heirs or assigns, a good and valid title, both in law and equity.” Swan’s Stat. 68. A valid tax title, therefore, extinguishes all previous titles, legal or equitable, inchoate or perfect; and the purchaser takes the premises discharged from all .previous liens and incumbrances whatever. The tax is assessed upon the land itself, and is a paramount lien upon it; and its payment can be enforced only by the sale of the specific property taxed. All persons having any interest in the premises, must, therefore, see to the payment of the taxes at their own peril. In Gwynne v. Niswanger, 20 Ohio Rep. 556, it was said by the court: “ A tax title, from its very nature, has nothing to do with the previous chain of title; does not in any way connect itself with it. It is a breaking up of all previous titles. The party -holding such title, in proving' it, goes no further than his tax deed; the former title can be of no service to him, nor can it prejudice him. *' >:< * It matters not how many different interests may be connected with the title, what may be the particular interest of the party in whose name the property may be listed for taxation; it may be a mere equitable right; if the land be regularly sold for taxes, the property, accompanied with a legal title, goes to the purchaser, no matter how many estates, legal or equitable, may be connected with it.”

It follows, then, from the nature of a tax title, and the terms of the statute, that a valid sale and conveyance of lands, for the non-payment of taxes, will bar even the favored right of dower.

But, secondly, is this special title, which can operate as a defense, only by reason of its special character, sufficiently pleaded to constitute a defense to the action?

This proceeding is under the former system of practice. The defense relied upon is, in substance, a regular and formal conveyance of the premises made to the defendant by the county auditor, in pursuance of a sale for taxes. No state of facts is averred in the pleading which would authorize the county auditor to sell and convey the premises. It is not alleged that a tax was legally assessed upon the premises, that a delinquency occurred in the payment of taxes, or that notice of the sale was given by advertisement, as required by statute. In short, neither the authority of the officer, nor the acts done under it, are shown; and courts will not raise a presumption in behalf of an officer entrusted with the power to sell land for the nonpayment of taxes, to cover any radical defect in his proceedings. Blackwell on Tax Titles 585. We think the defendant’s answer is, therefore, clearly defective, according to the principles of common law, and must be held insufficient, unless the statute makes the auditor’s deed* in case of a sale for taxes, evidence that the law has been complied with. If that be so, the general averments of the answer would be sufficient; for the law would imply from the existence of a deed, made in due form, and by the proper authority, the existence of every preliminary fact necessary to its validity.

It does not appear from the answer, when, or under what law, the defendant acquired his tax title. It may have been under the statute of 1825. And a construction was given to this statute in Lessee of Carlisle v. Longworth, 5 Ohio Rep. 369, where it was held, that a deed from the county auditor, for lands sold for taxes, cannot be received in evidence without transcripts of the various records of the proceedings upon which the sale was founded.

The act of 1825, to which, in this case, the court gave a construction, after specifying the preliminary proceedings which should authorize the .making of a deed, proceeded, in the 9th section, to declare the effect of the deed so made, in the following terms: “ The deed made by the county auditor as hereinbefore specified, shall be received in all courts as prima facie evidence of a good and valid title in the purchaser,” etc. In regard to the effect of this section, the court said: The legislature do not say that a deed made by the county auditor shall be received as prima facie evidence of a good and valid title, but, ‘ the deed,’ ‘ as hereinbefore specified.’ In other words, the deed made by the auditor jn pursuance of this act. This is the manifest intention.- Unless made in pursuance of the act, it is made without authority, and void; but if in pursuance of the act, it is (prima facie evidence ’ of title. Before the deed made by the county auditor can be received as evidence, it must be shown that he had authority to make it.”

This decision, and the construction thus given to the statute, have never been overruled. The principal effect of the decision is to cast upon the party setting up a tax title, the burden of proving the regularity of the proceedings preliminary to the making of the deed. Now, as he holds the affirmative upon any issue touching the validity of his title, as it was his duty to inquire into the facts affecting the title before purchasing, and as he has full means of showing the proceedings to have been regular, whenever they were so in fact, we do not think this an unreasonable burden. And we are not, therefore, disposed to overrule the construction thus settled.

