text:
    *The State of Ohio, on the relation ot Thomas Sharp and others, v. The Trustees of Township 9, Range 15, Ohio Company’s Purchase.
    The beneficiaries of the fund “ for the purposes of religion,” arising from the-rent of section 29, in the Ohio Company’s purchase, being designated by statute as 11 every denomination of religious societies:” Held—
    1. That persons having no system of religious faith,^written or traditional, can not be deemed a denomination or sect.
    2. That a society having no system of public worship or religious services as a sect or denomination, and being organized for the purpose of maintaining-a library, and being in fact a library association merely, is not a religious society within the terms of the statute above mentioned.
    Mandamus.
    Reserved in Meigs county.
    On the first day of November, 1851, the relators, Thomas Sharp, Jun., Elias P. Davis, and 'William G-reen, filed in the Supreme Court of Ohio, for the county of Meigs, their petition for a mandamus, setting forth “that they are members and trustees of a religious society in Columbia township, being original surveyed town- ’ ship No. 9, of range No. 15, in the Ohio Company’s purchasei inMeigs county; that said society was organized in 1830, and then, gave itself the name of ‘ The First Moral Religious Society of Coilumbia Township; ’ by which name it still exists and is known, having regularly kept up its organization ever since. That up to the year 1849, said society regularly received its dividend, or proportion of the rents of ministerial section 29, appropriated to the ■support of religion in said township, as they were entitled and still ,are entitled to do. That on the first Monday of January, a. d. 1850, in order to draw, and to enable the trustees of said original surveyed township to make a dividend to said society, of the rents of 1849, Joshua Wood, who had been appointed, and was agent of the society for that purpose, as well as the secretary of said society, produced and presented to said trustees of the township a duly certified certificate of the names and number of the members of said society, *above fifteen years of age, and residing in said township; which list was received and approved by said trustees, showing the said number of members to be, as it was, 186; but that the said rents of 1849, not having been collected from the treasurer until after the said trustees went out of office in the spring of 1850, the •said dividend was not struck or paid, or ordered to be paid, by them; that their successors in office, and the present trustees of said township, Adam Bratton, Joshua Wood, Captain, and Joseph Clive, refuse to make or pay, or order the treasurer of said township to pay said dividend, on the ground, and alleging that said society is not a religious society, and therefore not entitled to the same. And these relators show, that their said agent presented to said township trustees a like certified list of their members, on the first Monday of January, 1851, showing the number of their members then to be 174, which said trustees likewise received and retained without objection thereto. That although the said rents, ■for the years 1849 and 1850, are now in the hands of the treasurer of said township, and the same, or at least that part thereof payable to said society, amounting to seventy-three dollars, as relators are informed and believe, has not been paid over or expended by ■said trustees; and although the said society, by its said agent, has often called upon said present trustees of said township and requested payment thereof; yet they refuse to pay, or cause to be paid, the same or any part thereof, and also refuse to give any satisfactory information as to the amount thereof, the amount due other societies, or the amount of rents so collected.”
    In accordance with the prayer of the relators, an alternative writ of mandamus was, on the 19th of November, 1851, issued out of the Supreme Court of the county to said trustees of said township, commanding them to pay over, or cause or order to be paid over to said society, or its lawfully constituted agent, forthwith, the said sum of seventy-three dollars, or such sum as may be the dividend or proportion of said rents, for the years 1849 and 1850, of said society, or to show cause, by the first day of the next term of said court, why they have not paid the same.
    The defendants, still refusing to pay the dividend sought by the*relators, returned the alternative writ with an answer, setting forth:
    “ That the said society, on whose behalf the said relators have instituted and now prosecute this writ, entitled, ‘ The First Moral Religious Society of Columbia Towhship,’ is not- a religious society, according to, and within the true sense, meaning, and intent of the ordinance of Congress, of July 23, a. d. 1787, providing that the lot No. 29 in each township, or fractional part of a township, should be given perpetually for the purposes of religion, and the grant and laws in pursuance thereof and in accordance therewith, and the trust thereby created and provided.”
    The relators reply, that “ said society is a religious society within the said intent, sense, and meaning of said ordinance, grant, and laws.”
    The issue thus made was, with the proofs, submitted to the district court of Meigs county, as the successor of the Supreme Court, of the county, and the court found the following facts, specially:
    “ That the said First Moral Religious Society was organized in the year 1830, under and in pursuance of the act entitled ‘ an act. for the incorporation of religious societies,’ passed February 5,1819. That the society adopted a constitution, of which the following is-a copy:
    ‘ Constitution of the Moral Religious Society, Columbia Township, Meigs County, Ohio.

    ‘ Whereas religion and morality are generally acknowledged as essentially requisite to the well-being, good order, and happiness of society: Therefore, to better promote these great sources of human happiness, we form ourselves into a religious society, agreeably to the act of Ohio for the incorporation of religious societies, passed February 5, 1849, to be governed by different acts of Ohio, for the incorporation of religious societies, and the following articles,, to wit:

      ‘Article 1. This society to be known by the name of the First Moral Religious Society, in the township of Columbia, Meigs county,, Ohio.
    *‘Art. 2. The society shall appoint three trustees, one clerk, and one agent, who shall be treasurer, to be elected by ballot.
    ‘Art. 3. It shall be the duty of the treasurer to take charge of and manage the business of the society agreeably to these articles and such by-laws and regulations as the society shall from time to-time establish. The clerk shall make a fair and accurate record of all public proceedings; likewise of all amounts, receipts, and expenditures of the society; the agent to perform such duties as the society shall direct, and as treasurer to receive and safely keep the funds of the society which are to be at the disposal of the society.
    ‘Art. 4. All moneys or funds that shall be expended shall be by the order or direction of the society, and drawn from the treasury on the order of the trustees, which shall be countersigned by the clerk.
    ‘Art. 5. The officers of the society shall meet on the last Saturday in April annually, and settle up all business of the preceding year.
    ‘Art. 6. The trustees, or, if they shall refuse, any three members, shall have a right to call a meeting of the society by setting up notice in three public places in the township.
    ‘Art. 7. This society shall have a right at all times, two-thirds concurring, to alter, amend, or change these articles; and shall any office become vacant, the trustees, or should there be but one, that trustee and the clerk shall fill the vacancy.’
    “Which constitution was signed by its members present at its first organization, being thirty in number, and by others who, from time to time, havebecome members since. That the society have kept up their oiganization ever since, its present members numbering one hundred and twenty,four ; that a portion of the ministerial moneys, payable to religious societies in said Columbia township, was regularly paid to them, as such religious society, from the time of their organization until the accruing of the funds about which the present controversy exists; that only three dollars of said moneys paid to said society have been expended for preaching, the balance having been appropriated for the ^purchase of books for a library and for gratuitous distribution. That the said society has, in pursuance of its resolutions to furnish each destitute head of a family among its members with a copy of the Bible, and each young man and woman with a pocket copy of the New Testament, distributed seventy-two Bibles and seven ty-two Testaments; that the remaining books of the society have been and are kept as a library, for the use of the members and others, under certain restrictions, and are, in the main, books of a moral and religious nature. That up to 1833 the society expended no money except three dollars, which was paid for preaching; that in 1833 the society resolved that religion and morality could be best promoted in the use of their funds by investing them in books aforesaid; that since 1833 they have paid out no money for preaching; that that said society never owned any church edifice, and had no regular days or pla'ees of public worship, but that they occasionally procured preachers to preach to them and such others as might attend at the houses of individual members, and at a school-house; that a Universalist preacher preached three times for the society, for the first year or so, without compensation. A Restorationist preached for them occasionally, for the second and third year, and was paid therefor said sum of three dollars; that for the next seven or eight years a Wesleyan Methodist preacher occasionally preached for them, by an arrangement that he should have the use of the library as his only compensation; that for the last nine or ten years before this suit, an independent Baptist preacher preached for them on a similar arrangement; that said two last-named preachers always refused pecuniary compensation for preaching. That said society adopted at its organization no creed other than what is contained in its declaration of purpose, or object as contained in its said constitution. That no persons who were residents of said township were refused admission as members, and that they had no rules by which any such would be rejected, unless they were of bad characters. That non-resident preachers might be admitted to the library free, but others not without pay. That the original and real object ■of said society was, as it professed, to promote religion and morality.
    *That after the present controversy arose, but before this suit was brought, a member of this society moved that a committee be .appointed to report on the propriety of adopting a creed, which motion was carried. That the said committee was appointed, and .subsequently reported, recommending the society to adopt the following: ‘We believe in the Christian religion.’ Which report was laid on the table for future consideration. That at a meeting held a few days thereafter, the society did resolve that it was its object to promote religion and morality, and that the Scriptures are amply sufficient for a rule of faith and practice, and are profitable for ■reproof, instruction, and righteousness; and that the society therefore adopted no other rule or book of faith. Which last resolution was considered as a substitute for said report; and that it was ■agreed by the members present that no record should be made of said proceedings relative~to the appointment and report of said committee and said resolution so substituted, until after said suit should be determined, and that the same accordingly was not recorded ; that said society had no funds except those so distributed to them by the said trustees, unless very small amounts, paid to them by non-residents.”
    The questions of law arising upon the facts thus specially found, were reserved by the district court for decision in this court.

