text:
    *James Carman et al. v. The Steubenville and Indiana Railroad Company.
    •A railroad company agreed with certain contractors for the construction of a part of their road. Amongst other work provided for, was that of removing, at a stipulated price, solid rock, which, it was said in the contract, “ must be removed by blasting.” In removing such rock, without carelessness on the part of the contractors, a large quantify of fragments was thrown, against the dwelling of an adjoining proprietor, causing an injury; for which he brought an action against the company.

      Held, that the maxim, respondeat superior, does not apply to the case of employer and contractor, where the latter executes an independent employment.
    But whether the owner of real property can escape liability, when such a contractor uses his property so as to become a nuisance to adjoining proprietors — quaere ?

    'That before a case can be made for the application of the principle expressed in this maxim, not only the relation of master and servant, must have existed, but it must appear that the servant, while in the business of the master, has done some act, or omitted some duty, neither directed norr authorized by the master, to the injury of a third person.
    In such case, the master, upon grounds of public policy, is liable for the negligence or carelessness of his servant.
    That, in this case, the contractors had done only what they were authorized by the company to do; and as the company must be held to have assented to-the unlawful act by which the plaintiffs were injured, it was liable as a joint-wrong-doer.
    Error to the court of common pleas of Jefferson county, reserved, in the district court of that county.
    The original action (on the case) was originally brought before a justice of the peace.
    The declaration alleges that plaintiffs are the owners of the premises ; that they were in the possession of their tenant at the time of the injury; and that defendants wrongfully blasted and threw large-quantities of rock, earth, and stones upon and *against the dwelling-house and fences, and broke and injured them. Plea,, general issue. -
    The bill of exceptions shows the proof to be as follows:
    “It was admitted that the plaintiffs held the legal title to the premises mentioned in the declaration, and that they were in the occupancy of one Dennis Connor, their tenant, at the time of the. injury complained of.
    “ That the defendant held the title in fee simple, by conveyance from the plaintiffs, to a strip of land adjoining that of the plaintiffs. above mentioned, on which it had located its railroad.
    “And the plaintiffs, further to maintain the issue on their part,, gave in evidence to the jury the original agreement between the. said defendant and Edward O’Sullivan — a printed copy of the rules and specifications therein referred to — and the original agreement between the said Edward O’Sullivan and Michael English, and. Michael Costello, with its indorsements; copies whereof are severally attached, and marked A, B, and C (see bill of exceptions for exhibits); and also gave evidence tending to prove that the said article of agreement between said English and Costello and O’Sullivan, and the several indorsements thereon, are in the handwriting of J. G-. Morris, the subscribing witness; that said J. G-. Morris then was, and ever since that time has been, the secretary of said railroad company. And that said original agreement last mentioned. has ever since that time been kept by him in the office of said railroad company.
    “ That after the making of the contract last mentioned, the said English and Costello proceeded to employ men to do the grading, bridging, etc., of said section No. 1 of said railroad, and were prosecuting said work under their contract. That the defendant bad ■paid to the said English and Costello several monthly estimates for work done on said section N,o. 1, including the excavation of the ;Solid rock hereinafter mentioned.
    “ That the said English and Costello, and the men in their employment, for the purposes of removing large masses of solid %ock -containing more than.one cubic yard each, which were lying on the ■line of said railroad, blasted them with powder, and thereby threw ■.a large quantity of fragments of rock upon and against a dwelling-.■house and fence situated on the premises of the plaintiff aforesaid, .being in the occupancy of said Connor as aforesaid, and broke and ■injured the said house and fences to the amount of $90; and offered no other testimony tending to show that the persons engaged in the blasting aforesaid, were the servants or agents of the defendant.”
    The defendant was incorporated February 24,1848, and is “ authorized to construct, by double or single track, a railroad from Steuben-ville,” etc. 46 Ohio Stat. 256.
    The contract of O’Sullivan with defendant, contains this provision :
    “ In the performance of the work required by their contract, and ■every part thereof, it is expressly agreed that the said party of the first part (O’Sullivan) shall conform to all instructions, in relation to the work, which may from time to time be received by said party from the chief engineer, or from any engineer having charge ■of the work, and shall, moreover, conform to all the ‘rules and specifications,’ established in relation to the construction of the road,” etc.
    “Bules and specifications,” page 7, provide, “ 6. The entire work on the road shall be done in a neat, substantial, and workmanlike manner, agreeably to lines, levels, marks, and plans established, or which may from time to time be established, by the engineer in iin charge of the road.”
    Page 2. “1. By solid rock, will be understood all rock found in masses containing more than one cubic yard, and which must be removed by blasting.”
    Page 9. “12. If any contractor, or any person in his employ, •shall at any time have performed, or be in the act of performing, any part of the work on his job, or under his contract, contrary to the ‘rules and specifications,’ established, or to instructions *given by the engineer, in relation to the manner of performing the work, any engineer shall have full authority to order all further prosecutions of said work to be stopped, which order the contractor or any person employed by him shall be bound to •obey.”
    Page 10. “ 16. All building-stone, or other materials obtained from tbe excavation, shall be considered the property of the railroad company.”
    The court of common pleas ordered a nonsuit, and this is the •error assigned.