Rut, it is probable, from an auditor’s deed which we find among the papers of the case, (and which bears date May 12,1851, and purports to be founded on a sale made on account of the taxes of 1841 and 1842,) that the defendant’s title was acquired under the act of 1840.

So far as the effect of the auditor’s deed is concerned, the terms of this act are quite similar to those of the act of 1825. The act of 1840, “prescribing the duties of county auditors,” (Swan’s Stat. 62,) after specifying the preliminary acts to he done, and how, when, and under what circumstances the deed shall be made by the auditor, thus declares the effect of the deed:

“ Sec. 39. That the deed so made by tbe auditor, shall vest in the grantee, his or her heirs and assigns, a good and valid title, both in 'law and equity; and shall be received in all courts as prima fade evidence of a good and valid title in such grantee, his heirs and assigns.”

Here it is apparent that the deed which is to be “ received in all courts as prima facie evidence of a good and valid title,” is one which “ shall vest in the grantee, his or her heirs or assigns, a good and valid title, both in law and equity.” It could not have been intended to give such effect to a deed made by a county auditor without authority. The language is, “ the deed so made by the auditor, shall vest,” etc. The adverb “ so,” in this connection, can only mean “ as hereinbefore specified,” which was the exact language of the act of 1825. The construction which was given to this latter act in 1832, was known to the legislature of 1840, and it is to be presumed that that body, in using terms of precisely the same import, intended them to receive a similar construction. We hold, therefore, that by the act of 1840, the deed of the county auditor neither vests a good and valid title in the grantee, nor is it prima facie evidence of such valid title, unless it be shown to have been made in pursuance of authority given by law. And as the answer in this case/ does not state facts sufficient to show such authority, the plaintiff's demurrer must be sustained.

As the defendant may desire to amend his answer, the case will be remanded to the district court for further proceedings.

Swan, C. J., and Beinkerhoee, Sutliee and Peck, JJ., concurred.


author: Brinkerhoff, J.

text:
    Caleb Nichols v. The State of Ohio.
    1. In the trial of an indictment for maliciously stabbing with intent to wound, it is not error for the court to refuse to charge the jury that they cannot rightfully convict, save for an assault or assault and battery, if they find the facts to be such that, had death ensued from the wound, the crime would have been manslaughter; nor is it error for the court to charge the converse of the proposition requested to be charged.
    2. Evidence of the intoxication of the defendant at the time of committing the act for which he is indicted, having been admitted on the trial in view of its bearing on the question of intent, it is not error for the court to refuse to charge the jury that such intoxication is “ a circumstance proper to be taken into consideration by them, and should have its just weight in determining the malicious intent.”
    3. The above holdings do not contravene the principle decided in Pigman v. The State, 14 Ohio Rep. 555.
    Motion for the allowance of a writ of error.
    The case is stated in tlie opinion of the court.

      Charles C. Goddard, and J. Q. Lane, for Nichols.

      John C. JTazlett, prosecuting attorney, for the state.
   Brinkerhoff, J.

Nichols, the defendant below, was indicted in the common pleas of Muskingum county, under the twenty-fourth section of the act “providing for the punishment of crimes.” .

The indictment contained two counts; the first, for maliciously stabbing, with intent to kill, one Zachariah Riley; and the other, for maliciously stabbing, with intent to wound, the said Riley.

On the trial, the following bill of exceptions was taken and made part of the record:

