text:
    The Cleveland and Mahoning Valley Railway et al. v. Wick.
    1. The limitation for filing petitions in error, prescribed in section 12 of the-Act of April 23, 1872 (69 Ohio L. 88), applies as well to proceedings instituted by the land-owner under section 21 of the act as to proceedings instituted by the corporation.
    2. The proceedings in the probate court under said act can be reviewed by the court of common pleas, only when the petition in error is filed within thirty days from the rendition of the final judgment in the probate court. Railroad Co. v. Hopkins, 19 Ohio St. 279, approved and followed.
    3. Whether a petition in error was filed in time or not is to be determined! from the record ;* and no plea is required setting up the lapse of time as-a bar to the proceeding.
    4. On error, the record under review can not be contradicted. If it is incorrect, application should be made to the court whose record it is for its correction, and when the correction has been made the corrected record should be brought before the reviewing court, by proper proceedings, before the case in error is determined,
    fi. Under said act, the court of common pleas, on petition in error to reverse the judgment of the probate court, is not authorized, on affirming the judgment, to render a judgment in personam against the corporation for the amount adjudged against it in the probate court.
    Error to the Court of Common Pleas of Mahoning ■county, reserved in the district court.
    The original proceeding was instituted by Henry Wick, in the Probate Court of Mahoning county, against the Cleveland and Mahoning Yalley Railway Company and the Atlantic and Great Western Railroad Company, under ■section 21 of the act. of April 28, 1872, prescribing the mode of assessment aud collection of compensation to the owners of private property appropriated by and to the use of corporations. 69 Ohio L. 88.
    The plaintiffs in error having failed to institute proceedings, the defendant in error, Wick, on the 3d day of March, 1873, filed his petition in the probate court, in ac■cordanee with the provisions of said section.
    On the 29th day of July, 1873, the cause was submitted to the jury, and a verdict returned. Thereupon the defendants filed a motion for a new trial, specifying the grounds upon which the new trial was asked. The record then proceeds as follows :
    “ Which motion is overruled by the court, and the court having carefully examined said proceedings and verdict, and finding them in all respects legal and correct, do approve and confirm the same; it is therefore ordered, adjudged, and decreed by the court, that said defendants pay into court, within thirty days from the date hereof, for the use of said Henry Wick, said sum of seven thousand dollars, the amount of such verdict, and also that they pay the costs of this proceeding, to be taxed.
    “And that upon such payment within the time herein prescribed, they hold said property and premises for the purposes for which the same are sought to be appropriated by this proceeding, and that upon failure on the part of said defendants to pay said sum within the time herein prescribed, that execution issue to collect the same as upon judgments at law.
    “ To all of which findings, verdict, confirmation, judgment, and rulings of the court thereon, said defendants by counsel except, and ask the court to sign and seal a bill of exceptions, which is accordingly done in open court. And thereupon, on the 29th day of July, in the year aforesaid, .said defendants filed their bill of exceptions herein, which said bill of exceptions follow in these words and figures, to wit-:” ...
    The transcript of the proceedings in the cause in the probate court was duly authenticated by the probate judge, and was filed by the plaintiffs in error with the petition in error, in the court of common pleas, as an authenticated transcript of the record of the proceeding in the •cause upon which the judgment was sought to be reversed.
    A petition in error was filed in the court of common ■pleas to reverse the judgment of the probate court. The transcript of the proceedings had in the court of common pleas, shows that the petition in error was filed in that •court on the 24th day of September, 1873, and that the cause was continued until the January term, 1876, when the following judgment was rendered:
    “ This cause came on for hearing on the petition of plaintiff, and the record of proceedings and judgment of the probate court attached and error assigned and was argued by counsel, on consideration whereof the court are of opinion aud find that, in said proceedings of the probate court, there is no. error as alleged, and hereby confirm rsaid judgment and proceedings of the probate court. And the court order and adjudge that said plaintiffs pay said •defendant Wick, the amount found and adjudged in his favor by said probate court, to wit: the sum of seven thou.sand dollars, with interest from August 29, 1873, and that the above plaintiffs pay the costs of this proceeding to be taxed.”
    The present petition in error was filed by the plaintiffs in «error in the district court to reverse the judgment of the court of common pleas. With this petition in error was filed an authenticated transcript of the proceedings in the court, of common pleas, showing the foregoing facts: and also the-transcript of the proceedings in the prohate court.
    In the district court the case was reserved for decision by this court.

      S. Burke, for plaintiffs in error.

      F. F. Hutchins, for defendant in error.
   White, J.

The first question arising on this case is,, whether the petition in error to reverse the judgment of the probate court was filed in the court of common pleas within the time limited by the statute.

The proceedings were had under the act of April 23, 1872. 69 Ohio L. 88. Section 12 of the act is a follows: “ All proceedings herein provided for in the probate court, shall be open to exceptions, in the same manner that exceptions are or may be taken in civil suits in the court of common pleas; and either party may file their petition in error in the court of common pleas of the proper county, within thirty days from the rendition of the final judg-. ment in the probate court, and thereupon the proceedings-in error shall be proceeded in, in all respects, as is now provided by law in like cases.” . . .

It appears, from the transcript of the record of the probate court, filed with the petition in error in the court of common pleas, that the final judgment was rendered in the probate court on July 29, 1873; and from the transcript of the proceedings in error, in the court of common pleas,, it appears that the petition in error was not filed until the 24th day of September following, being more than thirty days after the rendition of the judgment.

The right to file a petition in error, to review the action of the probate court in the class of cases provided for in the act, is not derived from the code of civil procedure, but from the 12th section of the act already quoted; and, in giving the right, the section prescribes the time within which it may be exercised, namely, “ within thirty days-from the rendition of the final judgment.”

This question was determined in the case of The Little Miami Railroad Co. v. Hopkins, 19 Ohio St. 279. That case arose under the act of April 6, 1865 (S. & S. 114), supplementary to the act providing for compensation to the owners of private property appropriated to corporations,, passed April 30, 1852. S. & C. 311.

The supplementary act of April 6, 1865, in so far as relates to the present question, is the same as section 21 of the act of April 23, 1872, under which the proceedings in .this case were had in the probate court. The limitation found applicable in that case was the limitation of fifteen days, prescribed in section 9 of the original act; and it was held that the proceedings in the probate court, in cases under the statute like the present, can be reviewed by the-court of common pleas only when the petition in error is filed for that purpose within fifteen days from the rendition of the judgment in the probate court.

No distinction can be made between the operation of section 9 of the original act, under consideration in that case, and section 12 of the act of April 23, 1872, except that by the last-named section the time for filing a petition in error is extended to thirty days.

It is claimed, on behalf of the plaintiffs in error, that as-the objection that the petition in error was not filed in time, is not set up by plea, it can not be made available on the record before us. This claim is founded in a misconception of the nature of the objection. The authority of a court to review, on error, the judgments of an inferior court, is derived solely from the statute, and the time prescribed for the exercise of the power operates as a qualification or limitation of the power itself, and it can only be exercised within the time prescribed. It was upon this ground that the case of the Little Miami, Railroad Co. v. Hopkins, supra, was decided. There was no plea in that case setting up the lapse of time, as a bar to the prosecution of the petition in error; but the objection was sustained solely on the ground that it appeared, from the record, that the prescribed time, after the rendition of the judgment, had elapsed before the filing of the petition in error. The decision in the case of the Schooner Marinda v. Dowlin, 4 Ohio St. 500, was made upon the same ground; and this case was followed in Tibbitts v. Stearns, decided at the December term, 1878, a case not reported. The last two cases were stricken from the docket on motion.

The position taken by the plaintiffs in error is sought to be supported by Robinson v. Orr, 16 Ohio St. 285, and by Railway Co. v. Mara, 26 Ohio St. 185. But neither of these cases is applicable to the present question. In both the. cases, the petitions in error were filed in time. The question in each case was whether the appearance of the defendant in error had been effected. It was found in the first case that it had not been, and the petition was dismissed. In the second case, it was found that the defendant had voluntarily appeared and answered to the merits, and that such an appearance, by relation, had the same effect as if a summons had been duly issued and served. '

The claim asserted by the plaintiffs in error that whether the petition in error was filed in the court of common pleas within thirty days from the rendition of the judgment in the probate court, is a question of fact which may, on error, be put in issue and tried ujaon testimony, is without foundation.

■ In proceedings iu error the record must speak for itself, and it can not be contradicted. If it is incorrect, the proper course is to apply to the court, whose record it is, for the proper correction, and when the correction has been made, to bring the corrected record before the reviewing court, by the proper proceeding, before the case in error is determined.

In the case of the Little Miami Railroad Co. v. Hopkins, supra, the court held that the judgment of the court of common pleas, affirming the judgment of the probate court, was nugatory, and did not prejudice the plaintiff in error; and the petition in error was dismissed.

In the present case, a judgment in personam was rendered in the common pleas against the plaintiffs in error, for the amount of the verdict with interest, and for the-costs. On this judgment execution may be issued ; and we can not, therefore, say that the plaintiffs in error may not be prejudiced thereby, although the judgment may be unauthorized and void. The judgment of the court of common pleas will, therefore, be reversed, and the cause remanded to that court for dismissal; or, in case of the suggestion of a diminution-of the record, for such further proceedings as may be authorized by law.