      Miller & Sherrard, for plaintiff in error:
    The rule of respondeat superior applies. “ It is founded on the power which the superior has a right to exercise, and which, for the prevention of injuries to third persons, he is bound to exercise ■over the acts of his subordinates.” Blake v. Ferris, 1 Selden, 48 ; Milligan v. Wedge, 12 Adol. & El. 737; Lougher v. Pointer, 5 Barn. & Cres. 560; Quarman v. Burnett, 6 M. & W. 497; Rapson v. Cubitt, 9 M. & W. 70. The most that can be adversely claimed from these •cases is, that where a contract is made for the performance of a particular service, which is particularly specified, constituting what Blake v. Perris denominates an independent employment, the relation of master and servant does not arise, unless, by the terms of the contract, control over the person employed is reserved by the employer.
    If the right is founded, as stated in Blake v. Ferris, it follows, that if the defendant reserved the right to exercise such a power, its liability is fixed, whether any attempt to exercise it was ever made or not. In this argument it is assumed, that so far as this inquiry is concerned, English and Costello and their employees •stand in precisely the same situation as O’Sullivan and men employed by him would have done, without the contract between the latter and English and Costello, and that the contract between them amounted simply to an assignment by O’Sullivan to English *and Costello, with the consent of the company. The assent of the company to the substitution, arises from the facts in evidence, viz. :■ That their secretary wrote it; they always retained possession of it; they paid the monthly estimates to English and Costello, and evidently retained out of the three monthly estimates the fifty dollars, agreed to be left there for O’Sullivan. The original contract, and the rules and specifications are referred to, and control all the parties. (See sections 7, 8, 9,10,11,12, etc., of rules and specifications, and the provision of the contract, beginning, “ In the performance of this contract.”) The defendant reserved adequate-power, and the right to exercise it to prevent all injury to the plaintiffs.
    There is no reason why a railroad company shall be permitted-to fill the country with a set of irresponsible men, and by calling-them “ contractors,” claim to be exempt from liability for injuries, to those persons whose misfortune it would be, to have-a railroad located in their vicinity, when they themselves are unwilling to trust them in the performance of their contracts, but subject them to the control and direction of their engineers, constantly, and in every particular. They are not what the cases denominate “contractors,” while subject to the control and direction of the employer, but merely servants. (See report of a late Illinois case, Jan. No. of Livingston’s Law Mag. for 1854, page 53.)
    In Hobbitt v. N. W. Railway Co., 6 Railway Cases, 189, therm was no obligation to conform to such instructions as might from time to time be given by the engineer in charge; no right reserved to stop the further prosecution of the work in case such instructions were not complied with; no right to dismiss laborers for breach of discipline, which must be understood to embrace disobedience of the orders of the engineer in charge.
    The Steubenville and Indiana railroad company might, after ordering a locomotive of a given description, send its engineers into the manufactory to interfere with, and undertake to control, the-operations of the mechanics employed about the building of it, with the same propriety, as the Northwestern railway ^company, or its engineers, might interfere with the operations of the men in Crawshaw’s employ. Upon this point, which is the test, there is no analogy to the present case.
    In the case under consideration, the right to exercise this power-is expressly reserved; in Hobbitt’s case no such right existed.

