author: *Ranney, J.

text:
    William Satchell v. Thomas Doram.
    No statute has authorized the recording of town-plats not executed and acknowledged pursuant to statute, and, consequently, such record is not, per se, evidence. Nor is it made evidence by proof that, in building or improving, some lot-owners paid respect to the plat, and others not.
    *An averment in a declaration that the plaintiff was entitled to the use of a “ public alley,” is not supported by proof of a right to use a private alley,
    A deed calling for an alley at seventy feet, more or less, from a street, does not estop the grantee to deny the existence of an alley at the distance of sixty feet.
    "Whether a court errs, or not, in a charge to a jury, is immaterial, where there is no evidence tending to make the charge material and it could not have misled the jury.
    Error to the district court of Hamilton county.
    The judgment sought to be reversed in this proceeding is that of the district court, affirming a judgment of the court of common pleas of Hamilton county, in an action on the case, in which the plaintiff in error was also plaintiff, and the defendant in error was defendant.
    The declaration averred, that “whereas, on the 10th day of January, in the year 1845, and during,” etc., Satchell “was lawfully possessed of a certain dwelling-house and appurtenances, situate on the south side of Green street, between Race and Elm streets, in the city of Cincinnati,” etc., and “was lawfully entitled to the use and enjoyment of a certain public alley, extending from said Green street, of the width of seven feet, by the side of his said dwelling-house, the whole length, of the said William Satchell, situate as aforesaidand alleges the obstruction of the alley by the defendant. The defendant plead not guilty, and also that the plaintiff ought not to have his action, because, he says “ that, by reason of the plaintiff’s possession of the lot in the declaration mentioned, at the time therein stated, the plaintiff was not entitled to the use and enjoyment of the said supposed alley, as in the declaration set forth; and this he prays may be inquired of by the country,” etc.
    It appears from the bill of exceptions, that the plaintiff introduced evidence tending to prove that, in 1838, Doram had a stable on the back end of his lot; that, then, in a conversation with one Beckley, Doram said he had been informed by Gest, city %urveyor, that there was an alley laid off, in connection with the alley “ across on the other side of the street, and parallel with it,” and that he (Doram) did not want to move his stable farther east than it then was, because, if he did so, the street commissioners would fine him severely for doing so, and that he had sixty feet, more or less, from Mr. Longworth.
    Evidence was further introduced tending to prove, that, at the commencement of the suit, and at the time stated in the declaration, Doram was in possession of a lot, and house thereon situate, on the southeast corner of Green and Elm streets, in McFarland’s subdivision of said city; that he (Doram) obtained that property about thirty years ago, by assignment of Nicholas Longworth’s title-bond to one Hurry; that afterward (December 19, 1835) Doram obtained from Longworth a deed in fee simple; that the plaintiff is in possession of the lot, with his dwelling-house thereon, next east on Green street — street of Doram’s lot — and that Doram told said Beckley that Mr. Gest, the city surveyor, had told him there was an alley there.
    Plaintiff further introduced evidence tending to prove that, about 1807 or 1808, William McFarland had possession of that part of said city known as McFarland’s subdivision; that he subdivided the same into lots, so that in said subdivision there were-alleys seven feet wide, the first at the distance of sixty feet east, from Elm street, and then of distances of every sixty feet on both sides of Green street to Race street; that the lots are thirty feet in width; that about August 17, 1831, Charles Satchell was about to purchase the right of one Joseph Parker, which he held by title-bond from Longworth, and that Doram, as the agent of Parker, held his papers and negotiated the contract with said Charles Satchell; that, in such negotiation, Doram told said Charles S., that there was an alley sixty feet east of Elm street, in the rear of said lot, which said Charles was about to purchase, and further, at the time of such negotiation, showed Charles S. the now mutilated paper, of which the following only is legible: *“N. Longworth sells to Joseph Parker a lot on the east side of Elm street between 2d and 3d streets, next south of Thomas Dorand, twenty feet in front and running back to the alley sixty or seventy feet, price dollars front foot, payable in 2, 3, 4, 5, 6, 7, 8, 9, and 10 years, equal installments, with interest yearly, on condition”-. It was further proven, that Charles .Satchell’s lot, purchased after the conversation referred to, is next south on Elm street of the lot of Doram.,
    Plaintiff also introduced evidence, tending to prove that Long-worth at one time owned lots number 25 and 26, and other lots, in McFarland’s subdivision, and that about eight or ten years ago, he went to look after some property of his in that neighborhood, and then found Doram in possession of five or six feet of ground next south' on Elm street in addition to the part conveyed by Long-worth’s deed to Doram, the latter having a porch on it; that Doram then 'told Longworth, that G-., the city surveyor, in surveying his lot, had found that the line did not extend back seventy feet, and had given him that piece of ground to make up for the deficiency; to which Longworth answered, that the surveyor was not his agent, and that he (L.) would hold Doram to the original lines of his lot.
    Plaintiff further introduced Longworth as a witness, whose testimony tended to prove that he had seen in the record of deeds of said county, a copy of a plat of McFarland’s subdivision of the city of Cincinnati; and that the buildings and improvements in that part of the city have been made to correspond with and in conformity to the said plat of subdivision; that he had never seen what he believed to be the original plat of McFarland’s subdivision, but, within two or three years past, he had seen some one claiming to be an heir or agent of McFarland, who was trying to get money out of people, and had what he claimed to be the original plat of said subdivision.
    ^Evidence was further introduced by plaintiff, tending to prove, that on the north side of Green street (now called Pearl street), two alleys are open and have never been closed, and that the other alleys on both sides of the street, have, by consent of the parties who occupy the adjoining 'lots, been divided between them, and some of them have gates at each end to keep the hogs out, and that of the space or alley in question, about 3J feet yet remains open from Green street about 12 feet, that then, for about six feet a fence of Doram’s projects about one foot more to the line of Charles Satchell’s lot, where the space yet remains about seven feet wide till it comes to a stable built by one Franklin.
    Evidence was further introduced by plaintiff, tending to prove that about ten years ago, Charles Satchell’s lot was fenced in, and that in the rear or east side of said lot, he had a' gate opening out on the space now claimed as an alley, and through which himself and his family and his tenants in said dwelling-house passed at their pleasure, and that he and his tenants from time to time received their fuel and other heavy articles from wagons in the rear of his lot, and that there was a space not built upon then, in the rear of said lot, independent of the space for the alley; that the said Charles Satchell’s fence was sixty feet east of the street; that he had had his lot measured by the city surveyor, and it was found to be at that distance from Elm street; that the fence was a board one, and the fence on the east line of Doram’s lot was a continuation of the same fence and on the same line ; that afterward Doram built a cow-house in place of the pig-pens which.were there before, for a cow which died last summer (the life of a cow being about ten years), and that said cow-house was built outside and east of said fence, and so remained there till it fell down when William Satchell, the plaintiff, dug his cellar for his house.
    The original deed of Longworth, together with a certified copy of the same from the records, was put in evidence without objection. The description is as follows: “ The following described lot of ground in the city of Cincinnati, to wit, commencing on the east side of Elm street at the southeast corner of said Elm and Green streets; thence south along the east side of Elm street twenty (20) feet; thence east on a line parallel with Green street seventy (70) feet, more or less, to the alley; thence north parallel with Elm street (20) twenty feet, to Green street; thence west along the south side of Green street (70) seventy feet, more or loss, to the place of beginning, being parts of lots Nos. 25 and 26 in the plan of subdivision made by William McFarland in Cincinnati.” This deed appears to have been recorded in June, 1807.
    After the admission of this deed in evidence, the plaintiff offered a paper and certificate as follows:

      William McFarland's Flat of Addition to Cincinnati.--r-“ A plan of the division of six lots situate, lying, and being in the town of Cincinnati, in the county of Hamilton, and State of Ohio, and numbered on the original plan of the said town of Cincinnati, two hundred and fifty-seven, two hundred and fifty-eight, two hundred and fifty-nine, two hundred and eighty-two, two hundred and eighty-three, and two hundred and eighty-four; which lots, according to this plan, are divided into thirty-six lots, each lot being thirty feet in front and seventy-two feet and one-third of a foot deep, the n umber of which will appear by this plan, with two streets, each forty feet wide, running eastwardly and westwardly, and five alleys passing through the said plan, northwardly and westwardly, each alley being seven feet wide; which streets and alleys are to continue for the use of the proprietors of the said lots forever.
    “Delivered by William McFarland.”

      «ELM STREET.

      *“ State.of Ohio, Hamilton County, ss:

    “ I, William Hoon, recorder of said county, do hereby certify that the foregoing is a correct copy, taken from boob G, page 321, of the records of said county.
    “ In testimony whereof, I have hereto set my hand and official seal, this 21st [-], 1851.
    [seal.] “ William Hoon,
    “ Recorder of Hamilton County, Ohio."