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    Middleport Woolen Mills Company v. Titus.
    1. Where money has been paid on a contract which has heen subsequently rescinded, and the repayment of the money is the only thing remaining to be done, apetition for money had and received is sufficient; but while the-contract is subsisting, the action can only be brought on the agreement.
    2. Where it is alleged that the court of common pleas erred in various particulars, among others, in overruling a motion for a new trial based on the ground that the verdict was against the evidence, and the district court reverses the judgment without setting forth the ground of reversal, and remands the cause for a new trial, and it appears that the evidence was conflicting as to a material point in issue, and that the charge to-the-jury was in some respects obscure, the judgment of reversal should not be reversed, even if, in the opinion of this court, the preponderance-of evidence be in favor of the verdict, and although the other errors-may not have heen well assigned.
    Error to the District Court of Meigs county.
    On April 11, 1874, James N. Titus filed a petition in the Court of Common Pleas of Meigs county, against the Middleport Woolen Mills Company, which, omitting commencement, was as follows ; The plaintiff says that the defendant is a body corporate created under the laws of Ohio, and was on the first day of January, 1871, indebted to the plaintiff in the sum of ten thousand dollars, for so much, money, at divers times, before that time had and received hy the defendant to and for the use of the plaintiff, and which sum of money was then due and payable ; yet the defendant has not paid the same or any part thereof to the plaintiff, though often requested so to do ; whereupon, the plaintiff prays for judgment against the defendant for said ■sum of ten thousand dollars, together with interest thereon •from, etc.
    The company, by its answer, admitted the receipt of ten thousand dollars from Titus during the year 1870, but .alleged, among other things, that he paid the money for •.shares to that amount in the capital stock of the compauy, under a contract in writing made January 21, 1870; and that it performed all the stipulations of its contract, and was at all times ready, able, and willing to deliver to Titus its capital stock to the amount of $10,000, and did tender and offer to so deliver the same, and is now ready, able, and willing to so tender and deliver said stock, being stock representing part of the original stock of the company, of all which Titus had notice.
    Titus, in his reply, denied all averments in that part of the answer set forth, except that he signed the agreement therein referred to, and paid to the company $10,000 under the same.
    Other matters in the answer and reply need not be here stated.
    The case was tried to a jury at the February term, 1875, and a verdict was rendered for the company. A motion for a new trial based ou the ground, among others, that the verdict was against the weight of evidence, was overruled by the court, and judgment was rendered on the verdict. A bill of exceptions, setting forth all the evidence and the charge to the jury was then taken.
    A petition in which numerous errors are assigned, among others, that the verdict was against the weight of evidence, was filed by Titus in the distinct court; and that court, at i's April term, 1876, reversed the judgment, and remanded the cause to the court of common pleas for a new trial. The ground of reversal is not stated in the record.
    A petition in error was, on leave, filed in this court to reverse the judgment of reversal.
    It appears from the record that the plaintiff in error was incorporated as a manufacturing company, under the laws of this state, in 1867, with a capital of $50,000. The officers and stockholders desired to increase the capital stock to $100,000. On January 21, 1870, Titus entered into a contract in writing with the company, whereby he agreed, among other things, to pay to the company $10,000 for shares to that amount in the capital stock of the company. He paid to the company the sum agreed on, during the year 1870, but has never received the stock, though he demanded it before bringing suit. The agreement does not specify whether the stock was to be original or increased ■stock; but Titus offered evidence tending to show that, in view of the subscriptions which had been made to the original stock previous to the time when he entered into the contract, and in view of the disposition made of the profits, the contract for $10,000 in shares had relation to increased stock alone.
    Previous to April, 1870, Titus paid to the company $4,000 on the contract. Application was then made to the secretary of state, with a view to such increase; but that officer informed the company, in April, 1870, that payment in money of the full amount of such increase was indispensable to the grant of a certificate of such increase. When this information was received, it was made known to Titus. John Schreiner was then not only a director, the secretary and the treasurer of the company, but its general managing agent.
    On the trial, evidence was offered by each party upon the question whether it was agreed between the company and Titus, on receipt of the letter of the secretary of state, that if he would pay to the company the balance of the $10,000, it would repay the whole sum, with interest, unless the company furnished him increased stock to that amount, within a reasonable time. Evidence was also given tending to show that Titus was to wait for his stock until the necessary increase could be made up by profits; hut Titus, in his testimony, denies that there was any such agreement. There was also evidence to show, that since the commencement of the suit, the company had purchased of one of its stockholders $10,000 in shares of the original stock, and tendered the same to Titus, and that he had refused to accept the same. The capital stock has never been increased.

      John Welch, Grosvenor & Vorhes, and Martin Hays, for plaintiff' in error.

      F. A. Guthrie, for defendant in error.
   Okey, J.

In Durbin v. Fisk, 16 Ohio St. 533, it was pi’operly held, that “ a plaintiff can recover only on the causes of action stated in his petition. It is not the province of a reply to introduce new causes of action. This can only be done by amendment of the petition.” If causes have sometimes been so presented, on error, that a court was uuwilling to reverse, although they had been tried on the issues made by the answers and replies, this has never been done unless it plainly appeared that the departure had occasioned no prejudice, and that to give effect to the issue thus made would be in furtherance of justice. There is also a class of cases in which it has been held that a defective statement in a petition may be aided by averment in a subsequent pleading. Erwin v. Shafer, 9 Ohio St. 43; Dayton Insurance Company v. Kelly, 24 Ohio St. 345, 357. But this case does not fall within any such exception to the rule; and, therefore, Titus’ right to recover must rest alone on the ease made in the petition.

By the code of civil procedure, in which the common law forms of pleading were abolished, the petition, answer and reply must contain facts, concisely stated. If, as is sometimes the case, a cause of action may be properly set ioi’th in a petition in substantially the same form as in a declaration, it is not because of the sufficiency of the pleading under the former system, but for the reason that its language is in accordance with the facts in the particular case. In this case the petition is, substantially, in the form of a count in a declaration in assumpsit or debt for money had and received. If the contract between Titus and the company is subsisting, it is quite clear there can be no recovery upon this petition, for it can not be regarded as founded on the written contract. Swan’s PI. and Pr. 57; and see Bliss on PL, § 156 et seq. But if the contract has been terminated, and the only thing that remains to be done is for the company to pay and Titus to receive $10,000, with interest, there can be no objection to a recovery under this petition.

Titus testified, in substance, that after he had paid to the company $4,000, in pursuance of the contract, and the letter of the secretary of state had been received, it was agreed between him and the company, ih April, 1870, that if he paid the balance, the company would refund to him the $10,000, with interest, if it failed to deliver to him increased stock to that amount within a reasonable time. This is denied by the company, and the evidence upon the question is conflicting. It is not denied, however, that the balance of the money was paid by Titus; that more than three years had elapsed from that time before this suit was brought; and that the capital stock of the company has never been increased.

The ground upon which the district court reversed the judgment of the court of common pleas is not stated in the record. It may have been upon the ground that, in the opinion of that court, the parties had, according to the weight of evidence, put an end to the contract, and hence that Titus might recover on this petition. Assuming that to have been the ground, as in our opinion we' may, we do not find it necessary to determine whether, in. so holding, the district court was clearly right. In Schaeffer v. Marienthal, 17 Ohio St. 183, it was held that this court had authority to reverse a judgment of reversal rendered by the district court, although the cause had been remanded to the court of common pleas for a new trial. The correctness of that holding is no longer an open question, for the decision has been repeatedly followed (Craig v. Chambers, 17 Ohio St. 253 ; Hammond v. Hammond, 21 Ohio St. 620; Dean v. King, 22 Ohio St. 118; Texas B. Association v. Aurora, etc., Ins. Co., 34 Ohio St. 291), and the legislature has twice re-enacted, without change, the statutory provisions on which the decision was founded. Rev. Sbat., §§ 6707-6710. But these cases show that where the court of common pleas overrules a motion for a new trial, based on the ground that the verdict is not supported by the evidence, and the district court reverses the judgment for that reason, and remands the cause for a new trial, this court will not reverse the judgment of reversal, “ unless it clearly appears that the verdict was sustained by the evidence.” And this rule has greater fofee in a ease like this, where doubts may well be entertained whether the lengthy and somewhat confused charge did not mislead the jury.

The view we have taken of this case renders it unnecessary that we should determine the important questions discussed by counsel, or express any opinion as. to the real merits of this case in any particular.

Judgment affirmed.


author: Okey, J. Gilmore, C. J.

text:
    The State of Ohio on relation of Lyman S. Colburn v. The Oberlin Building and Loan Association.
    1. A 'building and loan association, incorporated under the acts of May, 1868 (S. & S. 194, 195), has not the power to refuse to loan its funds to its members; nor to establish such rules and regulations, or so conduct its business as to prevent the loan of its funds to a member who.bids the highest premium therefor; nor to borrow money for the purpose of lending it; nor to divide or distribute its funds among its members in advance of the distribution at the winding up of the corporation; nor to traffic in shaves of its own stock.
    :2. Such, corporation, acting in good faith and reasonably, may compromise with a member, and release him from further obligation to the corporation, whether the indebtedness be for a loan or on subscription.
    3. Where a corporation has abused or misused its corporate powers, but not in any particular as to which it is declared by statute the act shall operate as a forfeiture of its charter, the court is vested with a discretion to determine whether the corporation shall be ousted of its franchise tc be a corporation, or from the exercise of the powers illegally assumed.
    QUO WARRANTO.
    On May 24, 1878, the attorney-general filed in this court an information, on the relation of Lyman S. Colburn, praying that a judgment of ouster be pronounced against the defendant, The Oberlin Building and Loan Association, a corporation under the daws of this state. It is averred in the information that the defendant has forfeited its rights, privileges, and franchises as a corporation in various specified particulars.
    An answer and a reply were filed, and the case was heard on the pleadings, an agreed statement of facts, and certain testimony.
    Colburn is a member of the corporation, and was formerly a director.
    The association has never received deposits.