      John Welch, for the relators.

      A. Nye, J. P. Hanna, and T. A. Plants, for defendants.
   J. R. Swan, J.

The lands from which the fund in controversy as derived, are held in trust “for the purposes of religion.” How the appropriation should be made fixr religious purposes was left to the state to determine. The state has provided that the lands shall be leased and the rents applied as follows :

“ Each and every denomination of religious societies, after giving ■themselves a name, shall appoint an agent, who shall produce to the trustees a certificate, containing a list of their names *and numbers, specifying that they are citizens of said township; and .the agent shall pay over an equal dividend of the rents, within three months after the same shall have been received, to be appropriated to the support of religion, at the discretion of each society; provided, that all members above the age of fifteen years, shall be entitled to have their names enrolled by any society.” Swan’s Stat. 1005, sec. 13.

The beneficiaries of the trust have been designated by the state, as every denomination of religious societies; and the relators must bring themselves within the description of a sect or “ denomination ” of religionists associated together as a “ religious society,” <to bo entitled to the fund.

A sect or denomination of religious persons, is one having a common system of faith, written or traditional. A common system, of faith or religious belief, however, although sufficient to constitute ■a sect or denomination, is not sufficient to make them the beneficiaries of this fund. If this were sufficient, the fund would: necessarily be paid to each for his personal and individual benefit. The beneficiaries are not the individual members of a mere denomination of religious persons, but the society of a denomination. It is necessary, to satisfy the terms of the statute, that there should, be, not only a denomination or sect, but that they should be formed! into a society.

The society thus formed must be for religious, and not for mere-secular purposes; for the statute describes the society entitled to the-fund as a religious society. Religious societies of sects or denominations are founded for the purpose of uniting together ill public-religious worship and religious services, according to the customary,, habitual, or systematic forms of the particular sect or denomination, and in accordance with, and to promote and enforce their common faith and belief.

The expenses incident to this public religious worship, and these religious services are, in general, incurred by the society as such, and paid out of the common contributions of the members. The-fund created under the statute was intended to be applied to these expenses.

*Tbere can not be a sect or denomination of religious persons without ány common religious belief.

It is equally unreasonable to suppose that a denomination or sect, of religious persons would form themselves into a religious society, without any intention to meet together as such, to worship according to that faith, and without any stated or customary religious jrablie services. It would be a society without association; a society in name only, but not in fact.

It is clear that the relators do not bring themselves within this, description of a denomination associated’ together as a religious-society.

Tbe relators have neither a common religious belief, nor any fixed or customary denominational religious worship, or religious-exercises or service. Their object is to form and keep up a library. The society is not a religious, but a library association, whatever-name it may assume; very laudable, and deserving the encouragement of the neighborhood, but having no more claim upon the-fund appropriated to the support of religious societies, t-han any other library association.

Verdict and judgment for defendants.

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


source: Caselaw Access Project

author: Bowen, J.

license: Public Domain

text:
    The Commissioners of Ashland County v. The Directors of the Richland County Infirmary.
    Where a new county is formed, all persons residing within its limits, and who have resided there long enough to obtain a legal settlement, continue, in general, to have such legal settlement in the township of the new county, where they has, before its formation, acquired it.
    A lunatic pauper, who has been returned as incurable from the lunatic asylum-of the state to the jail of the county, within one of the townships of which she has a legal settlement, must be provided for by the commissioners of such county, as long as the township of her settlement remains an integral part of the same county.
    The erection of a new county, which separates the township where the lunatic "pauper is legally settled, from the county to which her support has become chargeable, transfers the duty of supporting the pauper from the-old to the new county to which such township is attached.
    An action may be maintained by the directors of a county infimary against the commissioners of another county, for the maintenance of a lunatic pauper, whose legal settlement is within a township of such other county, after returning the pauper to the commissioners thereof, and requesting them to-accept and take care of her.
    The rule of recovery in such action is the expense of removing the pauper to-the proper county, and of subsequently providing for and supporting her in the infirmary, and not compensation from the time of her admission into it.
    In error to the court of common pleas of Richland county.
    Reserved in the district court.
    This was an action of debt, brought January 31, 1851, in the-court of common pleas of Richland county, by defendants in error, under the tenth section of an “ act to authorize the establishment, of poor-houses,” passed March 8, 1831, and in which reference is-had to the ninth section of an “ act for the relief of the poor,” passed March 14,1831.
    The cause was tried by a jury, and a bill of exceptions taken by the defendants below, from which it appears that, in 1839, Mary Carlisle was an insane pauper, having a legal settlement in Green township, Richland county; that proceedings were instituted' against her, under the act to provide for the safe keeping of idiots, lunatics, or insane persons; that she was taken to the.lunatic asylum, where she remained until January, 1844, and was then, discharged, on account of the incurable nature of her malady that she was thereupon ■ taken to Richland county, and confined in the jail until February, 1844, when the commissioners of the •county contracted for her support out of the jail, and in that way continued to maintain her, at the expense of the county, till the 15th of December, 1846, when, under the order of the commissioners, she w,as conveyed to the county poor-house (now the infirmary), where she has since remained, and been supported by the county of Richland.
    On the 24th of February, 1846, the county of Ashland was created out of Richland and other counties, whereby the said ^township of Green was detached from Richland and became apart of the county of Ashland. In October, 1847, the directors of Richland county infirmary gave written notice to the trustees of Green township that Mary was an insane pauper in the infirmary, and requested them to remove her to said Green township, and pay for her support to that time. The trustees did not make any arrangement for the removal or support of the pauper. As early as March, 1848, the county commissioners of Ashland had knowledge that Mary was confined as a pauper in the infirmary of Richland, and that she was deemed, by the commissioners of the latter county, to be a charge upon Ashland. In December, 1849, the directors of the infirmary presented a bill to the commissioners cf Ashland county for the support of Mary, and requested payment, and also took the pauper to them; but they refused to receive her, or to pay the claim for her support. She was, in consequence, taken back to the infirmary of Richland. At the commencement of this suit, there was no poor-house or infirmary in Ashland county. From the time of Mary’s return from the asylum to the jail of Richland, her insanity continued to such a degree that it was dangerous to permit her to run at large.
    The defendants below moved the court to direct the jury, that if Mary Carlisle was last legally settled in Green township, she was a charge upon that township, and should have been removed there by the directors of the infirmary; and that said township would, on such removal, be liable for her removal and support. That tho commissioners of Ashland county can not be held liable for her maintenance, as the county was never bound to support her; bui if said flefendants were liable at all, they could not be made liable ¡until the pauper had been removed to Ashland county and presented to the proper authorities, or at all events until they had been properly notified of her being a pauper of that county.
    The court declined to give the instruction asked, but directed the jury that if they were satisfied that Mary was an insane pauper, having her settlement in Green township, now part of Ashland county, and that the necessary legal steps had been *taken by tho authorities of Green township to declare her an insane pauper, prior to the erection of Ashland county, and while Green township was an integral part of Richland county, then it was unnecessary that she should be removed to Green township, after the erection of Ashland county. That the obligation, on such a state of facts, was a legal and moral one upon the Ashland county commissioners-to take care of and provide for Mary, when called upon by the proper authorities of Richland county. That if it appeared from the evidence that said directors had offered to remove, or had removed, said Maryt to Ashland county, and the commissioners had refused to receive her or pay for her support, then, if the other evidence was such as to warrant a finding in favor of the plaintiffs, in accordance with the instruction given, the jury would have a right to render a verdict against defendants for her maintenance, from the time she was received into the infirmary to the commencement of this suit, with interest on that amount from the commencement of suit to the first day of that term of tho court.
    The jury returned a verdict for the plaintiffs below for $451.98; and the defendants moved for a new trial, but the court overruled the motion and gave judgment upon the verdict. .
    Plaintiffs in error insist that the action below was not maintainable against them:
    1. Because township authorities in counties where there were no poor-houses were, when this suit was brought, and now are by legislative enactment, constituted the guardians or overseers of the poor, and this extends to all paupers.
    2. If at all liable, the defendants in error have failed to take the proper steps to fix this liability upon plaintiffs in error; at least to the extent of the judgment below.