“ Be it remembered, that on. the trial of this cause, * * * * evidence having been given tending to show that defendant was guilty in manner and form as he stood charged in and by the said indictment, the defendant, by his counsel, asked the court to charge the jury that they could not find him guilty under this indictment, save of an assault or an assault and battery, if in the opinion of the jury the facts were such that, had death ensued from the wound, the crime of the prisoner would have been manslaughter; which instruction the court refused to give to the jury; but the court did charge the jury that, although the defendant could not be convicted under the first count of this indictment, save of an assault or an assault and battery, if the crime would have been merely manslaughter, in the event of death, yet that they might find the defendant guilty under the second count of said indictment, although the crime would have been manslaughter in the event of death. And evidence having been further introduced tending to show that the defendant was intoxicated at the time of the commission of the alleged offense, the said defendant, by his counsel, further asked the court to charge the jury, that drunkenness of the accused at the. time of the commission of the alleged offense, is a circumstance propier to be submitted to the consideration of the j ury, and should have its just weight in determining the existence of the malicious intent charged; which instruction the court refused to give to the jury; but the court did charge the jury, that drunkenness of the accused was entitled to weight, as affecting the presumptions arising from the declarations of the accused as to his intent, made at and shortly after the time of the commission of the alleged offense. To all which refusals and charges the defendant excepted,” etc.

The defendant was found guilty, and sentenced to imprisonment in the penitentiary for the term of one year.

A motion is now made here for the allowance of a writ of error to reverse this sentence and judgment; and as the defendant below is now imprisoned in the penitentiary, and it is represented that he is unable to procure bail, we have, at the request of counsel on both sides, consented to make a final disposition of the questions involved in the case, upon this application.

It is assigned for error, that the court below erred in refusing to charge the jury as requested by counsel for defendant below, and in charging the jury as it did charge.

The first question made by the bill of exceptions is this:

Can there be a rightful conviction under a count for maliciously stabbing with intent to wound, under such circumstances that, had death ensued, the crime would not have been murder either in the first or second degree, but would have been manslaughter only? ¥e are very clearly of the opinion that there may be, and that' the court below did not err in so holding.

In the crime of murder, both in the first and second degree, as defined by the statute of this state, the intent to kill is an essential ingredient. The killing must be “purposely” done. Now, if the charge which the court below was requested to give upon this point be correct, then there never can be a conviction for stabbing with intent to wound, unless the defendant is also guilty of stabbing with intent to kill. This would be, by construction, to render the two crimes identical; which is an absurdity.

But, it is said, the court below charged the jury that the defendant might be convicted under the second count, although, had death ensued, the crime would have been manslaughter only. That the stabbing with intent to wound must be malicious, but that our statutory definition of manslaughter excludes malice, and that, therefore, the court below erred.

The error of this argument is in the assumption that our statutory definition of manslaiighter necessarily excludes malice. Malice, under our statute, is not a necessary ingredient of manslaughter; but the act of maliciously killing, unintentionally, is manslaughter nevertheless. Although malice is not necessary to constitute the crime, yet the presence of the aggravating ingredient, malice, does not, certainly, render the act less criminal than it would have been without malice.

Did the court below err in holding, as it did substantially, that, in a case of this kind, the intoxication of the accused had nothing to do with the question of malice?

This is a question much more serious and difficult than the preceding, and in respect to which our minds have not been free from doubt; but, after a long and somewhat anxious deliberation, we have unanimously come to the conclusion that there was no error in the charge of the court below on this point.

All the authorities agree that drunkenness is no excuse for crime. Crime, when all the acts of hand and mind which constitute it actually exist, is not the less criminal when committed by a person intoxicated. A drunken malice is as dangerous, and may be quite as wicked, as a sober malice; and it is a sorry consolation to a sufferer from a murderous stab, and to a community which is responsible for his protection, to be told that the act was done by a man who was bound in morals to keep sober, and who had the power to keep sober, but who' had become voluntarily drunk. Nevertheless, it has been held, in this state, that where a peculiar knowledge was. an element of the guilty act, requiring nice discrimination and judgment, as in passing a counterfeited bank bill, knowing it to be counterfeited, and where deliberation and premeditation are necessary ingredients of the crime, as in murder in the first degree, evidence of intoxication is admissible, and ‘ proper to be taken into consideration by the jury, in determining the question as to the guilty knowledge in the one case, and as to the deliberation and premeditation in the other. So, if the accused was so drunk as not to know what he was doing, the fact of intoxication may doubtless be given in evidence for what it is worth for the purpose of showing that he did not intend at the time to do what he in fact did do. Pigman v. The State, 14 Ohio Rep. 555. So far as we are advised, there is no reported case in Ohio requiring us to go beyond this; and to this extent, on a fair construction of the language-of the court below in charging the jury, the prisoner, in the case before us, had the benefit of the evidence in regard to his state of intoxication. And this, too, seems to be the full extent to which we are led by the general current of authorities in other states. Com. v. Jones, 1 Leigh 612; Com. v. Haggerty, Lewis C. L. 403; Pirtle v. The State, 9 Humph. 664; Swan v. The State, 4 Humph. 136; Haile v. The State, 11 Humph. 154; 2 Parker’s (N. Y.) C. Rep. 223-235.