      The point we make is not decided in Allen v. Hayward, 4 Railway Cases, 104. If the removal of the embankment had been, part of the work not particularly described and specified, but had. been executed in the manner directed by the surveyor, then the-decision would have been in point.
    In these cases, the defendants reserved no control whatever over the contractors in respect to the manner in which the work should be done.
    The effect such a reservation would have, is strongly intimated by C. T. Denman, in the latter case to be, that whatever the power-[control] is, there is the liability, but it was unnecessary to decide that point, as it did not arise in the case.
    These cases, obviously qualifying Bush v. Steinman, seem to establish the i’ule that under such circumstances, a party may be allowed to discharge himself from that legal intendment [of control]' by contract, and hence the liability of the party is not established, until it is shown that he had such control over the person who-committed the injury.
    In Blake v. Ferris, supra, this qualification of Bush v. Steinmanis acknowledged, and the judgment of the court rests upon the-proposition, that the defendant had no control whatever over Gibbons, the person who furnished materials and was constructing the sewer under a contract made with Butler, whereby he agreed to-furnish materials and construct in every respect according to the specifications of the street commissioners which were attached to-the agreement.
    The proof in the case at bar, bears no resemblance to that presented in the cases cited.
    Plaintiffs also refer the court to Hay v. The Cohoes Co., 2 Comst. 160 ; Tremain v. The same Co., Ib. 163 ; *as to the liability of the defendant generally, and as to the allegations and proof of negligence.

      Thomas Means, on the same §ide:
    I. If the company would have been liable for the acts of O’Sullivan, it would be liable for the acts of Costello and English. They wore in every sense his agents or servants, and the principle of respondeat superior would apply as between them. Story on Agency,, sec. 308 ; 1 Saund. Pl. & Ev. 349 ; 3 Kent, 290 ; Bush v. Steinman, 1 Bos. & Pul. 404; Randleson v. Murray, 8 Ad. & Ell. 109.

