text:
    Walter Turner v. William R. Johnson and others.
    After a sale under a deed of trust, the grantor has no right to redeem without showing extrinsic circumstances of equity.
    This is a bill in chancery from the county of Coshocton.
    The bill sets forth, that the complainant, being the owner of certain lands in Coshocton county, consisting of two tracts, one called the Huffman tract, of 728 acres ; the other the Sukely tract, of 3,273 acres, for which he hold Sukely’s agreement, and owed him toward the land about $3,000, by a trust deed, on October 25, 1833, conveyed the Huffman tract to William A. Adams, to secure $5,300 due to Benjamin Blandy; and on April 21,1834, he conveyed both tracts to Charles C. Gilbert, to secure $4,800 due to the Bank of Zanesville. The debt due to the bank was unpaid, and Gilbert advertised the property to be sold on Monday, July 6, 1835. That on the 4th of July, two days before the sale, the complain205] ant was informed, by the president of the bank, that *Gilbert was authorized to buy the land for the bank, and, in that event, he could redeem it. That on the morning of the day of sale, ! ho saw Gilbert, and communicated to him the assurance he had received from the president of the bank, and that he expected to be able to redeem the land through the aid of Mr. C. P. Buckingham. That Gilbert was at Coshocton, on Monday, to sell the land under the advertisement, and went to the house of his brother-in-law, G. W. Silliman, one of the defendants. That complainant went to see Johnson, who was also brother-in-law to Silliman, and was informed by him, that he had no intention to bid, and was happy to learn the land would be sold in such a way that it would be in the power of the complainant to redeem it. The complainant then had an interview with Gilbert, who informed him that Johnson did not intend to bid, and that the property should be put up in one lot, and bid in for the bank, and in that way preserved, and that there was no danger of an adverse bid. That Beall Pumphrey and Gen. Stokely were at the sale, with the intention of bidding, but left before the sale, because they supposed the property would be bid in by the bank, and preserved for the complainant.
    That he, the complainant, attended the sale, and, to his astonishment, Johnson bid in the property, and for himself, Silliman, and Humrickhouse; and the complainant then found there had been a fraudulent preconcert among the purchasers and Gilbert, to prevent others bidding, and for a credit in bank to enable them to pay for their purchase, and that the complainant had been the dupe and victim of a fraudulent and treacherous combination.

    The prayer is, that the sale be set aside,-and an account taken of the rents, profits, taxes paid, and moneys advanced to clear off the incumbrances, etc., and that sufficient of the lands should be sold to pay the defendants, or, on payment of the amount due them by the complainant, they shall be compelled to reconvey to the complainant, and for other relief.
    The respondents have all answered. The sale and purchase are admitted, as set forth in the bill of complaint; but *all [206 fraudulent combination or concert, or that the complainant was duped or deceived, by any false representations of any one fact, is, by each of the respondents, unequivocally denied; or that any arrangement had been made by the bank for a credit to pay the purchase money. A replication was filed by the complainant, and several depositions taken and submitted, but it is unnecessary to state their contents further than they appear in the opinion of the court.
    The case was submitted to the court chiefly on questions of fact, and was fully argued by H. Stanbery, for the plaintiff, and Goddard and Convers, for the defendants :
    Mr. Stanbery, to show the right of redemption,
    cited 1 Powell on Mort. 9, n. 1; Ord v. Noel, 5 Mad. 438; Burnet v. Denniston, 5 Johns. Ch. 42.
    Goddard and Convers, contra,
    cited Clay v. Sharp, 18 Ves. 345; Sug. Vend. 326, 327, Appendix, 788; Corder v. Morgan, 18 Ves. 344; Wright v. Rose, 2 Sim. & Stu. 323; S. C., 1 Eng. Cond. Ch. 477 ; Clay v. Willis, 1 B. & C. 364; S. C., 8 Eng. Com. Law, 103; Wilson v. Troup, 7 Johns. Ch. 25; 4 Kent Com. 139; 1 Powell on Mort. by Coventry and Rand, 9, n. 1 ; Bank of the Metropolis v. Guttschlick, 14 Pet. 10 ; Greenleaf v. Queen, 1 Pet. 138; Eaton v. Weiting, 3 Pick. 484; Minuse v. Cox, 5 Johns. Ch. 441; Meredith v. Nichols, 1 Marsh. (Ky.) 600; Chowler v. Smith, 3 Des. 12; Barton v. Rushton, 4 Des. 373; Cooke, 181.
   Wood, J.

The property was bid in, it appears, at the amount due the bank, $4,800, and taken subject, of course, to the prior incumbrances, in the aggregate, $18,452.92. There are different valuations put upon it at the time of the purchase. One witness thinks it was a poor speculation, while others range from $20,000 to $40,000. The respondent, Johnson, admits it to have been worth $27,000. It is claimed by the complainant that the first aspect of the case calls upon the court to set aside this sale. By the terms 207] of the advertisement, *it will be seen the sale was to be for cash, but when the sale was made, no cash was paid in hand, but the amount of the bid was canceled by an arrangement with the bank, a short time afteward, by which the debt covered by the trust deed was paid. There was nothing inequitable in this arrangement that we perceive. Gilbert and Johnson treated the sale as one for money. It was intended and so understood by the parties. A certificate of purchase was given by the trustee, and the amount afterward actually paid, and whether by means of a loan from the hank for that purpose, or in some other manner, is, in our opinion, of but little consequence to inquire. But if the sale was actually on a credit, when, by the notice given, cash would be required, it was, under the circumstances, at the risk of the bank, and does not prejudice the rights of the complainant. It is said this was a very profitable speculation, but that is of little im. port to the complainant in the decision of this case, if made in pursuance of the deed of trust, and bona fide. A man has the right to avail himself of his moans, and to be protected in his lawful acquisitions and gains. It is said that the trustee could not lawfully sell the whole property in one lot, but the answer is, the deed conferred that power, at the discretion of the trustee; and the complainant, before and after the sale, expressed himself satisfied that it should be and had been disposed of in that way. In Johnson v. Turner, 7 Ohio, 216, pt. 2, it was decided by this court, that such sale was in accordance with the power conferred, and passed the legal title to the defendant.

The allegation in the bill, that Pumphrey and Stokely intended to bid upon the property, but left before the sale, because they understood the property was to be purchased and preserved for the complainant, is entirely unsupported. Stokely swears the reason why he did not bid upon it was, that he.was only desirous of purchasing the Huffman tract, and had not the means to buy, when he understood the whole was to be sold together. Beall Pumphrey says nothing, excepting what he was told by Stokely, which has hot any direct bearing on the final result of this controversy.

*But it is suggested, in the argument, though it does not [208 appear to be much relied upon, that these trusts connected with a loan of money, and power of sale, for non-payment, have been considered as in the nature of mortgages; and that they are, in all cases, subject to a redemption, alter sale. The clause in the deed, under which the power is conferred to sell, is in these words: “And I do expressly empower the said Charles C. Gilbert, his heirs and assigns, upon giving sixty days’ notice of the time and place of sale, in some newspaper printed in Coshocton county, to sell to the highest bidder, at public sale, for cash or credit, as my said trustee may deem best, without reserve or appraisement, all, or so much thereof, as may be necessary, of said land, either together or in lots; and of the proceeds, first to pay,” etc., with covenants of warranty, and for further assurances to the purchaser. The objects, in entering into such contracts, are readily perceivable, and must be within the full contemplation of the parties. In consideration of obtaining means, of which he could not otherwise avail himself, Turner makes the trust deed, with the power contained therein, and the bank advances the money; the understanding being complete that the ordinary forms of law are dispensed with, that resort to a court of equity to sell the land will not be required, and that such sale may bo made without the incumbrance of an appraisement. In fine, that the parties constitute their own court, and their own mode of proceeding. And after a sale is made, in pursuance of the power conferred, the last thing 'which could reasonably be contemplated by the party, is the assumption that there is an outstanding right of redemption in the complainant.

In this case, to hold such right exists, where no extrinsic circumstances appear to manifest such an intention between the parties, would force upon them a new contract, instead of carrying into execution the one into which they had voluntarly entered. In Eaton v. Whiting, 3 Pick. 484, it was holden by the Supreme Court of Massachusetts, that while the power to sell, in a mortgage, was unexecuted, there was a right to redeem, and it remained 209] in the mortgagor, until sale of the land, in pursuance *of the power, to a person intending to take an irredeemable estate. In 14 Peters, 19, it is said in the case of a trust deed, “that unless there is some extrinsic matter of equity, the only right of the grantor is to what surplus money may remain, after the liquidation of the debt for which the property was sold.”

Counsel, however, rely mainly on the concert between the bank by the president and G-ilbort, and the other defendants, by which this complainant was made the dupe and victim of a fraudulent and treacherous combination l The evidence is, that Silliman did not know of the sale until after it was made; that Johnson saw young Humrickhouse, and had a conversation with him, in relation to raising the money, about the time the sale was opened, and then, for the first time, concluded to bid. That Gilbert did not know that Johnson had made up his mind to purchase until the bid was made, but expected to bid it in, himself, lor the bank; and he then expected an arrangement would be made, by young Buckingham, with the bank, by which Turner would be enabled to redeem it; but he made no contract, nor gave the complainant any certain assurance to that effect. This is substantially the evidence relied upon, to sustain the case made by the pleadings, and we see nothing in it which entitles the complainant to any relief.