      B. W. Kellogg and W. Osborne, for plaintiffs in error.

      J. M. & M. May, aUd Steveys, for defendants in error.
   Bowen, J.

There was no provision made in. the act to create tho county of Ashland, for the support of paupers who *might have legal settlements within the territory which was then organized into a new county; nor is there any general statutory regulation on that subject. The questions that are presented in this ease, must therefore be determined upon the same principles of equity which have been applied heretofore to actions brought against townships to recover compensation for taking care of and supporting paupers who had settlements within them. Reported decisions of ■our own state, made in reference to the liability of'such townships, .afford us almost the only light we have on the subject, and leave us at liberty to adopt, for present purposes, the equitable rules which have governed our predecessors in this class of cases.

The act for the relief of the poor, requires township authorities to .afford relief to such persons found therein, as may be in a suffering condition, whether they are legally settled there or not; and when .a person becomes chargeable in a township other than the place of his or her legal settlement, an action may be brought against the trustees of the township where the pauper has a settlement, and the reasonable charges and expenses incurred for the support thus furnished recovered back. Section 9 of said act. The statute authorizes no other form of action for the recovery of such charges, nor does it confer any right of action against individuals, in favor of townships, that provide support for indigent persons. But it was held, in Howard v. Whetstone, 10 Ohio, 365, that a township which furnishes necessaries to the wife of one able to maintain her, may recover the amount in an action of assumpsit, from the husband, in case he has driven her from his house by cruelty. So when relief is furnished to the wife of one able to support her, but who has abandoned her without cause, assumpsit may be maintained by the township, against the husband, to recover for the amount furnished. Trustees of Springfield v. Demott, 13 Ohio, 104.

These cases proceed'on the principle that the sufferings of paupers, and of indigent persons, shall be relieved by the townships where they may be found in their destitute conditions, and that advancements made for such purposes, are justly chargeable in equity and conscience, to the person or municipal authority *whose relation toward the pauper or indigent person creates a duty or imposes the necessity of furnishing aid, and that the obligation, when neglected or disregarded by those who should perform it, may be enforced, in favor of whomsoever grants the relief, as for money paid out and expended for another’s benefit.

In the division of townships, it has been held, that paupers pass with the territory on which they reside, at the time the division or ■change takes place; and that if they have legal settlements within the limits of the territory divided, they retain them in the township where they actually reside at the time the change takes effect. Center v. Wills, 7 Ohio (part 2), 174; Williamsburg v. Jackson, 11 Ohio, 37.

By this rule, all paupers who become settled, remain a charge upon the township whose territory affords them a dwelling-place, without regard to the former name or boundaries of the township from which they have been separated.

In the case now before us, the pauper was settled in Green township, Richland county, and while thus settled, was removed to the lunatic asylum, and her disease being ascertained to be incurable, she was taken to the jail at Richland, and became a county charge.

The 28th section of the act in regard to lunatics and lunatic asylums, Swan’s Statutes of 1841, 578, provides that “ if any lunatic or insane person shall be admitted (into the asylum) and it shall be ascertained by the superintendent, after the expiration of sufficient time, under proper treatment, that the malady of such lunatic or insane person is incurable, the superintendent shall make such case known to some one of the directors, and such director shall, in case such lunatic or insane person be a pauper, issue his warrant for the discharge and removal of such pauper to the proper county ; and that he or she be delivered to the jailor thereof, who is required to receive and provide for such person.”

The duty of supporting her was thereby transferred from Green township to the county of which it formed an integral part, and after thus becoming released from the direct burden which it had formerly been compelled to bear, the county of Ashland was ^formed, by an act of the assembly, and Green township was separated from its old county relations, and placed into and made to form a part of the new county. It is claimed that this change of the county lines, and the transferring of Green into a new county, cast, as a necessary incident, upon Ashland, the burden of maintaining this pauper. But to this it is replied, on the other hand, that the liability of Richland county having become fixed, by operation of law, to take care of the lunatic, Green township was thereby exonerated, and took her place in the new county, unincumbered and free of this charge. This may seem plausible until! we recur to the fact that no change of settlement of the pauper has occurred. Her absence from the township, while in the asylum, and her confinement in the jail of Richland, and her maintenance, by contract, in other townships, resulted from legal proceedings had against her, and do not, in any respect, invalidate or change her place of settlement. The county of Richland can derive no further revenue from Green township. The right to tax its property, and to impose duties upon its inhabitants, has vested in another municipal body. To us it seems inequitable that the place of legal settlement, from which first originated the county’s liability to maintain the pauper, shall be set over to another jurisdiction, and its-civil, political, and social relations with its old associated townships severed, and not carry along with it, into the new department, an incumbrance which can never rest anywhere else, without some special enactment. It is deemed to be in accordance with the spirit of past decisions, before referred to, that a new county, when formed, shall receive and become chargeable with all paupers having legal settlements in the territory of which it is. copposed. Mary Carlisle was an incurable lunatic pauper of Green township, by means whereof the county of Richland became, by the provisions of the statute, bound to provide for her wants. From the performance of this duty it had no power, rightfully, to refrain, while its relation toward the township continued. But when the legislature saw proper to establish a new county, and to give to it this incumbered portion of Richland, it imposed, as we think, upon the new *county, the duty of removing the incumbrance and charge from Richland, and of taking upon itself the burden.

The 8th section of the act authorizing the establishment of poorhouses, (Swan’s Rev. St. 614), provides, that in any county within which a county poor-house is or maybe erected, it shall bo the duty of the directors to give an order to the auditor of the county for the payment'of such necessary expense as may have been incurred by any township in removing any pauper to the poor-house, or that may have been incurred immediately preceding such removal, by reason of delay caused by the sickness of such pauper; and the auditor shall draw his order on the county treasurer for such amount.

The directors of the county infirmary of Richland were authorized to remove Mary Carlisle to the proper place of her residence,, which, as we have already shown, was in Ashland county, and to-demand and receive the charges for her removal, as well as for her support, furnished by them. It was the duty of the commissioners of Ashland county, when the pauper was offered to them, to accept and to take care of her. Their refusal was a breach of duty, for which they could be sued, and a recovery had. This action was,, therefore, properly brought in the name of the plaintiffs below. Section 10, Stat. 615.

A question has been raised by plaintiffs in error, as to the amount which is properly recoverable in this case. The release of the county of Richland from the charge of supporting the pauper, could be made complete at any time after the organization of Ash-land ; but to accomplish that object, something was necessary to be done. The commissioners of the. latter county ought to have been notified of their liability, and requested to take the pauper, and provide for her. Anything done by the directors of the infirmary, previous to such notice and request, in supporting the lunatic, can notabe regarded in the nature of temporary aid. She had been committed to their custody, and was to be maintained without any expectation of having recourse upon any other body for remuneration. It was only by an act of the legislature, which took effect, while the pauper was getting her support, as of right, in the infirmary, that Richland county became entitled to *free itself from this burden. The directors might hasten or delay the period of her removal to the new county. But we are of opinion that no-recovery can be had, by the plaintiffs below, for any charges incurred before the return of the pauper to the proper place of her residence, and a request that she be received and taken care of by the commissioners.

The proof shows that the proper notice and offer of the pauper to the commissioners were made on the 15th of December, 1849. The expense of going to Ashland county, at that time, and a just remuneration for keeping the pauper since, are proper to be recovered, and a verdict and judgment ought to have been rendered for them. The court, however, directed the jury that they might render a verdict for compensation from the time the pauper was admitted into the infirmary to the commencement of the suit. This, we think, was erroneous. The recovery, in this instance, must b© limited to the expenses of returning the pauper to the county •commissioners, and to the charge of keeping her from that period, as there was a refusal by the latter to receive her. We can not •correct the verdict without the consent of parties, and must therefore reverse the judgment for this erroneous instruction to the jury, and remand the cause for further proceedings.