      Isaiah Pillars, attorney-general, and N. L. Johnson, for the plaintiff.

      I. A. Webster and George K. Nash, for defendant.
   Okey, J.

Several questions of practical importance are involved in this case. They will be disposed of with as much brevity as the nature of the case will permit. But, in order that they may be understood, it will be necessary to extract from the voluminous record a statement of the facts.

On January 1, 1871, the defendant was organized and commenced business as a corporation, under the act of May 5, 1868, amended May 9, 1868 (65 Ohio L. 137,173 ; S. & S. 194,195), in relation to building and loan associations. The act, as amended, provides, among other things, as follows :

“ Sec. 1. That any number of persons not less than five may associate together and become a corporation . . . for the purpose of raising moneys to be loaned among the members . . . for use in buying lots or houses, or in building or repairing houses, or other purposes.”
“ Sec. 2. Such corporation shall be authorized and empowered to levy, assess, and collect from its members such sums of money, by rates of stated dues, fines, interest on loans advanced, and premiums bid by members . . . for the right of precedence in taking loans, as the corporation by its by-laws shall adopt; also to acquire, hold, incumber, and convey all such real estate and personal property as may be legitimately pledged to it on such loans, or may otherwise be transferred to it in the due course of such business, provided that the dues, fines, and premiums so paid by members, . . . although paid in addition to the legal rate of interest on loans taken by them, shall not be construed to make the loans so taken usurious, and provided, also, that no person shall hold more than twenty shares in any such association in his own right.
Sec. 5. That so much of the earnings as may be necessary, not exceeding ten per cent, per annum, may be set apart to defray the current expenses of said association, and for the purchase of such real estate as may be necessary for the convenient transaction of its business, and the residue of said earnings shall be transferred to the credit of the share-holders ; and when said shares are fully paid, then to be paid ratably to the share-holders.” See Rev. Stats., §§ 3883-3836.

The corporation has made no loan to any member since December 1,1876, nor has it offered to make such loan by calling for bidders, as required by the by-laws. On April 1, 1877, P. Gr. Akers, a member of the corporation, applied to the directors for the purpose of obtaining a loan on four shares of stock; but the directors were not inclined to grant the request, and he accepted from them an offer of §104 per share, and transferred the stock to the association, ■which is admitted to have been a good bargain on its behalf.

A by-law of the corporation, adopted September 1,1873, provides that the directors shall determine the lowest amount of premium that will be received on loans. The directors have constantly acted in pursuance of that bylaw, but have changed such minimum rate from time to time. Members sometimes bid below the premium so fixed, but the directors refuse to accept the bids.

At a meeting of the association, on June 20, 1877, a resolution was adopted, providing that as often as there is sufficient money in the treasury to divide the sum of ten dollars each to the uncanceled shares, such division shall be made, each share to be charged at the rate of ten per cent, per annum for such dividend. Five distributions were made pursuant to that resolution, amounting in the aggregate to $10,296 in cash. In addition, certain securities, hereinafter mentioned, were also distributed. But the construction given to the resolution was that the distribution should be confined to stockholders who had not taken out money on their shares.

From May 6, 1873, to March 8, 1877, the association procured at the First National Bank of Oberlin discount of twenty-two notes, amounting to $14,814.48, made by the officers of the association and others, some of them payable in thirty days, others in sixty days, and the others in ninety days. The rate of interest was ten per cent, per annum, which was usually deducted at the date of the note. Some of the notes were given in renewal of former loans. One of them, dated October 1, 1875, was given for thirty-five shares of stock in the corporation, purchased by the directors for the association. The other sums were borrowed by the corporation for the purpose of lending the same. The shares above mentioned, and others, were purchased by the company, so as to transfer them to persons not members, who desired to obtain loans of the association.

On July 1, 1877, eight members of the association held shares of stock in excess of the number to which they were limited by statute. These shares number in the aggregate two hundred and ninety-two. Loans were made on all these shares except eighty-one. In the same yearl the association compromised with three of those members holding sixty-eight of such shares in excess.

From June 1, 1874, until January 1, 1878, the association compromised and settled with nine other members, whose shares were not in excess of the number to -which they were limited by statute. The number of these shares was eighty-eight.

With respect to such compromises, the following appears in the answer: “ Respondent says that in several instances it has, in consideration of certain of its stockholders canceling their stock, discharged the obligations which it held against such stockholders as collateral security for certain loans which they had previously made from respondent, and upon the further consideration that such members first pay to respondent the present worth of the money so borrowed by them, and for which they gave such obligations, mortgages, etc.”

Settlements were based on the assumed fact that the association -would run one hundred months from the beginning, that is, that when that period is reached it can pay $200 per share, according to the original intention. Repeated calculations showed that to he the probable duration of the company.

Where securities were taken in making settlements, they were distributed among the members in the same manner as the funds on hand, already mentioned, were distributed. The amount of securities so received and distributed was $4,843.8.

On this state of facts our conclusions are as follows:

1. That the association has abused its corporate powers in several particulars, admits of no doubt. It has refused to loan its funds to its members, and it has established such rules and regulations, and so conducted its business by dividing its funds and otherwise, as to prevent the loan of its funds to a member, under the system of competitive bidding contemplated in the statute, and provided for in the by-laws of the company. It has, indeed, loaned its funds, in many instances, to persons who were not members of the association. The illegality of such a course is clearly stated in State ex rel. v. Greenville Building and Saving Association, 29 Ohio St. 92.

Again, the association has been in the habit of borrowing money for the purpose of lending it. We do not deny that corporations possess the power to borrow money which may be needed in the transaction of their necessary business; but these transactions fall within no such principle. The money to be loaned by associations like this, if, as here, deposits are not received, can only be properly accumulated in the manner contemplated by the statute, that is by dues, fines, premiums, and interest; and the acts complained of, and fully proved by the testimony, can not be readily distinguished from the business of a banker. They are clearly illegal.

Equally illegal was the act of dividing the money and securities among certain stockholders. It was opposed to the principle upon which such associations are organized. It was, indeed, even if it had been done with perfect impartiality, a plain violation of the statute, which contemplates that no such division shall be made uutil said shares are fully paid.”

Finally, it was illegal for the association to traffic in shares of its own stock. We do not deny that a corporation has power to receive shares of its stock as security for a debt or other similar purpose; but here the association purchased its own shares of stock, in several instances, for the purpose of disposing of them to persons not intending to become members of the association, with a view of making such shares the basis of loans to such persons. The law will not uphold such transactions.

2. The association compromised with several of its members, and released them from further obligation to the corporation, as well on account of indebtedness for loans, as on subscription. We have examined the evidence, and we do not find there was any want of good faith in these transactions. The interest of the stockholders as well as the public, seems to have been kept in view. Of course, without this such acts could not be upheld; but we are not able to find in the statute any inhibition of the power to make such compromises, and, on the fullest consideration, we unite in holding that the power exists.

3. Where a corporation has been guilty of acts which, by statute, are made a cause of forfeiture of its franchise to be a corporation, this court has no discretion to refuse such judgment. State ex rel. v. Penn. &. Canal Co., 23 Ohio St. 121. But, in other cases, we are vested with discretion to determine whether judgment of ouster of the franchise to be a corporation shall be rendered, or whether the corporation shall be ousted from the exercise of the powers illegally assumed. With some hesitation, a majority of the court have reached the conclusion that it will be for the interest of the stockholders, as well as the public, that we should render the latter instead of the former judgment. The evidence satisfies us that if the corporation is permitted to wind up its affairs, the work will be accomplished in a few months; but if the association should be ousted from its franchise to 'be a corporation, we would be required to appoint trustees under the act of 1878 (75 Ohio L. 817, § 22; Rev. Stats., § 6781), and this would occasion delay and involve increased expense. Accordingly, the corporation will be ousted from the exercise of the powers referred to in the first paragraph of the syllabus, and from the power of permitting any member to hold in his own right more than twenty shares of stock, but not from its franchise to be a corporation, nor from the exercise of the power referred to in the second paragraph of the syllabus.

Gilmore, C. J.

I dissent only as to the judgment entered. Such' flagrant and persistent violations of corporate powers and duties, as are shown in this case, in my opinion, call for and require an application of the severest penalties of the law. The judgment should oust the defendant from being a corporation.

Judgment of ouster as to specified powers.


author: Gilmore, C. J.

text:
    Fallis v. Keys.
    Keal estate inherited by a married woman since the passage of the act of 1861 (S. & S. 391), which declares such inheritance to bo her separate property, can not be charged in equity for the payment of a liability incurred by her prior to the passage of the statute.
    Error, to the Superior Court of Cincinnati.
    The facts are stated in the opinion.

      Dodds § Wilson, for plaintiff in error.

      King, Thompson § Maxwell, for defendant in error.
   Gilmore, C. J.

In November, 1859, Samuel B. Keys was. the owner in fee of certain real estate in Cincinnati, which he had mortgaged to one Ruffner to secure the payment of certain notes falling due at intervals between that date and 1866. On the 4th of November, 1859, Samuel B. Keys and Julia B., his wife (the latter having only an inchoate right of dower therein) conveyed said real estate to Daniel J. Eallis, who paid Samuel B. Keys the full consideration therefor. On the 8th of December, 1859, Samuel B. and Julia B. Keys joined in the execution of a sealed instrument to Eallis binding themselves, in terms, to pay off the notes above mentioned as they respectively became due, and thereby discharge the lien on the property so conveyed. Most of the notes were paid by Samuel B. Keys as they became due, but the notes falling due in 1865 and 1866, aggregating in amount about $4,300, were not paid.