Bill dismissed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    *Sarah Tuttle v. Newell Willson.
    The act of limitations of 1810 operates as a bar to a right of dower after the lapse of twenty-one years.
    After such a lapse of time, equity will refuse its aid independent of the act of limitations.
    This is a bill in chancery, from the county of Washington.
    The complainant states, in her bill of complaint, that she was married to one Samuel Seaman, who was seized, during her coverture, of one hundred acres of land, in the county of Washington, conveyed to him on March 24, 1794, in fee, and that, in 1815, her said husband died. She further states, that the respondent, Willson, is in possession of said land, claiming to hold an estate of inheritance therein. She prays that the respondent may be decreed to assign her one full and equal third part of the premises, as her reasonable dower in said land.
    The respondent has answered and insists, by way of defense, that the claim of the complainant accrued nearly thirty years since, and is, therefore, stale and barred by lapse of time and the statute of limitations. To this answer, the complainant has filed her replication.
    Goddard & Converse, for the complainant,
    cited Barnard v. Edwards, 4 N. H. 107; 6 Comyn Dig. r. tit. Temps. 340; Co. Lit. 36, n. a; Bank of the United States v. Dunseth, ante 18.
    *Nye, for the defendant, cited 1 Caine, 159; 1 Story’s Eq. [25 576; 1 Mad. Ch. 242; Key v. Vattier, 1 Ohio, 141; Mr. Arthur v. Porter, 1 Ohio, 99; Ohio Forms and Practice, 382; 1 Chase’s Laws, 656; 1 Story’s Eq. 502 ; 2 Story’s Eq. 735, 738; Sug. Vend. 468; Jones v. Powell, 6 Johns. Ch. 194; Kane v. Bloodgood, 7 Johns. Ch. 90; Hovenden v. Lord Annesley, 2 Sch. & Lof. 629; Miller v. McIntyre, 6 Pet. 61; Piatt v. Vattier, 9 Pet. 416.
   Wood, J.

The issue made up, in this case, raises the question whether the act of 1810, in force when the husband of the complainant died, closes the door against relief, or whether the complainant is otherwise barred by lapse of time? In some of the states it has been decided, that their statutes of limitations are not to be applied to a suit for dower. 4 N. H. 107; 6 Johns. Ch. 194. But such adjudications appear to have grown out of the peculiar phraseology of their laws. In Jones v. Powell, 6 Johns. Ch. 194, the chancellor seems to place it entirely upon that ground, the statute of New York providing, that the widow may, at any time, during her life, demand her dower. To have limited the complainant to any number of years, therefore, for the exercise of that right, would have repealed both the letter and the spirit of the act. The statute of Ohio, however, contains no words of similar import. It enacts, “ That the widow shall be endowed of one full, equal third part of all lands, tenements, and real estate, of which her husband was seized, as an estate of inheritance, at any time during the coverture,” etc., but is silent as to the time within which the right shall be asserted. 1 Chase’s Laws, 472.

The act of 1810 provides, “ That no person or persons shall hereafter sue, have, or maintain any writ of ejectment, or other action for the recovery of the possession, title, or claim, of, to, or for any land, tenements, or other hereditaments, but within twenty-one years, next after the right of such action or suits shall have accrued,” etc. It will be seen, that it is not only an action 26] of ejectment which is barred *by this statute, but every other action for the recovery of the possession, title, or claim to any land. 1 Chase’s Laws, 656. The petition for dower is, substantially, when prosecuted, a possessory action. Its object is the recovery of a private right, the possession of lands, in which the complainant has an estate for life, and would seem to be within tho letter of the act. It is, however, a general rule, both in England and the United States, that statutes of limitation do not, ex vi termini, extend to suits in chancery, yet courts of equity in both countries constantly admit their obligation, and act not only in analogy, but in obedience to their provisions. It is, indeed, well settled, that a statute of limitations will now be applied, in equity, where it would bar the claim at law. 1 Story's Eq. 502; 2 Story’s Eq. 735; 6 Peters, 66. Seaman died in 1815. The right to dower accrues upon the death of the husband. 1 Caine, 159. The complainant filed her petition in 1838, a period of twenty-three years having elapsed after her cause of action arose, and, in our view, the statute is a bar to her claim. But if it were otherwise, the staleness of tho demand would be fatal to its further prosecution, and, independent of the act of limitation, afford a complete defense. Where rights are unreasonably neglected, the presumption is legitimate of an intention to abandon them. Nothing,’’ says Lord Camden, in Smith v. Clay, 3 Brown’s Ch. 640, “ can call forth this court into activity, but conscience, good faith, and reasonable diligence; where those are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced, and, therefore, from the beginning of this jurisdiction, there was always a limitation of suit in this court.” This language of Lord Camden is cited with approbation by the Supreme Court of the United States. 9 Peters, 416. In 7 Ohio, 62, the same principle is also recognized by this court.

But it is said by counsel for the complainant, that the case of the Bank of the United States v. Dunseth sustains them in the position, that time does not bar dower. We do not perceive the application of that ease to the one before us. In that, it was *de- [27 cided, that a dowress was not entitled to damages; nothing was raised, nor anything determined, growing out of the statute of limitations, or the lapse of time. Ante, 18.

In the case at bar, therefore, we have been led irresistibly to the conclusion, in both the aspects in which the defense has been considered, that the complainant’s bill should be dismissed with costs.

Bill dismissed.


author: *Wood, J.

text:
    *Nathan Herf & Co. v. Peter Shulze, J. E. Shulze, and S. S. Rex, Merchants, trading and doing business under the firm of Shulze, Son & Rex.
    In a capias ad respondendum, the insertion of the mere initial letters of the plaintiffs Christian name is a fatal defect in' the description of the person.

      «In or about the sum of $4,930,” in an affidavit to hold to bail, is not suffi oiently certain.
    The amount sworn to in the affidavit must be indorsed on the writ.
    The Supreme Court do not allow the writ of certiorari before a final disposi tion of the cause in the court below.
    This is a writ of error to the court of common pleas of the county of Holmes.
    The original suit was an action of assumpsit, brought in the court of common pleas of Holmes county, in which the plaintiffs in error were defendants, and the defendants in error were plaintiffs. The declaration counts first on a promissory note, bearing date on March 26, 1839, for $4,485.50, payable, six months after date, to the plaintiffs below, and executed by the defendants below ; also, on a certain inland bill of exchange, drawn by the defendants below, on the said plaintiffs, on March 27, 1839, payable to Samuel H. Edwards, for $436.58, which, it is averred in the declaration, was accepted' and paid by the said plaintiffs below. The declaration also contains the usual common counts. The defendants below plead the general issue. The case was submitted to the court, at the March term, 1840, and judgment given for the plaintiffs below for the sum of $4,100, and this writ of error is prosecuted to reverse the judgment. The facts which transpired during the progress of the cause in the court of common pleas are substantially these: The suit was instituted by a capias ad respondendum, founded on an affidavit of Wm. S. Tannyhill, an attorney for the plaintiffs below, in which it was stated, among other things, that the defendants below were indebted to the said plaintiffs “ in or about the sum of $4,930,” on the said note and inland bill of exchange which are described in the said affidavit, as 264] they are set forth.*in the declaration. This praecipe was next filed : “ Peter Shulze, J. E. Shulze, and S. S. Rex, merchants, trading and doing business under the name, firm, and style of Shulze, Son & Rex, v. Nathan Herf and Leopold Hass, merchants, trading and doing business under the name, firm, and style of Nathan Herf & Co., in assumpsit, damages $6,000 and then directs the clerk to issue a capias ad respondendum, returnable» etc., and indorsed, “suit brought,” etc., describing the said note and inland bill, and the causes of action, as they are stated in the common counts. A capias was issued, as directed in the praecipe, correctly describing the defendants below, as they were described in the praecipe and affidavit, and then follow these words in the said capias, “to answer unto Peter Shulze, J. E. Shulze, and S. S. Bex, merchants,” etc. There was no indorsement on the writ of the amount sworn to, or appearing due. On this capias, the sheriff returned, he had arrested the defendants below, and taken bail in the sum of $12,000. On the return day of the capias, tho counsel for the defendants in the court below, moved to discharge thorn on common bail; to set aside the proceedings, and to quash tho capias, for the reason, among others, that the affidavit, praecipe, and capias disclosed only the Christian name of one of the plaintiffs below; that in the affidavit to hold to bail there was no certain sum stated to be due; that the plaintiffs below had not directed in the affidavit or praecipe the amount in which the defendant should be held to bail; and that there was no indorsement on the writ of the amount appearing to be due or sworn to. These motions were overruled by the court, and the defendants below required to perfect special bail, in the amount of $12,000. These decisions of the court of common pleas are assigned for error.
    Cox and Sapp, for the plaintiffs in error.
    W. Silliman, Harris, Tannyhill and Hougland, for tho defendants in error.
   *Wood, J.

It will be seen that advantage was sought tó be [265 taken of tho supposed irregularity of these proceedings, on tho return day of tho writ, before special bail was perfected or the declaration filed. No rights, therefore, were waived by the plaintiffs in error, and the question is first presented, whether it is required of a plaintiff who brings a suit, to give himself a Christian name, or is it sufficient, if he describe himself by the initials thereof. Wo have looked into the numerous authorities cited by counsel, as well as such others as were within our reach, and the result is a perfect conviction, with the majority of the court, that the general analogies of tho law, both in England and in most of the United States, require a plaintiff to describe himself by his proper Christian, as well as surname. Names are the indicia by which persons, as well as things, are distinguished from each other, and the want of either the Christian or surname, as well as a misnomer, may be taken advantage of by plea in abatement, or by motion to discharge on common bail. No reason is perceived by us why the rules, in this respect, should bo either abated or relaxed. It was very properly remarked, by Mr. Justice Eyre, that infinite mischief occurred, by the facilities of courts, in overlooking errors of form; that it encouraged carelessness, and placed ignorance too much upon a footing with knowledge amongst the profession.