      II. The relations between the company and Costello and English were the same they would have been had not O’Sullivan intervened. The sub-contract was written by the secretary of the railroad company, was deposited in the railroad, office, and to Costello and English directly, as to those entitled to receive, the proceeds of their labor was paid. The contract of O’Sullivan was not canceled, so far as appears, but was retained, and he was held liable to secure its completion only.
    III. The defendant having been “ authorized to construct a railroad,” has no right to dispute that power, so as to escape responsibility for the consequences, resulting from its exercise. Clark v. Corporation of Washington, 12 Wheat. 40.
    IY. All corporations act by agencies, and can act in no other way. Those parties who are employed by the authorities of a corporation to do that which a corporation is authorized to do, are its agents. Such' “ agencies are composed of men, who may be influenced by reprehensible motives, or tempted to do acts not warranted by law.” “ If an individual is injured, it is right he should have redress against all upon whose account the injury was perpetrated.” Corporations have been held liable for “malicious acts.” Goodloe v. Cincinnati, 4 Ohio, 500.
    These principles apply to railroad companies. Stevens v. Little Miami R. R. Co., 20 Ohio, 415.
    *V. The language of Chief Justice Caldwell in the case last cited is a felicitous compendium of the whole law upon the subject.
    YI. Is there any “ good reason ”,why the case at bar should be “ taken without ” these principles ? The railroad company has done that which it is “ authorized” to do, by the only known means of doing it, i. e., by procuring individuals. It. has retained the most despotic control over them, in every stage of their progress, and in .all departments of their work. It has paid for and enjoyed the benefit of the very labor whose'results the plaintiffs have sought redress for. The plaintiffs have “ had no control or management of the thing that produced ” these results, but on the contrary, they were under the sole control and direction of the defendant. I apprehend that as a case of first impression, no difficulty could be experienced in deciding this question.
    VII. In the state of Vermont, the Supreme Court has decided in accordance with the foregoing principles, that a railroad contractor is %an agent of the corporation, in doing those things which the railroad company is “ authorized ” to do. Vermont Central Railroad Co. v. Baxter, 22 Vermont; 7 Washb. 365; also the Supreme Court of Illinois, in a case (Lesher v. Wabash Canal Co.) not yet reported, except in Livingston’s Law Magazine for the current year (January No.), p. 53. These cases recognize the relation of principal and agent, and master and servant, to exist between a corporation and a contractor, and apply i-n the particular cases, the rules of liability incident to these relations. Vid. also Semple v. London & Birm. R. W. Co., 1 R. W. Cases, 480. These cases fall directly within the purview of the principles enunciated in the cases of Stevens v. L. M. R. R. Co., and Clark v. Wash. City.
    VIII. It can not be claimed that the act here complained of is not the ordinary and direct result of that which the contractor was authorized to do. It is not a case of negligence, dut of ordinary necessity. The company is just as liable as though *they had ■ordered, and the contractors had bound themselves to make, an excavation by reason of which the house and fence had sunk or fallen in.
    IX. Is there anything in the character of the duties, obligations, or compensation of a contractor, so peculiar that he should not be regarded as an agent of his employer, as fully, and to all intents, as the engineer under whose direction, and superintendence, and control, he does his labor ? The name by which he is called, can not surely affect the relation, if it actually exist. Vid., 2 Exchequer, 415.