Between 1866 and 1873 Samuel B. Keys became insolvent. In 1859 Mrs. Keys was not the owner of either seperate or general property.

By inheritance from her brother, David, in 1868, and also from her brother,- Charles, in June, 1874, she became seized in fee of an undivided portion of certain real estate in Cincinnati, from which she derives an income of about $1,500 per annum.

Samuel B. Keys, being insolvent, Eallis was compelled to pay to the representatives of Ruffner $4,300, being the balance remaining unpaid on the notes mentioned in the' scaled instrument above alluded to; and in November, 1874, he commenced an action, founded on the sealed instrument, in the Superior Court of Cincinnati, against Samuel B. and Julia B. Keys, by which he seeks to charge the separate estate of the latter, inherited from her brothers, as above stated, with the payment of the $4,300 above mentioned. Mrs. Keys alone defends.

The questions raised in the case may be resolved into this one: Can real estate inherited by a married woman since the passage of the act of 1861 be charged in equity for the payment of engagements entered into by her previous to the passage of the act ?

It is well settled, both in England and this country, that in equity a married woman may, under some circumstances, charge separate property of which she is at the time in possession with the payment of her engagements. It is unnecessary here, however, to notice the circumstances under which such a charge will be declared.

Not a single case has been cited by counsel, nor are we aware of one, in which it has been held that the engagoments of a married woman, entered into when she had no separate property, will bind her after-acquired separate property. The case is, therefore, a novel one.

If there is any ground upon which a court of equity can declare such a charge in this case, it must be either that of estoppel or that of intention.

There are no circumstances disclosed in the ease that can estop Mrs. Keys from denying that by the execution of the instrument in question, she created a charge on her after-acquired separate property.

I am not prepared to say that if a married woman having separate property in expectancy should enter into an engagement expressly with reference to it, and intending thereby to create a charge upon it — that a court of equity would not enforce the charge, when the property afterward came into her possession ; for this would be carrying into effect the intention of the parties.

But in the absence of such an intention, either expressed or to be clearly implied from the facts, a married woman can not, by her engagements, incur liabilities for the payment of which her after-acquired separate property can be charged.

In 1859, when Mrs. Keys signed the instrument in question, unless she was endowed with the attribute oí prescience, which can not be presumed, it would have been impossible for her to know that she would, after that time, inherit from her brothers separate property; and, therefore, impossible for her to have intended to charge it by the execution of the instrument. At that time, land that came to a married woman by inheritance, in this state, was her general property, which she was incapable of incumbering, except in the mode prescribed by the statute; nor could she charge it in equity tor the payment of her engagements, even when credit was given to her on the faith of such property. If, therefore, the law had remained unchanged, these lands which afterward descended to her ■would have been her general property, which, as before said, could not have been charged by her even if she - had intended to do so.

By virtue of the first section of the act of 1861, as amended in 1866' (S. & S. 889, 391), lands thereafter descending to a married woman become her separate property, which she may charge for the purposes mentioned in the statute, and also for the payment of engagements entered into by her after acquiring the property, in cases in which equity will declare the charge.

But to enable us to find that the instrument executed by Mrs. Keys in 1859, created a charge on separate property mnerited by her many years afterward, we must find, at least, that she could have had the property in her mind, for without this she could not have intended to charge it. How could she have had the property in her mind ? She could not have known that her brothers would acquire or retain the property; that they would die intestate and childless; or if these contingencies could have been known and anticipated, she certainly could not have known that the legislature would afterward so change the law, that property descending to. her after the change would be her separate property, when, if the same property had descended to her before the change, it would have been her general property. Under these circumstances, we do not see how she could have intended to charge this after-acquired separate property; and without this it can not be charged in equity.

Mrs. Keys was entitled to judgment on the statements of the petition; and hence the judgment of the superior court in her favor must be affirmed.


text:
    Hagar v. The State.
    An indictment charging that the prisoner broke into a store-room, is insufficient, under a statute (74 Ohio L. 248, g 5) making it an offense to break into a “ store-house; " and the defect is available to him, although the objection was not made until the verdict had been rendered.
    Error to the Court of Common Pleas of Summit county.
    John Hager was convicted and sentenced to the penitentiary, at the September term, 1879, of the Court of Common Pleas of Summit county, on an indictment, in which it is charged, that on August 5, 1879, in that county, in the night season, be maliciously and forcibly broke and. entered the store-room of John E. Roth, with intent to steal bis personal' goods, etc. No objection was made to the indictment, except by motion in arrest of judgment.
    The statute provides as follows : “ Whoever, in the night season, maliciously and forcibly breaks and enters any dwelling-house, kitchen, smoke-house, shop, office, storehouse, ware-house, malt-house, still-house, mill, pottery, factory, water-craft, school-house, church or meeting-house, bam or stable, or railroad car, car factory, or station-house, with intent to commit a felony, or with intent to steal property of any value, shall be imprisoned in the i penitentiary not more than ten nor less than one year.” 74 Ohio L. 248, § 5; Rev. Stats. § 6835.

      G. K. Pardee, for plaintiff in error:
    The indictment is insufficient. Thalls v. The State, 21 Ohio St. 233; Wine v. The State, 25 Ohio St. 69.

      Isaiah Pillars, attorney-general:
    The objection, if any, to the indictment, was only available to the defendant on motion before verdict. Bartlett v. The State, 28 Ohio St. 669.

      E. W. Stuart, prosecuting attorney, also for the state:
    Store-room and store-house are synonymous. Webster’s Die. Hence the indictment is sufficient. 2 Wharton’s Or. L., § 1576; Commonwealth v. Pennock, 3 S. & R. 199; Bauer v. The State, 25 Ohio St. 70.
   Okey, J.

In charging an offense in an indictment, it is not good practice to omit the words of the statute which define the crime. The safer course is to employ them; and, while this is not always indispensable to the validity of the indictment, it is clear that if they are omitted the defect will be fatal, unless the words used are the precise equivalent of the words of the act, or, at least, plainly and necessarily include them. Spencer v. The State, 13 Ohio 401; Poage v. The State, 3 Ohio St. 229; Kennedy v. The State, 34 Ohio St. 310. Erom this it is not to be inferred that an indictment which simply pursues the language of the statute is sufficient, for in many cases something more is required. Lamberton v. The State, 11 Ohio, 282; Dillingham v. The State, 5 Ohio St. 280.

Here the prisoner was charged with breaking into a store-room, while the only structures of that general character specified in the statute are “ store-house ” and “ warehouse.” But a store-room is not necessarily either a storehouse or ware-house.

The indictment is insufficient, and the defect is not cue of form but of substance; hence, the objection is fatal, though not made until the verdict had been rendered.

Judgment reversed.


author: Boynton, J.

text:
    Avery v. Vansickle.
    1. In an action brought under section 28 of the code of civil procedure, as amended March 30, 1874, to subject the separate estate of a married woman to the payment of a promissory note executed by her, neither party is entitled to demand a trial by jury, and hence an appeal lies from the judgment, to the district court.
    2. A judgment in an action to foreclose a mortgage executed by husband and wife, to secure the payment of the wife’s promissory note, constitutes no bar to a subsequent action to subject the separate estate of the wife to the payment of a deficiency arising upon the sale of the property mortgaged.
    3. A judgment against the husband, upon the joint promissory note of himself and wife, does not merge the right to charge the wife's separate estate with the payment of the note, in a subsequent action.
    4. Where a married woman acquires the title to property by purchase, and executes her promissory note therefor, an implication arises, in the absence of proof of a different understanding, that she thereby intended to charge her separate estate with its payment, and such implication is not affected by the fact that she, with her husband, executed a mortgage of the property purchased, to secure the payment of such note.
    6. In such case, the wife will not be permitted to testify that she had no intention to charge her separate estate with the payment of such note.
    Error to the District Court of Huron county.
    The original action was brought to subject the separate estate of Ann Avery, wife of Charles Avery, to the payment of the sum found due on their promissory note, which was in the following words and figures:

      “$1,030. New IjOKDOn, Huron County, O., July 6, 1870.
    “Two years after date, we promise to pay to the order of George Vansiclde the sum of one thousand and thirty'dollars, with interest payable annually in Now London, Ohio. Value received. Int. to commence July 27, 1870. “ Charles Avert,
    “Am Avert.”
    The note was secured by a mortgage executed by Charles and Ann Avery, on the real estate conveyed to the wife by Vansickle, the payee of the note, and was given witb the mortgage, to secure the payment of the parehase-price of the land conveyed. It appeared, from the record, that the mortgage had been foreclosed in a former action, and that the proceeds of the sale of the property mortgaged were exhausted in the extinguishment of prior liens on the property, leaving said mortgage debt wholly unsatisfied.
    It further appeared that, in said foreclosure suit, the amount due from said Ann Avery on said note was ascertained, and a judgment rendered for said amount against Charles Avery, but that neither be nor said Ann bad paid any part of the same, and that he was wholly insolvent.
    The petition prayed for a personal judgment against Ann Avery, and that her separate estate, specifically set forth in the petition, be subjected to its payment, alleging— a fact denied by the answer — that she intended and agreed to charge her separate estate with the payment of said note.
    She testified, on the trial in the district court, subject to exception, that, at the time tbe note was given, there was no agreement that her separate property should be charged with its payment, and that she had no intention of so charging it. There was no further evidence of intent to charge her estate, except that manifested by the transaction of the purchase of the property, and tbe execution of the note and mortgage.
    The district court gave judgment subjecting Mrs. Avery’s separate estate to the payment of the note, which judgment, by the present proceeding in error, it is sought to reverse.