But few eases, it is believed, can be found, where a plea in abatement would be sustained for’a misnomer, the want of an addition, or either Christian or surname, in the courts of Westminster, when a motion to discharge, on common bail, would not likewise, bo supported. It is true, in England, you can not now plead in abatement to the writ, though such plea was formerly sustainable. The defendant there is prohibited, by rule of court, from craving oyer of the process. The writ there forms no part of the record; but for a misnomer, or the want of proper Christian or surnames, of either plaintiffs or defendants, a plea in abatement, until recently, would have been sustained to the declaration. Tho law has, however, been changed, within a few years, by act of parliament, 266] and pleas *in abatement for misnomer are now abolished by the statute of 3 and 4 of Will. 4, cap. 42, sec. 11; and another remedy is provided. This statute enacts, that no plea in abatement, for a misnomer, etc., shall be allowed, where, but for the act, the same might have been pleaded; but, instead thereof, the defendant may apply to a judge for a summons against the plaintiff, and compel him to insert the proper name, and pay tho costs of the application. In Ohio, we have no statute on the subject, and the rule remains, as, at common law, it was borrowed from the jurisprudence of our ancestors. In the King v. Harrison, 8 Term, 508, it is said, it must be stated, with certainty, who are tho parties to the suit, and, therefore, a declaration by or against C. D. & Co. is not sufficient; and as the writ, in Ohio, forms a part of the record, and oyer may be had, the same objections apply to the process. In a recent case, Finch v. Cooken, 3 Dowl. 678, it was held that a misnomer of the defendant renders the bail bond void, and judgment on it was accordingly reversed.

Tho next question presented arises on the affidavit. Are its words, “in or about- the sum of §4,930,” sufficiently certain, as to the amount appearing to be due, or sworn to? The statute under which this suit was instituted, provides, that the affidavit shall state, “that there is a debt or demand justly due such creditor of $100, or upward, specifying, as nearly as may be, the nature and amount thereof.” In what sum, under this affidavit, can the defendant legally be hold to bail? The law requires bail, in double the amount sworn to be duo. The sheriff, then, must take bail in twice the amount, of “ in or about” $4,930. To ascertain it, however, is beyond the power of mathematical calculation. “ In or about” defines no specific sum whatever. The precedents in Chitty, giving the form of the affidavit, all give a certain sum as necessary to be stated. $100 and upward, would be certain as to $100. The sheriff could hold to bail only in $200, though the plaintiff may recover to any extent he can prove the defendant’s liability. In the books of English practice, fromSelden and Tidd, to a ^modern edition of Chitty, we can not find a case where [267 an affidavit like the one in this case has been held sufficient. The statute of Geo. 1, amended by 5 Geo. 2, and afterward made perpetual, which required an affidavit to hold to bail, and under which the English practice grew up, is similar, in its provisions, to our own. In our opinion, this affidavit ought not to have been sustained.

The next inquiry in order is, whether the capias was defectivo and should have been quashed, or the defendants below discharged on filing common bail, because there was no indorsement upon it of the amount appearing due, or sworn to. This indorsement is required, by the act of 1831, to regulate the practice of the judicial courts, and is not repealed by the act of 1833, under which this capias was issued. The object of the act is readily perceivable, that the sheriff may know in what amount to demand bail, and the defendant, the sum demanded of him, that he may pay it without further embarrassment, vexation, and cost. But it is said the language of the act is merely directory. The same question was debated, in a comparatively recent case, before Taunton, Justice, under a rule of Hilary term, 2 Wm. 4, which required the amount of debt and cost to be indorsed on the process; and it was said, by the court, that to say the rule is directory and not compulsory, is to say, in other words, it means nothing, and that it must be considered an irregularity; that it waá a very important rule, and the object of it was to enable the delendant to pay debt and costs, before any unnecessary expense was incurred ; and the object of the rule would be avoided, if not held an irregularity. 1 Dowl. 383, cited in 3 Chitty’s Pr. 72; by Park, Justice, also, in Smith v. Crump, 1 Dowl. 119. The decisions of the English courts, on t’nis subject, have been not always uniform, but occasionally con-‘¿ flicting. But the late adjudications, all of them, so far as can bo , ascertained, adhere to the language used by Taunton and Park, Justices, that such requisitions are compulsory. The practice of the English courts, for all such defects, is, on motion, to discharge on common ball, or to set aside the proceedings. 3 Chit. Pr. 170, et passim.

268] *There can, in our opinion, be no doubt, that the same rules should be applied in this state. The court of common pleas overruled the motions of the defendants below, when the motion to quash, set aside the proceedings, or discharge on common bail should, at least one of them, have been sustained.

We would also observe, that submitting to final judgment, in the common pleas, before any attempt was made to reverse the erroneous interlocutory orders made there, is not a waiver of any legal rights by the defendants below; for writs of certiorari are not allowed in Ohio, by the Supreme Court, until the cause is finally disposed of in the court below, and writs of error can only be issued after a final judgment.'

In the case at bar, we are unanimously of opinion the judgment of the common pleas should be reversed, and a majority of the' court, upon all the points made by the counsel for the plaintiffs in error, and with costs. ■ ,

Judgment reversed.


author: *Lane, C. J.

text:
    *The Lessee of William S. Sullivant and others v. John Weaver and others.
    The act of Congress, of May 20, 1836, to give effect to patents for public lands, vests the title in the heir or assignee of a deceased patentee.
    A decree against unknown heirs is valid by our statute.
    This is an action of ejectment on an agreed state of facts, from the county of Clermont.
    A patent was issued in the name of James Mabin, after his death, in 1800.
    Andrew Mabin was the brother and heir at law of James.
    In 1830, a decree in chancery was obtained, by the plaintiffs in this suit, against the unknown heirs of Andrew Mabin. Tho record of this decree shows, that an affidavit was filed, by the plaintiffs, during the progress of the suit, that the heirs of Andrew Mabin were unknown.
    The defendants trace their title to a patent, issued in 1833, on an entry made after the decree in chancery.
    Fox, for the plaintiffs :
    The act of Congress of March 2,1807, providing that no location shall be made on lands for which patents had been previously issued, or which had been previously surveyed, renders void the survey and patent of Weaver. Lindsey v. Miller, 6 Peters, 666; Wallace v. Parker, 6 Peters, 680; Jackson v. Clark, 1 Peters, 628.
    Two questions then only remain :
    I. Is the decree against the unknown heirs of Mabin valid to convey the title? There is no pretension, but the case made in the bill is within the statute authorizing proceedings in chancery against unknown owners, but it is objected that the affidavit required by the act was not made on the filing of the bill. If this bean irregularity, it was cured by filing'the affidavit afterward with the permission of the court. Besides, however irregular the decree may have been, it is good until reversed, and can not be called in question collaterally by a stranger.
    276] *H. The act of Congress of May 20,1836, confirms the title in the heirs or-assignees of all persons in whose name patents issued after their death. By virtue of this act, the vested in title Andrew Mabin, as the heir of his brother, and under the decree in chancery, it passed into the plaintiffs.
    Fishback, for the defendant:
    The plaintiffs can rely only on the strength of their own title, not on the weakness of their adversaries. They claim under an ex parte decree, and such decrees are always at the peril of the party taking them, and are to be regarded rather as the act of the party than of the court. Carew v. Johnson, 2 Sch. & Lef. 300.
    There is no evidence in the case, that Andrew'Mabin left any heirs. The record and proceedings against unknown heirs is no evidence that any such heirs existed. Hollingsworth v. Barbour, 4 Peters, 466.
    It is admitted that, at-the date of the patent, James Mabin was dead; and it is a well-settled rule that nothing passes by a patent issued in the name of a dead man. The decree, therefore, in 1830, against his heirs, could pass no title, for they had nothing to pass. The title was in government. The decree required the unknown heirs to convey, but without covenants. The plaintiffs then acquired nothing by the d'ecree as it stood in 1830. The act of Congress was passed in 1836, and vested the title in the heirs of the pat* entee, where it still remains. The doctrine of estoppel has no application. None but a conveyance with warranty will transfer a title subsequently acquired. Jackson v. Matsdorf, 11 Johns. 91; Jackson v. Danforth, 12 Johns. 201; Jackson v. Stevens, 13 Johns. 316; Jackson v. Wright, 14 Johns. 193; Bond v. Swearengen, 1 Ohio, 395; Allen v. Parish, 3 Ohio, 107; 4 Kent’s Com. 98.
    In 1792, a statute similar to this act of Congress was passed in Kentucky, and it has been held not to have a retrospective operation so as to divest title already acquired. Lewis v. McGee, 1 Marsh. 199.
   *Lane, C. J.

The defendant’s patent is void, under the [277 act of Congress of 1807, and the only points in the case are upon the plaintiff’s titlA To this the defendant offers two objections:

I. That the patent issued after the death of James Mabin.

This court, in the Lessee of Wallace v. Sanders, 7 Ohio, 173, pt. 1, regarded the conveyance of a title from the United States to a person deceased as of no validity.

In 1836, the act of Congress was passed, by which the titles assumed to be convoyed by patents issued under these circumstances,. are vested in the heirs or assignees of the deceased. We suppose this removes the ground of the first objection.

II. That the proceedings in chancery against heirs unknown confer no interests and bind no rights.

The statute then in force (Chase’s Laws, 1279, sec. 14) authorizes proceedings against the heirs of decedents, without naming them, where their names are unknown; provided, that the complainant, before process or order against them, shall make an affidavit that he does not known their names. We suppose it to be within the legitimate scope of legislative power to direct the forms of process, and the system of proceeding; by which lands lying within its jurisdiction are to be affected; and it seems a convenient and necessary exercise of this power t’o devise the means of adjudicating the titles to land here, where owners are abroad or unknown.

A substantial compliance with the law is required. We regard it as having been practiced in the present case, for the affidavit, which is one of. the steps conferring jurisdiction, was made before any binding force was attempted to be exercised over the rights of the defendant.

Judgment for the plaintiff.