    This supposed plan appears to have been recorded in book Gr (an early book of Hamilton county records). It was rejected by the court below, to which plaintiff excepted.
    The plaintiff then offered the book of records itself (book G, page 321), which was also rejected by the court.
    (The deed to Charles Satchell conveys a lot described as “ all that certain lot in Cincinnati, on the east side of Thomas Doram’s lot, deeded to him by said Longworth [said Doram’s being the corner of Green and Elm streets]. The lot now conveyed is twenty feet in front on Elm street and runs back to the alley sixty feet.”)
    The defendant introduced James Miles and other witnesses, who testified that there was no alley at the east end of said Doram’s lot, which testimony the plaintiff moved the court to overrule, but the court denied the motion, and received the evidence.
    Under the provisions of the then statute, the plaintiff’s counsel demanded a written charge, which was given as follows:
    “The issue in this case may be stated as follows: The plaintiff claims that there was, before and at the time of commencing this suit (that is to say, on the 23d day of April, in the year 1846), a certain public alley, to the use of which he was entitled, running beside premises of which he was possessed, and that, for some time previously, the defendant' unlawfully obstructed the said public alley to the damage of the plaintiff. The defendant by his pleas substantially denies all these allegations, and you are to say whether the plaintiff has established his claim, and if so, what are his damages. In the first place, then, was there at the time *mentioned in the declaration, or at any time before the commencement of the suit, such a public alley? Proof that there was a private alley will not satisfy the plaintiff’s allegations; that is, proof of an alley provided for the use of adjoining proprietors of lots, is not proof oto,public alley. As to the proper proof of the existence of such a public alley, we have to say, in general terms, that it must be such as to establish: 1. A legal dedication as provided by statute. 2. A condemnation by some public authority competent for the purpose. 3. A dedication implied from acts of the owner, not amounting to a statutory dedication, but indicating the purpose to make a public alley; or, 4. A continuous and adverse possession and user on the part of the public for twenty-one years. And,
    “ 1. As to a statutory dedication. Do you find, from the evidence, that a plat has been made, acknowledged, and recorded, as provided by an act entitled ‘ an act to provide for the recording of town-plats,’ passed March 3,1831; or that there has been a dedication by the proprietor of the land at any time, according to the provisions of the statute then in force ? Has any plat been admitted in evidence by the court? or, if not, is the defendant estopped from denying the existence of such an alley, by the recitals in his deed? We charge you, that, as to any person purchasing on the east of plaintiff’s lot on the south side of G-reen street, the defendant is estopped from denying that there was, at the date of his deed, a public alley about seventy feet east of his Elm street corner, but that his deed does not admit the existence of an alley at the distance of sixty feet east of the Elm street corner, unless you find that there was, in fact, an alley laid out by means such as we have mentioned, or used as such at the date of the deed; for, if there was such an alley in fact, the actual location will govern, and the deed would only convey to the line of that alley.

      “ 2. Has there been a condemnation ?
    “ 3. If you do not find that that there has been a statutory dedication, *do you find that any person, while the owner of the ground, opened it to the public, or passively permitted the public to use it as a public alley for the space of several years ? Was this space of ground next the plaintiff’s premises ever opened and used by the public as an alley ? This is a simple question of fact.
    “ 4. Has the public acquired a title to the alley by continued user for twenty-one years, without the permission or sufferance of the plaintiff ? This also is 'a simple question of fact.
    “ We would here explain that, by the recital in the' defendant’s deed, he is estopped from denying that there was, at the date of that deed, a public alley at the distance of about seventy feet from the Elm street corner of defendant’s lot, and that this estoppel will apply to all the cases of dedication to which we have called attention, that is, it will practically warrant you in finding, that there was a public alley, however established ; but you must remember that this applies only to the time when the defendant received his deed, and to the point of space we have mentioned— that is, at the line of the lot extending about seventy feet east-war dly from Elm street, and does not apply to an alley sixty feet eastwardly from Elm street. If you find that there was, at any time, a public alley at the point claimed by the plaintiff, that is, at the side of his dwelling house, the presumption is that it continues to exist, unless the contrary appears from the testimony. The defendant claims that, for more than twenty-one years previously to the commencement of this suit, he was in the continued, uninterrupted, and adverse possession of the ground he is said to have obstructed. If so, he is not liable in this action. But his possession must have been continued and uninterrupted; that is to say, it must never have been abandoned or lost during twenty-one years of adverse possesion. If, during any part of the twenty-one years, the defendant ceased to occupy or control the premises, you must calculate from the date of the last interruption. But, we repeat, before you are required to examine the question of the defendant’s possession, yon must be satisfied that *there has been, at some time, a public alley running by the side of the plaintiff’s house. "If you find that there was such an alley, did the defendant obstruct it? If so, what were the circumstances of injury to the plaintiff, and what was the damage to him, looking at the nature of the obstruction and all the particulars of the injury? If there was no such alley, or if the defendant obstructed none such, of course your verdict must be for the defendant.”
    The defendant moved the court to charge the jury, “ That the parol admissions of the defendant to other persons than the plaintiff as to the fact that there was an alley in existence, do not prove that any alley was ever dedicated or condemned. Such admissions are only evidence tending to prove user, and they do not control the testimony upon that subject; and admissions of the existence of an alley, generally, do not avail, unless the location of the alley be established by proof, and found to correspond with the declaration.” The court further charged:' “We decline to give this charge as asked; but we give, in lieu of it — That the parol declarations of the defendant to any person who did not act upon the faith of those declarations, do not prove a statutory dedication or condemnation, even as verbal declarations of the existence of an alley, if made to persons who did not act upon the faith of them, are evidence of user only, or dedication less than formal or statutory; and defendant’s admissions of the fact of the existence of an alley, generally, are always competent, if shown to refer to the alley in question.” To which the plaintiff excepted.
    The verdict being for defendant, plaintiff moved for a new trial. That motion being overruled, and judgment entered on the verdict, a writ of error was sued out of the district court. That court affirmed the judgment of the common pleas. The plaintiff now seeks to reverse the judgment of affirmance.

      John Joliffe, for plaintiff in error.

      Pugh & Pendleton, for defendant in error.

       On this paper are certain indorsements of transfer, by way of security and otherwise, which are not material to be stated.

   *Ranney, J.

It is quite unnecessary to extend this report, by assigning the reasons, at length, in support of the ruling of the court below. It is enough to say, that those rulings have been carefully examined by us, and, so far as they are in any way material in this ease, we are entirely satisfied of their general correctness.

The grounds upon which those rulings were placed, will be found fully presented in the charge of the court below.

The judgment is affirmed.


source: Caselaw Access Project

author: Kennon, J.

license: Public Domain

text:
      State (ex rel. Attorney-General) v. Joseph C. Tool.
    Where a treasurer elect, on the first Monday of June next after his election, executed and delivered a bond to the commissioners of the county with sufficient surety, according to the statute, and the commissioners on that day neither accepted nor rejected the bond, but on the next day approved it, and the treasurer immediately thereafter took the necessary oath, and had the same indorsed on the bond, he thereby became the legal treasurer of the county.
    Proceedings in the nature of a quo warranto.

    The case is stated in the opinion of the court.

      F. D. Kimball, attorney-general, for the state :
    The first question presented by the demurrer to the second plea is, is the mere presentation of a bond to the county commissioners on the day limited by statute, a sitfficient compliance therewith, to prevent the office becoming vacant. The provision of the statute (Swan 1009) is, that if any person elected to the office of county treasurer, shall not give bond and take the oath or affirmation as required by the preceding section (section 2), on or before the first Monday in June next after his election, his ^office shall be considered vacant. The requirements of section 2 are that he should give bond, with four or more freehold securities, to the acceptance of the county commissioners, etc., and shall also take and subscribe an oath or affirmation, to be indorsed on said bond that he will faithfully discharge all the duties of his office, etc.
    The provisions of the law are imperative, that unless the bond is given and the oath or affirmation taken on or before the day prescribed, the office shall be considered vacant. There is no qualification whatever, but the failure to comply with these requirements leaves the individual in the same position precisely as if he had never been elected.
    It is contended by counsel for defendant, that the bond was given on the day prescribed. The provision of the statute is that he shall give bond to the acceptance of the county commissioners. In this case no bond was given on that day to the acceptance of the commissioners, and the provision of section 3 is, that in case of a failure to give bond and take the oath as required by section 2, the office shall be considered vacant.
    The attempt to give a bond will not excuse the giving it to the acceptance of the commissioners, and in such a case will it not be presumed that the commissioners acted in good faith and according to the discretion vested in them, in not accepting it on that day; in other words, that no such bond was presented as is required by law, or that it would have been on that day accepted ? The taking the oath of office is the voluntary act of the individual himself, and is subject to no conditions of acceptance from any source. It may be taken, and indorsed on the bond just as well before as after its acceptance by the commissioners, and the failure to take it is the neglect of the individual himself, and stands entirely disconhected from the act of giving a bond to the acceptance of the commissioners.
    The question whether the bond thus given and accepted on a day subsequent to the one prescribed by law, is binding and valid, *is entirely different from the one involved in this case, and suck, distinction is distinctly made in tbe case of Findley v. Ohio, 10 Ohio, 59. Tbe acts of a treasurer de facto are valid, and bis sureties may be bound, but tbe question here presented is, is Tool treasurer de jure, after having failed to comply with the law in regard to bis qualification and induction into office?

