author: Ranney, J.

text:
    Bennet Lewis v. Geoege W. Eutsler and others.
    H. C. P. died in 1852, intestate, unmarried, and without issue. He was a bastard, and survived his mother, who left other children, the fruit of a marriage contracted after the birth of the illegitimate. The children last named survived H. C. P. The act of 1853, “regulating descents and the-distribution of personal estates,” was passed while the estate of H. C. P. was in course of settlement, and before distribution: Meld, that whatever might be the rule under the operation of the act of 1831, had the settlement and distribution been made before the passage of the act of 1853, the last-named enactment operated upon the distribution of the estate, prevented the escheat to the state, and entitled the surviving children of the bastard’s mother to his estate.
    Petition in error, filed to reverse a judgment of tbe district, court in* Greene county, affirming a judgment of tbe court of common pleas — tbe last-named judgment reversing an order of tbe probate court.
    Tbe facts, as stated in the petition in error filed by tbe present defendants in tbe court of common pleas, were, tbat one Catherine Blume, of tbe State of Virginia, then being unmarried, bad issue, an illegitimate son, known by tbe name of Henry C. Perkey; tbat tbe said Catherine afterward intermarried with one Henry Eutsler, by whom she bad issue — plaintiffs—George W., Jobn Eutsler, Abigail Fankersley (late Eutsler), Mary Welch (late Eustler), and Nancy Jane Semplin (late Eutsler), and died, leaving tbe above-named children, and also tbe said Henry C. *Perkey, surviving her; that said Henry C. Perkey died in tbe year 1852, unmarried and without lawful issue ; that tbe said Bennet Lewis was, by tbe probate court of Greene county, appointed administrator of said Per-key’s estate; tbat on tbe 14th day of October, in tbe year a. d. 1853, tbe said Bennet Lewis filed bis account for final settlement; on which such proceedings were bad, that tbe said court of probate determined tbat there remained in tbe hands of tbe said administrator, to be accounted for, the sum of four thousand six hundred and thirty-six dollars and sixty-nine cents. And thereupon, on tbe 21st day of October in said year, tbe plaintiffs came into court, by S. & E. Mason, their attorneys, and moved the court for an order of distribution of tbe balance of said estate to be made to them, upon their causing a bond to be executed according to law. And thereupon, afterward, to wit, on the 12th day of November of said year, after argument by Howard & Munger, attorneys for B. Lewis, and M. D. G-atch, prosecuting attorney for the State of Ohio, the said court overruled said motion, upon the grounds that the said children and heirs of said Catherine Eutsler, are not entitled to succeed to the estate of Henry C. Perkey, who died without heirs. To which ruling the plaintiffs, by their said attorneys, excepted.
    The court of common pleas reversed the order of the probate court. On a petition in error, filed by the present plaintiff in the district court, the court last named affirmed the judgment of the common pleas.

      B. F. Howard, for plaintiff in error.

      8. & B. Mason, for defendants in error.
   Ranney, J.

Individually, I am very far from being satisfied with the construction put upon section 12 of the act of 1831, in the case of Lessee of Little v. Lake, 8 Ohio, 289, founded upon the authority of Stevenson’s Heirs v. Sullivant, 5 Wheat. 207. That section provides : “Bastards shall also be ^capable of inheriting, or of transmitting inheritance on the part of their mother, in like manner as if they had been born in lawful wedlock.” Both the cases referred to agree in holding that the language of the statute is only sufficient to remove the common-law impediments to a lineal inheritance, leaving the illegitimate child, subject to all the disabilities of bastardy, as to his collateral kindred. But they seem to differ in one important particular — the last treating the statute as having been designed to restore the current of inheritable blood, so as to enable him to transmit inheritance, in the descending line, and to inherit directly from his mother, or, by right of representation, to take any property “ which would have vested in her, as fieir to any of her ancestors, had she lived to taire as such ; ” while in the first it is said that .“the expression on the part of the mother does not carry the mind beyond the mother, unless connected with words of more comprehensive meaning — such as ancesters on the part of the mother, or descendants on the part of the mother.” 'The one would seem to leave the lineal inheritance wholly unembarrassed ; while the other would rise no higher than the mother, and confine the effect of the statute to an inheritance to or/rcmher, in the direct line. If great strictness is to be indulged, there is little difficulty in seeing that it is most judiciously applied in the ■Ohio case. For, if the bastard can not be said to be related to the ■children of his own mother, I can see very little reason in making him related to a grandfather, or some more remote ancestor.

The narrow construction adopted in both these cases is said to be founded upon the settled meaning of the expression, ex parte materna, when used in reference to the course of descent of real property in the English law. I may not fully understand what rule is intended to be here invoked. I know of none but that strict rule of feudal policy embodied in the fifth canon of descents, which confined the estate to the blood of the first purchaser. If the estate came through the paternal line to the person last seized, *it should never descend to the one in the maternal; and, e converso, if it came through the maternal line, it should never descend to ■one in the paternal, but should rather escheat to the lord of the fee. Yery anciently, it is true, & feudum novum, could only descend to the lineal descendants of the first acquirer. But more than a century ■before the passage of our statute, this harsh rule of a military system had been entirely abrogated in England; first, by granting a feudum novum to be held ut feudum, antiquum; and finally, by considering every acquisition of an estate in fee simple by purchase, as & feudum antiquum, or feud of indefinite antiquity; thereby enabling the collateral kindred of the grantee, or descendants from any of ■his lineal ancestors, by whom the lands might possibly have been purchased, to succeed to the inheritance. 3 Cruise’s Dig. 380.

But let it be granted (what, I think, no amount of industry could prove), that a part of the language of our statute is a tolerable ■translation of words which imported an exclusion of collaterals, in the English law, and still but little is done toward arriving at the ■intention of the plain men who passed the act of 1831 — four-fifths of whom were ignorant of the existence of any such rule, and of the language in which it is expressed. To find what they intended, it is necessary to consider ail they have said, and to interpret it in accordance with the usual and ordinary signification of the language employed. When this is done, I find it impossible to doubt, that it was intended to abrogate the common-law doctrine, so far as to declare that the bastard, instead of being nullius filius, ■should thereafter, in law as in fact, be the son of his mother; and as .such, not only capable of receiving inheritance directly from her, and of transmitting inheritance directly to her, but also, through her as the common ancestor, from or to any one of her blood in. like manner ” (to use the language of the statute) as if he had been-born in lawful wedlock.” I find myself confirmed in the view I have expressed, by the unanimous judgment of the Supreme Court of Vermont, in Town of Burlington v. Fosby, 6 Vermont, 83, *upon a statute nearly-identical with ours; and by the weighty opinion of Chief Justice Reeve, in his treatise on the law of descents, p. 96, where he says: By the terms, on the part of the mother,. we are to understand not only that the mother may inherit to the illegitimate children, and the illegitimate to the mother, but that any relative on the part of the mother may inherit to the illegitimate child, and the illegitimate child may inherit to any relative on the part of the mother.”

Concurring fully in this construction, I should have felt bound, notwithstanding the high respect I entertain for the courts that have held otherwise, to have affirmed the judgment, did the whole case depend upon the act of 1831.

But I agree with the court, that it does not necessarily depend upon that act; and that all difficulty has been removed by the act of March 14, 1853, regulating descents and the distribution of personal estates. 3 Curw. Rev. Stat. 2270. What is the case before us ? Henry C. Perkey was the illegitimate son of Catherine Blume, and having survived his mother, died in the month of J anuary, 1852, without issue, unmarried, and intestate, leaving about six thousand dollars in personal property. After his birth, she intermarried with Eutsler, and had issue, one son and throe daughters. The property is claimed by them as the lawful heirs of Perkey, on the one hand, and by the state, or rather by the agricultural society of the state, as an escheat, on the other.

A man needs- little more than his instincts to determine what the-law ought to be in such a case. Perkey had no election whether he-should be born legitimate or illegitimate, It was no fault of his that he was born illegitimate, and he had the same right as others, •whose origin was more fortunate, to be judged by his own personal conduct, and not only protected in the enjoyment of what he should acquire while he lived, but to have what remained of it transmitted to his blood when he died. In his case, as in others, such security-furnished the strongest possible ^stimulus to that industry and economy, upon which the prosperity of states depends; and,. for the most cogent reasons, precluded the state from intervening' to impair it.