    ' X. Corporations have been held liable, on account of injuries resulting to innocent persons, by reason of the misconstruction of works done for their benefit, and at their expense, though executed by parties not under their appointment or control, on the ground that parties should not be permitted to set in motion a power, without being held responsible for its conduct and management. Bailey v. New York, 2 Denio, 433. The same principle has been applied to other cases. Bush v. Steinman, 1 Bos. & Pul. 404; Stone v. Cartwright, 6 Term, 411; Fletcher v. Braddick, 5 Bos. & Pul. 182 ; Rich v. Basterfield, 4 C. B. 783.
    XI. In cases where railroad companies have undertaken to do anything connected with the transportation of goods, and sub-let the porterage of the same by contract, they are held liable for the misconduct of all the persons employed, and the use of the names “ contractor,” “ snb-contractor,” or “ agent;” makes no difference.. Machu v. London & S. W. Railway Co., 2 Exchequer, 415.
    XII. The counsel of the company will rely, as they did in court below, on the case of Hobbitt v. N. W. Railway Co., 6 Railway Cases, 189; also, 4 Exchequer, 244, and of Allen v. Hayward, 4 Railway Cases, 104. These cases are distinguishable from the case at bar, and could have been decided, perhaps, without affecting its decision. It must be confessed, however, that the courts in deciding these cases, rest them upon principles, that do support the claim of the defendant in this case. They ^maintain the principle that a railroad contractor is in no sense the agent of the railroad company, and that to him alone must the sufferer look, in the event of injury. But after what has been decided in this state, and in the courts of other states, these cases will not be held to be law. They conflict with the cases cited from the Supreme Court of Yermont and of Illinois. They conflict with the case of Bailey v. New York, 2 Denio, 433, and overrule the very case, that of Bush v. Steinman, 1 Bos. & Pul. 404, upon which that case proceeds, and which is by it recognized as law. They are entirely adverse to every principle upon which the Supreme Court of this state rests-the decision in Stevens v. L. M. R. R. Co., in 20 Ohio.
    XIII. The whole body of the law as applied to corporations, has been much confused, arising from the ancient ideas of courts and parliaments concerning the character of.corporations. They were “ artificial persons,” and not real persons, and were said to have no souls. They could only act by common seal; being an “ invisible-body,” as Blackstonesays, “ it can not manifest its intention, by any personal act or oral discourse.” Comm. Bk. I., 475. It was questioned whether they could sue in assumpsit (1 Camp. 466), and; denied that they could be sued, in that form of action. One by one-these ideas have vanished, and slowly, but steadily, the laws that regulate the conduct of individuals, have been applied to them. They can incur liabilities by the same means as individuals, and are-equally liable with individuals on contracts, and for torts.
    XIY. An individual would, undoubtedly, have a right to construct a railroad on his own land. He would equally as well have the right to “remove rock by blasting.” But if injury resulted to adjoining proprietors, would he not be liable ? Hay v. Cohoes Co., 2 Com. 159. If so, could he, by farming out the job, “ contracting,” impose the liability upon “irresponsible” persons, and so effectu.-ally screen himself • behind the contract as to escape liability? Would not that be such a use of his own, *that would result in the injury of others, as the policy of the law forbids ?
    In this respect, there is no distinction to be taken in favor of a corporation. Railroad contractors are generally transient persons, .and often irresponsible when they are accessible. Their conduct is .regulated by these considerations. They are careless and often .reckless of the injuries they may commit in the course of their business. They are controlled and controllable only by the railroad company who employ them, who control their funds, who retain over them an almost unqualified restraint, and who can discharge .them altogether on the most frivolous pretexts.