      Hunter & Dougherty, for defendant:
    The material facts averred in tbe second plea are, “ that tbe defendant, being duly elected to tbe office of county treasurer, delivered to the county commissioners, on the first Monday of June thereafter, bis bond, with sureties conditioned according to law, and was ready and willing on that day, on acceptance by the commissioners of the bond, to take and subscribe tbe oath of office to be written on tbe bond as required by law. That the commissioners, without determining on tbe validity of said bond, on said first Monday, adjourned their session to tbe next day, and on that day approved and accepted said bond as the official bond of tbe defendant, and that tbe defendant thereupon on that day took and subscribed tbe oath of office indorsed on said bond, and bolds the office accordingly.”
    The questions are: 1. Whether the-acceptance of the bond on the next day after the first Monday, under tbe circumstances, was in time to prevent tbe office from becoming vacant ? and, 2. Whether the failure of tbe defendant to take and subscribe the oath of office on tbe first Monday rendered tbe office vacant?
    Section 3 of tbe act provides: “ That if any person elected to the office of county treasurer shall not give bond and take the oath or affirmation, as required in tbe preceding section, on or before the first Monday of June next after bis election, bis office shall be considered vacant.” Swan’s Stat. 1009.
    The bond was duly executed and delivered on tbe first Monday of June by the defendant. He had done all that was in his *power to do, without tbe concurring action of tbe commissioners; and if so, surely tbe statute ought not to be so construed as to forfeit bis right to tbe office, or to defeat the election by the people, by either a wanton refusal or negligent omission of the commissioners to approve and accept tbe bond.
    That would be a harsh, unwise, and an unjust provision, if it Were so expressly provided in tbe law. But it is not so provided :and if that interpretation bo given, it must be by construction. The language is, “That if anjperson elected,” etc., “shall not give bond," etc. It is his act alone of negligence that is in contemplation ; and by no means the omission or negligence of the commissioners in not acting upon his bond that is intended to vacate the office. If the defendant, with sureties, etc., executed and delivered his bond to the commissioners, he had, in the full sense of the law, “ given bond,” provided the sureties, condition, and amount of the penalty of the bond were such as the commissioners would accept and approve; and the averments of the plea are, that the bond was in fact accepted and aj>proved the next day.
    This being the case, we say the office can not, in the language of the statute, “ be considered vacant,” for the reason that the defendant did not give bond. He gave the bond in duo time, and the commissioners accepted it. It is therefore a good bond, and is obligatory upon the defendant and his sureties in it for the performance ■of its condition. Ohio v. Findley, 10 Ohio, 51.
    Is the office vacant because the oath was not taken and indorsed upon the bond on the first Monday of June? The defendant has, in virtue of his election and the bond and oath, as made and given, exercised the office to the present time, and a question might, if he wore unfaithful, arise, whether his sureties would be liable on the bond, This question has been distinctly adjudicated in the Findley case just cited. Nevertheless, it may be argued, that although the bond is valid, the office is vacant.
    ¥e think, however, that if the oath of office was taken and ^indorsed upon the bond and subscribed by the defendant, without unnecessary delay, after the bond became a bond in law by being accepted by the commissioners, the statute has been complied with by the defendant, so far as it was in his power to comply with it under the circumstances. The oath is to be indorsed on the ■bond, — not on a paper which may afterward become a bond. If indorsed before acceptance, it would not, at least till accepted, be on the official bond. In their due chronological order, the bond should exist before the oath of office could be indorsed upon it. And in this case, the bond being delayed in being made j>erfect by the action, or want of action, of the commissioners, the oath was, ex necessitate, and for the same reason, delayed by this want of action.
   Kennon, J.

These proceedings were instituted by the state for ■the purpose of ousting the defendant from the office of treasurer of Hocking county.

The defendant, in showing by what authority he held the office and exercised the duties of county treasurer, plead: 1. That at the October election of 1854, he was duly elected treasurer of Hocking county; that on the first Monday of June, 1855; he executed a bond, with more than four freehold sureties, to the acceptance of the commissioners of the county, in a sum prescribed by the commissioners; that he then and there took the oath prescribed by law, subscribed the same, and caused it to be indorsed on the bond according to law, and, therefore, that he lawfully exercises the duties of the office of county treasurer. 2. That on -the first Monday of June, 1855, he executed and delivered to the commissioners for their acceptance, a bond conditioned according to law, in the penal sum of $80,000, with twenty-four freehold sureties; that the commissioners, on said first day of June, 1855, neither accepted nor rejected the bond, but continued their session until the next day, being the next day after the said first Monday of June, 1855, and then and there accepted and ^approved of said bond; that the said Tool then and there, on the same day, took and subscribed the oath required by the state, and caused the same to be indorsed on the bond thus accepted by the commissioners. On the first plea the state took issue, and to the second filed a demurrer.

The question presented for our consideration is, whether this second plea is sufficient. This depends upon the construction to be put on the statute.

Section 2, of the act prescribing the duties of county treasure^ is in these words : That each county treasurer, previous to entering on the duties of his office, shall give bond, with four or more freehold securities, to the acceptance of the county commissioners, and in such sum as said commissioners shall direct, payable to the State of Ohio, and conditioned for the paying over,-according to law, all moneys which shall come into his hands for state, county, township, or other purposes; and shall also take and subscribe an. oath or affirmation, to be indorsed on said bond, that he will faithfully discharge all the duties of his office; and the said bond, so indorsed, shall be deposited with the auditor of the county, and be by him carefully preserved.”

Section 3 provides, that if any person elected to the office of county treasurer, shall not give bond and take the oath or affirmation, as required in the preceding section, on or before the first Monday in June next following his election, his office shall be considered vacant.

By section 60 of the same chapter (Swan’s Stat. 1017), it is made-the duty of the county commissioners, in case the office of county treasurer shall become vacant by death, removal, resignation, neglect to give bond, or from any other cause, to fill the vacancy forthwith by some suitable person.

This bond was not accepted by the commissioners on the first Monday of June next after the election, nor was the oath, required by the statute, taken and subscribed, nor was it indorsed on the-bond, on or before the first Monday of June.

*The bond was executed and delivered to the commissioners, for their acceptance, within the time prescribed by law, but was neither accepted nor rejected on that day; but on the next day, and during the regular June session of the commissioners, was accepted and approved by them. Now, if a good and sufficient bond, executed according to law, with the oath of the treasurer executed thereon as prescribed by the statute, had been presented to the-commissioners at the March term, 1855, and they had not acted on the bond until the day after the first Monday of June, 1855, and then approved the same, it could scarcely be contended that the-treasurer would be deprived of his office. The treasurer, in such case, would have done all that the law required of him to do; and it would, to say the least of it, be strange if, by the neglect of the commissioners, he was not only deprived of his office, but the commissioners themselves thereby acquire the power of appointing another in his place.

In such case, the doctrine of relation would apply, and the acceptance, by the commissioners, of the bond on the next day, would relate back to the time of the delivery of the bond to the commissioners for their acceptance.

It is said, in 18 Viner’s Abridgment, 290, that where there are-divers acts concurrent to make a conveyance estate, or other thing, the original act shall be preferred, and to this the other acts shall-have relation.

The instances in which the doctrine of relation applies are very numerous.

The deed of a sheriff relates back to the day of sale, and has the same effect as if executed on the day of sale, provided the interests •of thirdpersons are not injuriously affected thereby. Vide Jackson v. McCall, 3 Cow. 75, and the authorities cited in the opinion of the court.

So, where a deed is delivered as an escrow to a third person, to be ■delivered upon a condition to be performed, and the condition is afterward performed and the deed delivered, this last *delivery shall, by relation, operate back and take effect from the first delivery, although the grantor die in the meantime, between the •first and second delivery. Vide Viner, title Relation, p. 290.

In the ease supposed, the presentation of the bond on the first Monday in June, with the oath indorsed thereon, and the acceptance by the commissioners, are, in the sense in which the word concurrent is used by Yiner, concurrent acts, and the acceptances shall relate back to the first Monday of June, afid the whole be considered as having been done on that day; although, in point of fact, the acceptance was made and entered by the commissioners on the day after the first Monday of June.

But, in this cause, the oath was not made or subscribed by the treasurer, nor indorsed on the bond, until the next day after the time prescribed by law; and therefore, it is claimed, the office became vacant, and the present incumbent should be removed. But we think, by a fair reading of the statute, the oath and indorsement follow the acceptance, and do not necessarily precede it. The subscribed oath is to be indorsed on the bond, the accepted bond, and, in the natural chronological order of things, the execution and the acceptance of the bond, the oath and the indorsement, follow each oth er; indeed, the very word bond, means that it has been delivered to, and accepted by, the commissioners. And although, if the oath had been indorsed on the bond at the time it was presented to the commissioners, the law would have been complied with; still, we think the indorsement of the oath more properly follows the .acceptance, and if made immediately after the acceptance, that the oath, indorsement, and the acceptance will have relation to the time of the first act of the treasurer, viz., the delivery of the bond to the commissioners for their acceptance, and that this original act shall, in the language of Yiner, be preferred; and to this first act the others shall have relation, and, by this fiction, the whole shall bo .considered as done on or before the first Monday of June.

Proceedinqs dismissed.


author: *Kennon, J.

text:
    Amos Parker v. State of Ohio.
    An information charging the defendant with selling intoxicating liquors to A, a person who then and for a long time had been in the habit of getting intoxicated, which habit was then and there well known to the defendant, ought not to be quashed upon the ground that the affidavit upon which the defendant was arrested did not state that defendant knew A was in the habit of getting intoxicated.
    A count in an information charging B with selling intoxicating liquors to be drunk at the place whore sold, will be sustained by proof that the liquor was sold by C, as the agent of B, and that it is not necessary to aver, in the information, that it was sold by an agent.
    Where the testimony shows that the liquor was sold in the house of the defendant and at his bar, by his son, in the absence of the defendant, without any other evidence of the agency, it is error in a court to charge that such testimony makes a prima facie case of authority, from the defendant to the son, to do the illegal act.
    Error to the probate court of Geauga county.
    The case is stated in the opinion of the court.

      Forrest & Sathaway, for plaintiff in error.

      McCook, attorney-general, for the state.
   *Kennon, J.