Yery good reasons, founded upon public policy, and growing out of the uncertainty that must generally attend the paternity of the-illegitimate child, can be given, for cutting him off from all connection with the paternal line. To this necessity, he must submit. But no doubt can exist as to the identity of the mother. The child is necessarily reared by her; and between them, as well as between the child and her other children, must grow up those strong ties-which bind near kindred to each other. However sternly the law may declare that there is no relationship, nature will assert her-supremacy, and stamp the declaration as unfounded.

The most subtle ingenuity would fail to suggest even a plausible-reason why these persons should not inherit to each .other; and the state could in no way prevent it, and take the property from them, without incurring the imputation of gross injustice.

These considerations, I am very well aware, are in no way decisive of the true construction of either the act of 1831 or of 1853. But a construction that ignores their influence, upon those who enacted these laws, may well be doubted; and hence arises the legal principle, which requires doubtful or equivocal language to be so construed as to avoid absurd or unjust consequences; and it is with that view, that I present them.

Upon the disputed question arising upon the act of 1831, section 15 of the act of 1853, has removed all doubt, by adding: “And if the mother be dead, the estate of such bastard shall descend to the-relatives on the part of the mother as if the intestate had been legitimate,”

If the case is to be governed by this act, there is no difficulty;. and whether it is to be so governed, must depend upon a fair construction of all its provisions, taken and considered together. In no other way, can the intention of the general assembly be ascertained.

*Perkey died before this act was'passed; but it took effeet while the estate was in the course of settlement, and before any order of distribution was made. By section 21, the act of 1831 is unconditionally repealed. Section 22 provides: “This act shall not affect any estate, to which any natural person shall have become entitled, by or under any statute of the state heretofore in. force; but this section shall not apply tr escheats to the state."

Now, it is perfectly evident that the whole of this section is a mere saving clause to the operation of section 21; and it is equally clear, that the general assembly did not intend to save for the state all the rights that it intended to save to natural persons; that a distinction was intended between the right to an escheat, and other righ.g of natural persons, derived from the act- of 1831.

All the rights of the state to this property, were derived from, .and depended upon , that act, and, in repealing it, the legislature has very plainly said, not only that they should not be saved, but that they should be relinquished. In so saying, no principle of justice, constitutional power, or legal propriety has been invaded/

The clause added to section 15, of the act of 1853, contains a very distinct acknowledgment of the injustice of the act of 1831, or of ■the construction put upon .it. No constitutional impediment existed to prevent an instant correction of this injustice, by relinquishing all rights under it. While the vested rights of private persons, and of private corporations, are very properly placed beyond the reach' of the general assembly, its power over such public interests is left wholly unrestricted. Indeed, if the state had actually received the property, there would have been no difficulty in restoring it to those justly entitled to it.

There is certainly nothing in the act of 1853, that evinces an intention to make it retrospective in its operation; nor was it neces.sary that there sko.uld have been. When Perkey died, the legal .title .to all his personal property vested in his personal representative." *He alone could sue for and recover it, and convert it into money. ' It vested in him, it is true, as a mere trust estate, for the benefit of creditors and distributees. The right to distribution was a vested right, and if it had belonged to a private j>er-,son, could not have been impaired by subsequent legislation. In such case, the distribution must have been made according to the law in force when the right accrued ; but it belonged to the state, and she had unlimited control over her own interests. Before the time for ■distribution arrived, she had repealed the only law that ever placed her in connection with the estate, and had expressly provided that her rights should not be saved. By another part of the repealing a vt, she had put the defendants in error in such connection, and had, in effect, ordered the distribution to be made to them. The whole effect, therefore, of these sections of the act, was to operate ■the relinquishment of an interest then existing, and to create a ca-pacify in others to take it. I am well enough satisfied that this-construction carries out the intention of the general assembly, but 1 should be better satisfied to decide the case upon what I must still consider the proper construction of the act of 1831.

We do not find it necessary to pass upon the question raised by counsel, as to whether' section 4 of the act of 1853 could, consistently with section 16 of article 2 of the constitution, have effected, an implied repeal of the act of February 8,1847. (2 Curw. Rev. Stat. 1342.) By this act, escheated property was to be taken possession of by the auditor of the county, and converted for the benefit of the state agricultural fund; while the act of 1853 required? the prosecuting attorney to collect it, and applied it to the exclusive support of common schools, without expressly repealing the act of 1847. Before either officer could act, or either fund be replenished, escheated property must exist. Being merely public instrumentalities, it was within the power of the legislature to take it from the one and give it to the other; or to do what we think has-been done, *take it from both and give it to those better entitled, by relinquishing the right of the state to the escheat. When property is found undoubtedly escheated to the state, it will be? time to decide which of these funds can make the best claim to it.

The judgment of the district court is affirmed..


source: Caselaw Access Project

author: Ranney, J. *J. R. Swan, J.

license: Public Domain

text:
    N. W. Graham & Co. v. W. H. Davis & Co.
    A common carrier, by special contract with the owner of goods intrusted to* him, may so far restrict his common-law liability as to exonerate himself’ from losses arising from causes over which he had no control, and to which his own fault or negligence in no way contributed.
    But he can not, by such stipulation, relieve himself from responsibility'for losses-caused by his own negligence or want of care and skill.
    In an action against a carrier, upon a bill of lading containing an exception of the dangers of the river navigation and inevitable accidents, after the non-delivery of the goods is shown, the burden of proof is upon the carrier to show not only a loss within the terms of the exception, but also that proper care and skill were exercised to prevent it.

      .A loss by negligence, however slight, is not within the exception, and the carrier is liable.
    .A party upon whom the affirmative of an issue devolves is bound to give all his evidence in support of the issue in the first instance; and he can only give such evidence in reply as tends to answer the new matter introduced by his adversary.
    .Any relaxation of this rule is but an appeal to the sound discretion of the court in which the issue is tried, and can not be reviewed on error.
    Error to the district court of Muskingum county.

      W. H. Davis & Co., the plaintiffs below, brought an action of as.sumpsit against N. W. Graham & Co., the defendants below, which went by ajjpeal to the district court of Muskingum, where they recovered a judgment for $2,620.18 damages, and $194.94 coste; to reverse which judgment this petition is filed.
    *The third count of the declaration, and the bill of exceptions, are all the parts of the record necessary to be read for an un•derstanding of the case.
    The said third count reads as follows:
    And for that whereas, also, the said defendants afterward, to wit, ■on the 10th day of November, a. d., 1852, at Pittsburg, to wit, at the county of Muskingum aforesaid, were the owners and proprietors of a certain other steamboat, to wit, a certain other steamboat called the “Dan Conver’s,” used and employed in carrying and -conveying passengers, and goods and merchandise, on the waters of the Ohio and Muskingum rivers, to wit, from Pittsburg, in the State of Pennsylvania, to Zanesville, in the county of Muskingum .aforesaid, and to divers other places, on and adjacent to said rivers. And the said defendants, being such owners and proprietors of said ••steamboat, on the day and year aforesaid, at the city of Pittsburg, to wit, at the said county of Muskingum, in consideration that the said plaintiffs would deliver to them, the said defendants, on board .•said steamboat, certain goods and chattels of great value, to wit, of the value of $4,000, to be conveyed by the said defendants, in and by said steamboat, from the said city of Pittsburg to the city of .Zanesville, in the said county of Muskingum, in the like good order in which they were in when received on board thereof, the dangers of the river navigation, fire, and unavoidable accidents excepted ; for a certain reward therefor, to be paid by the said plaintiffs to the said defendants, they, the said defendants, promised and unrdertook, to, and with the said plaintiffs, to the said goods and chattels from said city of Pittsburg to the said city of Zanesville, and there to deliver them without delay unto the said plaintiffs, or to their assigns, in the like good order in which they were received, the dangers of the river navigation, fire and unavoidable accidents excepted. And the said plaintiffs say, that although they, confiding in the said promises and undertakings of the said defendants, did then and there, to wit, on *the said 10th day of November, a. d. 1852, at Pittsburg aforesaid, to wit, at the said county ■of Muskingum, deliver to the said defendants, on board of said steamboat, said goods and chattels, to wit: 1 cask currants, 1 box liquorice, 10 boxes of tobacco, 2 cases of tobacco, and 157 bags of coffee, of the value aforesaid, to be carried and conveyed by the said defendants, in and by said steamboat, from the city of Pittsburg, aforesaid, to the said city of Zanesville, for fare and reward thereof, to be paid to the said defendants as aforesaid. Yet the said defendants, not regarding their said promises and undertakings, did not deliver the said goods and chattels in like good order in which they received them, to them, the said plaintiffs, or to their assigns, at Zanesville, to wit, at the said county of Muskingum, but wholly neglected so to do, notwithstanding they, the said defendants, were not prevented therefrom, because of any danger of the river navigation, fire, or other unavoidable accident; but, on the contrary thereof, they, the said defendants, their agents and servants in that behalf, conducted themselves so carelessly, negligently and un■skillfully in the premises, that by and through the carelessness, negligence, and unskillfulness and default of themselves and their servants, and for want of due care and attention to their duty in that behalf, the said steamboat afterward, and whilst she was carrying said goods and chattels from the said city of Pittsburg to the -city of Zanesville aforesaid, and before the arrival thereof at said city of Zanesville, to wit, on the day and year aforesaid, at Brunot’s Island, to wit, at the said county of Muskingum, run on a snag, then and there being, and sunk in said Ohio river, whereby the said goods and chattels, whilst the said defendants so had charge thereof, to wit, on the day and year aforesaid, at Zanesville, to wit, at the county of Muskingum aforesaid, became, and were and are, wholly lost to the said plaintiffs, and are of no value whatever, to wit, at the county aforesaid, to the plaintiffs’ damage of four thousand dollars ; and therefore they sue, etc.
    The bill of exceptions reads as follows:

      *Be it remembered, that upon the trial of this case, after1 the jury was sworn and before any evidence was offered, the counsel for the plaintiffs stated that he only claimed to recover upon the-third count of the declaration, and offered in evidence the bill of lading, of which a copy is attached to this bill of exceptions, and made a part thereof, which bill of lading the counsel for the defendants admitted, and also admitted their liability as claiméd by the plaintiffs, unless upon evidence thereafter to be introduced by them it should appeal' that they were not liable. It was also agreed by counsel on both sides that no evidence need be introduced as to. the amount of the plaintiffs’ damages, as in the event of the verdict being in favor of the plaintiff^, the true amount could be readily calculated and inserted in the verdict. The case then proceeded, the defendants introducing evidence tending to show that the injury to the plaintiffs’ goods was caused by the steamboat upon which they were transported striking a snag in the Ohio river and sinking, and. that the loss thus occasioned was to be attributed to the dangers of river navigation, one of the exceptions in a bill of lading. A question was then made before the court to this effect, namely: That, assuming that the loss was occasioned by one of the dangers of river-navigation, was it incumbent upon the plaintiffs to show such neglect upon the part of defendants as would make them liable, or-was it incumbent upon the defendants to show such care and diligence as would discharge them from liability: and the court then,, at the request and for the convenience of the parties, decided that the burden of the proof rested upon the defendants. The defendants ■ then further gave evidence tending to show that the said steamboat was, at and immediately before the loss, a good, staunch, strong, river-worthy vessel, having competent and skillful officers and crew, and that at the time of said loss, the pilot at the wheel was in the-discharge of his duty, pursuing such a course as a prudent pilot would pursue. In the course of the introduction of this testimony the defendants examined a number of pilots, who testified that, in their ^opinion, the conduct of Lyons, the pilot in charge of defendants’ boat, in the emergency, was correct and proper. Evidence was also given by the defendants, tending to show that, in passing down the Ohio river, near the foot of Brunot’s Island, on the-evening of November 11,1852 (when and where the loss occurred), the steamboat on which the goods were placed touched the rocky bottom on the larboard side of the boat, which caused the boat to-sheer to the right, and that the pilot straightened the boat and got her in her course while running slowly, the engine being in motion; immediately after which, the steamboat “Michigan” was seen,, apparently waiting at the foot of the island for the boat of defendants to pass, her furnace doors open, which had the effect of blinding the pilot of the latter boat, and causing him to go further to the right (with a view to avoid' collision with the Michigan) than he-otherwise would have done, — when the boat struck the snag and occasioned the loss. The defendants’ witnesses were cross-examined at length by the counsel for the plaintiffs, with'regard to the conduct of their pilot, Lyons, in the management of the boat át the-time and preceding the accident, the head of steam under which she was running, and whether or not it was proper and prudent to-run that channel under such a head of steam; but of none of them was the inquiry made, whether Lyons, the pilot, ought not to have-stopped the engine and floated down until past the snag and Michigan. When the defendants’ testimony was closed, the plaintiffs introduced several pilots as witnesses, who testified as to the general management of the boat at the time, and that it was, in their opinion, the duty of Lyons, the pilot, to have stopped the engine to-enable him to get the boat straight after she had sheered; that to straighten the boat with the channel, having sheered, as testified to by the pilot, in a channel as narrow as that was, was extremely dangerous, if not impossible; and that it was also his duty to have stopped the engine if apprehensive of a collision with the Michigan-, that if such collision should take place, no damage would have occurred therefrom.
    *When the plaintiffs’ testimony was closed, the defendants proposed to recall witnesses they had previously examined, and also some other pilots who had not been examined, and to prove by them that, in their opinion, it was not the duty of Lyons to have stopped the engine under the circumstances above detailed. To-this evidence the plaintiffs objected, and the objection was sustained by the court, and the evidence excluded, to which decision of the-court the defendants excepted. When the testimony was closed on both sides, and the counsel for the plaintiffs was about to address the jury, in opening the case, the court announced that two hours-only would be allowed to each side for the argument; thereupon the counsel for the plaintiffs proceeded with the opening argument for the period of one hour, and progressed so far as to speak fully ■of the testimony of the pilots in charge of the boat at the time of the accident, and then closed, stating that in his closing argument he would take up the testimony at that point. The counsel for defendants then stated that he should object to the counsel for plaintiffs saying anything to the jury in closing, which should not be in reply to defendants’ argument, and should object to his introducing new jioints in his closing argument, not alluded to in his opening, and the court being requested by the plaintiffs’ counsel, then to decide whether the request of defendants’ counsel would be acceded to, did decide that such request would not be acceded to, and did afterward permit the counsel for the plaintiffs to recommence his argument at the point at which he left it, and introduce new points in his closing argument not alluded to in his opening, and to address arguments to the jury in closing the case which were not in reply to anything which had been urged by the counsel for the ■defendants, to which rulings and decisions of the court the defendants excepted.
    In the further progress of the case, the court charged the jury that the defendants, to excuse themselves from liability for this loss, must show that it was occasioned by one of the excepted *perils, mentioned in the bill of lading, to wit: “ Dangers of river navigation, fire, or unavoidable accidents,” and that having shown that the burden then rests upon the defendants to show that the degree of care, which the law requires of them, was exercised, and that proof by defendants, that the loss was attributable to the ■danger of river navigation, did not throw upon the plaintiffs the burden of proving that such loss might have been avoided by the exercise of the proper degree of skill. The court then proceeded to state to the jury the three different degrees of neglect for which bailees were liable — corresponding to the three different degrees of ■care and diligence required of them, and that the defendants were bound to exercise the highest of these three degrees of care, and responsible for the slightest of these three degrees of negligence. 'To which opinion of the court, the defendants, by their counsel, ■excepted.
    After the rendition of the verdict, which, by consent, was filled up with the admitted amount of the loss, the defendants moved the ■court for a new trial, for reasons on file, one of which is based upon .an affidavit also on file, which motion was overruled by the court. And to this decision of the court, and all the other rulings aforesaid, defendants, by tbeir counsel, excepted, and pray the court to sign and seal this, their bill of exceptions, and that it be made a part of the record, which is now here accordingly done.
    The part of the bill of lading material to this report is as follows :
    “ Shipped in good order, and well conditioned, by D. Leech & Co., for account and risk of whom it may concern, on board the good steamboat called the Dan Convers, whereof is master for the present voyage, G-aligher, now lying at the port of Pittsburg,the following articles, marked or numbered as below, which are to be delivered without delay, in like good order, at the port of Zanesville (the dangers of river navigation, fire, and unavoidable accidents excepted), unto W. H. Davis & Co., or to his or their assigns; he ^or they paying freight for the said goods, at the rate of as per agreement, per one hundred pounds, and charges, $150.73.
    “ In witness whereof, the owner, master, or clerk of said boat hath affirmed to two bills of lading, of this tenor and date; one of which being accomplised, the other to stand void.
    “Dated at Pittsburg, this 10th day of November, 1854.”