      A. statute in Kentucky authorizes a bill in chancery to be filed against unknown heirs, if an affidavit be annexed to such bill that the names of the 'heirs are unknown. In Hynes v. Oldham, 3 Mon., 266^ it is held, that a decree for the conveyance of real estate, against unknown heirs, is not void, •even if no affidavit be made, the court having jurisdiction of the subject mat■ter. But in New York, a judgment in partition under the statute, where ■part of the premises belongs to owners unknown, is not valid unless it appear ■upon the face of the record that the affidavit required by the statute, that the ■plaintiff is ignorant of the names, etc., was duly presented to the court, and •notice duly published. Denning v. Corwin, 11 Wend. 647.


author: *Hitchcock, J.

text:
    *The Trustees of the Township of Brimfield v. The Commissioners of the County of Portage.
    Under the act of January 29, 1834, to. provide for the safe keeping of idiots, etc., a county can not he charged with the maintenance of an idiot, lunatic, or insane pauper, until after the appointment of a guardian hy the court of common pleas.
    This is an action of assumpsit from the county of Portage.
    It is submitted to the court upon an agreed state of facts.
    On October 19, 1837, complaint was made before Jeremiah Moulten, a justice of the peace of Brimfield township, by the overseers of the poor of that township, stating that one Eachel Coozard was insane. A warrant was issued, said Eachel brought before the justices, and a jury was impaneled according to law, who found the said Eachel to be insane and incapable of taking care of herself, but that she was not dangerous, and ought not to be confined. The justice issued an order to the overseers of the poor of said township, directing them to provide for said Eachel, etc.
    Said overseers of the poor, at the expense of said township, provided for her until February 17, 1838, when a guardian was appointed by the court of common pleas. The expense of the inquest was $12.10, and the cost of maintenance, $66.63. Said Eachel had no property. Demand of payment of the above two sums have been made of the commissioners, and refused on the ground that the said Eachel was, during the time aforesaid, a township charge, and the county not legally liable for her support and maintenance. To recover these two sums this suit is prosecuted.
    Cochrane, for the plaintiffs.
    Sloane & Otis, for the defendants.
   *Hitchcock, J.

Upon the state of facts agreed in this case, [284 it is claimed by the plaintiffs that they are entitled to recover of the defendants the amount of moneys expended in ascertaining the fact of insanity, and in supporting the pauper up to the time of the appointment of a guardian. Whether this claim is well grounded, depends upon the act of the general assembly of January 29,1824, entitled “• an act to provide for the safe keeping of idiots, lunatics and insane persons,” etc. Section 1 prescribes the manner of proceeding to ascertain the fact of idiocy, lunacy, or insanity. Complaint is to be made to a justice of the peace of the township in which the person supposed to be insane resides, who is required to issue his warrant to a constable of his township, requiring him to bring the person charged before him, and also to summons seven discreet and disinterested freeholders to appear at the same time and place. These freeholders, being first duly sworn for thatpurpose, shall inquire into the case, and return their verdict in writing to the justice, whether the person complained of be an idiot, lunatic, or insane, and shall moreover certify, under their Bands, whether there is danger of such person destroying his or her own life or property, or the life or property of others, or whether such person ought to be put in confinement.”

If the inquest find that such person is an idiot, lunatic, or insanej and do not certify as their opinions that he or she ought to be put in close confinement, the act in section 2 provides, “ that the justice shall issue his warrant to the overseers of the poor of the township, where he or she may have last resided or been found, directing them to take care of and provide for the maintenance, or otherwise dispose of such person, agreeably to the provisions of the act entitled an act for the relief of the poor.”

The agreed case shows that these proceedings wore; had that the freeholders found Rachel Coozard to be insane, but that she was not dangerous and ought not to be confined. The justice, as required in such case, issued his warrant to the overseers of the 285] poor, who took charge of the pauper, and ^provided for her at the expense of the township. Had' the act stopped here, she must, unless she had property, have been sustained by the township in conformity with the “ act for the relief of the poor.”. This, of course, would have been at the expense of the township.

But there are further provisions. If the freeholders find that the insane person ought to be confined, it is made the duty of the justice “to commit such person to close confinement in the jail of the county, unless the friends or relations shall give a bond, with sureties, for the safe keeping of such person, in a sum to be approved by the justice, payable to the county treasurer for the use of the county, and shall set forth in the mittimus the cause of commitment,” etc.

It is next made the duty of the jailer, within five days after receiving such person, to notify the commissioners of the county to meet on a particular day, who are required to meet and examine into the case, and, if necessary, to employ medical aid, and use such means as may be most conducive to restore the exercise of reason. In this class of cases all necessary expenditures must be defrayed by the county, as provided in section 4 of the act, unless the person confined has property wherewith to defray these expenditures.

In section 5 it is enacted, “ that in every case where a pei’son is adjudged to be an idiot, lunatic, or insane, on the verdict of a jury, the justice of the peace receiving such verdict shall issue his warrant to the overseers of the poor of the township, directing them to take charge of the estate, real or personal, of such person, and make an inventory thereof, and return the same to the clerk’s office of the court of common pleas of their county, within ten days thereafter, which return said clerk shall-file in his office.”

By section 6, the overseers of the poor are required to apply to the court of common pleas, at its next session, for the appointment of a guardian to take charge of the person and property of the •idiot, lunatic, or insane person, which appointment the court are required to make,'“and said,court shall make such allowances to the overseers of the poor, and guardians, *for their services [286 under this act, as they shall deem reasonable, to be paid out of the estate of such person ; and in case the estate aforesaid shall be wholly expended in the charges and maintenance of such person, the county shall be chargeable with all further expenses that may accrue.”

Under this last clause of the section it is claimed by the counsel for the plaintiff, that the county are in all cases chargeable with the maintenance of an idiot, lunatic, or insane person, who is a paupei'. But this must be taken in connection with the preceding parts of the law. If wo were to take this clause by itself, and construe it literally, we should have to hold that the county were not liable, except where, at the time of the inquest found, there was property. In such case, when the property is exhausted, “ the county shall be chargeable with all further expenses that shall accrue.” Such could not, however, have been the intention of the legislature, for whether there is property or not, a guardian is to appointed, and this guardian is accountable to the court of common pleas. And by that court the arnout of compensation which he shall receive for his services is to be fixed.

It is admitted that there is great difficulty in giving this part ' of the act, in connection with the preceding parts, a satisfactory construction. If the insane person is not a proper subject to be confined, he is committed to the overseers of the poor of the township, who are to provide for him agreeably to the “ act for the relief of the poor.” By that act, if a pauper, he must be sustained by the township. If it is necessary to confine him, the overseers of the poor have no further control over his person; he is committed to the jail of the county, and, if a pauper, the county must defray the expense. Then comes the closing paragraph of section 6: “And in case the estate aforesaid shall be wholly expended in the charges and maintenance of such person, the county shall be chargeable with all further expenses that shall accrue.” In no part of the act is any specific provision made, that the county shall refund the expenses which may have been incurred by a township. 287] Upon the whole we incline to the ^opinion, that the 11 further expenses” relates to the expenses that may subsequently accrue, rather than to the expenses over and above the estate of the individual. Entertaining this opinion, it follows that the* county of Portage is not chargeable for the maintenance of the in-> sane pauper in this case, prior to the appointment of a guardian.

It is supposed by plaintiffs’ counsel, that section 18 of the before-recited act has a bearing upon this case. The section is as follows: “ The commissioners of any county in this stato, in which there may be any idiot or lunatic in indigent circumstances, shall, in their discretion, make such allowance as to them shall seem right, and the necessity of the case may'require, and shall issue, their order in favor of such idiot or lunatic, or their legal representatives, for the sum so allowed, to be paid out of the treasury of the said county.”

Rachel Coozard was not found to be either an idiot or lunatic, but an insane person. And we all know there is a difference between idiocy or lunacy and insanity, and this distinction is carried through this act. On this account then, this section can furnish no ground of argument for the plaintiffs. But this section manifestly does not refer to eases of either idiocy or lunacy which have been found under this act, and where the subject is a township or county charge. It refers to a class of persor s who, although indigent, are still sustained by their friends. In such cases discretionary power is vested in county commissioners to render assistance from the county treasury. The order to be drawn is not in favor of a township, but in favor of the idiot or lunatic, or his or her representative. Whoever will examine the legislation of the state previous to the introduction of this principle into the general law, will find that special legislation to effect the same object was not unfrequent, and no doubt the intention was to supersede the necessity of such special legislation.

Judgment for the defendants.


text:
    *Bradley Buckingham, John Van Buskirk, and William Van Buskirk v. Smith and Dille.
    The canal commissioners are authorized by law to take water enough from a stream for canal navigation, but not for the purpose of creating hydraulic power to sell or lease on behalf of the state.
    An acquiescence, in order to raise the presumption of a license to use a stream of water, must be with a knowledge of the owner’s rights.
    This is a bill in chancery from the county of Licking.
    It is stated, in the bill of complaint, that, in 1830, the canal commissioners constructed a feeder to the main canal, to be used for the purpose of taking water out of the north fork of the Licking river.
    The feeder was so constructed, as to be capable of drawing out of said north fork, at the point of intersection, more water than was required for canal navigation. Before, and at the time, the feeder was constructing, the complainants, John and William Yan Buskirk, were the owners of a certain grist and saw-mill, on said north fork, and near the site of the present *mills of the [289 complainants. The mills of the said Yan Buskirks were rendered useless by' the construction of the feeder, and the acting canal commissioner estimated the value of the mills, and fifty acres of land attached thereto, at $>5,000, and agreed that he would endeavor to make sale of the surplus water, near the mills of said Yan Buskirks, with the land so attached, and would pay them 15,500, but no such sale was over made.
    That, in the fall of 1831, the acting commissioner entered into a verbal contract with the Yan Buskirks, to lease them the surplus water, and tho lease was executed in May, 1832. That the complainant, Buckingham, in January, 1832, became interested in the mill property, by purchase, and relying on tho contract with the commissioner for the use of so much water as would safely flow through the feeder, without injury to it, subject to the rights of the state, in March, before the execution of the lease, commenced the erection of a valuable flouring mill, to be worked by four run of stones, and while the mill was in the progress of erection, the said lease was executed.
    It is further stated, that from the execution of tho lease, up to 1836, when certain pretensions were set up by the respondents, the complainants fully believed the state had the right to draw into tho feeder as much water as would safely flow therein; and they fully believed, and still believe, that so much water was rented them by the lease, subject only to the rights of the state to the use thereof, if the same should bo wanted for the purposes of canal navigation.
    That when the complainants commenced erecting their mill, there was and had been, up to that period, no mill nor water improvements between the jflace where the old mill of the Van Buskirks stood, near where the complainants’ grist mill was built, and the place where tho feeder intersected the said north fork,