      The assignments of error are:
    1. That the cause was not appealable from the common pleas to the district court.
    2. That the judgment in the action to foreclose the mortgage is a bar to the present action.
    3. That all right of action on the note was merged in the judgment against Charles Avery.
    4. That no charge was created against the separate estate of Mrs. Avery.

      Wickham & Wildman, and J. H. Rhodes, for plaintiff in error:
    1. The action was not appealable, and hence the district court had no jurisdiction. Ladd v. James, 10 Ohio St. 437; S. & S. 575; Keller v. Wenzell, 23 Ohio St. 579.
    2. As to the judgment in the action of foreclosure being a bar to the subsequent action against Ann Avery, see Freeman on Judgments, 240; 27 Ohio St. 674.
    3. As to merger, see 13 Mass. 148; Bigelow on Estoppel, 47; 18 Ohio, 279; 5 Ohio St. 33.
    As to whether the giving of the note raised an implication that Ann Avery intended to chai-ge her separate estate, see Levi v. Earl, 30 Ohio St. 147; 46 Mo. 532; 39 Barb. 555; White & Tudor’s L. C. in Eq. 743.

      Griffin 8) Williamson, for defendant in error:
    1. The action was appealable. S. & S. 589 ; 27 Ohio St. 47; 28 Ohio St. 68. The only remedy was in a court of equity. 20 Ohio St. 372; 30 Ohio St. 171.
    2. George Vansickle was not estopped by former proceedings. 2 Ohio, 389; 17 Ohio, 523; 17 Ohio St. 19; 11 Ohio St. 66 ; 112 Mass. 271; 10 Ohio, 304; 2 Wash, on R. P. 226, 227; 37 N.Y. 35; 42 N. Y. 613.
    3. The note was not a joint note. 8 Kansas, 585.
    4. As to the intention of Ann Avery to charge her separate estate, see 30 Ohio St. 147.
   Boynton, J.

The first error assigned upon the record is that the action below was one in which the parties were entitled to a trial by jury, and, consequently, that the same was not appealable to the district court. This question was, in effect, settled by Jenz v. Gugel, 26 Ohio St. 527, and. Allison v. Porter, 29 Ohio St. 136. In the latter case, it. was held that section 28 of the code, as amended March 30, 1874, did not create a new cause of action in favor of, or against, a married woman, where none existed before,, but that the section, as amended, was intended to prescribe-the eases in which she may sue or be sued alone, authorizing, in such suits, like proceedings and judgment, and its enforcement in all respects as if she were sole.

Assuming the action to he gover-ned by this section, as-amended in 1874, these cases are decisive of the question that no new cause of action was created, and that the character of the action was in no wise changed. That the section, in some of its features, is much involved, and the purpose of the legislature quite obscure, can not be doubted. Eor instance, how proceedings, in an action between husband and; wife, for divorce and alimony, or for alimony alone, can be conducted, and a judgment rendered and enforced, in all respects as if the wife were an unmarried woman, is not easy to comprehend. If a literal effect be given to the-words of the statute, the court would be required to dismiss the action in all snch cases.

It is, however, plain that it was not intended to remove the incapacity of a married woman to enter into contracts, binding at law, nor to authorize a recovery on less proof,, or proof of a different nature, than was required before the section was amended.

Before a judgment can be taken against her, on her-promissory note, it must appear that she had a separate estate to charge with its payment, and that she intended to-so charge it at the time she executed the note. These questions are clearly for the court.

The claim that a prayer for a personal judgment against a married woman ascertains the tribunal to try the facts, is wholly untenable. The statute expressly gives the right to-:such judgment in actions wherein she may be sued alone, and a prayer for such judgment in such actions, is, therefore, quite proper. If it followed from this that the cause was, of right, triable to a jury, actions for divorce would fall within the same right, as they are found in the same category with other actions wherein a personal judgment against a married woman is authorized. ¥e need not, however, pursue the argument, as it is well settled that the character of an action, as respects its being legal or equitable, is not determined by the nature of the relief demanded. Corry v. Gaynor, 21 Ohio St. 277; Jenks v. Langdon, id. 362.

It is next urged that the judgment in the action to foreclose the mortgage is a bar to the present action. There is no doubt that a former judgment upon the merits of the case is a bar to any subsequent action between the same parties or their privies upon the same cause of action, and conclusive not only as respects questions actually decided, but as to all others involved in the issue as made. Rut the ■judgment concludes inquiry into no question or subject-matter not within the issue to be tried, and as there is nothing in the record of the former action that would have authorized .an inquiry into the facts put in issue by the pleadings in the present case, the judgment therein constitutes no bar to the present action.

Nor do we think that the judgment against the husband of the plaintiff in the former action, merged or extinguished the right to proceed in equity to subject her separate estate to the payment of the note. It is true that the note, in form, is joint, and a judgment upon it, were the plaintiff discovert, and consequently liable thereon at law, would, within the authorities, constitute a complete bar to a subsequent action thereon. A joint obligation, where the obligors are all bound at law, creates but one debt, and where a judgment is entered upon it, whether against all or only a part of the obligors, all further remedy is merged in the higher security. Sloo v. Lea, 18 Ohio, 279; Clinton Bank of Columbus v. Hart, 5 Ohio St. 33; Reynolds v. P., C. & St. L. Ry. Co., 29 Ohio St. 602.

But in the present case the makers of the note were not, .in a legal sense, jointly liable thereon. No obligation was created against the wife which could be enforced at law, .and hence a joint remedy could not have been anticipated when the note was executed. Where a note or obligation is several as well ass joint, a judgment against one of the makers or obligors, in a separate action, is no bar to an .action on the same instrument against another, for the reason that an implied undertaking to submit to a separate action is involved in the several promise entered into.

The same implication arises in the case at bar, for, either the husband was alone liable on the note, or he was liable jointly with the wife’s separate estate, against which the remedy was wholly in equity, while his liability was strictly legal. A judgment against one of two or more joint makers of a written instrument constitutes a bar to a sub'sequent action on the same instrument, only where the makers are liable thereon at law.

It is finally objected that no charge was created against Mrs. Avery’s separate estate for the payment of the note or debt; and in support of this objection, it is first claimed, that there is no evidence showing her intention to create such charge; secondly, that the mortgage of the property purchased negatives the intent to charge any other estate; and lastly, that her testimony is decisive that no purpose to bind other property was by her entertained.

The facts are very simple. Mrs. Avery having a separate estate, added thereto a parcel of land purchased of the defendant on credit. She executed her note for the price with her husband as surety, and gave a mortgage on the property purchased to secure its payment. The proceeds Arising from the sale of the mortgaged property were exhausted in paying off prior liens. Her husband was insolvent. That she intended to pay for the property thus purchased, and of which she became sole owner, is but a just inference from the circumstances surrounding the purchase. She had but one way of paying, and that was out of her separate estate, to enhance the value of which the

property was bought. Where a married woman acquires the title to property by purchase, which becomes by force of the statute her separate estate, and executes her promissory note therefor, an implication arises, in the absence of proof showing a different understanding, that she thereby intended to charge her separate estate with its payment. And this implication is not at all affected by the execution of a mortgage as collateral security to the note. This was the precise question in Rogers v. Ward, 8 Allen, 387, where it was held that the execution by the wife of a mortgage to secure a bond given upon the purchase of property which became a part of her separate estate, did not in any degree affect or impair the equity of the obligee to enforce payment against such estate. See also Ballin v. Dillaye, 37 N. Y. 35. In such case the wife’s estate is the primary debtor, and the execution of a mortgage on the parcel constituting the subject of the sale and purchase, creates for the mortgagee a specific lien on the land described in the mortgage, leaving his right in equity against the remaining separate estate entirely unaffected. The statement of Mrs. Avery as a witness, that she had no intention to charge her separate estate, was incompetent. Her engagement was in writing, and could not, either in its terms or its inferences, be contradicted or varied by parol. Her intention must be gathered from the instrument executed, aided hy the circumstances under which it was made. The remark in Phillips v. Graves, 20 Ohio St. 387, that if a writing is not necessary to evidence the intention to charge, it may be shown by parol, was not intended as an intimation that in this class of cases, parol evidence is competent to vary the terms or legal effect of a written instrument. But where the engagement is neither in writing, nor required to be, parol evidence is admissible to show what the intention actually was.

Judgment affirmed.


text:
    Hornbeck v. The State.
    1. On the trial of an indictment for assault, with intent to commit a rape, on the person of a female, who, by reason of being an imbecile, was incompetent to be sworn as a witness, the declarations of such female, made shortly after the assault, are incompetent to prove the commission of the offense.