      C. B. Goddard and E. B. Eastman, for plaintiffs in error:
    1. The ruling of the district court, that upon the then defendants rested the burden of proof, not only that the loss was occasioned by one of the excepted perils, but also that the loss could not have been avoided by the exercise of the highest degree of skill, is complained of as too strict an administration of the law in this case. This aetin is founded upon special contract — it is not charged that the defendants were common carriers, though if it were, we do not see that it ought to make any just distinction. Proof of nondelivery might require defendants to account for them. But do they not account for them when that the were lost by the dangers of the river navigation ? A loss proved to have happened in consequence of an unavoidable accident, is not the subject of any other or further proof. The highest degree of care could, not have guarded against it, and there need be no dispute as to the onus probandi in such a case. A loss by fire, or by the dangers of' river navigation, presents a different question. The defendants may be liable for a loss by the dangers of the river, and thóy may be* liable for a loss by fire, ^because either may be the result of such carelessness as would go to charge them. But the question in this case is, whether, when defendants have shown that the loss-was occasioned by one of these excepted perils, the court will superadd a presumption that it was occasioned by such neglect as to make them liable.
    We can comprehend why a court should say, with reference to such a contract as this, that it would be sufficient for the plaintiff to prove the non-delivery of the goods to give him a prima facie claim to recover, but it is not easy to understand that this prima facie claim-should continue after the defendant had shown a loss by one of the very perils excepted in his bill of lading. What we claim is this: that the burden of proof is not a constant, ever-flowing principle, adhering throughout to the side of the case to which it first attached, but that it varies with the shifting circumstances of the case-, and may be sometimes on one side and sometimes on another. This principle is sanctioned by the high authority of the Supreme Court of the United States, in Clark v. Barnwell, 12 How. 272.
    What is said upon this subject by the learned judge who delivered-the opinion of this court, in Davidson v. Graham, 2 Ohio St. 141, isobiter; but of the principle he enunciates in summing up, no complaint is here made. When the case goes to the jury upon this principle, and the prima fade case is admitted, and the loss is shown to-have been produced by a cause falling within the exceptions, we do complain if there is then superadded the burden of showing that this excepted point could not have been avoided but by the-highest degree of skill and care.
    The case of Whiteside v. Russell, 8 S. & W. 44, is relied upon to-sustain this extreme rigor. The bill of lading in that case contained the same exception which is found in this, and the loss arose-from striking a stone in the Ohio river. Judge Rogers (p. 49) says: “ It is not unreasonable to require the carrier to prove the loss and manner of it; and, further, that the usual care and diligence had been used to avoid it.”
    *We are held to proof of a very different kind of dili.gence. The court held us to the highest degree of care, and throw upon us the burden of proving that we had exerted it. It made us responsible for the slightest neglect, and required us to prove we were not guilty of it.
    II. We have little to say upon the other points excepted to. The .court can not read the bill of exceptions without perceiving how we were surprised by the evidence lastly introduced by the plaintdffs. We admitted their case, and set to work to prove how the -loss arose, and how we conducted at the time. Not a breath is whispered, until we have closed our evidence, as to its being the duty of the pilot to have stopped the boat, and then the plaintiffs -.spring upon us this new point, and we are not permitted to introduce evidence to overthrow it. To cap the climax, the plaintiffs have the opening and close, though we have the burden of •proof, and Mr. Jewett opens just so far as to come to the spring-gun -of his ease and stops, and is permitted in his reply to take up his .argument as he had his evidence, and urges a recovery upon a point -to which we had no opportunity of reply.

      Jewett & O’Neil, for defendants in error:
    I. It is not alleged in the declaration, in so many words, that the defendants below were common carriers; and such naked allegation would have been demurrable. But we do allege everything necessary and requisite in charging them as common carriers, and that, too, in the very language of the most approved forms; and it was .so treated on the trial, as evidenced by the admissions of the plaintiffs in error. 2 Chit. 356, 364, and notes; Ib. 664, and notes; Swan’s Prec. vol. 1, 259, note.
    II. The degree of care required of the plaintiffs in error was the •same required of common carriers in all cases. And the ruling of •the district court as to the burden of proof was not erroneous. It was on account of the hazardous uncertainty of *that class of witnesses — the men by whose negligence, unskillfulness, or recklessness the loss was occasioned — that many of the most enlightened •.courts of this country have refused to entertain the doctrine that a •common carrier could, by special contract, limit his liability. 19 Wend. 234, 251; 1 Hill, 623; 2 Ib. 723; 10 N. H. 487; 10 Met. 479 2 Kel. 349.
    The case of Davidson v. Graham, 2 Ohio St. 132, settles, in Ohio, the principles upon which the liability of common carriers rests, and the rules of evidence by which it is to be ascertained. We can not for a moment suppose that this court will review an opinion delivered after such mature consideration, in a matter of such vital importance, and so fully sustained by authority. 2 Greenl. Ev., sec. 219; Ang. and Am. Law of Car., secs. 168, 202; Story on Bailm., sec. 509, 529; 8 Watts & Serg. 44.
    In Clark v. Barnwell, 12 Howard, the question was not considered in the court below, nor was it supposed, necessarily, to arise. It was not presented in the brief of the counsel for the appellants, who considered the case as it was presented and disj>osed of in the court below. The counsel for the appellees merely stated the proposition, without citing the authorities in its support or illustrating it by argument. The court evidently treated it as an incidental question, without giving to it that consideration which its importance deserved. The case referred to in support of the opinion of the judge (Muddle v. Strider, 9 Car. & Payne, 380) should not be considered as settling any question, more particularly one-so important as this, it being but the opinion of a single judge, expressed incidentally, in the hurry of a trial, to the jury, without consideration, and in the absence of argument; and the opinion is a divided one, Taney, C. J\, and Wayne, J., dissenting.
    If the position of our Supreme Court, in Davidson v. Graham, be-maintained, we will be saved much of the confusion and many of the calamities that followed the first innovations on the law, as originally established for the government of common carriers. *But change the doctrine — shift the burthen of proof from the carrier to the owner — and this court, with all others in our country, will have occasion to indulge in the same regrets to which the judges, of the courts of England were so frequently constrained to give utterance, on witnessing the consequences which flowed from such innovations. 1 Starkie, 72; 3 B. & Bing. 177; 5 East. 507.
    (The other points of counsel relate to the matters referred to in No. II, of the argument of counsel for plaintiff in error. It is not. thought necessary to extend this report by inserting them at-length : counsel for defendants in error maintaining that the matters complained of were within the discretion of the court, trying-the cause, and that that discretion was rightly exercised, but that at all events it can not be reviewed on error.)
   Ranney, J.

That the plaintiffs in error were common carriers, and as such undertook to transport the goods of the defendants from Pittsburg to Zanesville, and that they were never delivered at the port of destination, are facts, not only sufficiently averred in the declaration, but were substantially admitted upon the trial. The bill of lading certified, that the goods were received in good order, on board the steamboat Dan Convers, and bound the carriers to deliver them without delay, in like good order, “ the dangers of river navigation, fire, and unavoidable accidents excepted.” The declaration averred, that they were not prevented from making the delivery by any of the excepted perils ; but that the goods were lost by the careless navigation of the boat, by which she was snagged and sunk, at the foot of Brunot's island, in the Ohio river. Upon this averment the parties were at issue — the plaintiffs in error claiming that the loss was occasioned by one of the excepted dangers of the navigation; and they now insist that the court below erred in casting upon them the burden of proving that the accident happened without their fault, while the boat was being navigated with the highest degree of care; and in rejecting certain evidence offered by them.