      on the said stream. That tho flouring mill, and a saw-mill erected in 1833, were begun and completed by the complainants, with the knowledge, acquiescence, and approbation of the intermediate riparian proprietors. That such proprietors stood by and saw tho complainants expend their money, *to the amount of $10,000 [290 or $12,000, without objection, or notice of any conflicting rights, but with the aid of some of them.
    It is further stated, that a tract of land of fifteen acres lay immediately above the complainants’ mills, on the said fork, owned by Peter Schmueker; and immediately above him, another tract) owned by the heirs of Jacob Willson. That Schmueker acquiesced in and approved the use the complainants made of the water, and the same mot the approbation of Willson’s heirs; that one of them worked on the mill, and they were all present at the raising, and assisted in the erection of the flouring mill. That after the flouring mill was in operation, the Willsons obtained of Schmueker a conveyance of the fifteen acres, and then, for the first time, conceived the idea of uniting it with their own tract, erecting a dam on their own, and carrying a race down into the Schmueker tract, and creating a small water-power, sufficient to work a saw mill for a part of the season, on the said fork, between the head of the feeder and where tho water is turned into the fork from the mill of the complainants. That the said Willsons built a saw-mill, and occupied it about two years; and in August, 1835, sold to the respondents, Smith and Dille, who bought it for the purpose of vexing and harassing the complainants with litigation, and to obtain from them a ruinous and oppressive compromise.
    That the respondents have commenced an action against the complainants for the use of the water, which is pending in tho Supreme Court for the county of Licking. That for more than twenty-one years previous to the commencement of said suit, tho dam of the said Yan Buskirks flowed the water back over the site of the respondents’ mill, and the complainants thereby acquired a right so to use and flow the water.
    ■The"payer of the bill is, that the said action of the respondents may be enjoined, and the complainants quieted against any conflicting claims set up by the respondents to the use of the water, so appropriated or hereafter to be appropriated, by the complainants to the propelling of their said mills, and for other relief.
    *The defendants have answered, and among other things, [291 admit the construction of the feeder, with sufficient capacity to take more water from the stream than is necessary for canal navigation; they admit the existence of the mills of' the Yan Bus-kirks, as stated in the bill, but they deny tnat they were rendered useless, by the construction of the feeder, and drawing off only sufficient water for canal navigation, but assert they would have sustained only a trifling injury thereby, if they wore before worth improving. They know nothing of any contract made by the Yan Buskirks with Alfred Kelly, acting canal commissioner, but heard that about that time, he, as such commissioner, claimed the right of drawing from the stream what water ho pleased, through the feeder, and for the purpose of creating hydraulic power to sell or lease, for the benefit of the state, as well as for the uses of the canal. They believe, at that time, the opinion was prevalent that such authority was vested in the commissioner, but that it had its origin in ignorance of the law upon that subject; that if the commissioner, at any time, entertained such opinion, he became better informed before ho executed the lease, and distinctly informed the complainants, if they would guard against conflicting claims, they must purchase in the rights of the intermediate riparian proprietors, and that he could not guaranty to them any quantity of water whatever. The defendants deny any knowledge of any acquiescence in the intermediate proprietors, of the rights assumed by the complainants, to the use of the water, under their lease; or of their approbation in the erection of said mills. They admit the purchase of Sehmucker by the Willsons, and that one of the Willsons worked upon the mill, but assert that it was before the saw-mill was propelled by water drawn from the feeder, and that said Willson had no design thereby to part with any right, or divest himself of any interest. That the complainants have built a dam across the stream ; that they raise the head-gate of the feeder, and in a dry time turn all the water into the feeder, and thereby divert it from its usual and natural flow to the respondents’ mill. The respondents also aver, that the 292] complainants assisted *in raising the respondents’ mill, and thereby lost all they had gained, if anything, by the acquiescence of Sehmucker and the Willsons. They deny that the old dam of the Yan Buskirks flowed the water back on to the site of their mill, by which the complainants acquired any rights; but aver the water was not flowed back by said dam, within fifty or sixty rods of the said site. The respondents admit that they are now the owners of the Schmucker tract and of the said mill thereon, etc.,, and that Smith, one of the respondents, in whom the legal title rests, instituted an action against the complainants, and judgment was rendered therein as charged. They deny their purchase with any view to compel the respondents to make a ruinous com. promise, but because at the price paid they thought it a good investment. '
    They deny that it was the intention of Schmucker, in his conveyance to the Willsons, or of the Willsons in their conveyance to the respondent Smith, to limit the use of the water to the residue, after the canal and the complainants’ mills should be supplied, etc. To the answers of the respondents, the complainants filed their replication.
    The questions of fact were argued at great length, by Mr. Vinton and Mr. J. R. Stanbery, for the plaintiffs; and by Mr. Ewing and Mr. H. Stanbery, for the defendants. and by Mr. Ewing and Mr. H. Stanbery, for the defendants.
    The legal positions maintained, on the part of the plaintiffs, were these:
    That whoever buys that which is in the possession of another, with knowledge of his possession, is bound to inquire into the claim of the occupier; and is bound by all the equities that existed between the occupier and the vendor. 1 Story’s Eq. 388; Taylor v. Stibbett, 2 Ves. 439; Sug. Vend. 542; Hiera v. Mill, 13 Ves. 114; Daniels v. Davison, 16 Ves. 249; S. C., 17 Ves. 433; Jolland v. Stainbridge, 3 Ves. 478; Crofton v. Ormsby, 2 Sch. & Lef. 583; Allen v. Anthony, 1 Merivale, 282; Governeur v. Lynch, 2 Paige, 300; Grimstone v. Carter, 3 Paige, 424; Billington v. Welch, 5 Binney, *129; Meux v. Maltby, 2 Swanst. [293 281; 1 Atkinson, 489; 2 Atkinson, 275.
    If one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of his title, without making known his claim, he shall not afterward be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel. Wendell v. Van Rensaeller, 1 Johns. Ch. 353; East India Co. v. Vincent, 2 Atk. 83; Hanning v. Ferris, 1 Eq. Cas. Ab. 356; Gilb. Eq. Cas. 83; Rogers v. Potts, Prec. in Chan. 35; Handen v. Cheyney, 2 Vern. 150; Styles v. Cowper, 3 Atk. 692; Jackson v. Cator, 5 Ves. 688; Daun v. Sparrier, 7 Ves. 231; Pilling v. Armitage, 12 Ves. 84; Le Fevre v. Le Fevre, 4 Serg, & Rawle, 241; Angell on Water Courses, 68, Lord Mansfield would not suffer a man to recover even in ejectment, where he stood by and saw a man build on his land. The King v. Butterton, 6 Term, 556, cited in 6 Johns. Ch. 168.
    The complainants are entitled to a decree to be quieted in their possession, for the reason, that the acts of Schmucker and tho Willsons amount, in law, to a license to the complainants to use the water of the creek. That a tacit license will be raised by the owners looking on, and seeing money expended, or giving encouragement to such expenditure, seems to be well settled. Berick v. Kerr, 14 Serg. & Rawle, 267 ; Angell on Water Courses, 67, 68. Nor can such license be revoked. 2 Esp. N. P. 268, 636, Gould’s ed.; Le Fevre v. Le Fevre, 4 Serg. & Rawle, 241; Angell on Water Courses, 65 ; Berick v. Kerr, 14 Serg. & Rawle, 241.
    Ignorance of the law on the part of the Willsons can not protect the defendants. Stous v. Barker, 6 Johns. Ch. 166 ; Dyer v. Dyer, 2 Ch. Cas. 108 ; Hobbs v. Norton, 2 Vern, 136; 1 Fonbl. 151.
    Mr. Ewing, and Mr. H. Stanbery, for the defendants, insisted 294] that the authorities cited on the other sido were not in *point; that they all had one ingredient not to be found in this ease, the active agency of the person ignorant of his own title, in the acquisition of title by the purchaser.
    insisted 294] that the authorities cited on the other sido were not in *point; that they all had one ingredient not to be found in this ease, the active agency of the person ignorant of his own title, in the acquisition of title by the purchaser.