Bartley, C. J., and Swan and Scott, JJ., concurred. Brinkerhoee, J., having formerly been of counsel in the case, did not sit.


author: Bartley, J.,

text:
    John Harper v. The State of Ohio.
    Under the act of May 1, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” prosecutions may be commenced by indictment, without any preliminary examination before a justice of the peace, or mayor. ,
    This is a motion for the allowance of a writ of error to the court of common pleas of Guernsey county.
    '¡-The material facts upon which the application is based are as follows:
    Harper was indicted in the court of common pleas of Guernsey county, in’ June, 1857, for keeping a tavern‘where intoxicating liquors were sold by him in violation of the act of May 1, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio.” In the common pleas Harper, by his counsel, moved to quash the indictment, because the prosecution was not commenced on a written complaint under oath or affirmation before a justice of the peace or mayor, insisting that the court had no jurisdiction of the offense charged.
    The court overruled this motion, and the prisoner excepted, and having entered a plea of “ not guilty,” went to trial and was convicted.
    Thereupon Harper, by counsel, moved the court to set the verdict aside, on the ground that it was against the law and the evidence ; but the court overruled the motion and pronounced sentence upon him.

      S. W. Andrews, and Grimes & Guille, for Harper.
   Bartley, J.,

announced the opinion of the court. The act under which Harper was indicted expressly provides that in such cases the prosecution may be commenced by indictment as well as by a written complaint under oath or affirmation before a justice of the peace or mayor. In this case it was not necessary, in order to give the common pleas jurisdiction, that a preliminary examination before a justice of the peace or mayor should have been made. "When such preliminary examination is had the statute provides the manner in which the accused shall be charged, but does not, when prosecutions under the act are by indictment, make it necessary to have such preliminary examination.

"We find no error in the record in this case, and therefore overrule the motion.

Swan, Brinkerhoee, Bowen, and Scott, JJ., concurred.


author: Brinkerhoff, J.

text:
    *Erasmus Gest v. Charlotte L. Kenner, Administratrix of George R. Kenner, deceased.
    Where parties waive their right to a trial by jury, and submit the ease on the evidence to the court, the findings of the court, on'matters of fact in issue between the parties, can not be reviewed on error. House v, Elliott, 6' Ohio St. 197, followed and approved.
    Error to the Superior Court of Cincinnati.
    The case is stated in the opinion of the court.

      Daniel Van Matre, for plaintiff in error.

      Ball & Skinner, for defendant in error.
   Brinkerhoff, J.

This is a petition in error filed here to reverse the judgment of the Superior Court of Cincinnati at general term, affirming, on error, a judgment of that court at special term.

The defendant in error, plaintiff below, brought suit against the plaintiff in error, defendant below, under the code of civil procedure, to recover the amount of a promissory note. To the petition the defendant below answered, setting up a failure of consideration and a counter-claim. The plaintiff below replied, taking issue on the facts alleged in the answer.

The parties having waived their right to a trial by-jury, the case, on the evidence, was submitted to the court, which found “ the-issues joined for the plaintiff” below, assessed his damages, and dismissed the counter-claim without prejudice. A motion was made-for a new trial, on the alleged ground that the finding of the court was against the law and the evidence ; which motion was overruled, and a judgment rendered for the plaintiff below on the finding. The defendant below thereupon took a bill of exceptions embodying all the evidence in the case, and excepting to the finding and judgment of the court and to its order overruling *his motion for a new trial. No issue of law was made in the pleadings, and the-bill of exceptions nowhere discloses that any question of law was, at any time during the pendency of the case, either made to or passed 'on by the court below, either at special or general term. For aught' that appears in the record, the case was determined en tirely on the issues of fact made in the pleadings. .

On these exceptions the defendant below filed his petition in error in the Superior Court at general term, to reverse the judgment of* the court at special term. „ The judgment of the court at special term was, however, affirmed, and that judgment of affirmance is alleged for error here.

It nowhere appears in the record before us that the plaintiff in-error excepted to any ruling of the court below at special term on any matter of law whatsoever, either before or during the trial of the-case before it; and all the assignments of error made at the general term of the court below, amount in substance to but this: that the-court at special term erred in overruling the motion for a new trial, based on the alleged ground that the finding of the court on the-matters of fact at issue between the parties, was not sustained by sufficient evidence.

Now, whether the court below did or did not err in overruling the motion for a new trial made on this ground, is a question which can not be reviewed on error. This was decided at the last term, of this court, in House v. Elliott, 6 Ohio St. 497. The only difference between that case and this, so far as this point is concerned, being, that in that case there was a finding of the facts by a jury,, while in this, a jury being waived, the facts were found by the ■court; a tribunal voluntarily selected by the parties in this case in •lieu of a jury, and whose finding on issues of fact is as valid and binding as that of a jury could be. It is very possible that questions of law were passed on by the court below, and that that court ■may have erred in their decision ; but if so, the plaintiff in error has failed to present them in his bill of exceptions. And if .he had •desired to except to the opinion of the court below as to the law •arising on the facts proved on the trial before it, he ought to have required a ^special finding of those facts, as he might have •done, under section two hundred and eighty of the code.

Judgment affirmed.

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


author: Scott, J.

text:
    Willard M. Knight v. Peleg Bunker.
    Where, on a proceeding by scire facias to revive a judgment, under the practice act of 1831, two writs were returned “ nihil” at the same term — one having been issued in vacation, and, upon its return, the second having been issued during term, returnable forthwith, and judgment was taken by default at the same term to which both writs were returned — the record not showing any general rule of the court applicable to the ease, no such abuse of discretion is disclosed as can be reviewed upon error.
    In error.
    Reserved in Delaware county.
    The case is stated in the opinion of the court.

      Backus & Geiger, for plaintiff in error.

      T. W. Powell, for defendant in error.
   Scott, J.

This case comes before us by the reservation of the district court of Delaware county, on the following state of facts:

Bunker, the defendant in error, had obtained a judgment against Knight, the plaintiff in error, in the court of common pleas of Delaware county, which, by lapse of time, had become dormant. On the 31st of August, 1850, he caused a writ of scire facias, to revive this judgment, to be issued, directed to the sheriff of Delaware -county, returnable on the first day of the next term; which was accordingly returned on the 15th of October, 1850 (that being the first day of the next term), indorsed “not found.”

*On the 18th of October, at the same term of court, Bunker had a second writ issued, returnable forthwith, which was returned the next day, likewise indorsed “not found.”

• Bunker, thereupon, had an award of execution and a judgment for costs entered against Knight by default, at the same October term, 1850.

Plaintiff in error prosecutes his writ to reverse this judgment; and, by his assignment of errors^ claims:

1. That a party can not take a judgment by default, upon two “nihils ” returned to the same term; or, if he can, then

2. That he can not take his judgment at the same term to which the writs were returnable.

The questions thus raised, relating, as they do, to a mode of practice which has been superseded by our code, are now of but little interest except to the immediate parties. Still, the case itself is before us, and must be passed upon.

According to the practice of the English courts, in the case of scire facias to revive a judgment, it is sometimes necessary to obtain the leave of the court to sue it out; and in its service, at one time, a return of “ nihil ” to two writs of scire facias was considered equivalent to a return of “ scire feci.” In some of the courts it was anciently the practice to sue out both of the writs at the same time. This was afterward prohibited by a general rule.

In the common pleas, it is said: The first scire facias should be left at the sh eriff’s office for one or two days before it is returnable, and the sheriff requested to make a return of nihil.” 1 East, 89. On the return of nihil being obtained, the alias should be sued out and left at the office four days (4 Term, 583); and, on its return, judgment might be signed and execution sued out. It was usual, under this practice, for the attorney to issue these writs, for the purpose of having them returned nihil, and to direct the sheriff accordingly. This being at length disapproved of, general rules were adopted requiring knowledge of the scire facias to be brought home to the party, unless he have absconded. 2 Chitty’s Archbold, 700. The English practice in cases of this kind would seem, therefore, to have varied from time to time, and *to have been governed the rules of the several courts. At common law, a judgment in a. personal action could not be revived after a year and a day, by scire facias, but the only remedy the plaintiff had was to bring an action of debt on the judgment.