*1. The question presented upon the first point, arises upon the charge, in which the jury were instructed, that it was incumbent upon the carriers, not only to show that the loss was occasioned by one of the excepted perils mentioned in the bill of lading, but that the proper degree of care was exercised to prevent the loss ; and after stating the three degrees of care required of bailees, under different circumstances, that the carriers were bound to the exercise of the highest of these degrees of care, and responsible for the slightest of the three corresponding degrees of negligence. Counsel for the plaintiffs in error admit, that it was incumbent upon them to have shown that the goods were lost by one of the excepted perils; but they insist that the burden of proof was then shifted upon the owners, and that they were bound to prove negligence before the carriers could be charged. "We think this dividing a thing in its nature indivisible. Either the loss was occasioned by a peril of the navigation, or by the negligence of those in charge of the boat. It must have been the one or the. other, and could not have been both. If proper care could have avoided it, it was not a peril incident to the navigation ; if such care could not, it was. From the very nature of the undertaking, without care, the loss was inevitable; and with care, it might be unavoidable. From the failure to deliver the goods, the law raised the presumption of negligence against the carriers — prima facie, the fault was theirs — and this presumption could only be rebutted by showing that they wore without fault. As positive care was indispensable to the safety of the goods, they could meet and overthrow the legal presumption of negligence, in no other way than by showing that such care was exercised. Proof that the boat was snagged, fell short of proving that it was not snagged by the fault of those in charge of it; and, consequently, short of overcoming the prima facie case of the plaintiffs below. To do this it was not enough to have shown, that the loss was occasioned by what might, or might not, have been a danger of the navigation: nothing short of proof that it was the *one, and not the other, could have been sufficient; as nothing short of that could bring the case within the exception provided for in the contract.

The defense rested wholly upon this exception. No attempt was made to bring the case within either of the common-law exceptions to the carrier’s liability.

In the case of Davidson v. Graham, 2 Ohio St. 131, it was settled by this court, that the carrier might, in this manner, limit his common-law liability. But in adopting so important a principle, the court very carefully considered all its bearings; and endeavored to incorporate it into the law of this state, with such qualifications and restrictions, as seemed to be necessary to make it safe and practicable.

Yery strong arguments (thought to be unanswerable by several eminent judges in our sister states) were advanced against any relaxation of the common-law responsibility. It was said, that the highest considerations of public policy required the carrier to become an insurer of the goods intrusted to him,' against everything but the act of God, or the public enemies. That he took upon himself a public employment; and ought not to be permitted to discharge himself from the responsibilities, which the trying test of time and experience had demonstrated to be necessary for the safety of 'the public. That since the introduction of steamboats and railroads, he had, practically, taken exclusive possession of the public ■thoroughfares of the country; and was thus enabled to impose his own terms upon the owners of goods, who had no choice but to employ him. That the owner seldom accompanied his property, and in case of loss or injury, however gross the negligence might have been, was wholly unable to prove it, without relying upon the servants of the carrier, who would always be found too ready to exculpate themselves, and their employer.

, That these considerations were entitled to much weight, can not be doubted; and they were not, to any extent, lost sight of in. •^determining that the parties might by their agreement, to a ■certain extent, restrict the liability of the carrier. He is still regarded as exercising a public employment, and incapable, by any •act of his own, of limiting or evading, the responsibility which the law ■.attaches to its exercise.

The first attempt to do so, by general notices brought home to the owner of the goods, was, for a considerable time, sustained by the English courts — with the frequent expression of regret, however, by distinguished judges, that it had ever been so held — until, <at length, the evil was remedied by an act of Parliament. The ■courts of this country very generally repudiated the doctrine, and. escaped the regrets of the English courts. Hollister v. Nowlan, 19 Wend. 235; Cole v. Goodwin, Ib. 251; Wells v. The Steam Nav. Co., 2 Com. 204; New Jersey Steam Nav. Co. v. The Merchants’ Bank, 6 How. U. S. 344; Jones v. Voorhees, 10 Ohio, 145.

The implied assent of the owner of the goods to the terms pre■scribed by the carrier, upon which the English eases are founded, it is very conclusively shown in the American cases, can not be fairly .assumed; since the carrier is bound to receive and transport alL •goods offered for the purpose, subject to all the responsibilities incident to his employment; and the owner may be quite as fairly presumed to have intended to insist upon the rights he undeniably had, as to have assented to a qualification which the carrier had no right ■to impose.

But a very different question was presented, when cases arose in. •which the owner had expressly assented to such qualification, and made it a part of the contract of transportation.

In such cases, the very obvious conclusion was reached that such ■■a stipulation was valid when it only affected the rights and interests of the owner of the goods. So much of the responsibility of the-carrier as was designed alone for his security, might at his pleasure be renounced, in accordance with the settled maxim of the law— Quilibet potest renunciare juri pro se introducto.

*The limit to this power was equally obvious. The common-law exception to the carrier’s liability of losses arising from the act of God, was well settled, to include only those inevitable-causes of loss into which no human agency could have entered. This left the carrier liable as an insurer for many losses, equally inevitable, and which no care or prudence on his part could have-prevented. No one but the owner of the goods could have any interest in this liability, and as its renunciation had no tendency to-relax the vigilance which the carrier owed to others, the owner was-at liberty to surrender it. But he had no power to stipulate for what was immoral in its tendency, or to take from the carrier any of the motives to the faithful discharge of his public duty, and consequently could not relieve him from the consequences of his own negligence or carelessness.

There is nothing in which the public have a deeper interest than the careful and prudent management of public conveyances, and no higher mtiral obligation than rests upon those intrusted with the control of dangerous forces, to discharge their duties with care and skill. Upon it the safety of thousands of lives and millions of qmoperty daily depends.

Now, one of the strongest motives for the faithful performance of these duties, is found in the pecuniary responsibility which the carrier incurs for the failure. It induces him to furnish safe and suitable equipments, and to employ careful and competent agents. A contract, therefore, with one to relieve him from any part of this responsibility, reaches beyond the person with whom he contracts, and affects all who place their persons or property in his custody. It is immoral, becauses it diminishes the motives for the performance of a high moral duty; and it is against public policy, because it takes from the public a part of the security they would otherwise have.

Nor did the establishment of the principle that the carrier might, by contract, restrict his common-law liability, in any manner, or to any extent, change the rules of evidence before ^applicable to the subject. Before, the law prima facie imposed upon him the obligation of safety, and he was charged upon proof of the nondelivery of the goods. The burden of proof was upon him to bring the case within one of the excepted perils. Ang. on Carriers, sec. 202; Story on Bailm., sec. 529. And it was not brought within the exception, -until it was shown that care and skill could not have-prevented the loss. 2 Green. Ev., sec. 219. We know not where-this rule of evidence has been doubted, except in a divided opinion-of the Supreme Court of the United States, in the case of Clark v. Barnwell, 12 How. 272. The learned judge who delivered the-opinion of the majority was able to bring to his support only the single nisi prius case of Muddle v. Strider, 9 Carr. and Payne, 380, in which Lord Denman instructed the jury that, in passing upon all the evidence before them, they must be able to see clearly that-the carriers were guilty of negligence, before a verdict was found against them.

Judge Nelson very properly admits, that it was incumbent upon-the carriers to have shown a loss from some one of the causes which, by the general rules of law, or the particular stipulations of the-parties, would have furnished an excuse for the non-performance of the contract; and that if reasonable skill and attention could have avoided it, “it is not deemed to be, in the sense of the law, such a-loss as will exempt the carrier from liability, but rather a loss-occasioned by his negligence and inattention to his duty.” But he fails to show how, in the nature of things, where constant care was indispensable, the loss could be shown to have been inevitable, without giving prima facie proof that such care was exercised; or what-reason, founded in public policy or intrinsic justice, could be given for relieving the carrier, within whose knowledge the facts so-peculiarly lay, and by whose agents they could be so easily established, from the necessity of making such proof, and casting the burden of proving the contrary upon the owner of the goods, in most cases ignorant of the facts, and without the means of making' them appear.

*On the whole, we think Mr. Greenleaf fully justified upon principle, and the decided weight of authority, in saying that, “ in all cases of loss by a common carrier, the burden of proof is on him to show that the loss was occasioned by the act of God, or by public enemies. And if the acceptance of the goods was special, the-burden of proof is still on the carrier to show, not only that the cause of the loss was within the terms of the exception, but also that' there was, on his part, no negligence or want of due care.” 2 Green! Ev., sec. 219.