An information was filed in the probate court against Parker, charging him with a violation of the liquor law. Parker had been recognized by a justice of the peace to appear before the probate court upon an affidavit, the substance of which is as follows, viz.: That on August 19, 1854, at Geauga county, Parker sold intoxicating liquors to one Solomon Johnson, to be drank where sold; and also that Parker, on August 25, 1854, sold intoxicating liquors to one Johnson E. Hickcox, a person in the habit of getting intoxicated; and also, that Parker was the keeper of a tavern where intoxicating liquors were sold contrary to the law.

The information contained three counts. The jury found Parker guilty on the first and third counts, and he was sentenced by the probate court to a fine and imprisonment. .

The first count charged Parker with selling intoxicating-liquors 4o Solomon Johnson, to be drank where sold, the same not being wine, beer, ale, or cider, etc.

The third count charged him with selling intoxicating liquors to Johnson E. Hiekcox, a person in the habit of getting intoxicated, a fact known to Parker when he sold the liquor, etc.

On the trial of the case before the probate court, it appeared in evidence that the liquor had been sold by a son of Parker, while Parker was sick in another part of the house; but the sale was in the house, and at the bar of Parker’s tavern.

The court charged the jury, that proof of the fact that the liquor had been so sold, was prima facie evidence that the son, in the sale of the liquor, was acting as the agent of Parker, his father.

The three principal errors assigned for reversing the judgment of the probate court are—

1. That the affidavit did not charge Parker with any offense against the law, or lay any foundation for proceeding in the probate court against him, because it did not allege that Parker knew Hick-cox was a person in the habit of getting intoxicated.

*2. That the information should have alleged that the liquor was sold by Parker’s son, as the agent of Parker, and not aver that it was sold by Parker; that there was a variance between the allegation in the information and the proof.

3. That the court erred in charging the jury, that if they found that the son of Parker sold the liquor at Parker’s bar, in the absence of Parker, it would be prima facie evidence that the son acted as agent of his father in the sale.

The opinion of the court upon these three points is—

1. That the affidavit was sufficient for the purpose of arresting, recognizing to appear, and charging Parker, by information in the ■probate court, with “selling intoxicating liquors to Johnson Hick-cox, a pereon in the habit of getting intoxicated, and that Parker knew such habit.” That the affidavit does not require the same ■strictness as an information or indictment, and that-the information charged Parker with an offense not different from that set out in the affidavit.

2, That the proof that the liquor was sold by the son, as agent of Parker, was proper evidence, under an information charging Parker himself with making the sale. The rule that what a person does by another he does himself, applies to this case. There are no accessories. In these minor offenses all are principals.

3. That the court erred in charging tbe jury, that the mere fact that the son sold tbe liquor at bis father’s bar, was prima facie evidence that be sold it at tbe request, or by tbe authority, of bis father —prima facie evidence being sufficient to establish a fact unless rebutted.

For this error tbe judgment of tbe probate court is reversed.


author: Thurman, C. J.

text:
    *Thomas McGatrick v. Charles Wason.
    Where a general demurrer to a declaration is sustained, and thereupon leave to amend the declaration is given, but the plaintiff subsequently, instead of amending, discontinues the action, there is no judgment that bars another suit upon the same cause of action.
    W. requested his hirqd man, G., to assist him in placing certain railroad cars and trucks — which he had sold and agreed to ship from Cleveland to Toledo — on a vessel; to do which it was necessary to raise them from the dock by the use of machinery and manual effort. G. consented. The work was to be done the next day, which was Sunday, November 15, as the vessel was about to sail, and her master would not take the cars, etc., unless shipped on that day, and “it was a matter of great necessity that they should be shipped as speedily as possible, as navigation was about closing.” While raising one of the trucks, a part of the machinery gave way, owing to which the truck fell upon G., breaking both his legs. To recover damages for this injury, he brought this suit, charging that it was owing to W.’s neglect that the machinery was insufficient. A verdict being rendered for G., a new trial was moved by W. Held:

    That if W. had no charge of, or control over, the operation of shipping the cars, etc., but, on the contrary, the duty of shipping them rested solely upon the master of the vessel, and he had the entire control over the operation, and W. was acting merely as his assistant or servant, the action should have been brought against the owner of the vessel, and not against W.
    But if it was W.’s duty to ship them, or if it was the joint duty of him and the master of the vessel, he was (as between him and G.) liable for the injury, if it resulted from his neglect, or that of the master of the vessel, to provide suitable machinery; the defect in the machinery being unknown to G. The general rule is that an employer who provides the machinery and oversees and controls its operation, must see that it is suitable; and if an injury to the workmen happen by reason of a defect unknown to the latter, and which the employer, by the use of ordinary care, could have cured, such employer is liable for the injury.

      Legally considered, our Sunday act is merely a civil regulation, having no connection with religion, and founded on principles of public policy alone. And the same policy that dictated the prohibitions it contains, also dictated its exception therefrom of “works of necessity and charity.”
    "Works of necessity, within the meaning of the act, are not limited to labor for the preservation of life, health, or property from impending danger. The -'necessity may grow out of, or indeed be incident to, the general course of trade or business, or even be an exigency of a particular trade or business, and yet be within the exception of the act. Hence the danger of navigation being closed, may make it lawful to load a vessel on Sunday, if there is no other time to do so.
    The labor in the present cáse was a work of necessity, within the meaning of the ■ statute, and consequently the point of defense, that the plaintiff was injured while in the commission of an unlawful act, can not be maintained.
    A mere difference of opinion between the court and jury does not warrant the former in setting aside the finding of the latter; that would be, in effect, to abolish the institution of juries, and substitute the court to try all questions of fact. It must be clear that the jury has erred before a new trial will be granted, on the ground that the verdict is against the weight of evidence, or unsupported by it. And if this is the rule, as it undoubtedly is, even in the court where a cause is tried, and before whom the witnesses appeared and testified, a fortiori ought to be the rule, when another court decides the motion for a new trial, with no other knowledge of the facts than is derived through the imperfect medium of a written statement.
    Reserved by tbe district court of Cuyahoga county, on a motion for a new trial.
    The facts are stated sufficiently in the opinion of the court.

      John Crowell and S. B. Prentiss, in support of the motion, made-the following points:
    I. The judgment of the court on the general demurrer, in the first suit between these parties, was a decision on the merits, and therefore conclusive upon the parties.* 1 Phil. Ev. 333 (notes 587, 588, pp. 826, 828); 6 Wheat. 109; 1 Salk. 290; 2 Evan’s Pothier, 456; 7 D. & E. 265; 3 Cow. 120; 4 Ib. 559; 1 Wheat. 340; 11 Mass. 445; 1 Croke Eliz. (pt. 2), 668; I Mod. 207; 4 Bac. Abr., n. 2; 3 Bouv. Inst. 323, 376, 526, 527; Gould’s Plead. 476, secs. 41, 44; 1 Johns. Cas. (2 ed.) 436, 492, and note; 2 Smith’s Lead. Cas. 429; Inman v. Jenkins, 3 Ohio, 271; Reynolds v. Stanbery and others, 20 Ib. 344-350; Wilcox v. Bayler, 6 Ib. 406, 408; White v. Bank of United States, 6 Ib. 528; Longworth v. Flagg, 10 Ib. 300, 304; Lockwood and others v. Wildman and others, 13 Ib. 430; Mants v. The State, 14 Ib. 295, 305; Sheperd v. Willis, 19 Ib. 142, 147; Price v. The State, 19 Ib. 423, 424; 4 Johns. Ch. 140.
    II. The plaintiff, when the injury happened of which he complains, was in fault himself, being in the commission of an unlawful act, and can not therefore maintain this suit. He was engaged in common labor on Sunday, and not in works of necessity and charity. Drury v. DeLafontaine, 1 Taunt. 155; Smith v. Sparrow, 4 Bing. 84; Begnis v. Armistead, 10 Ib. 110; Bensley v. Bignold, 5 B. & Ald. 335; Foster v. Taylor, 5 Barn. & Adol. 487; Little v. Pool, 9 Barn. & Cres. 192; 5 Ib. 406; Williams v. Paul, 6 Bing. 653; 5 Am. Jurist, 10; 5 Ala. 467; 10 Ib.566; 4 Dall. 269; 1 Binn. 110; 6 Watts, 231; 1 Root, 474; 10 Mass. 312; 16 Pick. 250; 15 Ohio, 225; 18 Ib. 489; 20 Ib. 81.
    III. The master is not the insurer of the safety of those in his employment from injuries which they may inflict upon each other, unless it is a part of the express contract between them. 4 Met. 49; 3 Cush. 270; 6 Hill, 592; 6 Barb. 231.

      Spalding & Parsons, and Tilden & Paine, against the motion, contended :
    I. That after the demurrer of the defendant was sustained by the court, the plaintiff had leave to amend, and afterward, at the same term, discontinued his suit; which was equivalent to leave originally entered for the plaintiff to become nonsuit, and his rights are all saved.
    II. The plaintiff was not engaged in common labor on Sunday, but in works of necessity.
    III. The captain of the vessel and the defendant, jointly, undertook the loading of the cars and tracks onto the deck of the ^schooner, and both, therefore, were responsible to their .employes for the reasonable sufflciency of the ropos and tackles used. Randleson v. Murray, 8 Adol. & Ell. 109; 35 Eng. Com. Law, 342.
   Thurman, C. J.

This cause was tried by a jury in the district eourt, a verdict returned for the plaintiff, and a motion for a new trial made by the defendant, which, at his instance, was reserved for the decision of this court. The authenticated statement of the testimony and rulings of the court, is somewhat voluminous, but .all that is material to be reported may be very briefly stated.