In this state, the proceedings by scire facias have been prescribed and regulated either by statute directly, or by such rules as the courts have been authorized by statute to make. Imparlances have always been governed by these rules of court.

The practice act, under which the defendant in error obtained his award of execution, provides “ that on the said writ of scire facias being returned ‘ scire feci,’ or on two writs of scire facias being returned 1 nihil,’ the defendant' shall be considered in court, and may be proceeded against accordingly.” Swan’s Stat. 1841, 672, sec. 103.

In regard to the service of process in other actions generally, the 14th section of the same act provides: “ That where the sheriff or other officer shall return the summons or other process ‘served,’ the defendant or defendants shall be considered as being in court, and may be proceeded against accordingly.”

The statute in neither case prescribes the length of time to be allowed for imparlance, nor when judgment may be taken by default; but in the 92d section of the same act, the judges of the several courts are authorized, “from time to time, as occasion may require, to make rules and orders for their respective courts ; to direct the mode of taking rules, and entering and making up judgments by default, or otherwise, in a manner not repugnant to the laws of this state; to regulate the practice of the said courts respectively, as shall be fit and necessary for the advancement of justice, and especially to prevent delay in proceedings.”

Whether the court of common pleas had established rules of pleading upon scire facias, does not appear. No such rules are shown in the case, and we are left to assume that, in the absence of any general rule, the court, in the exercise of its discretionary power, adopted and applied to the particular case such a rule as was judged to be conducive to the ends of justice, by “preventing delay in proceedings,”

*A proceeding by scire facias to revive a judgment, is only a continuation of the former suit; its object is to obtain, not an original judgment, but an award of execution on a former judgment; and the statute seeins to have designed to make it somewhat summary in its character. Notice to the defendant, if out of the county, was not made necessary, nor was publication required; but upon the second return of “ nihil,” he was “ considered in court, and might be proceeded against accordingly.” No declaration was required in the case; its place was supplied by the writ.

In the case before us, the first writ was issued in vacation, and after the lapse of more than six weeks, was properly returned on the first day of the term. For the truth of the return, the sheriff was answerable. The second writ was then issued, returnable forthwith at that term, as a summons or other process might have been; and upon its return, the defendant being constructively in court, and interposing no defense, judgment was entered at the same term, but perhaps several weeks after the return of the second writ. These proceedings were less summary than the’ English practice. They do not appear to have violated any provision of the statute, or rule of the court.

In the similar case of Wolf v. Poundsford, 4 Ohio, 397, the scire facias was issued on the 22d of January, and judgment taken by default, in February, at what seems to have been the appearance term; yet neither counsel nor court appears to have regarded this as error.

We are satisfied that the record in this case discloses no such abuse of discretion as can be corrected by this court, upon error.

If the plaintiff in error was precluded, by want of notice, from interposing a meritorious defense, his remedy was by motion to the court below, supported by a proper showing.

Judgment affirmed.

Bartley, O. J., and Swan, Brinkerhoff, and Bowen, JJ., concurred.


author: J. R. Swan, J.

text:
    *Ex parte Stephen M. Shaw.
    A habeas corpus can not be used as a summary process to review or revise errors or irregularities in the sentence of a court of competent jurisdiction. Imprisonment under a sentence can not be unlawful, unless the sentence is an absolute nullity. If clearly unauthorized and void, relief from imprisonment may be obtained by habeas corpus; if avoidable, a writ of error is the appropriate remedy.
    Where the copy of the sentence under which the warden of the penitentiary holds a prisoner purports to be a sentence for one year for horse-stealing (the law requiring a sentence, for such offense, for’a period not less than three years): Held, that the sentence, although erroneous, is not void, and therefore affords no ground for discharge on habeas corpus.
    The allowance of writs of habeas corpus by this court in term-time rests in sound legal discretion; and as parties may, in general, have relief by application to common pleas and probate judges, with less delay and inconvenience, this court does not deem it proper, unless under very peculiar circumstances, to put aside the regular business of the court for the purpose of entertaining applications of this kind.
    A habeas corpus was issued to the warden of the Ohio penitentiary, upon affidavit, that Stephen M. Shaw was imprisoned by the warden without any lawful authority. The warden made return, from which it appeared that he held the relator, Shaw, in custody ■under a sentence of the court of common pleas of Madison county, whereby it appeared that Shaw was indicted for horse-stealing, and was sentenced to .hard labor for the period of One year.

      J. A. Corwin, for Shaw,
    insisted that the sentence was void, inasmuch as the court had no authority to pronounce the sentence indicated in the return of the warden.
   J. R. Swan, J.

The question presented in this case is, whether, conceding that the sentence is for horse-stealing, and that, by statute, the sentence must be for a period not less than three years, the ■commitment is lawful.

The courts are required by statute, upon conviction, to sentence for a period not less than three years. The sentence in *this case is for one year. Does this render the sentence void, and the commitment of the relator unlawful ?

The question is one simply of jurisdiction.

The court had jurisdiction over the offense and its punishment. It had authority to pronounce sentence; and while in the legitimate exercise of its power, committed a manifest error and mistake in the award of the number of years of the punishment. The sentence was not void, but erroneous.

The writ of error and habeas corpus have each their separate offices.

There are ample remedies provided for the correction of irregularities and errors in proceedings which result in conviction and in sentences, by writ of error. For errors and irregularities in such cases, the summary remedy by habeas corpus can not. be had. Ex parte Kellogg, 6 Vt. 509; Matter of Prime, 1 Barb., S. C. 340. But if the court has sentenced the relator for an offense over which, by law, it had no jurisdiction whatever, so that the proceedings and sentence were manifestly coram non judice, and void, the imprisonment following such void sentence would have been unlawful, and the relator entitled to be discharged on habeas corpus. Cropper v. Commonwealth, 2 Rob. (Va.) 842; Ex parte T. Watkins, 3 Pet. 202.

The statute excepts from those who are entitled to the benefit of this writ, j>ersons convicted of some crime or offense, for which they stand committed, plainly and specially expressed in the warrant of commitment. The exception of persons convicted, applies, particularly, to the application now under consideration. The relator is detained by virtue of the judgment of a court, possessing general jurisdiction in criminal cases. This judgment can not be reexamined on habeas corpus.

Questions of doubtful jurisdiction, are frequently involved in a. record, which are proper subjects of consideration upon a writ of error ; and which should not, therefore, be entertained or decided, upon habeas corpus.

The return of a writ of habeas corpus into this court, in term, rests in the discretion of the judge of this court who allows the-same; and as parties may, in general, have relief by application *to probate and common pleas judges, with less delay and inconvenience, we do not deem it proper, unless under very peculiar circumstances, to put aside the regular business of this court by making applications of this kind returnable in term.

It is said to be the practice in some parts of this state to use the writ of habeas corpus as a short and summary mode of reviewing, as upon a writ of error, and annulling the sentences of courts. If this be so, it is an abuse of the writ of habeas corpus which can. not be too soon corrected.

The prisoner is remanded to the custody of the warden.

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


text:
    Thomas Adams, Sen., v. Thomas Adams, Jun., and others.
    Where a married woman, domiciled in Ohio, dies intestate, leaving children, and her surviving husband afterward obtains letters of administration upon her estate, from the orphan’s court of Pennsylvania, and by means thereof acquires possession of her personalty in that state, and there files his accounts and vouchers for settlement in the proper court, which aré referred to an auditor, and a report made thereon, to which the children and heirs of the deceased appear and file exceptions, a suit can not be maintained in this state, by such children and heirs of the intestate, for distribution of the money so held by the administrator, while the settlement account and exceptions are pending, and the amount for distribution is undetermined.
    In error to the court of common pleas of Jefferson county.
    Reserved in the district court.
    The petition filed in the court of common pleas, January 14; 1854, by the plaintiffs, defendants in error, contains the following statement of the original cause of action:
    That the plaintiffs are the children of Bersheba Hartly; that she married Thomas Adams, Sen., in 1802; that on the 20th of July, 1837, Bersheba died, leaving the plaintiffs, and the co-defendants of said Thomas, her heirs at law ; that, at the time of *her death, her residence and domicil were in Ohio, and the county of Jefforson ; that no letters of administration on her estate were granted in Ohio; that on the 4th of February, 1850, the said Thomas Adams, Sen., obtained letters of administration on said estate, from the register of wills for the city and county of Philadelphia, in the State of Pennsylvania; that by virtue of said letters, the said Thomas, Sen., on or about the 1st of August, 1853, received into his possession the sum of $8,000 of the estate of Bersheba ; that he has since converted that sum to his own use, and refuses to distribute among the heirs of Bersheba; that no debts were owing by Bersheba ; that the whole of the sum of $8,000 is distributable by law among her heirs.
    The plaintiffs then ask, that an account may be taken Of the moneys so received by said Thomas, Sen., and of the amount distributable bylaw to each of the heirs of Bersheba, and that a judgment may be rendered against him for that amount.