      R. S. Moodey, for defendant in error:
    I. The question whether one is the servant of another, is a question that can only be decided by ascertaining and construing the •contract between them, if any such exists; and it will be found •upon a perusal of the authorities, which are almost all cited by the plaintiffs’ counsel, that the difficulty has been, with judges who have ■considered those cases, to determine if the contract created the relation of master and servant, or whether there was an independent •contract to perform work, by which the contractor was left at liberty to produce the result he had contracted for, by the use of .means which were left to his own discretion.
    On the one hand, the maxim qui faeit per odium facit per se applies, and the master will be held responsible for the negligence of his servant, as though it were his own act. On the other hand, the ■act of the contractor being one in respect to which he is independent, and which is, by his contract, placed beyond the control of the •other party, the contractor is responsible for it.
    Were not the contract in the present case before us, it would be easy to imagine a great variety of contracts by which labor was .agreed to be performed, where the contractor, in respect to some parts of its performance, would be so completely under the ^control and directions of another as to be a mere servant, while, in respect to the manner of executing other parts of the con■tract, he would be perfectly independent of his employer.
    In such case, the responsibility which a master will incur for the negligence of a servant would not be the rule to apply, if the negligence of the contract or was in the execution of a partof the contract where his discretion in the use of means was beyond the control of the other party to the contract.
    If, by the contract of the railroad company, the contractor might employ gunpowder at his discretion for the purpose of removing rock by blasting, without being controlled by the company, the contractor only is liable, because the injury complained of'is shown by the proof to consist of negligence in the use of the means employed to excavate the rock. It is the negligence of the company, if it was their act or the act of their servant; otherwise, it was the negligence of the contractor, and he only is responsible for it.
    By the contract between the company and their contractor, had the company the power to direct the contractor what means, or agents, or tools he should use to excavate rock ? By the contract, he is to receive a certain price per cubic yard for the excavation of solid rock. .
    There can be no doubt that upon such a contract, the contractor would have an “ independent employment,” and that he might excavate the rock in such a manner as he pleased. But it is claimed that there is a provision in this contract by which, in this and every other part of the contract, the contractor is absolutely subject to. all the directions which may be given him by the company.
    Following section 12 of the specifications quoted by Mr. Miller, section 13 provides: “In case the contractor shall neglect or refuse: to comply . . . with the instructions which may from time to time be given by the principal or assistant engineer in charge of the work, . . . the chief engineer *shall have full power to determine that his contract is forfeited and abandoned, and such determination shall absolve the railroad company from every obligation imposed on them as a party to the contract.”
    It is for the purposes of this case, claimed by Mr. Miller, that these “instructions” in relation to the manner of performing the work which the engineer may give, and which the contractor has agreed to obey, enable the company to determine what tools shall be used, by what kind of physical agency excavation, either of earth or rock, shall be made, and to give to the engineer the absolute power to choose even who shall be emplowed as laborers upon the work.
    It is a construction of the contract which makes the company supreme in everything; which makes the written agreement, in all-' its parts, saving perhaps the prices to be paid, a mere nullity. By such construction of the 11th, 12th, and 13th specifications, they are made to override the whole contract. The contractor has said by it: “I agree to excavate earth and rock, and build bridges and masonry for your con^any, at a certain price per cubic yard for earth, a certain price for stone, and for masonry, but you may direct me and control me in all the physical agents I may use in doing it.”
    If the engineer directs him to buy powder, he must buy it; to* provide carts and horses, they must be provided; or, if not provided according to directions, the company are to be absolved from every obligation imposed on them by the contract.
    The contractor is engaged in making a large excavation of earth, for which ho gets ten cents per yard. It has to be removed to an embankment half a mile distant, for which removal he receives, by his contract, ten cents per yard more. He is diligently engaged in removing the earth with horses, carts, and wagons. The engineer takes a whim that it shall be carried in wheelbarrows; he gives “ instructions ” accordingly. Or, a cut of solid rock is to be removed, for which the contractor is to ^receive fifty cents per cubic yard. He is able to do so at this price by blasting with powder. But the engineer gives him “ instructions ” that ,he shall remove the solid rock by picking with mattocks, or by splitting with wedges.
    Mr. Miller claims that all these instructions the contractor is bound to obey, on penalty of having his contract forfeited, and the railroad company absolved from every obligation imposed on them, as a party to the contract. This, it seems to me, is the test of his whole argument; for this branch of it goes upon the hypothesis that the engineer had the power to control the contractor in the use of powder to blast the rock; that this power made the contractor, in respect to this act, the servant of the company, and not independent in the choice of the means which he might use in effecting the result he had contracted for.
    I construe the power which is reserved in this contract by the company, differently. There are three phrases which the counsel has caused to bo printed in capital letters, lest they might bo overlooked : “ Instructions in relation to the work; ” “ Instructions given by the engineer in relation to the manner of performing the work;” “The contractor shall be bound to obey.” Upon these sentences hangs all the law. 1 do think that nothing but “ the extreme necessity of argumentation ” could ever have called from the learned counsel an opinion that these words would bear so unconscionable a construction as to make these contractors what he now seems to claim they are. It seems to me that sufficient meaning is given to them if they are held to reserve only that ordinary power which is usually reserved in all contracts with builders, or with railroad contractors — a power which is generally expressed in substantially the same language — and which has never had claimed for it that latitude of construction which is now given to it.
    When a house-builder takes a contract to build a house and furnish materials, a clause in the contract that he should obey all instructions of an architect in relation to the manner of performing *the work, would be understood by everybody to be a contract which made the architect an arbiter, to detei’mine whether the quality of material, or the style of the workmanship, was in conformity with the contract or its specifications.
    A similar power, and none other, is, as I think, the only one reserved in this contract by the railroad company. Their engineer is properly made the arbiter, by this contract, to decide between the company and the contractor, whether the manner in which the work is performed is in accordance with the contract; and to hold that this gave him a power to direct the particular instruments, or the means or agents which the contractor should employ to effect that result, would be as unreasonable as to suppose that the architect might direct and control the mechanical tools by which the house-builder should execute his design.
    In either case, if the result required by the architect or the engineer is attained, it is left to the contractor to choose his own means in effecting that result. This stipulation in the contract, signifies only that the contractor shall be controlled by the judgment of the engineer in any question of the manner in which the work is required, by the contract, to be performed. The difference is a distinction between the agency by which a particular manner or style of performance is attained, and the manner or style of work itself. The last the engineer may control: the first is left to the independent choice of the contractor.
   Ranney, J.