It seems that Wason requested McG-atrick, who was his hired man, to assist him in placing certain railroad cars and trucks— •which he had sold and agreed to skip from Cleveland to Toledo— on a vessel; to do which it was necessary to raise them from the dock by the use of machinery and manual effort. McGatrick consented. The work was to be done the next day, which was Sunday, November 15th, as the vessel was about to sail, and her master would not take the freight unless shipped on that day; and “ it was a matter of great necessity that it should be shipped as. speedily as possible, as navigation was about closing.” While raising one of the trucks, a part of the machinery gave way, owing to which the truck fell.upon McGatrick, breaking both his legs. To recover damages for this injury, he brought an action on the case-against Wusod, and filed a declaration, to which Wason demurred generally. The court sustained the demurrer, and thereupon gave leave to the plaintiff to amend his declaration, upon the payment of certain costs; but upon a subsequent day, instead of so amending, he discontinued his action, and shortly afterward commenced the present suit.

There was also evidence tending to prove that it was either • Wason’s sole duty, or the joint duty of him and the master of the vessel, in virtue of an agreemont between them, to put the-^freight on board; and that the operation of so doing, when the accident occurred, was under his control, or the joint control of the two. A part of the machinery employed was furnished by Wason and a part by the vessel, but the particular piece that gave way was provided by the latter. On the other hand, there was evidence tending to disprove the agreement above referred to, and-, to show that the whole duty of and control of loading the vessel belonged to the master, and that Wason lent his aid merely as an. assistant. Testimony was also given to prove, that but for Mc-Gatrick’s disobedience of an order given by Wason, he would not have been injured; but he testified that he heard no such ordenas that spoken of by the witnesses, and was guilty of no disobedience.

The grounds upon Which a new trial Is asked are thus stated by counsel:

“ 1. The former recovery, set forth in the answer and proved on the trial, was a complete and perfect bar to this action.

“ 2. The defendant, when the injury happened of which ha--complains, was in fault of himself, being in the commission of an unlawful act, and can not therefore maintain the suit.

“ 3 The variance between the allegations in the petition and the proof; or, in other words, the entire failure of the testimony to support the representations in the petition.”

We think that the court were right in- telling the jury, that the record of the former suit constituted no bar. There was no judgment upon the demurrer, that the defendant go hence, but, on the contrary, leave was given the plaintiff to amend, and the suit was subsequently terminated by a discontinuance. An order simply sustaining a demurrer, without any judgment consequent upon it, is not a recovery.

The next inquiry is, was the labor at which the plaintiff was en.gaged, when injured, a violation of the Sunday act (Swan’s new Stat. 302) ; and if so, can he recover ?

*On his part, it is contended that it was a work of neces-sity, and therefore within the exceptions of the act.

The act forbids “ common labor” on Sunday, but excepts “works •of necessity and charity.”

Was the shipping of the freight, under the circumstances mentioned, a work of necessity? The defendant himself testified that it was. He said : It was a matter of great necessity that they should be shipped as speedily as possible, as navigation was about closing.”

But was it a work of necessity within the meaning of the act?

In answering this question, we must always keep in mind that it is no part of the object of the act to enforce the observance of a religious duty. The act does not, to any extent, rest upon the ground that it is immoral or irreligious to labor on the Sabbath, any more than upon any other day. It simply prescribes a day of rest, from motives of public policy and as a civil regulation; and as the prohibition itself is founded on principles of policy, upon the same principles certain exceptions are made, among which are “works of necessity and charity.” In saying this, I do not mean to intimate that religion prohibits works of necessity or charity on the Sabbath; but merely to show that the principles upon which our statute rests, are wholly secular; and that they are none the less so because they may happen to concur with the dictates of religion. Thus the day of rest, prescribed by the statute, is the ■Christian Sabbath, yet so entirely does the act rest grounds of public policy, that, as was said in Bloom v. Richards, 2 Ohio St. 391, 392, it would be equally constitutional and obligatory, di,d it name any other day, and it derives none of its force from the fact that the day of rest is Sunday. For, as was also said in that ease, no power whatever is possessed by the legislature over things spiritual, but only over things temporal; no power whatever to enforce the performance of religious duties, simply because they are religious — but only, within the limits of the constitution, to maintain justice and promote the public welfare.

^Unless, then, we keep constantly in mind that the act rests upon public policy alone, we will be in great danger of giving it a wrong construction ; and instead of reading it in the light of the constitution, which prohibits all religious tests and preferences, find ourselves led away from its meaning by the influence of our own peculiar theological tenets.

The difficulty of determining whether, in any particular case of labor, the work was one of necessity or not, within the meaning of the statute, is not usually very groat. This is owing to the fact that the requirements of the law are very generally observed ; or possibly to the fact that judicial action is seldom involved except when its provisions have been palpably violated.

But it is a task of much difficulty, and one that a court ought not unnecessarily to attempt to draw a line that shall clearly distinguish works of necessity from those that are not.

It is easy to say, that to feed the hungry, to attend the sick, and to rescue a fellow-beiñg from suffering or danger, are works of both necessity and charity; but it would not do to say that none others are. For the personal wants or safety of the human species does not mark the limit. It is a work of necessity and charity to take care of and preserve a dumb brute, as well as a human being; and no one would imagine that the statute is violated by feeding one’s cattle, or drawing one’s sheep from a pit, on the Sabbath day.

But it is very clear that we have not yet reached the limit, and that it will not do to hold that nothing is a work of necessity that is not performed in the care or for the preservation of animal life. The care or preservation of property, though inanimate, may be a work of necessity. If a house should take fire on the Sabbath, it would obviously be lawful to save it by labor. It would be equally so to save a crop from the effects of bad weather, when to omit doing so would result in its loss or material injury — or, for a merchant to save his goods; a manufacturer or mechanic his wares; a seaman his vessel; or, in a *word, any man his property in danger of destruction or injury, on the Sabbath day.

Nor will it do to limit the word “ necessity ” to those cases of danger to life, health, or property which are beyond human foresight or control. On the contrary, the necessity may grow out of, or indeed be incident to, a particular trade or calling, and yet be a case of necessity within the meaning of the act. For it is no part of the-design of the act to destroy, or impose onerous restrictions upon any lawful trade or business ; and hence, under a similar statute, it has been held in a sister state, that it is lawful to keep a blast-furnace at work on Sunday, because it is a work of necessity. So, too, it has been held that, under special circumstances, a mill may grind on that day; and I think it will hardly be questioned, that a gas company may supply gas ; a water company, water; and a dairy man, milk, to their respective customers, on that day.

Other illustrations might be given, but these are quite sufficient to show, that the necessity spoken of in the statute, is not an absolute, uncontrollable necessity only; but may be a necessity created' by the exigencies of society or trade. If nothing but absolute necessity was intended, it would, in general, bo unlawful to prepare a meal on the Sabbath; because it might without difficulty be previously prepared, or because most people might safely enough fast for twenty-four hours. It would be equally unlawful to supply us with gas-light, for we might use candles previously laid in, or retire to our beds at twilight. And so many things, by all men admitted to be lawful, would be brought within the prohibition of the statute.

In using the expression “ exigency of trade,” I have been speaking of trade generally, and not of a necessity created by a particular contract a man may have made. It is true, that a man might be ruined by a failure to deliver an article he had contracted to deliver, if he could not ship it upon a Sunday, and this might be without any fault of his; in which case it would ^become the duty of a court to consider whether he could save himself only by a violation of the law. And -when that question shall arise, it may possibly be found difficult to say, that a man may lawfully labor all day to di’ag a sheep out of a pit, and yet can not pei’form one-tonth of that labor to save himself and his family from pecuniary destruction j that he may lawfully woi’k to save one dollar’s worth of erty in the shape of an animal, but that he violates the law if he save all his property by fulfilling his contract.

In the case before us, however, we are not limited to a necessity arising out of a particular contract; but we have, in addition, a necessity resulting from natural causes and the general course of trade and commerce. The cars were shipped upon the Sabbath, because the vessel- — -the only one that could be obtained — was to sail that day, and delay was perilous, the navigation being about to close from the severity of the weather. As before remarked, the defendant himself testified, that it was a case of great necessity; and we are unanimously of the opinion that -it was one within the meaning of the statute. It follows, that the plaintiff was not in the commission of an unlawful act when the injury occurred, and this ground of the defendant consequently fails.

How the case would stand had the work not been a necessity, it is immaterial to consider, and we express no opinion upon it. It would require investigation and much reflection, for we do not look upon the case cited from 10 Metcalf,- 363, as settling the law.

It is next contended, that the testimony failed to support the petition, and made out no cause of action against the defendant.

Under this head certain legal propositions have been argued, as to which I shall merely state our conclusions.

If Wason had no charge of, or control over, the operation of shipping the cars and trucks, but, on the contrary, the duty of shipping them rested solely upon the master of the vessel, and he had *the entire control over the operation, and Wason .acted merely as his assistant or servant, then the action should have been brought against the owner of a vessel, and not against Wason.

But if it was Wason’s duty to ship them, or if it was the joint duty of him and the master, he was (as between him andMeGatrick) liable for the injury, if it resulted from his neglect, or that of the master, to provide suitable machinery — the defect in the machinery being unknown to McGatrick. The general rule is, that an employer who provides the machinery, and oversees and controls its operation, must see that it is suitable; and if an injury to the workman happen by reason of a defect unknown to the latter, and which the employer, by the use of ordinary care, could have cured, such employer is liable for the injury. C., C. & C. R. R. Co. v. Keary, 3 Ohio St. 201.