      2. "Where, without such declarations, the evidence is insufficient to convict, the error in admitting them can not be cured by the court in its instructions to the jury, as to the purpose for which such declarations were admitted.
    3. Evidence of the manner in which such female was conducting herself, her physical condition as to injuries, and the condition of .her wearing apparel, when found shortly after the alleged commission of the offense, is admissible.
    Error to tbe Court of Common Pleas of Marion county.
    The defendant below was indicted for assault with intent to commit a rape, on the person of Ada "Wyatt, on which charge he was convicted and sentenced to the penitentiary.
    On the trial, after the admission of testimony proving that Ada is twenty-three years of age, but an imbecile, mentally incapable of testifying as a witness, the state called Mrs. Mary Wyatt, the mother of Ada, who testified that, on the day of the alleged assault, she was absent from the house for a short time, having left Ada in the care of her grandmother, during her absence. That as ■she was returning to the house, Ada came and met her, •and told her that a peddler of rat medicine had been at the house in her absence. The witness was then permitted to go on and give Ada’s declarations as to what the peddler had done to her in the wood-house, which declarations tended strongly to prove the commission of the alleged offense. This testimony, so far as it gave the declarations of Ada, was objected to by the defendant, but the objection was overruled, and the declarations admitted, .and the defendant excepted.

      In relation to this testimony, the court instructed the jury: “ That said testimony was incompetent for the purpose of proving any of the facts stated by said Ada Wyatt,, and should not be considered as tending to prove any of the facts stated -by her, but only to show how she was conducting herself when her mother found her.” To which instruction exception was taken.
    There was no rupture or mark of violence on the person of Ada, that could be discovered by physicians who were-called by the mother to examine her, on the evening of the same day. There is a highway in front, and some distance from, the residence and outbuildings of Mrs. Wyattr in one of which the offense was alleged to have been committed.
    The defendant passed along the highway at about the hour the offense was alleged to have been committed. One witness testified that he saw him out of his wagon, and standing in the highway, in front of the house; but no-witness testified to seeing him inside of the yard, or in or about the house or wood-house, so that the corpus delicti was proved only by the declarations of Ada, as given by her mother.
    The testimony, and also the instructions by the court in reference to the declarations of Ada, are made part of the-record, by a bill of exceptions. A motion for a new trial, on the ground that the verdict was against the evidence,, was overruled, and exceptions taken.
    By this proceeding, the defendant below seeks a reversal of the judgment of the court of common pleas, on the grounds that the court erred in admitting the declarations-of Ada, and in overruling the motion for a new trial.

      Abston & Court, for plaintiff in error, on the question of' evidence, cited:

      John v. State, 17 Ohio, 593 ; Laughlin v. State, 18 Ohio, 99 ; McCombs v. State, 8 Ohio St. 643; People v. McGee, 1 Denio, 21; Wharton Crim. L. § 1150, and case cited.

      T. E. Powell, for defendant in error :
    17 Ohio, 593; 18 Ohio, 99; 8 Ohio St. 643; 23 Ohio St. 394.
   Gilmore, C. J.

Ada Wyatt not having been examined as a witness, did the court err in admitting her declarations in evidence ?

In this state, it is well settled, that where the prosecutrix in a case of this nature has been examined as a witness, the declarations made by her immediately after the offense was committed, may be given in evidence, in the first instance, to corroborate her testimony. Johnson v. The State, 17 Ohio, 593 ; Laughlin v. The State, 18 ib. 99; McCombs v. The State, 8 Ohio St. 643.

This is as far as the decisions have yet gone.

But it may be said that in the ease before us Ada Wyatt was incapable of testifying, and that this fact distinguishes it from the cases above cited.

In England it was at one time thought that where a rape was charged to have been committed on an infant of such tender age that in point of capacity she could not be sworn, yet that she ought to be heard without oath to give the court information; though of itself, without the concurrence of other proofs that might render the thing propable, her unsworn statement would be insufficient to convict the offender. The reasons that Lord Hale gave for hearing such an infant, though not on oath, were : “ Eirst, the nature of the offense, which is for the most part secret; and no other testimony can be had of the fact itself, though there may be other concurrent proofs ; next, because if the child complain presently of the wrong done to her to the mother or other relations, their evidence on oath shall be taken.” 1 East’s P. C. 441; 4 Bla. Com. 214. And in Braziers case (1 East’s P. C. 443), who was tried for assaulting an infant five years old with intent to ravish her, Mr. Justice Buffer was of opinion that as the child was incapable of taking an oath, what she said respecting the attempt was receivable in evidence; and the prisoner was convicted. But he reserved the case for the opinion of the judges, whether this evidence ought to have been received. “ On the 29th of April (1779), all the judges being assembled, they unanimously agreed that a child of any age, if she were capable of distinguishing between good and evil, might be examined on oath ; and, consequently, that evidence of what she said ought not to have been received. And that a child, of whatever age, can not be examined unless sworn.” 1 East’s P. C. 444.

And it has subsequently been held there that where the prosecutrix was not at the trial, in a case of rape, evidence of complaint,, made by her recently after the outrage, was properly rejected. Reg. v. Guttridges, 9 Car. & P. 471. More recently it has been held, in case of rape, that where the child, from her tender age, was incompetent to be «worn, evidence would not be received “ of what the child stated to the mother shortly after the alleged offense took place, nor allow the mother to prove that the child mentioned to her the name of any particular person.” Reg. v. Nicholas, 61 E. C. L. 246.

To the same effect are the cases of The People v. McGee, 1 Denio, 19, and Weldon v. The State, 82 Ind. 81.

The last three cases cited declare the principle that must govern the case before us. That principle is, that in cases •of violence to the person, except when made in extremis, the declarations of the injured party are hearsay, and, therefore, inadmissible to prove the offense; and the fact that the declarant is incapable of taking an oath, by reason of imbecility, insanity, or infancy, will not justify a departure from the long and firmly-established rule of evidence on the ■subject. Therefore, while we do not restrict the scope of the rule,- as to the declarations of the female, made shortly after the violation or attempted violation of her person, as established in this state, being receivable in corroboration of her testimony, we do hold that such declarations are not receivable as evidence in chief to prove the commission of the ■offense, and that there was error in admitting them in this 'case.

But it may be said that the declarations of Ada were admitted “ only to show how she was conducting herself when the mother found her;” that they were competent for this purpose, and that the court excluded them from the jury for any other purpose.

We do not wish to be understood as holding that evidence of how she was conducting herself, the condition of her person as to injuries, and the condition of her clothing :as indicating that she had been abused, when her mother found her, were not admissible in evidence. Very clearly such evidence was competent. But it was the declarations of Ada, as to what the peddler of rat-medicine had said and done to her, that were objected to. It will be observed that these declarations not only tended to prove facts by which the accused could be identified, but also to prove the corpus delicti. There was other evidence tending to prove that the offense might have been committed, but aside from these declarations there was no other evidence, even tending to directly connect the accused with the commission of the offense. He was not seen by any witness in or about the wood-house where Ada’s declarations tended to prove the offense was committed, or nearer thereto than the highway in front of the house. Without these declarations being in evidence, we do not see how a conviction could have been had. It is manifest to us that notwithstanding the instructions of the court excluding the declarations for any purpose other than that above stated, the jury must have disregarded the instructions, and taken the declarations of Ada as proof of the offense charged. The error of the uourt in admitting the declarations was not cured by the instructions given to the jury in respect thereto. They were still prejudicial to the accused.

Erom what has been said it wfill be seen that in our opinion there was also error in overruling the motion for a new trial on the ground that the verdict was against the evidence.

The judgment is reversed, and cause remanded to the court of common pleas for a new trial.


author: By the Court.

text:
    William Piatt et al. v. David Sinton.
    "Where a party is entitled to commence a proceeding in error after the lapse of three years from the date of the judgment sought to be reversed, by virtue of the saving clauses in section 523 of the code (S. &, 0. 1106), the facts, which bring the party within the saving, must be averred in the petition in error. See Hanover v. Sperry, ante, 244.
    Error, to the Superior Court of Cincinnati.
    Motion to dismiss proceedings in error.
    The original action was brought by defendant in error against plaintiffs in error, and final judgment was rendered therein in favor of the plaintiff on the 29th day of June,, 1867.

      The petition in error was filed in this court on the 17th day of August, 1878.
    It is now moved by defendant in error that the proceedings in error be dismissed for the reason that the petition, in error was not filed within three years from the date of the judgment sought to be reversed.
    Section 523 of the code (S. & C. 1106), provided, “No proceeding for reversing, vacating, or modifying judgments or final orders shall be commenced unless within three years after the rendition of the judgment or making of the final order complained of, or, in case the person entitled to such proceeding be an infant, a married woman, a person of unsound mind or imprisoned, within three years, as aforesaid, exclusive of the time of such disability.”
    The plaintiffs in error resist the motion upon the ground that they, or some of them, are within the protection of the saving clauses in said section, although the facts bringing them within the saving do not appear in the record.

      Taylor & Hollester, for the motion.

      J. F. Baldwin, contra.
   By the Court.

This proceeding in error must be dismissed, unless the plaintiffs in error, within sixty days, show, by proper averment, in their petition in error, the facts upon which they rely to prevent the bar of the statute.