      To this petition the said Thomas Adams, Sen., demurred, and for causes, alleged that:
    1. The court has no jurisdiction of the subject of the action.
    2. The petition does not state facts sufficient to constitute a cause of action.
    h This demurrer was overruled; and the said Thomas, Sen., answered, that the money referred to in the petition, as money which came into his possession by virtue of letters of administration from the register of wills, in the city and county of Philadelphia, is money which was decreed to him by the circuit court for the eastern district of Pennsylvania, in the case of Packer v. Nixon. That he was entitled to said money by virtue of his rights as husband of Bersheba; that letters of administration were granted to him for his own benefit; that by virtue of said letters, he obtained possession of said fund, so decreed to him, for his own use and behoof.
    The answer denies that the money is distributable by law among the said plaintiffs, as claimed in the petition, and denies that plaintiffs are entitled to judgment.
    The answer then further avers, that on the 28th of March, 1853, said Thomas, Sen., filed his account, as administrator, in *the office of the register of wills, in Philadelphia; that the account was referred to an auditor, by the orphan’s court of said county, to settle and adjust; that notice was given of the filing and reference; that the plaintiffs in this suit appeared by their attorney, and presented their claims for the same money mentioned in their petition in this suit, and asked that it be distributed among them in the same manner prayed for in their petition in this suit; that the auditor reported adversely to their claim; that exceptions to his report were filed by them; that the exceptions were not sustained by the auditor; that his report was filed in the office of the clerk of the orphan’s court, and that said claim and said exceptions, at the date of the commencement of this suit, were and still are pending in said orphan’s court. And therefore the said Thomas, Sen., prayed judgment of the writ and petition, and that the same be quashed.
    At the October term, 1854, the cause was tried by the court, and judgment was rendered against the said Thomas, Sen., and in favor of the claimants, for their distributive shares. To this the plaintiff in error excepted.
    It is agreed between the parties, that the said plaintiffs were the children of Bersheba Adams; that she was married to Thomas Adams, Sen., in 1802; that she died July 20, 1837; that her coverture continued until that time, and that her said children are the issue of this marriage; that, at her death, Bersheba was domiciled in Ohio; that letters of administration were taken out by said Thomas, Sen., on her estate in Pennsylvania, and that no letters were taken out here; that the parties to the record in the orphan’s court in Philadelphia are the parties in this action; that the fund to be there distributed is the same fund which is here in controversy; and that said matters are still pending in the orphan’s court in Philadelphia.

      Bingham & Lloyd, for plaintiff in error, insisted:
    That the plaintiffs below can not maintain their action here during the pendency of the same matter in the orphan’s court of Philadelphia ; that the action here must necessarily abate. Bac. Abr., tit. Abatement, 28; Buffum v. Pelton, 17 Pick. 510; Webster v. Randal, 19 Ib. 13; Tracy v. Reed, 4 Blackf. 56; MeKensey v. Anderson, 4 Dana, 62; Atkinson v. State Bank, 5 Blackf. 84; Renner & Bussard v. Marshall, 1 Wheat. 215; Ex parte Balch, 3 McLean, 221; Judiciary Act of 1789; 2 Pet. 449; 3 Bouv. Inst. 128; 2 Hall, 454; 3 Wills, 308.
    The plaintiff in error can not be sued here and compelled to make distribution of the assets of the estate, before his account has been settled in that tribunal where his bond requires it to be done. 2 Kent. 516, see. 420; Archb. of Canterbury v. Tappan, 8 Barn. & Cress. 151.
    The decree of the surrogate, on the final settlement of the administrator’s account, is final, subject to an appeal to the chancellor, as to the payment of creditors, legatees, and next of kin, and concludes all parties. 2 Kent, 517, note c; Wright v. Trustees M. E. Church, 1 Hoff. Ch. 214, 215; 1 Wall & Larry, 293.

      Thomas Means, also for plaintiff in error, insisted:
    1. That he can not be required to account, except in the probate court.
    2. And that pending the settlement of his accounts in the jurisdiction from which he obtained his letters of administration, he is not liable to be compelled to account elsewhere. Mallet v. Dexter, 1 Curt. C. C. 178.

      B. S. Moodey and George W. McCook, for defendants in error:
    That another suit pending within the same jurisdiction may be pleaded in abatement is undoubtedly true. Whether the pendency of another suit in a foreign state abates an action, has given rise to some conflict of opinion.
    In England a suit pending in Ireland or in the plantations is no bar to the jurisdiction of the English court. Foster v. Vassall, 3 Atk. 580; Dillon v. Alvarez, 4 Ves. 357.
    And a suit pending in England is no bar to a suit pending in the plantations for the same matter. Bayley v. Edwards, 3 Swanst. 705.
    *The cases cited by Mr. Bingham are all of them, with perhaps one exception, cases where the former suit was pending in the same jurisdiction.
    Wherever the plea of a suit pending in a foreign jurisdiction has been allowed, it has always been held that the plea should show by averment the pendency of a suit id a court which had jurisdiction of the subject-matter and of the parties. Within the same jurisdiction a court will take judicial notice of the powers of the courts. This they can not do where the court is in a foreign jurisdiction.
    It is a matter of pleading, and proof, if the orphan’s court of Philadelphia had jurisdiction to distribute this estate. How were the court judicially to know? Newall v. Newton, 10 Pick. 370.
   Bowen, J.

The only question presented by the record in this case, which we deem it important to notice, is, whether this action can be maintained, while the accounts of Adams, Sen., are pending for settlement in the orphan’s court of Philadelphia.

Letters of administration were granted in Pennsylvania, where the estate of Mrs. Adams, the intestate, wass ituated. The administrator, from whom a distribution of that estate is now sought, gave bond and took upon himself the duties appertaining to the trust, under the jurisdiction of the proper court of that state. He proceeded without improper delay, to file his accounts for settlement, which were referred to an auditor, to whose report made thereon, exceptions were taken by the plaintiffs in this action. That report, and the exceptions thereto, are still pending in the orphan’s court, where complete jurisdiction has attached, and must, from necessity, be exercised over the property of the decedent. The plaintiff in error can not, therefore, until his accounts are settled by the court in which they are thus pending, and the amount in his bands subject to distribution is fully determined by its judgment, be sued in tbis state, and compelled to make distribution of tbe fund belonging to tbe estate. It can make no difference what may be tbe result of tbe exceptions to bis account. Tbe balance which be reports, as remaining *in bis bands, may be increased ■or diminished by tbe action of tbe court. No one bas a right to sue as heir or distributee, until tbe actual amount of bis liabilities is ascertained, and fixed by tbe order of tbe court. We must treat this administrator, in tbis particular, just as we would one who might be engaged in administering upon an estate here. He can be sued in the same manner, as if be bad been appointed under tbe laws of tbis state.

Thus far it' is our duty to recognize foreign administration, and to afford to tbe party who bas undertaken it, and is conducting it to completion, the same protection against tbe prosecution of suits here, which could, in Pennsylvania, be set up by him; and also to extend to him tbe law of our own state, which restricts tbe right of action by heirs and distributees, to tbe time when tbe proper court shall adjudicate tbe amount to be distributed. But we design to give no further effect to tbe proceedings of tbe foreign court, than to bold that their pendency and tbe unliquidated amount in tbe bands of tbe administrator for distribution, are sufficient to abate tbis action, and that tbe court below erred in not so ruling.

Judgment reversed.