Which of these two supposed cases is shown by the testimony, ia •certainly a matter of great doubt; but as we must presume that the law upon this head was correctly given to the jury — the charge not being set out or excepted to — we must also presume that the jury found the facts to be those above stated, as necessary to make the defendant liable. Should we disturb this finding? If it is ■clearly wrong, we must do so; if we only doubt its correctness, we must let it alone. In French v. Millard, 2 Ohio St. 53, this court .said: “ We are not satisfied, that the verdict of the jury was right. But this is not enough. A mere difference of opinion between the court and jury does not warrant the former in setting aside the finding of the latter. 1 That would be, in effect, to abolish the institution of juries, and substitute the court to try all questions of fact. It must be clear that the jury has erred before a new trial will be granted, on the ground that the verdict is against the weight of evidence.” Now, if this is the rule, as it undoubtedly is, even in the court where a cause is tried, and before whom the witnesses appeared and testified, a fortiori ought it to be the rule, when another •court decides the motion for a new trial, with no other knowledge of the facts than *is derived through the imperfect medium of a written statement ?

A majority of the court are unable to say that the verdict in this case is clearly wrong. The motion for a new trial must therefore be overruled, and judgment entered for the plaintiff.

Bartley, J., dissented, upon the ground that the verdict was .against the weight of the evidence.


text:
    Philip Ford v. Abel F. Parker.
    •Section 10 of the act regulating the jurisdiction of justices of the peace, which provides “ that justices shall not have cognizance in actions against justices of the peace, or other officers, for misconduct in office,” includes post- . masters.
    When an action' is Drought against a postmaster for misconduct in office, and . the damages claimed are less than $100, such action may be commenced in the court of common pleas.
    In such action, when the petition charges that a letter containing money was lost by the negligence of the postmaster, and the evidence introduced on the trial tends to prove that the letter containing the money reached the office of the postmaster, the plaintiff may prove, for the purpose of estab lishing the negligence, that the office was kept in an exposed situation, and that the servants and clerks of the postmaster, in a store in which the post-office was kept by the postmaster, had free access to the mail-matter in the office.
    Petition in error, to reverse the judgment of the district court an Hancock county.
    The case appears in the opinion of the court.
    JET. H. Hunter, for plaintiff in error:
    I. The action was against the defendant for misconduct (negligence) in his office as postmaster. Therefore, although the amount claimed by the plaintiff was less than $100, yet the *action was properly pro secuted in the court of common pleas originally. Justices’ act, 51 Ohio L. 181, sec. 3, clause 3.
    II. The court ordered that the plaintiff should become nonsuit, and discharged the jury from further consideration of the case, ■after (as the record shows, see bill of exceptions) it was proved in behalf of the plaintiff, or testimony given in his behalf tending to prove.

    1. That the plaintiff had inclosed $75 in bank-notes in a letter -directed to John T. Ford, Findlay, Ohio, and- mailed the same at Pickerington, in Fairfield county, on June 11, 1853.
    2. That the same was received at the post-office in Findlay on the 14th same month.
    3. That the defendant was postmaster at Findlay at that time; .and,
    4. That John T. Ford called for letters at the post-office uniformly once a week, and never received the letter or money in -question; and that the same was lost, being the funds of the plaintiff.
    On this evidence, tending to prove these several propositions, it would have been the duty of the jury, on principles of law, if they believed the facts to be in conformity with the evidence thus given .and thus tending, to have found a verdict for the plaintiff. For surely if they had returned a special verdict, finding the four points above named to be true, the court would have been called upon to render a judgment in favor of the plaintiff If the letter in fact came to the office of the defendant, and was lost, it could only be by the negligence of the defendant or his servants. At all events-a prima facie case would have been made against the defendant, on which, without rebutting evidence, the jury might properly have rendered a verdict against him.
    For these reasons the court erred in not permitting the case to-go to the jury.
    III. The plaintiff having given evidence to the jury tending to prove the receipt of the letter at the office of the defendant, and its-*loss, as above, it was legally proper for the plaintiff to give additional evidence, such as he offered, and such as was overruled by the court, of the exposed and careless manner in which letters-were kept in the office, and of the opportunities of access to the letters in the office by persons other than his properly sworn and qualified assistants, etc., as specified in the bill of exceptions. The loss of the letter being shown, after it reached the defendant’s office, the proof thus offered and rejected was very pertinent to make out that the loss was by negligence — that sort of negligence which did not reasonably protect the letters in the office against being stolen or against being carelessly delivered to a wrong person.
    It was not necessary in order to render this evidence competent that it should have pointed directly to the very means or specific circumstances of the loss ; it was enough for the plaintiff to have shown, as he did, that the letter came to the office of the defendant, and that the way in which the business was done in the office, was not careful and prudent. Such proof being given would entitle the. plaintiff to a verdict, unless the defendant, into whose hands the letter was shown to have come, accounted for its loss, consistently with prudence and care oh his part. In law, the letter being shown to have come into the office of the defendant, and not to have-been delivered to the party to whom it was addressed, the burden was thereby cast upon the defendant to account for the letter.

      M. C. Whiteley, for defendant in error:
    I. If the case was properly in the district court, the plaintiff should have given that court an opportunity to correct any error, by moving to set aside the nonsuit, and for a new trial. Swan’s Stat. 660, secs. 297, 299.
    II. The amount claimed being less than one hundred dollars, the .court of common pleas had no jurisdiction. The ease is clearly within the cognizance of a justice of the peace, not being *of the class defined in the 3d clause of section 10 of the justices’ act, Swan’s Stat. 502; 1st, because it is no part of the duties of a postmaster to* receive or transmit money — the mails were established for the transmission of intelligence, not money. Act of Congress, regulating the Post-office Department, approved March 2,1827, sec. 1; Eegulations of P. O. Depart., sec. 61. Hence defendant is not liable for the loss of money out of his office, because he holds a commission. His liability is that of a gratuitous'bailee, and not as an officer. A sheriff is not liable, in Ms official capacity, for money received by him, on judgment, after return of execution; he can not be amerced, nor are his sureties liable. The receipt under such circumstances is not an official duty. The sureties of a deputy-postmaster are certainly not liable for money lost by such deputy in the manner stated in the petition. It was not his duty to receive it, and I regard that as the test of jurisdiction.
    III. The evidence offered by plaintiff was properly excluded, no foundation having been laid for its introduction. 1. No evidence was offered that defendant knew of the arrival of such letter at his office, or that the same was ever there. Without knowledge, there can not be negligence. 2. No evidence that the office at Findlay was kept at a place forbidden by the rules of the post-office department. The rules allow the office to be kept in such place as shown by the bill of exceptions. Eeg. P. O. Depart., sec. 49.
    IY. The evidence in reference to the appointment of clerks, by •defendant, was properly excluded. (Plaintiff proved that the clerks wore all sworn, as shown inferentially by the exceptions.) 1. Because no case is made in the petition to charge defendant for default of his clerks. Dunlap v. Munroe, 7 Cranch, 242, 269; 2 Peters’ Cond. 484; 1 Bell Com. 400, 401, 468, 469. If the clerks were incompetent, defendant’s knowledge should have been proven as a preliminary fact, to make out negligence against him; without such knowledge, he *was only bound to a reasonable superintendence •over their official conduct. 2 Kent Com., sec. 40; 2 Law Reports, 229 ; Story on Bailment, 302.
    Y. Evidence tending to establish that other persons than' sworn deputies had access to the office, was irrelevant, unless the loss could be attributable to such access. That not being claimed, the evidence was properly and for that reason ruled out.

      Had all the questions asked by plaintiff been answered affirmatively, and the answers permitted to go to the jury as evidence, a verdict could not have been sustained, for the reason that the main fact — that is, knowledge — was not and could not be proved.
    A judgment should not be' reversed merely for the purpose of clearing a party from costs. A new trial is not asked.
   Kennon, J.

The case was originally brought by Philip Ford, in. the court of common pleas of Hancock, against Parker, to recover seventy-five dollars, the value of bank-notes.

The petition stated that Parker was postmaster at Findlay, in Hancock county; that the plaintiff had inclosed in a letter seventy-five dollars, directed the letter to John Ford, Findlay, Ohio, and mailed the same at Pickerington, Ohio; that the letter was received at the post-office at Findlay, on the 14th of August, 1853; that John Ford called at the post-office soon after the day of the receipt of said letter at the office, and demanded said letter containing said money, but the same was not delivered to him; that the money belonged to the plaintiff, and that, by the negligence and carelessness of the said Parker, the said plaintiff lost the seventy-five dollars. The defendant pleaded that he had no knowledge of the letter, and that it was not lost through his negligence.

On the trial of the case in the district court, the plaintiff offered to prove certain matters, which, being objected to by the defendant, the court sustained the objections and ruled out the testimony; and the plaintiff having rested his case, on motion, of the defendant, it was ordered that the plaintiff become nonsuit, and judgment was-rendered against him for costs.

*A bill of exceptions was taken to the rulings of the court, from which it appears that the testimony of the plaintiff tended to prove, that the letter containing the $75 was duly mailed at the-post-office at Pickerington, in Fairfield county, directed to John Ford, “Findlay, Ohio;” that the letter reached the post-office at Findlay, and was lost; that John Ford, to whom the same was directed, called once a week for mail-matter at the post-office at Findlay, but did not receive the letter; and that the money belonged to the plaintiff at the time of the loss.

The plaintiff asked a witness on the stand in what manner the post-office at Findlay was kept at the time of the loss; which question was objected to by the defendant’s counsel, and the objection sustained by the court. The plaintiff then offered to prove that the post-office, at the time of the loss, was kept in’a variety store, without any separation between the letter-boxes and the goods on the shelves, and that all the clerks and the servants in said store bad free and unobstructed access to' the letters and mail-matter in the office; which being objected to by the defendant’s counsel, the objection was sustained by the court, and the evidence not permitted to go to the jury.