We have only to consider whether the evidence given by the plaintiffs, in any degree tended to prove all the facts necessary to support the action. If it did, the court below erred in taking it from the jury, and ordering a nonsuit. That they were entitled to recover of some one, a compensation for the injuries done to their property, is most unquestionable; and that the defendants are liable, if, under the same circumstances, a private individual would be, is now too well settled, and has been too often affirmed by this court, to require authorities to be cited, or reasons to be assigned.

*The plaintiffs and defendants were adjoining proprietors of real estate. While the business of blasting rock was being prosecuted, upon the defendant’s premises, for the purpose of constructing their road, a large quantity of fragments was thrown against a dwelling-house of the plaintiffs, by which it was injured. It appeared that this blasting was done by certain contractors, who had agreed with the company to construct this part of their road.

The plaintiffs insist, that the defendants are liable for the wrongful acts of these contractors, upon the principle respondeat superior, if not from the general obligations arising from the relation they •sustained to each other, because of the power of control reserved to the company by the terms of the agreement.

On the other hand, it is claimed that this principle has no application to the relation existing between an employer and independent contractor; and that nothing contained in this agreement •shows the relation to have been anything else.

Counsel, with much industry aud research, have presented us with the numerous cases, decided in the English and American •courts, bearing upon this subject. If the case depended upon the proper application of this principle, it might be attended with considerable difficulty. The late cases in both countries have made •it very plain, that there can be no liability where the relation of master and servant, or principal and agent, does not exist; and, consequently, none where the relation is that of employer and contractor. In the one ease, the principal selects the servant or agent with a view to his skill and care, and not only retains the -control over all his operations, but, also, has the power to dismiss ;him at any time for misconduct. In the other, the contractor assumes this position, leaving the employer no control over the work, or the persons by whom it is executed, but simply the right ■to require the thing produced, or the result attained, to be such as ■the contract has provided for. But, although as between the parties, the relation may be that of ^employer and contractor; still, if the employer retains the power of superintending the work, and directing it to be done in such manner as he sees fit, the decided weight of authority is, that it becomes his duty to see it done in a careful and skillful manner; and if he fails in this, he fails to perform his duty to third persons, and is liable for the injuries they may sustain. In general, however, it is certainly true, that the employer is not liable for the negligent or unskillful conduct of the contractor, or any one employed'by him, while executing an independent employment.

But after all this the question still remains, when does this maxim, and the limitation to its operation, cease to furnish the governing principle? A principle as old as civilization itself, and no less of morals than of law, requires of every one to so use his own property as not to injure others. This devolves upon every owner of real estate the affirmative duty of preventing it from becoming a nuisance to adjoining proprietors. Whether he can divest himself of this obligation consistently with the full operation of this important principle, while he retains the possession and control of the property, so as to escape liability when he suffers it to be occupied by a contractor who erects a nuisance upon it to the injury of others, is a question that I am very far from being prepared to answer in the affirmative. And so are the English courts. In most of the late cases decided in that country, questioning, and finally overruling to considerable extent, the early case of Bush v. Steinman, 1 Bos. & Pul. 404, followed by Sly v. Edgely, 6 Esp. 6, this distinction is alluded to, and most particularly and pointedly, by Park B. in Knight v. Fox, 5 Exch. 721; and by Rolfe B. in Reedie v. The London and Northwestern Railway Co., 4 Exch. 256; where he says, the liability of the owner in such case “must be founded on the principle that he has not taken due care to prevent the doing of acts which it was his duty to prevent, whether done by servants or others. If, for instance, a person occupying a house or a field should permit another to carry on there a noxious trade so as to *be a nuisance to the neighbors, it may be that he would be responsible, though the acts complained of were neither his acts nor those of his servants. He would have violated the rule of law, sic utere tuo ut alienum non Icedas.”

But it is quite unnecessary to pursue this view of the subject further, as it is evident that the in the maxim, respondeat superior, either in its larger or more restricted' sense, can have no application to the present case.

Before a case can be made calling for an application of that principle, it must appear, not only that the relation of master and servant existed, but that the servant, without the assent of the master, has-done some act, or omitted some duty, while executing the lawful commands of the master, to the injury of a third person. In such case, public policy and the safety of others require the master to warrant the fidelity and good conduct of the servant, and, although faultless himself, make him liable for the unlawful conduct of ther servant. But when the servant has done only that which the master commanded or permitted, the latter is chargeable as a joint participator in the wrong, and made liable for his own unlawful conduct, in the same manner as though no such relation had existed.. As was said by Erie, J., in Ellis v. The Sheffield Gas Consumers’ Co., 2 El. & Bl. 767, where the' relation was that of employer and contractor for the performance of illegal stipulations: “ The act of the person who is here called the contractor was the act done by him under the special directions of the defendants; and that appears to me to distinguish this case from those in which the employer was held not liable for the act done by the contractor, not in accordance with his contract.” A careful attention to the evidence given will show this case to have been of that character.

By the terms of the agreement between the company and the contractors, amongst other work to be performed by the latter, was-that of removing solid rock at a stipulated price per cubic yard. By the rules and specifications made a part of the contract, *« solid rock” is defined to be “all rock found in masses containing more than one cubic yard, and which must be removed by blasting.” And the bill of exceptions informs us that, in blasting “ for the purpose of removing large masses of solid rock, containing more than one cubic yard each,” fragments were thrown against the plaintiff's-house, causing the injuries complained of.

No proof was given that the work was not prosecuted with care and prudence, or that the injury was not the unavoidable consequence of blasting in that particular locality. Now, 'it seems very clear, that the contractors did nothing that the defendants had not authorized to be done. But the defendants had no right to use their own lands, or authorize others to use them, so as to interfere with-the undisturbed and lawful of lands-As said by the court in Hay v. The Cohoes Company, 2 Com. 159 : A man may prosecute such business as he chooses upon his premises, but he can not erect a nuisance to the annoyance of the adjoining proprietor, even for the purpose of a lawful trade. He may ■excavate a canal, but he can not cast the dirt pr stones upon the land of his neighbor, either by human agency or the force of gun-powder. If he can not construct the work without the adojotion of such means, he must abandon that mode of using his property, or be held responsible for all damages resulting therefrom. He will not be permitted to accomplish a legal object in an unlawful manner.”