    The doctrine that " ignorantia juris non excusat,” as now understood in England, regards public rights and liability for crimes, not individual cases. Landsdowne v. Landsdowne, Mos. 264; Bingham v. Bingham, 1 Ves. 126; Turner v. Turner, 2 Ch. Cas. 81; Pusey v. Desbouverie, 3 P. Wms. 321; Cholmondely v. Clinton, 2 Merivale, 361.
    The doctrine of the English courts, at the present day, can be gathered from the late case of Bridges v. Blanchard, 28 Eng. Com. L. 143. A., having a house adjoining the premises of B., writes a note to B., expressing a wish to place a window in the wall to give a more cheerful view, and requests permission to placo a ladder on B.’s land, in order to build the window. B. replies, giving consent to place the ladder. The window is accordingly made, overlooking the premises of B., in the absence of B. B. afterward writes a note to A., as follows : “ When you applied to me for permission to place a ladder in my grounds, being without a friend to advise with, and even without knowing exactly the situation in which your window would be placed, I unfortunately complied with your request, without consulting my own comfort.” The window not being closed, B. built a wall and obstructed it. A., threw down the wall, whereupon B. brought trespass.
    The court held the license insufficient.
    Taunton, Justice, says: “ The whole request, on the behalf of A. was only to have the ladder placed, in order that the work then in progress might be more neatly finished ; the motive stated for the request is entirely a different matter; it is indeed implied in that statement, that A. means to throw out a window, but the request is confined to the placing of the ladder, and the consent is also limited to that. There might be a view to an ulterior object, but it is not to be taken for granted that B. approved of that object, the nature and extent of which she could not be apprised of; for nothing had been ^stated to her of the length, breadth, [295 height or situation of the intended window.”
    This case shows how exceedingly strict the English courts are, in the interpretation of a license, the effect of which is to give a right to the mere passage of light; an interest, if it can be called one, not of the realty, or partaking the character of an easement. Nothing is more certain than that it requires no grant to make a window which shall receive the light transmitted across the close of another, and no action lies for making it. The effect of such a license is not, therefore, the acquisition of an interest, or an easement, in the close of another, but only to prevent that other from the unrestricted use of his own land, and it does not come within the operation of the statute of frauds. It is not an interest in lands. It is not like a right to divert water from the close of another.
    A like principle is found in Tyler v. Wilkinson, 4 Mason, 397; Gilman v. Tilton, 5 N. H. 231; Parker v. Foote, 19 Wend. 313; Hibburn v. McDowell, 17 Serg. & Rawle, 383.
   Wood, J.

In this case, the pleadings, exhibits, and depositions are within no ordinary compass. Yolumes have been ably written by counsel, and we have derived great aid from their assistance, in extracting from the mass of papers the real merits of this controversy, by no means unimportant or inconsiderable.

The first inquiry which arises is, what wore the rights conferred upon the complainants, by the lease from the acting commissioner, executed in May, 1832? This instrument is an exhibit in the case, and its terms can not easily bo misunderstood. After disposing of the surplus water to the complainants, at a yearly rent of $120, it recites, “ That the party of the second part is to have the use and occupancy of the surplus water which may flow in the north fork feeder, over and above what may be required to supply the canal with water for navigation ; the party of the second part having the right, so far as the rights and interests of the state are concerned, 296] to cause so much of the water of said fork to flow *in said feeder, as can flow therein with safety; and to use all of said water for hydraulic pui'poses, excepting so much as is wanted by the state for navigation.”

If the acting commissioner, at any period anterior to the execution.of this lease, entertained the opinion, that as the agent of the state, he had an unlimited control over the waters of private streams, not only sufficient to insure the safe and steady navigation of the canal, but to their exclusive appropriation, as, in his discretion, the interests of the state would be best promoted and secured, it is cei’tain, when the lease was given, he claimed no such authority. By the terms of the lease, the complainants purchased only the use of the surplus water, after the canal was supplied, and the right to flow through the feeder any quantity that could safely flow therein, so far as the interests of the state were concerned. The acting commissioner, whoso deposition is before us, also swears that he informed the complainants distinctly, that he could only convey the surplus water, as the state claimed no further rights to the use of the stream than to take sufficient from it to supply the canal, and that he then advised the complainants to purchase in the rights of intermediate riparian proprietors, in order to guard against contingencies, and to insure, on future occasions, water sufficient for the propelling of their said mills. How, then, were the plantiffs deceived, or what reason had they to suppose they purchased anything more than the surplus water and the use of the feeder ? There is surely nothing in the case to lead to such conclusion. But suppose the acting commissioner had assumed to sell all that the complainants charge in their bill that they believe was conveyed, would it lay the foundation for relief against these respondents? It is clear, nothing would have passed by such sale, but what the complainants have acquired. The state, notwithstanding the sovereignty of -her character, can take only sufficient water, from private streams, for the purposes of the canal. So far the law authorizes the commissioners to invade private right, as to take what may be necessary for canal navigation, and to this extent, authority is conferred by the constitution, provided a ^compensation be paid in money to the owner. [297

The principle is founded on the superior claims of a whole community over an individual citizen; but then in those cases only where private property is wanted for public use, or demanded by the public welfare. Wo know of no instances in which it has, or can be taken, even by state authority, for the mere purpose of raising a revenue by resale, or otherwise; and the exercise of such a power would be utterly destructive of individual right, and break down all the distinctions between meum et tuum, and annihilate them lorever, at the pleasure of the state. 5 Ohio, 392. The uses of the waters of private streams belong to the owners of the ' lands over which they flow. 4 Ohio, 253 ; Kent Com. 344. They are as much individual property as the stones scattered over the soil. If such streams can bo passed with boats and rafts, the public has the right of passage; but, subject to such easement, the owner of the land may appropriate the use of the water in his own discretion, taking care not to flow it on the proprietor above, and to return it to its natural channel before it leaves his own lands. 8 Eng. Com. Law, 371. It follows, if such waters should be taken by the state for the mere purpose of creating hydraulic power, and rented to an individual, the transaction would be illegal, and no title would pass, as against the owner. Id. In conducting water through the feeder, a discretionary power must necessarily rest in the agents of the state, and in making provision for a supply, it must frequently occur that a surplus will accumulate, and it was the right to the use of this surplus water, which the lease conveyed. There is surely no evidence that when the lease was executed, the acting commissioner made any false or fraudulent representations, nor that the lease itself does not contain the real contract between the parties ; and thus far we can not perceive any ground of relief upon any of the reasons assumed.

But it is claimed that Schmucker and the Willsons acquiesced in the erections made by the complainants, and the use they made of the water; saw them make their improvements, and expressed 298] their approbation, and that they and their grantees *are, therefore, estopped from setting up any conflicting rights. The respondents, doubtless, stand in the situation Schmucker and the Willsons would occupy were they still in possession. The Will-sons, when they purchased of Schmucker, and the respondents when they bought of the Willsons, know that the complainants •were in the possession of this water power, and it is a well-settled principle, which b'as been repeatedly recognized by courts of equity, that the purchaser of what is in another’s possession, and with knowledge of such possession, is bound by all the equities which existed. between the vendor and the occupier. Indeed, it has been often said, that notorious possession of real property must be considered as constructive notice to the purchaser, and that he takes it subject to the equities of the possessor. If the conduct of Schmucker and the Willsons was such as to raise the presumption of a license to the complainants, such license would not only bind Schmucker and the Willsons, but all claiming under them. It would run with the land, and be deemed irrevocable. I must say, however, that there is nothing in the evidence in this case to raise the presumption of any such license. But if Schmucker and the Willsons stood by and saw the complainants expend their money in improvements, when in justice and equity they ought to have disclosed to them conflicting rights, and put them on thoir guard, the complainants acquired an easement in the use of the water of which fheycan not be divested by the respondents. The rule is, if one is silent when he should spe'ak, that justice will compel him to silence when he would speak. “ There is no principle,” says the chancellor, in Weddell v. Tan Ronsalaer, “better established,” or “founded on more solid considerations of equity and public utility, than that which declares that if ono man knowingly, though he does it passively by looking on, suffers another to purchase, and expend money on land, under an erroneous opinion of his title, without making known his claim, ho shall not afterward bo permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience would 299] be bound by such ^equitable estoppel.” 1 Johns. Ch. 353. Many authorities are cited in support of this position, and it must be considered, not only as a salutary, but a well-established rule of equity, and is sustained by many analogous cases.

It remains to be considered, whether the complainants, have brought themselves within it. The evidence is, that while the complainants, were expending their money in the erection of their mills, Schmucker and the Willsons were in utter ignorance that they possessed any rights to the use of the waters of the stream, until both the canal and the complainants’ mills were supplied. Is a man compelled to disclose his rights, or lose them, when he is not conscious they exist? Such a position is sustained by no authority. It is, firstly, the knowledge, and, secondly, the concealment, which estops one from setting up his title. It is fraudulent so to act, and against such conduct equity will relieve, where the other party goes on under an erroneous opinion of his rights, and expends his money. The complainants do not, however, appear to us to occupy this position. The acting commissioner’s deposition must be laid entirely out of the question, before we can adopt any such conclusions. He swears that, at the execution of the lease, he advised them that lie did not assume to sell anything but the surplus water in the feeder, etc., and the lease itself shows that such surplus water, and the use of the feeder to flow more, was all that it imports to convey. If the complainants believed they purchased anything more, and that the state had a right to convey it, their silence as to the clause in the lease, “ so far as the rights and interests of the state are concerned," and their not objecting to it, are unexplained, and are, in fact, irreconcilable with any other hypothesis than a full knowledge of the rights they thus acquired.

The remaining point requires but little more than a single remark. A right to the use of this water is asserted by the complainants, by reason of an occupancy of more than twenty-one years by the Yan Buskirks. There is no evidence, however, to sustain any such claim. An occupancy to confer title must continue, at least, substantially in the same mode. If the ^complain- [300 ants had acquired the right to set back the water, and overflow the defendant’s mill sité, and render the wheels of the mill powerless, by more than twenty-one years’ exercise of such right, they could not, at pleasure, change that right by the substitution of a new one, and draw the water from the stream above^the respondents’ mill, 2 McCord, 450 ; Yelverton, 163. Such rights must be strictly construed.

On all th© grounds assumed for relief, wo are, therefore, clear in the opinion that the bill ought to be dismissed, with costs; but without prejudice to any legal rights of the complainants.

Bill dismissed.