Other questions were also asked, objected to, and the objections, sustained.

The real question in the case was, whether the money was lost through the carelessness and negligence of the post-office. The testimony tended to prove every other fact in the case necessary to-the plaintiff’s right of recovery. Indeed, the answer put in issue no other fact. It was denied by the answer that the letter was lost by the negligence of the defendant, and it was also denied that the defendant had any knowledge of the letter; but all other facts in the petition were admitted to be true by not being denied.

The testimony tended to prove that the letter was lost, and lost, after it reached the-post-office kept by the defendant. Was it lost by his carelessness Or negligence? We do not say that the *mere loss, under such circumstances, was evidence of the negligence of the defendant, sufficient to throw the burden of proof on him that it was not lost by his negligence; but we are of opinion that the plaintiff ought to have been permitted to prove how the office was kept, its exposed position, and the probability arising therefrom that the loss was the consequence of such exposure. Now, if the postmaster had kept his office in the street, or left it open at nights in his absence, and the mail-matter in the office had become l'ost, it might reasonably be inferred that the loss was caused by such exposure. At any rate, it was proper for the jury to know how the office was kept; whether carefully or negligently; whether it was open and free of access to strangers, or otherwise. And the jury should have been permitted to determine the fact, whether the exposed situation of the letter-boxes was, or was not, the cause of the loss of the letter.

We think the district court erred in ruling out the testimony. But it is claimed by defendant, that neither the common pleas nor district court had jurisdiction of the case, because the original claim was within the jurisdiction of a justice of the peace, being only $75. The statute provides that justices of the peace shall not have jurisdiction of actions against justices of the peace, or other officers, for misconduct in office. This was án action against a postmaster for misconduct in office, and we think the language of the statute includes postmasters, and that therefore the action was properly brought in the court of common pleas.

Upon the whole the judgment of the district court is reversed, and the cause remanded to that court for further proceedings.


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    Atlantic and Great Western Railroad Company v. Francis Campbell.
    In a proceeding to appropriate the land of a person for the use of a railroad company, the owner of the land proposed to be appropriated is a competent witness to testify in his own behalf, provided the proceedings have been instituted since the code took effect.
    As a general rule, the opinion of a witness as to the amount of damages which the landholder will sustain by reason of the construction and use of a railroad is not evidence.
    Error to the common pleas of Marion county.
    The facts are stated in the opinion of the court.

      J. & S. S. Barton, for plaintiff in error.

      Williams & Sume, and Stanton & Allison, for defendant.
   Kennon, J.

Proceedings were instituted before the probate court of Marion county, by the plaintiff, to appropriate to its use, for railroad purposes, a portion of the defendant’s land. The appropriation and assessment of damages were made in that court, and the proceedings afterward reversed by the common pleas, and an assessment of damages made in the common pleas.

Upon the trial before the jury, Campbell was called as a witness, to testify in his own behalf; was objected to by the company as incompetent, but the court overruled the objection and permitted him to testify. He testified that he was the owner of 1,240 acres of land in the county of Marion, situate in different tracts, of from 120 to 320 acres each — some adjoining, and some 1J miles from the railroad; that he had all of said lands in connection, for grazing, feeding, and agricultural purposes, in prosecution of his principal business of dealing in stock; that the land through which the road passed was principally used for raising feed, and feeding-grounds for stock grazed on other lands.

*The following question was then put to Campbell by his attorneys, viz.: “ "What amount of damage do you think you would sustain by reason of the location and construction of said railroad over your lands, in that part where located, and the market value of the same; taking into view the amount of land taken, the additional fencing which would be required, the shape of your fields, the inconvenience of crossing said railroad, the danger of fire from the locomotive, the danger of scaring cattle, and all other injuries, necessarily incident to the construction and running of said railroad •on said lands ? ” To this question the counsel for the road objected, but the court overruled the objection, and the witness was permitted to testify as to his opinion of the amount of all damages which would accrue to the said lands by the location and operation of said railroad, from all direct and positive injury to the same ; and also all damage, or liability to loss or injury, which was necessarily incident to such location and operation, which would diminish the value of said land in the market.

Other witnesses wore also asked their opinion as to how much damage Campbell would sustain, in the market value of the land, by reason of the appropriation of the land by the company; which •question was also objected to by the railroad company, but the objection was overruled, and the witnesses permitted to answer the •question.

The jury assessed the damages to Campbell at $1,800, for which the court of common pleas rendered judgment.

The principal errors assigned in the case are—

1. That Campbell ought not to have been permitted to testify in his own case.

2. That the opinion of witness as to the amount of damages sustained ought not to have been received.

3. That no judgment ought to have been rendered on the verdict by the court, but it should simjfiy have confirmed the verdict, and, up >n payment of the amount, have rendered judgment to the effect that said corporation should hold the property appropriated.

*As to tbe first error assigned, this court bold, that by sections 310 and 311, of tbo code, and section 6 of tbe act regulating the proceedings in appropriations of lands (Swan’s Stat. 233), it is-clear that the court did not err in permitting Campbell to testify in his own case.

By section 310 of the code, it is provided that no person shall be disqualified as a witness, in any civil action or proceeding, by reason of his interest in the same as a party or otherwise.

The only exception is found in sections 311 and 313 tbe former of which provides, that nothing in section 310 shall, in any manner, affect the laws now existing relating to the settlement of estates of deceased persons, infants, idiots, lunatics, or the attestation of the execution of wills and testaments; or the conveyance of real estate, or any other instrument required by law to be attested. We see no reason why a party is not a competent witness in all civil proceedings, except in the cases expressly excepted by sections 310 and 602 of the code; nor why any person is incompetent excepit those persons expressly named in section 313 of the code. Sections 604 and 605 have reference to the forms of proceedings, and not to the competency of witnesses.

As to the second error assigned, we are of opinion that the amount of damages which a land-owner would sustain by reason of the appropriation of his land by a railroad, is a question of fact to be determined by the jury, not from the opinion of witnesses, but from the facts of the case; that it is not a question of science or skill, which lies more peculiarly in the knowledge of one man than another. But in coming to the conclusion that the opinion of witnesses as to the amount of damages sustained is incompetent evidence, we do not intend to say that a witness may not testify to the value of the land, before and after the location of the railroad, but, simply, that a witness can not give his opinion as to the amount of damages which the landholder will sustain by reason of the road passing over the land. In admitting' such opinions, we *think the common pleas erred, and for this reason the judgment is reversed and verdict set aside, and the case remanded for further proceedings. This makes it unnecessary to determine whether the court should, or should not, have rendered judgment on the verdict.


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    Foster M. Follett, Administrator of Joshua Wood, deceased, for the use of Bear & Moore, v. Nicholas Buyer.
    In an action upon a note brought by the pa^ee, for the use of Ms assignee, against the maker — the note having been assigned (but not indorsed) after due — and it not appearing that the payee was insolvent when he made the assignment, the maker can not set off money paid by Mm as surety for the payee, after he received notice of the assignment, although the money paid was upon a liability entered into before the assignment, but which had not been reduced into judgment against the surety before notice of the assignment was given. The maker had no demand upon the payee when he received such notice, but was only contingently liable for him.
    In error to the district court of Erie county.
    February 14, 1851, Follett, as administrator of Wood, for the use of Bear & Moore, brought an action of assumpsit, in the Erie common pleas, against Buyer, on a note, or due-bill, for $100, dated February 21,1849, made by Buyer, and payable to Wood or order.
    Buyer pleaded to the declaration non assumpsit, with the common notice of set-off.
    The jury found a special verdict, which, omitting the formal parts, is as follows :

      “ The jury, upon their oaths, do say:
    “ 1. That the amount of the note, due in one day from date, of *N. Buyer, to Wood, is one hundred dollars, and interest on game to September 22, 1851, $15.50 ; making $115.50.
    “ 2. The amount of Buyer’s account against Wood, accruing previous to Wood’s death — it being the balance due, including interest thereon — is $22.96; which accrued before Buyer had notice that Bear had the note.
    “3. The amount of money paid‘by N. Buyer for the use of Wood,, on judgment of Flood & Landsdown v. I. Wood’ — which was entered April 13, 1849, and bail entered by N. Buyer April 23, 1849, —which judgment N. Buyer has paid, to the amount of $51.24.
    “ Also a joint note, made to Ira Brainard by Joshua Wood, with N. Buyer as surety, dated January 25, 1849, due six months from date. Judgment rendered September 20, 1849, against N. Buyer' alone, amounting, September 22,1851, to $64.04; which has been by Buyer, in amounts, as follows: Paid September 24,1850r $34.00 — interest on same, $2.04; paid October 4, 1850, $20.00 — interest on same, $0.85 ; paid October 19, 1850; $7.80 — interest on -same, $0.30; making $64.00.
    “4. That Bear obtained the note on or about June 17, a. d. 1849; about that time gave to Buyer notice thereof.
    “5. That the defendant became liable on the judgment of Flood .& Landsdown April 23,1849, and to Ira BrainarcT, on note and judgment, January 25, 1849.
    “6. That Joshua Wood died July 20,1849.
    “But whether, upon the whole matter aforesaid, by the the jurors .aforesaid in form aforesaid found the said defendant is entitled to ■set off the said moneys, so paid by him for said Wood, deceased, against the said plaintiff’s claim, the jurors aforesaid are altogether ignorant, and therefore they pray the advice of the court; and if,” etc.
    The court held that he was not entitled to set off the moneys *paid by him upon the judgments aforesaid, but allowed the set-off of $22.96, due upon account; and gave judgment accordingly.
    To reverse this judgment, Buyer filed a petition in the district court, assigning for error said non-allowance of set-offs. The court reversed the judgment. To reverse the judgment of reversal the present petition was filed.