We have alluded, somewhat at length, to the effect of the decision, in Davidson v. Graham, not because all the questions now discussed5. were not fully considered by the court and explicitly siated, but because some of them were not so directly involved as in the pres<ent case, and from a desire to be as explicit as possible upon a subject so highly important to a state whose surplus productions must all find a market through the intervention of common carriers.

The whole may be summed up in this: the carrier, by agreement with the owner, may exonerate himself from responsibility for losses arising from causes over which he has no control, and to which his own fault or negligence has in no way contributed. But in doing so he does not cease to be a common carrier, nor in any manner change his relation to the public as such; and he can only excuse .himself for a failure to deliver the goods intrusted to him, by showing that, without his fault, he has been prevented by some one of the ■causes recognized by law, or specifically provided for in the contract.

This case requires very little to be added as to the degree of care -exacted of the common carrier. We have already said that he is not at liberty to stipulate for any degree of negligence, and that a .loss from negligence can not be within the stipulated exceptions to his liability. Indeed, in the carriage of passengers, and perhaps of goods, by steam, it might not be difficult to place it upon much higher grounds, and to fully justify the remarks of *Mr. Justice Grier, in delivering the opinion of the court in the case of Philadelphia and Reading Railroad Company v. Derby, 14 How. 468. He says: Where carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and .safety require that they be hold to the greatest possible care and diligence. And whether the consideration for such transportation •be pecuniary or otherwise, the personal safety of the passengers ■should not be left to the sport of chance, or the negligence of careless agents. Any negligence, in such cases, may well deserve the -epithet of gross.”

But it is only necessary now to say, that if the loss was occasioned by negligence, whether slight or gross, it was not within what was, or could have been made by contract, an exception to the -carrier’s liability.

We are therefore unanimous in the opinion that the district court was right in holding that the burden of proof was upon the carriers to show that there was no negligence or want of care, and that, if the loss was the result of any negligence on their part, it was not within any exception provided for in the contract.

2. The court are not unanimous upon the second question presented. A majority, however, concur in holding that no error was committed. From the bill of exceptions it appears that the principal controversy in the case related to the conduct of the pilot at the wheel, at the time the accident happened. The defendants below gave evidence to show the situation of the boat, the surrounding circumstances, what the conduct of the pilot was, and the head of steam under which he was running; and then called several experienced pilots, who expressed the opinion that the conduct of the pilot in charge of the boat was correct and proper. The plaintiffs-then introduced several pilots, who expressed a different opinion, and thought the pilot in charge should have stopped the engine. The defendants then proposed to recall their witnesses, and also some other pilots who had not been examined, and to prove by them that, in their opinion, it was not *the duty of the pilot to have stopped the engine. This evidence being objected to, was ruled out.

It will be observed, that all these witnesses were giving opinions upon exactly the same circumstances. No attempt was made to-change or vary them in the least. Under the circumstances, the defendants’ witnesses were of opinion that the pilot was right in keeping on steam, and doing just as he did do. With a view to the same circumstances, the plaintiffs’ witnesses were of a different opinion, and thought he should have shut the steam off. Now, what could have been accomplished by recalling the defendants’ witnesses, other than a repetition of the opinion previously expressed, we are quite unable to see. It is true, they might have said, expressly, that the pilot should not have stopped the engine (a question they had not before been asked), but, in the end, it would amount to nothing more than an opinion, that he should have done as he did, and not differently. There can be no dispute as to the general rule of evidence. The party upon whom the affirmation of an issue-devolves, is bound to give all his evidence in support of the issue,, in the first instance; and he can only give such evidence, in reply, as tends to answer the new matter introduced by his adversary. In this ease no new matter was introduced. The opinions of the defendants’ witnesses were simply encountered by those of the plaintiffs’. But while this is the rule, and generally to be adhered to, I am very far from saying that, in the exercise of a sound discretion, it is never to be relaxed. Indeed, very few cases can arise in which .a court would be justified in closing the case, until all tbe evidence ■offered in good faith, and necessary to the ends of justice, has been her.rd. And it is very probable, in this case, that a fuller examination should have been allowed. But this must always be an appeal to the sound discretion of the court, to be determined with a view to all the circumstances, and however determined, is not reviewable ■ on error. It is our duty to see that the rules of law are not infringed, but we can not revise the mere discretion of an inferior tribunal.

*J. R. Swan, J.

I concur in the opinion, that the burden of proof was upon the carriers to show that there was no negligence; .and that, if the loss was the result of any negligence, it was within any exception provided in the contract.

But in thus holding and requiring proof by the carrier of the •cause of the loss and of care, the course of proof in the case must, necessarily, be thus: the plaintiff first proves the' delivery of the .goods to the carrier, and that they were not received by the plaintiff. This entitles the plaintiff to recover. The carrier must then prove that the loss arose from one of the exceptions provided for by the ■contract, and that the servants of the carrier were in the due exercise of care. This proof made out prima facie, would entitle the carrier to a verdict. The plaintiff then may prove any fact or omis•sion of duty establishing negligence. If this fact be a specific one, upon which the witnesses of the carrier were not examined, such, •for instance, as that the engine should have been stopped, it is, I ■conceive, the right of the defendant to rebut such testimony; for the specific fact, and omission of .care, upon which the action is founded, is then for the first time disclosed and proved by the plaintiff. According to my view of the case, under the rule adopted by the majority of the court and applied in this case, the carrier is first required to make out & prima facie case of care, and then, when the plaintiff proves his cause of action, the defendant is precluded from giving evidence in his defense; for how can he anticipate what act of negligence will be proved against him? Surely, he is not to come prepared with witnesses to rebut every possible claim of neglect that may be alleged. This would require witnesses to be produced at perhaps great cost, and consume the time of the court, in rebutting claims never intended to be made by the plaintiff.

The present action was brought to recover damages on account •of loss of goods arising from the servant of the carrier not stopping his engine, under circumstances which due care demanded. The ■ground of the action was not disclosed by the pleadings or *the proof, or by any reference to it in the examination of witnesses, until the plaintiff gave in his rebutting testimony. I think the judgment should be reversed.

Thurman, C. J., concurred with Judge Swan.


text:
    *Wm. H. Peabody and Emery D. Potter v. Ohio, for use of Hydorn.
    The sureties in the official bond of a justice of the peace, conditioned that the officer should well and truly pay over, according to law, all moneys that might come into Ms hands, by virtue of his commission, are liable, upon failure of the personal representative of the officer, after his death, to pay over, upon demand, moneys that came into Ms hands officially during Ms term of office.
    Error to the district court of Lucas county.
    This suit was originally brought upon the official bond of a justice of the peace. The questions presented arise upon demurrer to the plea.
    The declaration sets forth the recovery of a judgment, by confession, before David Burger, a justice of the peace, in favor of Hydorn, against one Bronson ; the payment of the amount of the judgment to the justice by Bronson, on the 11th of October; the ■death of the justice on the 1st of November; the making of a will by the justice, appointing Catharine Burger the executrix thereof; the probate of the will and qualification of the executrix, on the 27th of November ; the demand of the money from the executrix, on the 7th of April; and her refusal to make payment.
    To thjs declaration the defendants plead, in substance, that on the of the of the said said Bronson, to said justice, he, the said justice, deposited the same money, so paid to him, in the Commercial Bank of Toledo, for the purpose of keeping the same safely, and whenever the same should he thereafter called for by said B[ydorn (who was a resident of Michigan), to pay the same over to him, and that said moneys so remained deposited and kept for him, the said Hydorn, up to the time of the decease of said justice; that no part of said moneys were demanded of said Burger, in his lifetime, and that since his *death, the money has been received by the executrix, who has failed to pay the same over to said Hydorn, on demand.
    To this special plea the plaintiff demurred. The district court ■sustained the demurrer, and gave judgment for the plaintiff.
    The errors assigned are, in substance, that the court erred in sustaining the demurrer.