We will not say but that, admitting the correctness of these decisions, a refined and rigid logical theory might not require us to go further. But here the authorities authorize us to stop; and here we think a proper regard to the public safety in the practical administration of criminal justice requires that we should stop. This kind of evidence is at best, and in any case, of dangerous tendency in its practical application. Intoxication is easily simulated. It is often voluntarily induced for the sole purpose of nerving a wicked heart to the firmness requisite for the commission of a crime soberly premeditated, or as an excuse for such crime. Yet these pre-existing dispositions may be difficult or impossible to prove. And when we admit evidence of intoxication to rebut a guilty knowledge requiring nice discrimination and judgment, to rebut a charge of deliberation and premeditation, and to show that the accused did not at the time intend to do the act which he did do, we think we have gone far enough; and that, looking to the practical administration of the criminal law, a due regard to the public safety requires that the mere question of malice should be determined by the circumstances of the case, aside from the fact of .intoxication, as in other cases.

Motion overruled.

Swan, C. J., and Scott, Sutliee and Peck, JJ\, concurred.


text:
    The Lessee of the Incorporated Village of Fulton v. John Mehrenfeld.
    1. A dedication of ground for public uses may be made in Ohio, either under the statute or according to the rules of the common law.
    2. When a valid dedication of a street has been made in either form, an action may be maintained by the proper municipal corporation to recover the possession from any one who wrongfully withholds it.
    3. The statutory dedication, under the laws in force in A.D. 1830, operated to transfer the estate by way of grant, requiring no assent on the part of the public, and to be effective as a dedication, the solemnities required by the statute, as to acknowledgment and recording, must be complied with.
    4. A defective dedication under the statute is evidence, as an act in pais, of a dedication at common law by the owner.
    5. Dedications of land to public uses at common law in general, operate by way of estoppel, and not as grants or transfers of an interest.
    6. To constitute a valid dedication of a street or highway at common law, there must be not only a dedication, to public uses by the owner, but also an acceptance of such dedication by the public, and these may be shown by the acts and declarations of the parties and the surrounding circumstances.
    In Error to tbe Superior Court of Cincinnati.
    Tbe original action was ejectment brought by tbe plaintiff in error, before tbe code of civil procedure, in tbe court of common pleas of Hamilton county, and tbence transferred to tbe superior court of Cincinnati.
    Tbe case was submitted to tbe superior court on tbe trial at special term, and tbe court found for tbe defendant in error. Thereupon tbe plaintiff in error moved for a new trial, on tbe ground that tbe finding of tbe court was against tbe law and tbe evidence. Tbe court overruled this motion and entered judgment on its finding, and tbe plaintiff in error excepted. Tbe case was taken on error to tbe superior court at general term, and tbe judgment at special term affirmed.
    To reverse these judgments of tbe superior court tbe plaintiff brought this proceeding in error, and assigns for error—

      1st. That the finding of said court at special term was against the evidence; and
    2d. That the judgments below were against the law.
    The further facts in the case appear in the opinion of the court. ^

      John S. Nixon, for plaintiff in error.

      Bates § Scarborough, for defendant in error.
   Peck, J.

This ease was disposed of in the court below, (2 Hand. S. C. Rep. 176,) on the ground that there had been no such dedication of Market street above the Columbia road, as would authorize the corporate authorities of Eulton to maintain ejectment against one claiming title, and withholding the possession from the uses to which it was supposed to have been dedicated. And it has been mainly argued before us upon the same ground.