      W H. Tucker, for plaintiff in error, made the following points:
    That at the time the note was transferred by Wood, there was no indebtedness existing on his part to Buyer, upon which the latter could have maintained an action. There was merely a contingent liability, possessing, at that same time, none of the statutory requisites of a set-off. Barbour on Law of Set-off, 54; Miller v. The Receiver of the Franklin Bank, — 444; Gale v. Lutwell, 1 Young & Jarvis, 180; Whitaker v. Rush, Amb. 407; 2 Yates, 208; Barbour, 78; Shepherd v. Little, 14 Johns. 210; Bowen v. Bell, 20 Ib. 338; 1 Selw. N. P. (4 Am. ed.) 137; 1 Esp. N. P. 278; Duncan v. Lyon, 3 Johns. Ch. 551; 8 Cow. 310; Barbour, 79; 1 Poth. on Oblig. 582; McConnell v. Morrison, 1 Litt. 206; Evans v. Prosser, 3 Term, 196.
    That an over-due promissory mote, in the hands of an assignee for a valuable consideration, is governed by the same principles as "those which govern a chose in action ; and that the purchaser of a chose in action takes the whole interest in it, subject only to tha legal offsets or demands that exist against it at the time of the purchase. Bartlett v Pearson, 29 Maine (16 Shep.), 9; Mead v. Gillett, 19 Wend. 397; Best v. Lawson, 1 Miles, 10; Barbour on Set-off, 58, 60, 63, 66 ; Driggs v. Rockwell, 11 Wend. 504; Gourden v. Ins. Co. N. America, 3 Yates, 329; Rousset v. The Same, 1 Binn. 429.
    That if the maker of a note makes no objection, on receiving notice of its purchase, he will be estopped from pleading, as a set-off, any demand which accrued subsequent to the notice *. McClelland v. Walker, 26 Maine (13 Shep.), 114; Gourden, v. Ins. Co. N. America, 3 Yates, 329; Granger v. Granger, 6 Ohio, 35.

      Goodwin & Wildman, for defendant in error, submitted the following propositions:
    That the note having been assigned after the day on which it was made payable, the maker is entitled to make “ such a defense ” as he could have set up against the original payee.
    That the note was not indorsed, and must, for the purposes of this suit, be treated as non-negotiable paper; and the assignee of a chose in action ought not to be placed in a better position than the assignor. 12 Mass. 198.
    That the right to the set-off is legal, because the demands of Buyer were liquidated and paid before the action was brought. Swan’s Stat. (old ed.) 850.
    The defendant had a right to pay a debt contracted before the assignment, and to claim it as a set-off. 6 Cranch, 205 ; Hatch v. Green’s Adm’r, 12 Mass. 195, 197; 18 Ohio, 589.
    A purchaser of a chose in action must always abide by the case-of the party from whom he buys. 1 Ves. 248; Beebe v. Bank of N. Y., 1 Johns. 553; Tullman v. Anderson, Wright, 698; 2 Vern. 765 ; 3 Merw. 107 ; Barbour’s Set-off, 92 ; 2 Maule & Sel. 510.
    There is no evidence that plaintiffs in error paid a consideration for the note, and they ought not to recover. Bailey on Bills, 544.
   Thurman, C. J.

The special verdict is imperfectly drawn, but the facts of the case may nevertheless be ascertained from it. It appears that, on February 21,1849, Buyer made his note, or due-bill, to Wood, or order, for $100, payable one day after its date; that, on June 17,1849, Wood transferred it, without indorsement, to Bear, or Bear & Moore; of which transfer, Bear gave notice to Buyer the some day; that prior to the receipt of this notice, Wood bad become indebted to Buyer twenty-odd ^dollars, upon open account, and Buyer had become bound as his bail, for stay of execution upon a judgment of Flood & Landsdown, which stay had not yet expired — and had also become his surety, in a note not yet matured, to Ira Brainard ; that, subsequent to the receipt of ■said notice, and after Wood’s death, Brainard took a judgment against Buyer on said note; which judgment, and also the judgment of Flood & Landsdown, Buyer afterward, and after Wood’s ■death, discharged.

Upon these facts, and in the absence of any'finding that Wood was insolvent when he made the transfer to Bear, or Bear & Moore, the question for consideration is, whether Buyer was entitled to ¡set off, in the action below, the money paid by him in discharge •of said judgments.

It is contended that he was so entitled, and that the right was secured to him by the statute in respect to negotiable instruments (Swan’s new Stat. 575, sec. 3), and also by the well-settled principles of the law of set-off, as now administered both at law and in •equity.

The statutory provision, upon which reliance is placed, is in •these words:

“ That if any such bond, note, or bill of exchange shall be indorsed after the day on which it is made payable, and the indorsee shall institute an action thereon against the maker, drawer, or obligor, the defendant shall be allowed to set up the same defense that he might have done, had the same action been instituted in •the same name, and for the use, of the person to whom the said bond, note, or bill, was originally made payable.”

This enactment is, I suppose, a mere affirmance of a right that ■existed without it; and although this case is not within its very letter — the note not having been indorsed and the action being in the name of the payee — yet it is within its spirit, and the plaintiff is in no better position than he would be in, had the note been indorsed and the action been brought in the name of the indorsee.

*But it is a mistake to suppose that it was the design of the statute to create an unlimited right of set-off as against an •assignee; or, in other words, to allow every set-off against him ¡that would be available against the payee had the note never been transferred. When an overdue or non-negotiable note is assigned, the assignee takes it subject to all the equities existing between the payee and the maker; and hence it is competent for the latter, notwithstanding the assignment, to show that it was obtained by fraud, or without consideration, or that, before he received notice of the assignment, it had been paid or otherwise discharged. So, too, he may set off any liquidated demand which he held against the payee when he first obtained information of the assignment, but not claims subsequently acquired, even though they had their origin in previous transactions.

I am aware that, by some highly respectable courts, an exception to this rule has been introduced, where the payee was insolvent when he made the assignment, and the maker was afterward compelled to pay money for him on a contract of suretyship, entered into before the assignment took place — it being considered hard and inequitable that an insolvent payee should have the p>ower, by an assignment made under such circumstances, to cast .a loss upon his own surety. Tuscumbia, Courtland and Decatur R. R. Co. v. Rhodes, 8 Ala. N. S. 206; Wathen’s Ex’r v. Chamberlin, 8 Dana, 164; Williams v. Helme et al., 1 Dev. Eq. 151.

But these decisions rest expressly upon the ground of the assignor’s insolvency; and consequently where, as in the case before us, that element is wanting, there is no room for the excejDtion to the general rule. How we should hold were that fact in this ■case, it is unnecessary to consider; but how we must hold, upon the facts that are before us, seems to us well settled.

The general principle, that, as against a bona fide assignee, there can be no set-off of demands upon the assignor acquired after notice of the assignment, and that a court of law is fully ^competent to protect the assignee, is certainly well established. Pancoast v. Ruffin, 1 Ohio, 381; Weakly v. Hall, 13 Ohio, 174.

That a mere contingent liability — not even reduced into judgment — as surety for the assignor, is not a demand upon him, would seem to be sufficiently obvious; and where nothing more exists at the date of the assignment, and the assignor is solvent, a subsequent payment of the surety, in discharge of such liability, will not give him a right of set-off as against the assignee. In Granger’s Adm’r v. Granger, 6 Ohio, 35, such a claim to set-off was rejected, even as against the administrator of an insolvent obligee; and although one of the reasons given for the decision was, that to allow it “ would change the course of distribution of intestate-estates,” it is clear that the principal ground relied on was, that “ no cause of action or demand existed against the intestate at his death ; ” or, in other words, when, by operation of law, the chose in action sued on was transferred to his administrator. The court said: “ The next question propounded to us is, in a suit by an administrator, upon his intestate’s claim, can the defendant set off a demand for money paid after the death of the intestate, upon a. liability entered into by the defendant as surety for the intestate ?' Our judgment resolves the question in the negative. No cause of action or demand existed against the intestate at his death. A liability only was incurred, upon which, on the contingency of the-security being compelled to pay for the intestate, he would have a right of action for his indemnity. A bare possibility that, in a certain future contingent event, he would have a demand, is not a debt due from the intestate, and such a claim has not the mutuality required for a set-off.”

It is quite apparent that this decision not only sustains the ruling of the common pleas in the case before us, but that it goes further, and would have sustained a like ruling even had the note sued on never been transferred by Wood-. Indeed, had that been the fact, the two cases would be precisely alike.

*See, also, Ridgway v. Collins, 3 Marsh. 412; and Wathen’s Ex’r v. Chamberlin, supra.

I ought perhaps to remark, that the decisions under the bankrupt laws have very little, if any, application to this case. Those statutes have generally permitted a set-off of mutual credits, whether due or not, and have therefore administered a much broader equity than the ordinary law of set-off. But perhaps it would be found difficult, even under the bankrupt laws — were the case in bankruptcy — to sustain the defendant’s claim.

We are of the opinion that the ruling of the common pleas was correct, and that, consequently, the reversal of its judgment was-erroneous. The judgment of reversal must therefore be reversed,, and the original judgment be affirmed.