See Hanover v. Sperry, ante, 244.


text:
    Columbus, Springfield and Cincinnati Railroad Company v. Harriet Mowatt.
    A railroad company, in laying its track in a public street, in pursuance of authority from the proper officers of the municipal corporation, necessarily lengthened a bridge across such street, and extended the approaches to the bridge along the street in which it was situated, by which means the grade was raised in front of A’s residence, to her injury. A’s premises did not abut upon the street in which the track was laid, but were near thereto. Held, that the case is governed by section 12 of the general act of 1852, relating to corporations, as amended in 1857 (54 Ohio L. 133), and hence the action was barred in two years from the completion of the work.
    Error to the District Court of Franklin county.
    On February 14, 1874, Harriet Mowatt brought suit in the Court of Common Pleas of Franklin county against the Columbus, Springfield and Cincinnati Railroad Company, to recover damages for injury to her premises, which she alleges was caused by the conrpany. Her lot is twenty-five feet wide, fronting on Park street, in the city of Columbus, and extending west from that street one hundred and fifty feet to an alley. Her dwelling-house is on the lot, and she has occupied the premises several years, the occupancy commencing previous to 1870. These premises are north of Railroad street, which crosses Park street at right angles. Her lot does not abut on Railroad street, but forms the northern boundary of a lot of like frontage on Park street and depth therefrom, which does abut on Railroad street, and the above mentioned alley runs to that street.
    Previous to 1870, there was a bridge on Park street across Railroad street, under which bridge another railroad company had its track.
    On May 9, 1870, the city council of Columbus granted, by ordinance, to the plaintiff in error, authority to lay its tracks in Railroad street, the grant, however, not to affect the rights of any person owning or having an interest in any lot or land abutting upon the line of said railroad, or over which it might run.
    During the year 1871, the plaintiff in error laid its tracks iu Eailroad street, in pursuance of that authority. In doing so, it became necessary to extend the bridge above referred to, so as to give more space for the additional tracks, and hence it became necessary to extend the .approaches to the bridge in Park street, and thus to raise the grade in front of Mrs. Mowatt’s premises. She claims in her petition that the grade was raised in that way two feet at the northern boundary of her lot, and that this height was gradually increased as the bridge was approached, so that the grade was raised six feet at the southern boundary of her lot, whereby access to her premises was impeded, and water was caused to flow in her dwelling-house, rendering it unhealthy as a habitation, etc. She also claims that the plaintiff iu error, in excavating for its tracks in Eailroad street, cut off' access to that street through the above mentioned alley.
    The second answer of the plaintiff’ in error was that the acts complained of were done and completed more than two years before the suit was brought.
    In her reply, Mrs. Mowatt pleaded certain matters, which it is claimed estop the plaintiff' from setting up the statute of limitations; and to this reply there was a demurrer, which was overruled.
    A verdict and judgment were rendered for Mrs. Mowatt for $1,025.55, and the district court, on error prosecuted by the company, affirmed the judgment.
    This is a proceeding to reverse the judgment of both the courts.

      L. J. Critchjield, for plaintiff in error.

      C. N. Olds, for defendant in error.
   Okey, J.

In overruling the demurrer to the reply, the court found as follows: “ While the facts stated in said reply do not constitute a sufficient reply to the second defense, yet the court also finds that the said second defense does not contain facts sufficient to bar the said plaintiff’s action, and thereupon the court do overrule said demurrer.”

The rule, under our former practice, that a demurrer reached the first pleading defective in matter of substance, was not one of universal application. It had peculiar limitations, some of which would be inapplicable to our present system of pleading and procedure; but no doubt the principle, the substance of the rule, is as applicable to our present system as it was to the former practice. Trott v. Sarchett, 10 Ohio St. 242; Hillier v. Stewart, 26 Ohio St. 652; Headington v. Neff, 7 Ohio (1 pt.), 229 ; Gordon v. Preston, Wright, 341; 2 Swan’s Pr. & Pre. 833; Bliss on PI., § 417; 1 Chitty’s PI. (16th Am. ed.), 700.

Even if we should regard the second answer as insufficient, the order of the court with respect to it was irregular. The proper course is indicated in Headington v. Neff. In that case there was a demurrer to the replication. The court held that the replication was insufficient; “but,” said the court, “ the demurrer to the replication opens the plea for inspection, and judgment must be given against him who committed the first fault in pleading.” Finding the plea to-be also insufficient, the court added: “The plea, then, is bad, and the court of common pleas erred in sustaining the demurrer to the replication. The court, on this demurrer to the replication, should have overruled the plea, and its decision would have been technically correct.”

While there was no order which, in terms, disposed of the second answer, the effect was the same as if a demurrer thereto had been sustained, for the company was deprived of all right to rely upon it as a defense. That defense is that the acts complained of were done and completed more than two years before this suit was brought; and the real question before us is whether that defense is sufficient.

Section 12 of the general act of 1852, relating to corporations, was amended in 1857. 54 Ohio L. 133; 4 Cur-wen, 2954; Rev. Stats., § 3283. That act, as amended, provides, among other things, that a railroad company, desiring to occupy with its track or tracks any street in a. city, may agree with the officers of such municipal corporation having charge of the street, “ upon the manner and upon the terms and conditions upon which the same may be used and occupied. . . . Provided, that every railroad company laying down any such track or tracks, upon any such public street, . . . shall be responsible for injuries done to private property by such location, lying upon or near to such public ground, which may be recovered by civil action brought by the owner or owners, at any time within two years from the completion of such track or tracks.”

The objection to the bar under that section, which existed in the cases of Lawrence Railroad Co. against Cobb and Williams, ante, 94, 168, does not exist in this case, for the tracks were laid by the plaintiff in error on Railroad street, under an agreement with the corporate authorities of the city. The premises are “ near to ” that street; and it is difficult to see why the case is not within the statutory provision.

But it is said that, according to the law as settled in this state, Mrs. Mowatt had a right of action against the company for such injury to her property independent of the provisions of section 12; that for such injury the limitation is four years (Civil Code of 1853, § 15; Rev. 'Stat., § 4982); that this action is not prosecuted under section 12, as amended in 1857, but to enforce the common-law right; and attention is called to the fact that section 8 of the civil code of 1853 is in the alternative, the section providing that “ civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action may be commenced accordingly.”

Where authority is conferred to perform an act which the public interest demands, may is generally regarded as imperative. Whether it is to be so -read in another case depends upon a fair construction of the statute. In providing a code of laws, the legislature intended it should be so construed that every part should have effect. It was within the province of the legislature to fix two years as the limitation for such injuries as are complained of in this ease, and four years as the limitation for other injuries, though of a kindred character. The intention of the legislature, as derived from all that it has said on the subject, is what we should endeavor to ascertain; and where the language admits of a reasonable construction, it would be a grave mistake to so construe it as to lead to absurd consequences. It could never have been intended that a party .sustaining the injury complained of in this case might have an election, whether the action should be governed by the limitation of two years or four years. The statement of the proposition is a refutation of it. See Rev. Stat., § 4976. The limitation of two years governs. The second answer is, therefore, sufficient, and the court erred in depriving the company of the benefit of it.

We do not find it necessary to express any opinion upon the question whether or not the matters set up in the reply are sufficient to constitute an estoppel.

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

Judgment reversed.


author: McIlvaine, J.

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    The City of Cincinnati v. Brachman et al.
    1. In an action to recover the purchase money of real estate, the right of the vendee, under section 557 of the Code, as amended April 18, 1870 (67 Ohio L. 116), to make any person claiming an adverse interest a party, exists only where there has been a breach of the covenants of his deed.
    2. Where a deed of conveyance describes the lands intended to be conveyed as extending to the .center of a street “ as io be extended,” and refers to a plat on which the street is traced, the grant is subject to the street, and the subsequent use of such street as a public highway does not constitute a breach of covenants against incumbrances or of general warranty.
    Error to tbe Superior Court of Cincinnati.
    The original action was brought by Henry Brachman against John H. Diehl and others, to foreclose a mortgage executed by said Diehl upon a certain lot of ground in the city of Cincinnati, and described therein as follows, to wit: “ That certain lot of ground in Cincinnati known as lot. No. two (2), on a plat of partition between Ross, Gregory and others, recorded in plat book 1, page 800, Hamilton county records, commencing on the west side of Harriet,, at the center of Catharine street, as to be extended northwardly along the west line of Harriet street one hundred and twelve and a half (112J) feet; thence westwardly, on a line' parallel with Catharine street, as to be extended eighty (80) feet; thence southwardly, on a line parallel with Harriet street, one hundred and twelve and a half (112J) feet, to-the center of Catharine street, as to be extended thence-eighty (80) feet to the west line of Harriet street, the place of beginning.”
    The defendant, Diehl, made defense on the ground that the mortgage debt was a part of the purchase money on a-, sale of the same property by Brachman to him, and which-had been conveyed to him by Brachman by deed, containing the same description of the property, and covenants against incumbrances and of title. And that a portion of the premises so conveyed to him was within the limits of a public street, which the city of Cincinnati, by virtue of a title paramount to the defendant’s, had taken possession of to the exclusion of the defendant, whereby the covenants of the plaintiff contained in said deed had been broken. The defendant, Diehl, prayed that the city of Cincinnati might be made a party to the suit, and that the damages resulting to him from the breach of the plaintiff’s covenants might be counterclaimed against the balance due on said mortgage. The city was made a party, but sought to be dismissed by demurrer and by motion, which wore overruled.
    Among other things, the following facts appear in the record: As early as 1845, the premises described in the petition were owned in common, as part of a larger tract of •land, by the parties to the following agreement:
    “ Whereas, Ezekiel Ross, Moses Brooks, and Joseph L. Morris lately purchased of Daniel II. Horne the undivided half of a tract of land on the north side of Eighth street, bounded on the west by Millcreek, etc.; and whereas, N. Longworth owns the other half of said tract; now, it is agreed by the parties that Eighth street is to be continued west, and thirty feet of it to come off of the south side of said tract, and that Kemble street shall be laid out parallel ■to Eighth street, 60 feet wide, and 202 feet from Eighth street; and that Richmond street shall be laid out, 60 feet •wide, 213 feet north of and parallel with Kemble street; •and that Catharine street shall be, when laid out, 60 feet wide, parallel to Richmond street, and 244 feet north of it; and that Horne street shall be extended, the same width it is, from the river to the canal, until it strikes Millcreek.
    “ It is further agreed, that said Longworth, and Ross, Brooks, and Morris divide so much of said tract as lies west of Horne street, and between Eighth and Richmond streets, as follows: Said Longworth takes the strip of 202 .feet wide, .running from Horne street west to the middle of Mill creek, between Eighth and Kemble streets, and is to give to the other party $50 for this choice. And the said Ross, Brooks, and Morris are to take, in lieu thereof, a strip running from Horne street west to the middle of Mill creek, being 213 feet wide, between Kemble and Richmond streets, Cincinnati. “ N. Longworth,
    “ M. Brooks,
    “ Jos. L. Morris,'