      Where a dam is erected on an ancient stream, to obtain a head of water for the use of a state canal, the surplus waters of the stream not wanted for public use, and which continue to flow over the dam and down the ancient channel, can not legally be diverted, by a lessee of the surplus waters of the canal, to the injury of the owners of mill privileges on the stream below the dam.
      But no person, except by the authority of the legislature, or of the authorized agents of the state, has a right to tap the state dam and draw off the surplus water of the artificial pond, which is created by such dam, for public purposes. Varick v. Smith et al., 5 Paige, 137.


text:
    Alexander C. Farrington v. The State or Ohio.
    The letter of a cashier of a bank in New York, to -whom paper said to be forged had been sent for collection, making suggestions as to the residence of the parties to the paper, is not competent evidence against one charged with the forgery. Nor is the protest of a notary, certifying that the parties to the paper are not to be found in New York.
    This is a writ of error to the court of common pleas of the county of Gallia.
    The plaintiff in error was indicted at the April term of the court 355] of common pleas, 1841, and tried, convicted, and sentenced *to imprisonment in the penitentiary, at the July term thereafter, for tbe crime of forgery. This conviction be seeks to reverse by tbe prosecution of this writ of error.
    J. Welch, for the plaintiff in error,
    cited 2 Stark Ev. 374; Titford v. Knott, 2 Johns. Cas. 211; Goodtitle v. Braham, 4 Term, 497.
    A. T. Holcomb, for the state.
   Wood, J.

This indictment contains numerous counts. In some of them tbe plaintiff is charged with the forgery of certain promissory notes in the name of John O. Batley as maker, bearing date in New York, payable to the order of James Murphy, at the City Bank, and also with tbe forgery thereon of the indorsement of the payee, and with the intent to defraud the Bank of Gallipolis.

In other counts the forgery of certain bills of exchange is averred, . with the same intent, in the name of M. S. as' the drawer, with the acceptances of John Murphy, the drawee, and the indorsements of L. T., the payee, also forged thereon by the plaintiff in error, and all payable at the City Bank, and bearing date at the same place with the said promissory notes.

On the trial several bills of exceptions were taken to points ruled by the court. These exceptions are far more numerous than the counts in the indictment, and we may say, with the Supreme Court of New York, in the People v. Rathbun, 21 Wend. 547, that many of them are so extremely frivolous, that the counsel who procured their original insertion have omitted them in framing the argument for the court, and those not especially noticed by us may all be considered as overruled by the authority of the maxim, de minimis non curat lex.

Two of the exceptions, however, are not, in our opinion, of this character. They are referred to in the second assignment for error, and should both unquestionably be sustained. It appeal’s from the record, that on the trial it became essential for the prosecution to prove that Batley and Sullivan, the maker *of the notes and [356 drawer of the bills of exchange, were fictitious persons, and for this purpose the letter of the cashier of the City Bank, to whom said notes and bills had been forwarded, was offered in evidence. In this letter there was the acknowledgment of the receipt of the notes and bills, and an expression of regret by the cashier that he had not been furnished with a knowledge of the residence of the parties, as it might be necessary in case of the dishonor of the paper.

For the same purpose, the prosecution also offered in evidence the protest of the notes and bills, in which it was certified by the notary that the parties to the paper could not be found in New York. The defense objected to the admission of this testimony, but the objection was overruled and the evidence received. In this, it seems to us, the court of common pleas most clearly erred, to the prejudice of the rights of the plaintiff in error.

It is a fundamental principle in this state, that in criminal prosecutions the accused has not only the right to be heard, by himself or counsel, but to meet his witnesses face to face; to require the testimony against him to be under the sanction of an oath, and the witnesses to be subject to any competent cross-examination.

The letter of the cashier inquiring for information of the residence of the parties to these bills and notes, and from which it was supposed to be inferable they did not reside in New York, and were consequently fictitious, was the mere ipse dixit of a third person, and the protest of the notary for the purpose for which it was here offered, was nothing more; and their admission as testimony is warranted by no principle of law.

Judgment reversed.


author: Lane, C. J.

text:
    *Isaac Meese and Eleanor, his wife, v. Daniel Keefe and others.
    A will made in another state, valid in the place where made, but not in the forms required by the laws of Ohio, passes no property in Ohio, under the act of 1831. Aliter, it seems under the acts of 1805 and 1840.
    Where a will is set aside at the instance of one heir who is within the saving clause of the statute of limitations, it is wholly annulled, and the entire estate is distributed.
    This is a bill in chancery from the county of Hamilton.
    It is brought by Eleanor Meese, one of the heirs of Thomas Dugan (together with her husband), to contest the validity of his will. Thomas Dugan, the testator, lived in Philadelphia, and died in 1833, leaving a testamentary bequest of all his property, which was duly proved, approved, and recorded in Pennsylvania, and in August, 1838, was duly admitted to record in this state, by the common pleas of Hamilton county, as a duly executed foreign will.
    The common pleas, at the instance of the plaintiff in this suit, having found by the verdict of a jury the paper to be not the will of the decedent, annulled it by decree. The defendants have brought the suit to this court by appeal.
    Fox, for the complainant,
    relied upon Bailey v. Bailey, 8 Ohio, 239.
    Woodruff, for the defendant,
    cited Swazey’s Heirs v. Blackman, 8 Ohio, 5.
   Lane, C. J.

It is admitted that all the heirs were of age, more than two years before the filing this bill, except the plaintiff; that the decedent was a citizen of Pennsylvania, and that his will takes effect as a good devise under Pennsylvania laws.

Two questions are presented:

1. Whether the will, valid in Pennsylvania, is valid here, there being no subscribing witness.

*2. Whether the right of the plaintiff being saved from [363 the statute of limitations, if the will be set aside, it shall be wholly annulled, or only as to the plaintiff’s proportionate share.

The statute of 1831, under which this will was admitted for record, and under which this suit was instituted, provides that authenticated copies of wills of other states may be admitted for record here, “and shall be good and valid in law, in like manner as wills made in this state.” In a case, maturely considered and finally decided, 8 Ohio, 239, the effect of this clause was held to be merely a provision to dispense with the further proof of authentication; but that the will itself, although operative under the laws of the place where made, affected no property in Ohio, except it was eouformable to the provisions of our own statutes. A different consequence followed the statute of 1805, which rendered valid such foreign wills, executed after the laws of the place where made. So the present statute of 1840 gives the same validity to any such wills as are executed in any state or territory of the United States; but, under the act of 1831, this paper was improperly admitted for record.

An attempt is made to give effect to this paper under the present statute, which repeals all prior laws, provided such repeal “ shall not affect any act done, or any right or estate accrued, or any suit or proceeding commenced; but the proceedings in every such case shall be conformed to the provisions of this act.” Whatever be the interpretation of these provisions, to us it seems plain they do not divest the plaintiff of the inheritance which, long before, had descended upon her.

The next question is, if the exemption of the plaintiff from the statute of limitations avails for all the heirs, so aB to set aside the whole will. Where common interests can be severed, the protection of the statute extends no further than to him within its provisions. 10 Ohio, 11, 135. But where no such severance can be made, and the protection of the statute can not be secured without covering other interests, the benefit of the statute claimed by one 364=] avails all. It is *so in a writ of error, which is an entire thing. 3 Ohio, 49. And such a consequence attends this suit, for when, on contest, this paper is judicially found not to be the will of Dugan, the order of probate is annulled, and the act thus avoided transmits no estate. Decree for the complainants.


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    *The State of Ohio, for the Use of the Fund Commissioners of Muskingum County, v. James Taylor et al.
    A stipulation to pay five per cent, as collection fees, in addition to the legal interest for money loaned, is against public policy and void.
    This is a motion from the county of Muskingum.
    It was reserved on the last circuit, upon an agreed statement of facts, signed by counsel, from which it appears, that in 1837, James Taylor, one of the defendants, borrowed from the fund commissioners of Muskingum county $25,000 of the surplus revenue of the United States, deposited with the State of Ohio, for the payment of which he executed his bond to the State of Ohio, in the form required by law, but containing no agreement to pay the attorney’s fees for collection. At the same time he executed a warrant of attorney on the same paper, to confess judgment for the amount, with seven j>er cent, per annum, and five per cent, thereon in addition, being the fees paid by the state to its attorney for collection and costs of suit. Taylor, at the same time, executed a mortgage to the state, the condition of which was that he should pay the sum so borrowed and also the attorney’s fees, not exceeding five per cent., which the state might have to pay its attorney, with the interest on the principal sum.
    The bill was filed to subject the mortgaged premises to sale, and a decree pro confesso rendered against Taylor. The court of common pleas refused to include the attorney’s fees for collection in the amount due upon the mortgage. The land was sold, and the money brought into court, when the counsel for the complainant moved to tax the attorney’s fees, as by the agreement of the parties, they became a part of the costs in the case. This motion was overruled by the common pleas, and an appeal taken by the complainant, and the same application is. now urged here, to include the five per cent, for attorney’s fees, in the bill of costs.
    *Goodard and Convers, for the motion :
    We maintain that the stipulation for the payment of the expenses that might be incurred, was both legal and proper. The object was not speculation, or profit, but indemnity merely. It was intended to enable the commissioners to fulfill the purposes of the law. Ramsdon v. Langley, 2 Vern. 536; Lomax v. Hyde, 2 Vern. 185; Arcambel v. Wiseman, 3 Dall. 306; S. C., 1 Pet. Cond. 135.
    This is a case in which, a contract is fairly made, between parties competent to contract, with full knowledge and understanding of its force and effect, and prohibited by no statute. ■ Why ask this court to change the contract and thus usurp the place of the contracting parties themselves? Is it said that the contract is against public policy? The right view of the consideration of public policy is taken by Best, C. J., in the case of Richardson v. Mellish, 2 Bing. 229; S. C., 9 Eng. Com. Law, 397, in which, speaking of the transaction in that case, he says:
    “We have heard much of this being a contravention of public policy, and that, on that ground, it can not be supported. I am not much disposed to yield to arguments of public policy; I think the court of Westminster Hall (speaking with deference as an humble individual like myself ought to speak of the judgments of those who have gone before me) have gone much further than they were warranted in going in questions of policy; they have taken on themselves, sometimes, to decide doubtful questions of policy; and they are always in danger of so doing, because courts of law look only at the particular ease, and have not the means of • bringing before them all those considerations, which ought to enter into the judgment of those who decide on questions of policy. I therefore say it is not a doubtful matter of policy that will decide this, or that will prevent the party from recovering; if once you bring it to that, the plaintiff is entitled to recover; and let that doubtful question of policy be settled by that high tribunal. 380] namely, the legislature, which has the means of ^bringing before it all the considerations that bear on the question, and can settle it on its true and broad principles.
    “I admit that if it be clearly put upon the contravention of public policy, the plaintiff can not succeed; but it must be unquestionable — there must be no doubt. Looking at all the facts of this case, I can see no unquestionable principle of policy that stands in the way of the plaintiff, to hinder him recovering in this action.” And in the same case Mr. Justice Burroughs says, “I, for one, protest, as my lord has done, against arguing too strongly upon public policy; it is a very unruly horse, and when you once get astride it, you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.”
    Stillwell, contra.
   Wood, J.