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


text:
    Jessup W. Scott v. Charles Hickox and others.
    Open, notorious, and adverse possession for seven years, by a purchaser under a decree of foreclosure and sale, is, under the act of March 22, 1849, “ to give additional security to land titles in this state,” a good answer in bar to a petition to redeem, by a subsequent purchaser, subject to mortgage, from the mortgagor, of an undivided fraction of the mortgaged premises, although neither such subsequent purchaser nor those under whom he claims were made parties to the decree for foreclosure and sale.

      Demurrer to answer.
    Reserved in Cuyahoga county.
    *Petition to redeem mortgaged premises. The facts are as-follows:
    On the 28th day of November, A. D. 1835, C. M. Giddings conveyed by deed to Maurice Wakeman, divers lots and parcels of land, in and about the city of Cleveland. On the same day, Wakeman executed to Giddings a mortgage upon the premises to secure the unpaid purchase money, amounting to $65,000. The mortgage was received for record January lT, 1836.
    On the 25th of June, 1836, Maurice Wakeman conveyed one undivided fourth of the premises to E. Jessup, Jun., subject to the mortgage. On the 24th of October, 1836, Jessup, for the consideration of $28,000,' conveyed said one-fourth by deed to Zalmon B. Wakeman, who assumed to pay one-fourth of the original purchase money remaining unpaid. In December, 1839, Giddings obtained a decree in the common pleas of Cuyahoga county, against Maurice Wakeman, for $17,980, part of the purchase money, and an order to sell the mortgaged premises. Zalmon B. Wakeman was not a party to this decree.
    In March, 1840, the premises were sold by a master commissioner for about the amount of the decree, and the sale was confirmed, and a deed made to the purchaser for the interest of Maurice Wake-man in the premjses.
    Defendant Hickox claims to hold under this purchase.
    The plaintiff, Scott, claims the undivided fourth of the land under a deed made in June, 1854, to himself, by Zalmon B. Wakeman.
    In October, 1854, plaintiff filed his petition to redeem.
    Hickox sets up in his answer, among other defenses, the act of March 22, 1849, “to give additional security to land titles in this state,” and which took effect on the first day of April, of that year- and makes the averments of fact, as to the “ open and notorious ” possession of said premises by himself and those under whom he claims, necessary to bring himself within the purview of the act.
    To this defense the plaintiff demurs generally.

      Mason & Estep, for plaintiff,
    insisted that his remedy was not* barred by said act of March, 1849, because :
    *1. It applies only to actions at law. This case is not within the statute, viewing it as an action at law — the suit is to redeem mortgaged premises, and not to recover the possession or the title-

      The plaintiff’s right is an equity, and the remedy sought is necessarily in a court of equity, and therefore not affected by the statute. The remedy cut off by the statute, where it applies, is an action off ejectment or other action for the recovery of lands.
    2. The sale, under which the defendant Hickox claims to hold, was not such a “judicial sale” as is contemplated by said act, inasmuch as Zalmon B. Wakeman, under whom plaintiff claims, was. not a party to the decree under which the sale was made.
    3. The possession of defendant was not adverse. Zalmon B. Wakeman, as the owner of an undivided fourth part of the mortgaged premises, was, at the time of the judicial sale, a tenant in. common with the mortgagor. The purchaser at- this sale took nothing more by the purchase than the mortgagor’s title, and thereby succeeded him as tenant in common with the plaintiff.

      Banney, Backus & JYoble, for defendant Hickox:
    I. That the possession of defendant was adverse, is alleged in his answer, and admitted by the demurrer.
    II. The statute bars the plaintiff’s action upon either one of two-grounds :
    1. The present proceeding is an “ action for the recovery of the lands,” and is therefore within the positive bar which the statute-provides. There is not one word in the act to confine its operation to the parties to the judicial proceeding. To do so, would require the court to add to the enactment, the words, “by any party to-the proceeding,” when it now positively provides that “ no action shall be brought.”
    2. If the statute extends its positive provisions only to what would formerly have been actions at law, a bar of such actions and a loss of the right of entry is, by the settled doctrines of courts of equity, acting in obedience or analogy to the statute, a *bar to the petition to redeem. Cholmondely v. Lord Clinton, 2 Jacob & Walker, 1; Bond v. Hopkins, 1 Sch. & Lef. 429; Demarest v. Wynkoop, 3 Johns. Ch. 135; Elmendorf v. Taylor, 10 Wheat. 152; 2 Story’s Eq., see. 1520, and cases there cited; Angell on Lim. 24, chap. 3; Robinson v. Fife, 3 Ohio St. 560; Gregory v. Gregory, Cooper, 201.

      S. J. Andrews and S. Williamson,
    submitted a reply on behalf of Charles D. Williams and Levi Rawson, to the argument for the plaintiff, in which they insisted that the plaintiff’s action was barred by the act of March, 1849, whether considered as an action at law or a suit in equity, as courts of equity consider themselves bound by a statute of limitations, just as much as courts of law do, and as invariably apply it to suits before them.
   Brinkerhoff, J.

The only part of the act “ to give additional ■security to land titles in this state,” which has any application to this case, is the second section, which is as follows:

“Seo. 2. That no action of ejectment or other action for the recovery of lands or tenements, shall be brought against any person claiming under or by virtue of any judicial sale, or any salo of forfeited or other lands for taxes except within seven years after open and notorious possession taken and continued by the defendant or the person or persons under whom he may or shall claim. And every sale of lands or tenements under any judgment, decree, or order of a court of competent jurisdiction, whether made by a sheriff, coroner, marshal, executor, administrator, or master in chancery, •shall be deemed a judicial sale within the meaning of this act. But all persons, whose right of action shall or may have occurred before the passage of this act, shall be at liberty to bring their actions at any time within five years after the passage of this act, although the term of seven years hereinbefore limited may have previously expired.
“And if any person shall be an infant, or feme covert, or insane, ' or imprisoned at the time of the adverse entry, he or she shall be entitled to bring his or her action any time within five years after his or her disability shall have been removed: provided, ^that nothing herein contained shall, in any case, be construed to extend the time for bringing any action for the recovery of lands or tenements beyond the period limited in the second section of the act for the limitation of actions, passed February 18, 1831.”

Neither the plaintiff, nor those under whom he claims, having been made parties to the proceeding for the foreclosure and sale of the premises in question, it is clear that the plaintiff is not estopped by that decree from claiming a right to redeem; and the only question made before us is that which arises on the demurrer; that is to say, whether the plaintiff’s claim is barred by the provisions of the second section of the act of 1849.

It is contended in behalf of the plaintiff:

1. That the statute in terms applies only to actions at law, and that this proceeding, being in the nature of a bill in equity, and for the enforcement of an equitable right, is, therefore, not affected by the statute.

Upon this proposition it is not necessary to linger; as it is too well settled.to require discussion, that except in a few exceptional cases, among which the one before us is not included, the bar of a statute of limitations is as available in equity as at law.

2. The plaintiff further contends, that Zalmon B. Wakeman, under whom' he claims, not having been a party to the decree of foreclosure and sale under which the defendant holds possession of the premises sought to be redeemed, the sale was not such a “judicial sale” as, by a just and proper construction of the act, is contemplated by its provisions.

And here is the decisive question in the case. What was the intention of the legislature in the enactment of this second section ? Was it intended that “open and notorious possession” under a judicial sale, should be an absolute bar as against all the world, except femes covert, infants, and persons imprisoned and insane? or as against those only who were parties, or stand in the relation of privies to those who were parties, to the judicial proceeding under which the sale was made ?

That it was competent for the legislature to provide that an adverse occupancy of seven years, or even of any shorter term, ^should operate as an absolute bar against all the world, will not be denied. North Carolina and South Carolina have prescribed the period of seven years as the general limitation within which actions for the recovery of real estate shall be brought; and Kentucky has fixed the same limit as to all claims arising out of conflicting entries and surveys. The legislative competency being undisputed, we come back to the question of legislative intention. And in the consideration of this question, we must look primarily to the language of the act to be construed.

Now, an examination of the language of the second section will, we think, satisfy any intelligent reader that had it been the express intention of the legislature to render j>ossession under a judicial sale an absolute bar as against all the world except the persons whoso rights are specially saved, it could not well have employed language more expressive of that intent. And such undoubtedly is its natural, usual, and literal signification. “ No action, etc., shall be brought against any person claiming under, and by virtue of any judicial sale, etc., except within seven years,” etc. And it is equally clear that it can not be made on its face to express what the plaintiff claims its meaning to be, without interpolating within it, in addition to the saving clause in favor of insane and imprisoned persons, femes covert, and infants, another clause saving the claims of persons not parties to the “judicial proceeding” under-which the sale should be made. To justify us in making, by force of judicial construction merely, so extensive an interpolation, there would, it seems to us, be required stronger reasons than any which can be found in the present case.