      June 9,1845. “ Ezekiel Ross.”
    This agreement, however, was not executed by the parties previous to 1854, when Alexander TI. McGnffey, who had succeeded to the rights of Ezekiel Ross, in trust, etc., filed his petition in equity for the partition of said lands, and for the specific performance of -said agreement. Such proceedings were therefore had in said case, all the parties in interest being before the court, that on the 30th of June, 1855, among other things, it was ordered:
    “ Wherefore, and to the end that partition may be made, and the share of said plaintiff set apart to him in severalty, the court ordered that the sheriff of Hamilton county, by the oaths of George P. Terrence, William Price, and John H. Gerard, three judicious and disinterested freeholders of the vicinity, cause to be set off and divided to the plaintiff his said share and proportion of said tract of land first hereinabove described; and that in making said partition they be governed by the following rules:

      First. They shall lay off the said Horne, Eighth, Kemble, Richmond, and Catharine streets in said tract, as provided in said contract between Longworth, Brooks, Ross, and Morris.
    “ Second. They shall set apart and divide to said plaintiff the equal undivided one-sixth part of said tract, subject to said streets; except so much thereof as lies west of Horne street, and between Eighth and Richmond streets.
    “ Third. They shall set off and divide to the said plaintiff the equal undivided one-third part of that portion of said tract which lies west of Horne street, and between Kemble and Richmond streets; excepting the lot above described as conveyed to Mullins, at the corner of Horne and Kemble streets, twenty feet in front on Horne, by eighty feet on Kemble street.
    “ Fourth. When they shall have thus set apart and divided to the plaintiff his share of said tract, they shall, out of the said share thus set apart and divided, and subject to said streets, set apart and divide to Edgar M. Gregory, as, and for his share and proportion of the tract hereinabove described, three and one-half acres of land.
    “ Fifth. In case said tract can not be divided without a manifest injury to the value thereof, they shall subdivide the same into lots, as they may deem to the best advantage, and return to the court a iust valuation thereof, by lots and in bulb.”
    The commissioners, among other things, reported as follows :
    “ After laying off Horne street, Eighth street, Kemble street, Richmond street, and Catharine street, through the tract of land described in said order, as provided in the contract between Longworth, Brooks, Ross, and Morris, they set apart and divided to the plaintiff, as his share of the property to be partitioned, subject to the rights of Edgar M. Gregory, under deed from E. Ross, and subject to said streets, lots marked and designated on the accompanying plat by the numbers 1, 2, 13, 14, 15, 21, 22, 23, 24, 37, 38, 41, 42, 47, 48, 50, and 51.
    “And having thus set apart and divided to the plaintiff the entire share of said property to which he was entitled prior to the conveyance by Ezekial Ross to Edgar M. Gregory, they then set apart and divided, and subject to said streets, set apart to Edgar M. Gregory his three and one-half acres of land, in the following described lots as numbered and designated in the accompanying plat (hereinabove referred to), viz: 1, 14, 22, 24, 37, 41, 48, and 51, leaving to the plaintiff as his separate share of said property, subject to said streets. And after setting off the three and one-half acres, conveyed by Ezekial Ross to Edgar M. Gregory,, the following described lots, which lots we have set apart, and do hereby set apart and partition to the plaintiff, to be held by him in severalty, to wit, lot numbered two (2) on the plat hereto annexed, the same being described as follows : Beginning on the West side of Harriet street, at the center of Catharine street, as to be extended westwardly in accordance with the agreement referred to in the order of partition, and running thence northwardly along the west line oí Harriet street one hundred and twelve and one-half (112J) feet to the south line of lot No. one (1), as designated on the accompanying plat; thence westwardly at right angles with Harriet street eighty (80) feet; thence southwardly parallel with Harriet street one hundred and twelve and one-half (112J) feet to the center of Catharine street, as to be extended westwardly; thence eastwardly along the center of Catharine street eighty (80) feet to the place of beginning.”
    This report was confirmed by the court, and it was further ordered by the court that “ the map made and returned by the commissioners be recorded in the recorder’s office of Hamilton county.”
    Said lot number 2 was afterward conveyed, by a like description as follows : By Alexander II. McGuffy to Brown Mathewson in January 31, 1859. By Brown Mathewson to Henry N. Wenning, June 6, 1862. By Henry N. Wenning to Henry Brachman, the plaintiff below, May 22,1869. And on same day Brachman conveyed the same, by like description, to John II. Diehl, defendant below, with mortgage to secure the purchase-money in part,, namely, two notes for $2,500 each.
    Many other facts relating to Catharine street, the change of its name to Court street, its acceptance and improvement by the city, its possession by the adjoining proprietors, etc., are set out in the record, but from' the view taken of the case by the court it is not deemed necessary to state them.
    The decree sought to be reversed is as follows :
    “And thereupon the court, proceeding to hear the cause on the pleading, exhibits, and testimony, and the intervention of a jury being waived, and the issues joined being submitted to the court, and the court having heard the testimony offered, and being fully advised in the premises, find that there is due to the plaintiff, Henry Brachman, from said defendant, John H. Diehl, on the note in his petition described, the sum of twenty-five hundred dollars, with interest from May 22, 1869, to the first day of this term, amounting to $604.15, making due on said first day of this term the sum of $3,104.15.
    “And the court further finds that said sum is a lien on the said real estate in plaintiff’s petition described, by virtue of the mortgage in plaintiff’s said petition described; that said mortgage was duly recorded, as stated in said petition in mortgage book 302, page 271, in the office of the recorder of Hamilton county, Ohio ; that said mortgage has become absolute in law, by reason of the said John II. Diehl not paying the same at maturity; and that the plaintiff is entitled to have said mortgage foreclosed, and the said mortgaged premises sold for the payment of the amount above found due, free of the claims of all the parties hereto.
    “And the court further find that the said defendant, the city of Cincinnati, has no valid right, title, or claim, in or to said real estate in the petition described, or in any part thereof, as a public highway, and that the same is not, nor is any part thereof a part of Court street, nor has any part thereof, ever been lawfully dedicated to the public use as a highway, and it is therefore ordered that the cross-petition of said city be, and the same is hereby dismissed, and that said city pay the costs of its co-defendant, Diehl, from the time it was made and became a party to this cause, to the close of the trial herein.”

      Bates, Perkins & Goetz, for the plaintiff in error.

      Mallon & Coffey, for Brachman.

      W. F. Gray and George Hoadly, for Diehl.
   McIlvaine, J.

The plaintiff’ in error was brought into the case below at the instance of the defendant, John H. Diehl, under the supposed authority of section 557 of the code, as amended April 18, 1870 (67 Ohio L. 116), which provides : “ In all actions brought for the recovery of purchase-money of real estate, by vendor against vendee, it shall be competent for such vendee, notwithstanding his continued possession, to set up, by way of counter-claim, any breach of the covenants of title acquired by him from the plaintiff, and to make any and all persons claiming any adverse estate or interest therein parties to the same,” etc.

The action below being for the recovery of purchase-money by the vendor against the vendee, the only authority for making the city of Cincinnati a party, on the ground that it claimed an adverse interest in the estate, and for the purpose of determining such claim, depended upon the fact that there had been a breach of the vendee’s covenants of title. If the city had set up an adverse claim, which, if established, would constitute a breach of the covenant, it may be that it could not resist an inquiry into and a determination of its rights, under the provisions of the statute above quoted. But whore the adverse claim, if established, would not constitute a breach of the covenant, it is quite clear that it can not be determined in invito in an action by the vendor against the vendee for the recovery of purchase-money. Meek v. Breckinridge, 29 Ohio St. 642.

As between the parties to the partition proceeding, which resulted in the laying out of Catharine street (the supposed incumbrance upon the premises described in the petition below), and their privies, the existence of the street .is not open to dispute; and it is equally clear that the premises conveyed by the plaintiff below to the defendant below was subject to all rights which might exist in Catharine street as a public highway. By no fair construction of the terms of these conveyances, taken in connection with the plat to which they refer, aud the proceedings in the partition, to which inquiry is directed, can it be claimed that the vendor, by the terms that he used, and the vendee, by accepting the deed, did not intend to acknowledge and admit that Catharine street was a public street in the city of Cincinnati, and that the premises described' in the deed were transferred subject to that’ easement. This being so, there was neither a failure of nor an incumbrance upon the title intended to be conveyed by the plaintiff below to the defendant, John H. Diehl.

There was, therefore, no error in the j udgment below in favor of the plaintiff on the mortgage.

Rut whether or not the city has committed a wrong against the property of the defendant, Diehl, it ought not to have been compelled to answer for it, or litigate its rights, in that action. The judgment against the city will therefore be reversed, and the action, as against tbe city, dismissed.

Judgment against Diehl affirmed.