It must be admitted, if this agreement can be enforced; the statutes of Ohio regulating the rate of interest, whether upon loans by the fund commissioners, or in other cases, are at once virtually repealed. The statute passed on March 28, 1837, provides that the fund commissioners, in a certain event, may loan the money to individuals at a rate of interest not exceeding seven per cent. Seven per cent, is the maximum of interest the commissioners are authorized to contract for, or receive for the forbearance of their loans. They are prohibited from receiving more, in fact, in express terms — that is, as interest. It is said, however, that the five per centum in this case is by the agreement of the parties, to be added to the seven per cent., not as interest, but as costs, agreed upon as such, for collection, by the parties.

Now, it seems to us to be of little consequence, in this case, what this five per cent, may be called, but the inquiry is, what is the thing itself? However it may be disguised, it is very clear-io,us it is a mere shift oFdevice by which twelve per cent, is retained, as interest, upon this loan, and in this view of the *case [381 can not be enforced. This court haSe decided that under the laws of Ohio, but six. cent .interest isjrecoverable, though the parties contract for more or higher rates.

But is it such a contract as public policy should execute ? What may be supposed as the natural result to the community from the execution of this agreement? It would be the condition of future loans, at banks, that the borrower should pay the expenses of collection, and, perhaps, the tax thereon. The brokers in this state would hold a general jubilee; and as their sense of morality and law usually expands with their hopes of gain, in proportion to the borrower’s necessity they would find, probably, additional items of costs, as the means of a legalized extortion upon their loans. In our opinion, such agreements are against the public policy of the country, and ought not to be enforced in courts of justice. They have, by this court, on the circuit, been denied to be obligatory, and further reflection confirms us in the correctness of such opinion. The absence of adjudicated cases in the reports, either English or Amoriean, show these agreements are of modern invention, having their origin in the improvements of the age.

That this five per cent, is not costs, is certain, from the fact that it is not so recognized by law. At common law, no costs were allowed. If a plaintiff failed in his action, he was amerced for his false clamor, but costs were not adjudged against him. In Ohio, no costs are given to a successful party, unless authorized by statute, with but one or two exceptions, and the statute defines the items, and imposes severe penalties upon the ministers of the law, for taking other or higher costs or fees than are expressly provided for. On the whole, wo think the common pleas were right in holding the agreement void to pay five per cent, collection fees, and such item will not be permitted to be taxed in the costs by this court. Motion overruled.


text:
    *Zenas Kent v. Joel B. Burnett et al.
    Where jail limits are by law co-extensive with a county, and a new county is made in part out of an old one, the jail limits of the old county are still the privilege of a debtor who was charged in execution before the new county was organized.
    This is an action of debt from the county of Portage.
    The suit is brought on a writing obligatory, executed by the defendants, Burnett, Pendleton, Tyler, and Hopkins, on June 6, 1839, to the plaintiff, to secure to the two first-named defendants the privileges of the prison limits of the jail of Portage county.
    The defendants have plead : 1. Ml débet, on which an issue is made up to the country; 2. That the said Burnett and Pendleton did not go at large out of the limits of the county, as existing at the time of the execution of said bond, etc.
    To this plea the plaintiff has demurred, and, for the purpose of determining the questions arising upon it, counsel have subscribed an agreed statement of facts to be considered as a part of the plea. The statement is in these words:
    “ That two of the defendants, Burnett and Pendleton, were arrested and imprisoned on June 6, 1839, on a ca. sa. issued from the court of common pleas of Portage county, on a valid and subsisting decree in favor of the plaintiff, under the act abolishing imprisonment for debt, passed March 19, 1838, which writ was dated the 4th day of June of the same year, 1839.
    “That on the aforesaid 6th day of June, all the defendants in this cause executed, in due form of law, their bond to the said plaintiff, in the sum of §10,233.34, for the purpose of obtaining for the said Burnett and Pendleton the benefit of the prison limits of said county of Portage, which bond was duly approved, and said Burnett and Pendleton were thereupon discharged out of close custody, and went upon the said prison limits.
    *“ That the condition of said bond contains, amongst other [393 things, the following: ‘Now, if the said Joel B. Burnett and Jay H. Pendleton shall, from the time of executing this bond, continue true prisoners in the custody of the jailer, and within the limits

      of the prison bounds for the county of Portage aforesaid, and shall not depart without the exterior bounds of the same, until they shall be legally discharged, without committing any manner of escape, then this obligation to be void, otherwise to remain in full force and virtue.’
    “ That this suit is brought upon said bond for an escape com mitted by the said Burnett and Pendleton, on May 6, 1840, in go ing without the exterior bounds of the limits of the prison bounds for Portage county, without having been legally discharged.
    “ That at the time of the execution of said bond, the said Burnett and Pendleton resided in the township of Franklin, within the present territorial limits of Portage county, where they have resided ever since; and also, that at the time of the execution of said bond the territorial limits of Portage county embraced two ranges of townships on the west, to wit: Twinsburgh, Hudson, Stowe, Tallmadge, Springfield, Northfield, Boston, Northhampton, Portage, and Coventry, which were included in Summit county when the same was erected, March 3, 1840, and have over since constituted a part of said county of Summit.
    “ That on May 6,1840, the said Burnett and Pendleton departed without the present territorial limits of said county of Portage, and went into the before-mentioned townships of Tallmadge and Portage, which were at that time a part of the county of Summit, and at the date of said bond a part of said county of Portage, without having in any manner been discharged from their said imprisonment.”
    Otis & Tilden, for the plaintiff,
    claimed that the departure without the territorial limits of Portage county into the townships of Tallmadge and Portage, was an escape for which the defendants 894] were liable on their bond. They cited Moore v. *Allen, 7 J. J. Marsh. 651; Steinman v. Tabb, 3 Bibb, 202 ; Bonafous v. Walker, 2 Term, 26 ; Peters v. Henry, 6 Johns. 121; Janson v. Hilton, 10 Johns. 559 ; Baxter v. Faber, 4 Mass. 361.
    Birchard, Todd and Hoffman, for the defendant,
    insisted that although the townships of Tallmadge and Portage constituted a part of the county of Summit at the time of the alleged escape, yet inasmuch as those townships constituted a part of Portage county at the time the bond was made, Burnett and Pendleton did not, in going into those townships, commit an escape. They rolied on Collier v. Johnson, 7 Ohio, 235, pt. 1; Commissioner of In. v. Way et al., 3 Ohio, 103; Pollard v. Collier, 8 Ohio, 43.
   Wood, J.

It will be seen by reference to the agreed case, that after the execution of the bond by which Burnett and Pendleton . became entitled to the liberties of the prison, which were then coextensive with the territorial limits of Portage county, the general assembly passed an act organizing the county of Summit, by which Portage and Tallmadge townships, though before in the county of Portage, were after March 3, 1840, a part of the county of Summit; and that on the 6th day of May following, the defendants Burnett, and Pendleton, went into the last-mentioned townships, in the county- of Summit. The question to be decided is, whether this is an escape.

It is very ingeniously argued by the plaintiff’s counsel, if not literally, at least, substantially, that the defendants Burnett, ana Pendleton, were bound by the terms of the obligation to contract to-day and expand to-morrow, so as to keep at all times within the limits of the county of Portage, to whatever changos those limits maybe subjected by the ordeal of legislation. But suppose these defendants had been residents in that part of Portage which is now Summit, at the passage of the act; the moment the act passed, they being beyond the prison liberties, according to the argument, would have been guilty of an escape. Counsel say not> provided they immediately ^returned into Portage county; [895 but why not? We know of no common law principle to save the penalty of the obligation by giving a reasonable time to return, and we have no authority to establish an arbitrary rule for that purpose. Suppose, at the passage of the act these defendants had not the power of locomotion, by reason of some bodily infirmity, what then is'to be done to save the condition of the bond ? The law requireth nothing impossible. It worketh an injury to no one, and another arbitrary rule must be set up to save the defendants, by requiring them to return only so soon as the disability is removed.

It is, however, argued by the defendant’s counsel, that they were bound to keep within the limits of Portage county, as they existed at the date of the obligation only, and that the general assembly could constitutionally pass no law which would limit or impair the rights of the defendants, as they then stood. Without passing upon the constitutionality of the act, however, in its effee upon this bond, it will be found, we think, as to these defendant$} to continue the jail limits of Portage county precisely as they stood at the passage of the act. It provides, substantially, that all suits pending in Portage county should be prosecuted to final judgment and execution, the same as if the act had not passed; that the sheriff should serve and executo process, etc.

It is clear the legislative intention was, when a suit was once begun in Portage county, before Summit was organized, it should be consummated by final process by the sheriff of Portage, whose jurisdiction would still extend throughout its ancient limits, and, in our view, in such cases, they would still constitute the limits of the jail of Portage county.

The plea, then, embodying the agreed statement of facts, is in our opinion, a good answer to the declaration, 'and the demurrer should be overruled and .judgment given for the defendants.

Judgment for the defendants.

Thos. L. Hamer, for the defendant.

No argument for the plaintiff came to the hands of the reporter,