From an inspection of this section, it is evident that it was drawn with no little care and caution. It saves for five years the claims of those who otherwise would be barred and surprised by its immediate operations ; it saves the rights of minors, married women, and persons imprisoned or of unsound mind; and it provides against the extension, by construction, of the limit fixed by the general act of limitations for cases in respect to real estate not coming within tho purview of this section. And the obvious care with which these provisions and exceptions were *made, affords a strong rational, as well as legal, presumption that other exceptions, not expressed, were intentionally excluded.

On the face of the section there is no absurdity which might imperiously require a construction giving it a meaning different from its literal import; and the only argument by which we are urged to do so, is derived from supposed cases of hardship which might arise under its operation if literally construed. That such cases of hardship might possibly occur, is readily admitted. But the same may be said of the operation of all statutes of limitation. It is in the nature of all such statutes that it should be so. And they all proceed upon the policy of compelling either a vigilant and timely prosecution of the rights of parties, or the sacrifice of those rights to the public repose. Where statutes of limitation are on their face free from ambiguity, it is now the established policy of courts to avoid giving them any other construction than that which their words demand. Angelí on Limitation, 24.

And, on the whole, looking at, the examples of like legislation to be found in other states, we are not prepared to say but that the general assembly in the enactment of this statute, appreciating the advantages of public repose and the evils of insecurity of land titles, may have intended to express all it has expressed, notwithstanding the cases of individual hardship to which its operation might possibly give rise.

But, it is said, neither the plaintiff nor those under whom he claims have had their day in court, and therefore he ought not to be barred. This would be a valid objection if the defendant were setting- up the decree as an estoppel; but as against a plea of this statute, it can not avail; for the objection would lie equally against all pleas of any statute of limitation, and effectually prevent its operation.

Finally, it is contended for the plaintiff that the purchaser at the judicial sale took by his purchase nothing more than the title of the mortgagor; and that, as the plaintiff’s mediate grantor was, at the time of the sale, as the owner of an undivided fourth part of the whole mortgaged premises, a tenant in common with the mortgagor, the purchaser of the interest and title of the mortgagor was *in like manner a tenant in common with the plaintiff and those under whom he claims; and that, therefore, the possession •of the defendant could not be an adverse possession.

It seems to us, however, that the purchaser at the judicial sale took something more than the title of the mortgagor; that he became invested, by operation of law, with the title of the mortgagee, as well as, by purchase, with that of the mortgagor; that he was’thus placed in the condition of a mortgagee in possession, after condition broken, and entitled to claim all the advantages of that position. And that the holding of a mortgagee in possession is a holding adverse to the claim of a purchaser from the mortgagor subject to the mortgage, seems to us clear.

Demurrer overruled, and cause remanded for further proceedings.

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


text:
    M. B. Upton & Co. v. I. J. Julian & Co.
    In an action of assumpsit, brought upon a promissory note given for goods sold under a special contract, the defendant, under a special notice, may recoup for a portion of the goods not delivered, or for defect of quality in the portion delivered.

      This is a petition in error,
    filed in the district court of Miami county, to reverse the judgment of the common pleas of said county, and I’eserved for decision here.
    Julian & Co. brought assumpsit against Upton & Co. on a note of hand.
    Upton & Co. pleaded the general issue, and gave notice, in substance, that on the trial they would prove that the note sued on was, with others, given for a lot of stoves, stove-plates, tinware, a patent-right for a cooking-stove, and a lot of stove-patter ns *and flasks, sold to them by Julian & Co., and that they (Upton & Co.) had fully settled, paid, and adjusted the amount of the purchase, with the exception of the note mentioned; and that all the patterns and flasks were never delivered, and that the portion of them which were delivered were not in working order;. and that the deed for the patent-right was never made and delivered.
    The case was tried to a jury, and resulted in a verdict and judgment for Julian & Co.
    The bill of exceptions, taken on the trial, shows that the note sued on (with other notes which had been transferred before maturity to bona fide holders without notice) was, as stated in the notice, given for a lot of stoves, tinware, and a patent-right for a cooking-stove, and a lot of patterns and flasks for easting stoves,, sold by Julian & Co. to Upton & Co.
    The written contract of sale was in evidence, and specifies, among other things, that the patterns were to be in good order' and the flasks in working condition.
    Upton & Co. gave evidence to show that in said purchase the patterns and flasks were estimated at the gross sum of fifteen hundred dollars; and then offered to prove that certain pieces of the-patterns were not delivered to them by Julian & Co.; and that of the patterns and flasks which were delivered, some were not in good working condition. But Upton & Co. did not offer to prove-that any entire pattern or patterns were not delivered, or that there, had been any price fixed by the parties upon any of the pieces not delivered, or upon any part of the patterns or flasks aforesaid, which Upton & Co. allege to have been not in good working condition. But the court refused to allow the evidence so offered to go to the jury.
    This refusal is claimed by Upton & Co. to be erroneous, and they, on that ground, seek to reverse the judgment of the court, below.

      Hart, Johnston & Jones, for plaintiffs in error,
    insisted that the1 defense offered by way of reducing the damages, was clearly admissible under the doctrine of recoupment, and cited Steamboat *Wellsville v. Geisse, 3 Ohio St. 333; Wheat v. Dotson, 7 Ark. Cond. 699.

      S. S. McKinney, for defendant in error, insisted:
    1. That the defendants below could not recoup damages, because the bill of exceptions does not show that there were prices fixed to each necessary piece of the patterns that were not in working condition, nor that such pieces of either formed an entire article. Baker v. Thompson, 16 Ohio, 507, 508.
    2. That the notice attached to the plea is a general notice and does not specify sufficiently definite the pieces of the patterns and flasks not delivered, or that were not in working condition. Steamboat Wellsville v. Geisse, 3 Ohio St. 333.
   Scott, J.

It would seem probable, from,the bill of exceptions in this case, that the evidence which the plaintiffs in error sought to offer in the court below, in reduction of damages, was excluded on the authority of Baker v. Thompson, 16 Ohio, 507, 508. Bu that case seems to have turned wholly on the construction of the statute in relation to a total or partial failure of consideration. No reference is made in the case to the doctrine of recoupment. But in the subsequent case of Steamboat Wellsville v. Geisse, 3 Ohio St. 333, the right of a defendant, in a proper case, and under a proper state of pleadings, to reduce by way of recoupment, the damages sought to be recovered by the plaintiff, was directly considered and fully recognized as the law of this state. The court say: “ It is a right so reasonable in itself, so necessary to the simple and economical administration of justice, and so entirely congenial to our system of jurisprudence, that, however doubted or denied in some parts of the state, it has, in general, commended itself to our courts, and become well established.” In this opinion we concur.

When a party.sues to recover for goods sold and delivered, or work and labor performed under a contract, it would seem reasonable that he may be required, upon proper notice, to account in the same action for his own disregard of the obligations of the same contract. Why should he be allowed to recover, as upon a *full performance on his part, and the defendant be driven to a cross-action, the result .of which would leave the parties just where the principle of recoupment would have placed them at the close of the former suit?

And the principle is the same, whether the suit be brought upon the original contract, or, as in this case, upon a promissory note founded thereon.

Our present code fully sanctions this right, and provides for its exercise by way of counter-claim.

It was properly held, in the case last cited, that as recoupment signifies nothing more than a reduction of damages, the right could only be exercised under a special notice, and not under a plea which purports to bo a bar to the action.

But, in the present case, the defendants in the court below had laid a proper foundation for the exercise of this right by special notice, which called in question the performance, on the part of the plaintiffs, of their stipulations in the contract which formed the consideration of the note sued upon. They had notified the plaintiffs specifically of their intention to prove, upon the trial, that the patterns and flasks, in purchase of which the note had been in part given, had not been delivered; and that the portion which had been delivered was not in working condition, as the contract of the parties required. The evidence which was excluded tended to prove the truth of at least a part of the special matter set up in the notice, and should have been allowed to go to the jury.

Judgment of the common pleas reversed, and cause remanded.

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