      Bassett & Kent, for plaintiffs in error.
    The question presented is, can the sureties ef Burger be held responsible for the neglect or wrongful acts of his executrix ?
    The case, as presented, shows that there was no act of official misconduct on the part of Burger, and unless his bail are liable, at all events for the payment of this money to Hydorn, the action can not be maintained.
    The contract of a surety is to be construed strictly, and is not to be extended beyond the fair scope of its terms. Miller v. Stewart et al., 9 Wheat. 680; 3 Pet. Dig. 343; Farrar and Brown v. The United States, 5 Pet. 372.
    The last case cited was, where the money was received by the officer before the date of the execution of the bond; and after the same was appropriated, and not paid over, on page 388, the court say, “ if intended to cover past dereliction, the bond should have been made retrospective in its language. The sureties have not undertaken against his past misconduct.” A fortiori, have they •not undertaken against the misconduct of his executrix, after his -death. See Thompson v. Young et al., 2 Ham. 334.
    In the case of The State v. Alden’s sureties, 12 Ohio, 59, the court laid down a more stringent rule than any other we find in regard to sureties, although the case was such that the sureties were correctly held liable; but even this rule, applied to this case, would not render the sureties liable, the court say, “ as long as the to continues an official duty. The officer must at all times, and to every intent, perform his whole duty. The undertaking of the surety is, that there shall be no such thing as official misconduct.” ¡

    ^What act of official misconduct was there in this case? The officer had at all times, and to every intent, performed his whole duty, by keeping the same money ready for the person entitled to it, up to the time of his death.

      M. R. Waite, for defendant in error:
    From the plea, it appears that the money was deposited in bank to the credit of the justice. It was subject to his order and that of his legal representative. It was a general, not a special deposit. Hydorn could not have demanded it from the bank. If the bank had failed, the loss would have fallen upon the justice. He had no authority from Hydorn to make the deposit.
    By the deposit, then, in his own name, the justice converted the money to his own use, and his liability was changed from that of a mere trustee to 'that of a debtor. He was in the same position he would have been had he loaned the money to a third person and taken a note for it. The deposit may have been intended as a fund from which to make the payment whenever demand was made. This intent is not, however, evidenced by anything in the transaction. It does not appear from the plea that the bank was notified of the object of the deposit. Neither does it appear from the plea that the executrix had any knowledge of such intent. On the death of the justice, this money was found to his credit in bank. The-executrix alone had power to withdraw it, and she did so.
    Again, it does not appear from the plea but that the justice might have had other moneys on deposit at the same time, and that this-amount went to his general account. The declaration alleges the payment of the debt and costs. The plea avers that all the money paid was deposited. If so, then part of the deposit did belong to the justice, and over that the executrix had full control.
    Had the justice kept the money in his own possession, distinct *from his other moneys, and so marked as to identify it as the property of Hydorn, then he might have been treated as a mere trustee, and his ability governed accordingly. By his dejrosit he has, however, made the bank his creditor and himself the debtor of' Hydorn. The amount due from the bank went into his general-assets, and the executrix, if the estate was insolvent, could not ap~ •propriate this deposit to the payment of Hydorn’s claim, to the exclusion of other creditors. But the solvency or insolvency of the ■estate does not affect her power over the money. Finding it to the general credit of her husband, in bank, with nothing to indicate that it was the property of another, she had the right to withdraw it and treat it as her own.
    A justice, to save himself from personal responsibility, beyond that of a mere trustee, must keep the funds received by him in his official capacity separate and distinct from his own, and, to prevent their falling into his general assets on his decease, they must be so marked and identified as to show that they are the property of the person for whose use' he holds them. Something must be done which shall notify his personal representative of the nature of his •property therein.
    In thi^,c'aso, nothing of this kind is pretended. The plea avers no such notice to the executrix, and the whole proceeding shows .a conversion to his own use before his death. It is not, in other words, a conversion by the executrix, but by the justice in his lifetime.
    The demand upon the executrix is sufficient to charge the sureties. She was the legal representative of the justice, and the only proper person to call upon for the discharge of his liabilities. One of these liabilities was the payment of this money to Hydorn on demand.
    Again, it does not appear from the plea but that the executrix .still holds the money, and the bail may, for anything which now .appears, call upon the executrix and receive the money from her, if they are condemned in this action. The averment in the *plea is “ that the executrix has received the money from the bank since the death of the justice, and has failed to pay the same •over on demand.”
    As we have seen, she was the only person who could draw the money from the bank. There was nothing improper then in her .obtaining it. She was the proper person to take the fund upon the death of the justice. She has done so. It has been demanded of her and she fails to pay it over.
    A demand can not be made of the justice, and unless it may be .from the executrix none can be made. If none can be made, then suit mav be instituted on' the bond without demand. If the averment of demand from this executrix was unnecessary, it will be rejected as surplusage.
    The facts then, as they'appear upon the pleadings, do not even, make out a case of a wrongful act on the part of the executrix, and we need not consider the question how far the bail would be liable-if such had been the case.
    To lay the foundation for such a defense, it should at least appear,, that the funds had been kept in such a position during the life of the justice, that Hydorn could, upon his decease, take them from the-executrix by writ of replevin. If this was not the case, there had been a conversion to the justice, and the non-payment by the executrix was in consequence of his official misconduct.
    But suppose this had been the case of a wrongful act upon the part of the executrix, would not the bail of the justice still be liable?' Is it not within the true intent and meaning of the undertaking of the sureties, that the justice, and those who succeed to his obligations-on his decease, shall discharge those obligations ? The object of the bond was to secure to parties entitled thereto, prompt payment of all money which should come into the hands of the justice, in his-official capacity. This the sureties understood. The law, upon the decease of the justice, transfers to his legal representatives, all funds remaining in his *hands uncalled for at the time of his death, and also imposes upon the legal representative, the duty of making-payment on demand. This also the sureties understand. In effect, the legal existence of the justice is continued after his decease in. his executor or administrator, until full payment is made of all moneys remaining in his hands at the time of his decease, and the ■ undertaking on the part of the sureties is, that the justice and those who succeed to his obligations on his death, shall pay over on demand all moneys which may come into his hands in his official capacity during his life. But as I before said, a consideration of the question is not necessarily involved here, for the reason that the pleadings do not show affirmatively a wrongful act on the part of the executrix, but on the contrary, official misconduct of the justice-in the conversion of the funds during his lifetime.
   Ranney, J.

In this case, the judgment of the district court must be affirmed. We are by no means satisfied that the justice had so-dealt with, or treated the money in his hands, as to make it his own, or that he was guilty of any official misconduct that would have.worked a breach of the bond. He held the money in trust for the-creditor, and was bound to keep it safely; but this did not preclude him from placing it in a safe place of deposit, where it was kept safely. Had he no right to mingle the money with his own ; but the averments of the plea do not warrant the conclusion that he did so ; or that he did more than place the identical money he received, on special deposit, to be safely kept until called for by the creditor. We assume, therefore, that there was no breach of the official bond; during the life of the justice. But does the obligation of the sureties, to see that money received by him in his official capacity is. properly paid over, cease with his life, or other termination of his-official term? We think not.

Such a conclusion is neither warranted by the terms of the bond nor the object for which it is taken, while it would destroy *all security for paying over a considerable portion of the money that must, necessarily, come to his hands. It would not stop with exonerating from liability the sureties of justices of the peace, but would extend equally to those of sheriffs, treasurers, constables, and a multitude of other public officers, who receive large-sums of money which must, necessarily, remain in their hands at the termination of their official terms. The money received in this instance by the justice was held in trust for the creditor, and the only way in which the former could discharge himself from the trust was by paying it over, upon demand, to the latter. To secure fidelity in the performance of this duty, the official bond was taken. The sureties undertook that he should “well and truly pay over, according to law, all moneys that might come into his hands by virtue of his commission.” Until demanded, he was required to keep it safely; and when demanded, whether he was then in or out of office, to pay it over to the person' entitled.. This his sureties bound themselves he should do, and a failure to do it is a breach of their bond. When they assumed the obligation, they must be presumed to have known that, in the regular exercise of the duties of his office, it would probably terminate with money in his hands, and to have contemplated the various contingencies by which it might be brought to a close before the regular period for which he was elected. One of these was death; and in such a case they knew very well that the obligations resting upon him in respect to such funds, were by law cast upon his personal representative. They came to the hands of the latter not, as a part of the estate, or to be administered as such, but for safe-keeping, and to be paid over to the person entitled to receive them. These things being within the contemplation of the contract, are, upon the best settled principles, within its obligation and legal effect. The sureties, therefore, upon the very contingency that here happened, bound themselves, not only for the fidelity of the justice, but, in the event of his death, for that of his personal representative, into whose custody the law committed *the fund and charged with the duty of safe-keeping and disbursement. By the very terms of the bond, it is enough that. the officer should have received the money “by virtue of his commission;” and in respect to all such moneys, the sureties undertake that he shall well and truly pay it over according to law. It is not paid over according to law, whether he be in or out of office, or whether the obligation still rests upon him or has been transferred to his personal representative, where it is not paid over upon the demand of the person entitled to receive it. It is of no importance that.the personal representative is not named in the bond. The death of a party neither adds to nor takes from the obligations he may have assumed; and the necessary legal incidents that the law attaches to the undertakings of parties, need never be expressed.