Now, what are the facts disclosed by the record bearing upon this dedication ?

The premises in controversy are a strip of land lying on the west or upper side of Columbia road, in Eulton township, some thirty feet front, and extending hack from said road and up the hill on the southwest part of a ten acre tract of land formerly owned by Samuel W. Davies, and extending from the river up to and upon the hill, claimed by the plaintiff as having been dedicated by said Davies as early as 1830, as part of Market street, extending from the river the entire length of the south line of said ten acre tract.

In 1830 Davies, being in possession and owner in fee of said tract, subject to a mortgage before that time given by him to the Bank of the United States, caused about seven acres on the east end of the tract to be subdivided into lots, with streets and alleys, extending from the river westwardly, so as to include one range of lots on the hill west of Columbia road, in which plat, among other things, he appropriated forty feet on the south line, to be added to Market street, extending from the river to that portion of the ten acres which was not thus subdivided, and terminating in the unplatted part.

This plat, though signed and recorded, was never acknowledged, as the law then in force required;. and in A. D. 1834, Davies, in consideration of the deposit of collateral securities with the bank, as further guarantee of their mortgage lien, procured from said bank a confirmation of said subdivision, a release from the operation of the mortgage of certain lots before that time sold by said Davies, and an agreement to release other portions, from time to time, if sold by said Davies at prices satisfactory to them, and the proceeds of the sales delivered to them as further collateral security for the mortgage debts. Subsequently the bank instituted proceedings for the foreclosure and sale of that portion of said mortgaged premises which had not been released, in the superior court of Cincinnati, in which the residue of the property by the order of said court was sold by the sheriff to one Timothy Kirby as purchaser. The lots were sold as lots under the plat, and the portion unplatted, as three acres lying west of the part so laid out. No part of the lots on the west side of Columbia road had been sold or released prior to the sale to Kirby, but were all then sold and conveyed to him.

Kirby subsequently conveyed all the premises thus purchased, by the same description, to Joseph Cowperthwaite and others, of Philadelphia, who, by sundry conveyances, granted all the lots on the east side of Columbia road to various persons, and on the 12th day of September, 1841, conveyed all the tract on the west side of said road, including the tier of lots and the three acres in the rear, to Dundas and others, describing it as five acres of land on the west end of the tract.

On May 15,1844, Timothy Kirby, as agent and attorney for Dundas and others, executed and acknowledged a plat of subdivision of said five acres, dividing the land into sixteen lots, numbered one to sixteen, inclusive; all which lots front on said road and extend back and up the hill to the rear line of the tract, varying from thirty to thirty-three' feet front, and about five hundred and fifty feet rear.

March 27, 1845, Dundas and others, by deed conveyed lot No. 1 in said last plat to N. Graves, under whom defendant claims title. This lot lies within the limits of said Market street, if extended on the west side of the Columbia road. It was also admitted that that portion of Market street which lies east of said road, had been accepted and worked by the corporate authorities of Bulton; but that that portion which lies west had never been worked or openly accepted by them; that it had not been used by any one — a mere “ cul de sac,” running up the hillside, and terminating in the private property of the person platting the ground — and not used or required by any one, until long after the laying out of the ground by Dundas and others.

Since then, the steep and almost inaccessible hillside has been laid off into small lots by Dundas and his assignees, and two streets parallel with said road have been established.

The forty feet appropriated by the Davies plat is therein stated as to be added to the twenty feet laid off by Carr and others, so as to make it a street sixty feet wide, but there is no evidence that the Carr contribution was extended beyond Columbia road.

The first question that arises upon these facts is, was the act of Davies in recording the plat of 1830, such a dedication of Market street west of Columbia road, taken in connection with the subsequent events, as conferred upon the plaintiff the right to maintain this action ? It is not enough that some person or persons, other than the plaintiff, have a right to object to the closing up and alienation of that portion of the street; but has the plaintiff any such right ?

In this action, the plaintiff must recover by the strength of his own right, and not by reason of the weakness of that of his adversary.

Land maybe dedicated to public uses for roads or streets, by conforming to the statutory requirements, or in accordance with the rules of the common law. Either mode is equally efficacious.

The statutory mode in force at'the time, is pointed out in 22 O. L. 301.

The first section requires an accurate map or plat to be made out and recorded before any lots therein are offered for sale, and subjects the proprietor to a forfeiture of ten dollars for every lot sold before such record.

The second section provides that the plat shall particularly describe all the public ground within the town, by its boundaries, courses and extent; and whether it be intended for streets, alleys, commons or other public uses, and all the lots intended for sale, by progressive numbers and their precise length and width; and then provides that the map so made, and acknowledged before certain officers, and recorded, shall be deemed a sufficient conveyance, to vest the fee in the county in which such town lies, in trust, etc.

The statute, as will be perceived, does not require any assent on the part of the jmblic to such dedication, before the estate vests in the public, and, in that respect, differs essentially from a common law dedication. Where there is no express grant to a grantee upon consideration, a dedication of ground to public uses at common law operates by way of an estoppel in pais of the owner, rather than as a grant or the transfer of an interest in the land. City of Cincinnati v. White, 6 Pet. S. C. Rep. 582; Town of Paulet v. Clark, 9 Cranch 202; Hunter v. Trustees of Sandy Hill, 6 Hill 407; Curtis v. Keesler, 14 Barb. 521.

In the case last cited from 6 Hill, it is said to be the creation of an anomalous interest, no grantee in esse being necessary, under which rights are parted with and acquired in modes and by means that are peculiar, and on page 411, is defined to be “the act of devoting or giving property to some proper object, and in such a manner as to conclude the owner.”

Such being the office and effect of a dedication at common law, it is apparent that there is no conflict between it and a statutory dedication. The latter is intended to operate by way of grant, not estoppel. The solemnities of a grant are required to its creation. It is to be acknowledged and recorded as a grant. And then the statute declares its effect as a grant by the words, “ when so made and recorded, it shall be a sufficient conveyance, vesting the fee in,” etc.

Such being the object and effect of the statute, it is obvious that in order to create a statutory dedication, the provisions of the statute, in reference to an acknowledgment, must be complied with, and that without such acknowledgment, it is no more effective to pass the estate or interest specified, than an unacknowledged deed. We have been referred to the case of Morris v. Bowers, decided in 1834, by the supreme court on the circuit, Wright’s Rep. 750, which is supposed to be decisive of the case at bar, and in which Collet, C. J., says : “ That though the acknowledgment is necessary to pass the fee, the plat, without such acknowledgment, if recorded, would vest the use of the streets-in the public.” That case may have been rightly decided, but the ground assumed by the learned judge is based, we conceive, upon a misapprehension of the objects and.purposes of the statute. A defective plat may be a sufficient devotion of the ground to public uses on the part of the owner; and its acceptance by the public would constitute a common law dedication, though, for manifest reasons, it is not a statutory dedication..

So, too, the reference to the map or plat, found in the subsequent deeds, through which the defendant traces his title, will not supply the want of such acknowledgment, so as to render it a statutory dedication on the part of Davies, and vest the fee or the use, by force of the statute, in the public.

The importance of the distinction between dedications under the statute and at common law is obvious. Under the law then in force, upon the acknowledgment and record of the plat, the fee of the streets and public grounds therein specified, eo instanti, became and was vested in the public for the uses declared, without any act indicating an acceptance on the part of the public; while a dedication at common law only becomes operative upon its acceptance by the public.

Assuming, then, that there was no statutory dedication, was there such a dedication at common law as conferred upon the plaintiff, at the time of suit brought, the right to that portion of Market street delineated upon the plat as west of the road ?

This is not a claim preferred by any of the lot holders to the use of that part of the street, 'by reason of an estoppel in their favor, as purchasers of lots on the plat delineating the street; but is preferred by the public, whose claim, if they have any, depends upon the question of a dedication by the owner, and not of an express grant to them or the public.