The obligation to juay over the money rests upon the officer while he lives, and devolves upon his personal representative when he dies. It is the simple performance of a trust, and until discharged, the obligation continues; and the undertaking of the sureties for the faithful performance of the duty, is no less extensive than the obligation it was created to secure.

This fund, therefore, rightfully came into the hands of the executrix, the demand was rightfully made upon her, and her refusal to pay over was a violation of the engagements of the sureties, and a breach of the bond into which they entered.

Judgment affirmed.


author: Thurman, C. J.

text:
    Charles McMicken v. The City of Cincinnati.
    A city council, in passing an ordinance to appropriate land for a street, does not act judicially, nor is the assessment of damages by the committee appointed for that purpose, a judicial act.
    Under the Cincinnati charter, publication of such ordinance is sufficient notice to property holders.
    It is not necessary to provide, in the ordinance, for a review of the assessment of damages; it is time enough to provide for that when a review is asked.
    *Bill in chancery, reserved in Hamilton county.
    On the 2d of April, 1851, the city council of Cincinnati, by ordinance entitled “to open North Elm street,” enacted that certain ground, specifically described, he condemned and appropriated to public use, as a street; that three disinterested freeholders of the •city he forthwith appointed by resolution, to separately assess, within sixty days, the damages and benefits of each owner of property, by reason of said appropriation, and return their assessment, in writing, to the city clerk’s office within ten days after making the same; and that the compensation, as ascertained under the provisions of the ordinance, be payable out of the city .treasury, upon the order of council.
    A resolution was passed at the same meeting of council, naming .and appointing three freeholders for the purpose specified in the •ordinance; on the 2d of May, 1851, they made an examination •and assessment, and on the 8th of May, returned the same to the city clerk's office. In their return, they say, “ they proceeded to -examine the premises, and assess the damages accruing from the ■opening of said street, and the compensation due, and are of opinion that Charles McMicken, and others named, are nokentitled to •any damages.” The assessment, so returned, was laid before council on the 21st of May, and referred to the law committee, who, on the 26th of September, 1851, reported a resolution, “that •said street, as condemned and appropriated by ordinance, passed 2d of April, 1851, be opened forthwith,” and that the street commissioners of that district “ cause all obstructions thereon to he removed;” which resolution was then read and adopted.
    The contemplated street was sixty feet wide, and passed diagonally through the complainant’s enclosed ground, appurtenant to bis residence, a distance of about three hundred and thirty feet. Not long after the passage of the resolution, directing the street to-be opened, the street commissioners commenced pulling down complainant’s fence, who ^thereupon, on the 12th of November, 1851, filed his bill against the city of Cincinnati in the superior court of Cincinnati, alleging, among other things, that lie-had no notice of the proceedings of council, nor of the action of the-freeholders appointed to ascertain damages and benefits; that the proceedings are void, and confer no authority to .take complainant’s ground; and that if so taken, great and irreparable injury will be done to him, and praying for an injunction, etc.
    At its January term a. d. 1852, the superior court refused to-grant an injunction and dismissed the bill at complainant’s costs. The complainant appealed from the decision of the superior court to the district court of Hamilton county.
    The case was reserved by the district coui't for decision here.

      Miner Clark & Oliver, for complainant, made the following points:
    I. The proceedings of the city council concerning the appropriation of complainant’s property and the assessment of damages, were essentially judicial. United States v. James Scott, cited in III, N. S. West. Law Jour., 25 ; Striker v. Kelley, 2 Den. 323, 326, 328, 329, 332; President and Council of Brooklyn v. Patchen, 8 Wend. 47.
    II. Complainant was entitled to special notice of said proceedings. Publication of the ordinance in the newspaper is not a sufficient notice. Bloom v. Burdick, 1 Hill, 139 ; Patterson v. Patterson et al., 11 Ohio, 35 ; Owners v. Mayor of Albany, 15 Wend. 374; Corlis v. Corlis, 8 Vt. 389; Chase v. Hathaway, 11 Mass. 224 ; City of Cincinnati v. Coombs, 16 Ohio, 186.
    III. The ordinance for the appropriation and condemnation of complainant’s property, by merely, providing, that “ the compensation shall be payable out of the city treasury,” fails to provide any legal mode for him to get compensation for damages. Sec. 1 of act of March 7, 1842 (40 Ohio L. L. 143), Repealed by section 9 of act of March 20, 1850, sec. 2 of the act of March 16, 1839 (37 Ohio L. L.) ; 2 Kent’s Com. 339, note; Young v. McKenzie, Harrison et al., 3 Kelley’s (Ga.) 45; Parham v. The Justices of Decatur county, 9 Ga. 356 ; Thompson v. Grand Gulf Railroad and Banking Co., 3 Howard (Miss.), 240; Gardener v. Trustees of Newberg et al., 2 Johns. Ch. 162 ; Bonaparte v. C. & A. R. R. Co., 1 Bald. C. C. 225 ; McArthur v. Canal Commissioners. 5 Ohio, 140; Foote v. City of Cincinnati, 11 Ohio, 408.
    IY. The proceedings are ineffectual, because they do not provide for the review of the assessment or valuation of the damages. See-sec. 2 of the charter (act of March 6, 1839, 37 Ohio L. L.) ; Kemper v. Cin., Cal. and Wooster Turnpike, 11 Ohio, 392; Moorehead v. Little Miami R. R. Co., 17 Ohio, 340; City of Cincinnati v. Coombs et al., 16 Ohio, 186.
    Y. All pre-existing laws of this state for the condemnation and appropriation of private property to public use were amended by the new constitution, which went into operation on the 1st of September, 1851.
    The proceedings to condemn the complainant’s property, were inchoate at that time; there had not been any actual taking, no< entry upon and seizure of the same prior to September 26, 1851,. when the city council by resolution ordered the street to be opened: and the street commissioners to remove all obstructions thereon. 3 Kent’s Com. 339, note; Parham v. The Justices of Decatur Co., 9 Georgia, 356 ; Young v. McKenzie, Harrison et al., 3 Kelley’s (Ga.) 45; Gardener v. Village of Newberg, 2 Johns. Ch. 164-166.
    In the progress of the proceedings and before the final consummation of the object of them, before any entry and seizure, before-the opening of the street, the enabling power which must attend them, from the beginning to the end, was taken away by the new" constitution, and the city, in subsequently entering upon the premises and opening the street, was a trespasser.
    *The city council had no power since September 1, 1851, to provide for such a tribunal of review as was required by the first-proviso to the second section of the act of 1839. That act being-repugnant to the new constitution, was repealed by it. Cass v. Dillon, 2 Ohio St. 607; City of Cincinnati v. Coombs et al., supra.

    No other argument has come into the hands of the reporter.
   Thurman, C. J.

There is no ground for saying that, in passing; the ordinance to appropriate the complainant’s land, the city council acted judicially.

Nor was the assessment of damages by the committee appointed ■by the city council, a judicial act, for no. property holder was con-eluded thereby — a right of review of the assessments, so far as they concerned him specially, being given, by the charter, to each owner who should ask for it.

Consequently, the proceedings are not void for want of the notice insisted ujion by the complainant. The publication of the ordinance was sufficient notice, the law not requiring a special notification.

"We see no objection, at least none of which the complainant can take advantage, to the provision of the ordinance for the payment of the damages, that might be assessed, out of the city treasury.

It was not necessary to provide, in the ordinance under consideration, for a review of the assessment of damages; it was time enough to provide for that when a review was asked.

We think that the complainant’s |>roperty was taken, in the meaning of the constitution of 1802, when the ordinance was passed .and the assessment made. Consequently, the case does not come under the provisions of the present constitution.

This disposes of all the points made by the bill and upon which ..it rests.

Bill dismissed.