To constitute a binding dedication of ground to public uses at common law, there must have been an intention to dedicate, and an actual dedication, on the part of the owner, and an acceptance on the part of the public, which may be proved by the circumstances of the case.

As to that part of Market street which lies below the road, and the other streets and alleys delineated on the plat, such intention to dedicate on the part of Davies, may be fairly inferred from the plat itself, and the language he employs. These streets and alleys were all necessary to the full and beneficial use of the lots prepared for sale, in giving access to, and egress from, them; and the presence or absence of which would enhance or diminish their value. But this is by no means so apparent, in regard to the short strip of Market street west of the road. There was only one range of lots laid off west of the road, all of which fronted upon the road; and there was no alley in the rear by which access to their lots could be obtained from Market street. Only one lot that adjoined Market street, could by possibility have been benefited by its use.

Davies still retained the three acres on the hill in the rear of that range of lots, the access to which he had cut off, except by means of this space, and a corresponding space on the north side.

The more sensible and practical inference from these facts, and the plat itself, passing the range of lots indefinitely, and terminating upon his reserved property, would seem to be, that he thereby intended to reserve it as a means of access to the three acres reserved, and which would otherwise be inaccessible from the road.

If there had been an intention on the part of Davies to dedicate the upper part of Market street, still, upon a careful consideration of the evidence, we do not find that the corporate authorities of Eulton ever in fact accepted of such dedication.

There is no evidence of any user of that part of Market street by any one. Indeed no part of the premises west of the road had been sold to third persons, or was occupied in any way, until some time after the Dundas plat of 1845 — the premises in the rear, in which the street apparently terminated, belonged exclusively to Dundas and his co-grantees, and was then in a wild and uncultivated condition — the hillside steep and precipitous, and it is difficult to see how the street could have been used, or that any one, besides the owners of the ground in the rear, could ever have desired to use it. There certainly is no evidence that the corporate authorities of Eulton ever accepted the dedication of that part of Market street, or assumed any control or direction over it, prior to the bringing of this action. Some affirmative act on their part was necessary to indicate their acceptance. No such act is discovered in this case. On the contrary, nearly twenty-three years from the record of the plat, eight years from the making of the Dundas plat, and seven years from the grant to Cole of the land, are suffered to elapse before they claim the land.

Hut it is said that inasmuch as the corporate authorities of Fulton did accept that part of the street which lies below the Columbia road, it of necessity amounted to an acceptance of the whole, as the road is to be regarded as a unit.

This does not, in our judgment, necessarily follow. The question of acceptance or not, in all cases, is a question of fact, to be gathered from the circumstances. There was no settlement, no parallel road further up the hill with which the street west of the road communicated. The road was the main and perhaps the only thoroughfare from that quarter to the city. The portion below the road to the river had been laid out into lots, streets, commons and market places; many of the lots sold and improved, and the street leading from the river front and passing the mouth of Fulton street to that thoroughfare, had been graded and paved for several years. It would seem to be clear, from these circumstances, that in the absence of any affirmative act of acceptance, those authorities never accepted that strip of road on the west side leading to no other road, settlement or house, and terminating in a three acre lot belonging to the grantees of Davies.

It is claimed that Kirby, in making and acknowledging the plat of 1844, subdividing the lands west of the Columbia road for Dundas and others, acted without authority. If this were so, the subsequent recognition of Dundas and his co-tenants of the plat, in their deeds to N. Graves and others, is ample ratification of the plat.

In short, upon a careful review of all the evidence, we are satisfied that there was no such dedication by Davies, and acceptance on the part of the public authorities of Eulton, of the premises in controversy as entitles the plaintiff to maintain this action, whatever may be the rights of persons who may have purchased lots specified upon the plat, to the use of such street. Even if they may object to an appropriation of the ground to private uses, the public, who have never acted for so long a period, and have permitted alienations to be made and moneys to be expended in costly improvements thereon, have certainly no right now to complain.

The judgments of the superior court are therefore affirmed.

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