We do not construe the agreement as absolutely binding the contractors to remove the rock in this particular manner. ^ They might, •undoubtedly, have adopted other and more exjDensive modes of doing it, without affording the defendants any cause of complaint. But nothing of that kind was contemplated. The defendants put •'them in possession, with the right to remove rock, wherever found, in the manner mentioned in the contract; and having enjoyed the benefits of this cheaper mode of doing the work, they can not escape the responsibilities attending it. If *they reserve no power to prevent injury, where blasting could not be safely employed, they were clearly in fault in giving so unrestricted a license. If they had the power, it is almost equally clear they should have •exerted it.

Being of the opinion that the evidence, given upon the trial, tended to prove the concurrence of the defendants in all the acts performed by the contractors; and believing the whole law of the ■case to resolve itself into the elementary proposition that whoever .aids, assists, or procures another to commit a trespass (no matter with what motive, or whether intended or not), is liable as a principal to compensate for the injury done, we are brought to the ■conclusion, that the court of common pleas erred in nonsuiting the plaintiffs, and for that cause the judgment is reversed, and the case ¡remanded for further proceedings.

Thurman, C. J., dissented.


source: Caselaw Access Project

author: Thurman, C. J.

license: Public Domain

text:
    Ohio, for the use of Story, v. Jennings et al.
    A seizure of the goods of A, under color of process against B, is official misconduct in the officer making the seizure; and is a breach of the condition-■ of his offioial bond, where that is, that he will faithfully perform the duties of his office. The reason for this is, that the trespass is not the act of a mere individual, but it is perpetrated colore officii.

    For such breach, an action on the bond lies against the officer and his sureties.
    Error to the district court of Erie county.
    The original action was debt,-upon a constable’s bond, against the - obligors, to wit, the constable and his sureties. The declaration was as follows:

      Court of Common Pleas of Erie County, of the Termof May, A. D. 1849.
    “ The State of Ohio, Erie County, ss:

    “ The State of Ohio, who prosecutes this action for the use of John Story, complains of Roswell J. Jennings, Alexander H. Barber, and Robert Cassidy, in a plea of debt. Eor that whereas the said Roswell J. Jennings was, to wit, on the 12th day of January, A. n. 1849, legally appointed by the trustees of Portland township, as a constable in and for said township, to fill the vacancy occasioned by the resignation of T. C. Barker, as by the statute in such case is made and provided; and said Jennings, so being appointed as aforesaid, his said office of constable would not expire until the 2d.day of April, a. d. 1849. And afterward, to wit, on the 12th day of January, a. d. 1849, at said Erie county, the defendants, by their-certain writing obligatory, sealed by their seals, and now to the court here shown, acknowledged themselves to be held and firmly bound unto the said State of Ohio in the sum of one thousand dollars, to the payment of which, to the plaintiff, they then and there bound themselves; which said wilting obligatory was, and is, subject to a certain condition thereunder written, whereby, after reciting to the effect following, that whereas the said R. J. Jennings had been duly appointed constable, in and for the township of Portland, in the county of Erie, and State of Ohio, by the trustees of said township of Portland, to fill the vacancy occasioned by the resignation of T. C. Barker, late constable : Now, therefore, if the said should over all that might come into his bands by virtue of his said office, and should diligently and faithfully perform all the duties of said office of constable, then said ob-. ligation was to be void, otherwise to be and remain in full force. And the said state further avers, that John W. Beatty and Philander Gregg (Eollin Hubbard, who was also a trustee, being absent from town), being then and there trustees of the said township of Portland, did then and there approve of the said Alexander H. Bar-her and Eobert Cassidy, as sureties of the said *Eoswell J. Jennings, in the premises, and of the amount of said writing obligatory ; and thereupon the said writing obligatory, with the condition aforesaid thereunder writtten, was' delivered by the defendants to, and received by the State of Ohio, as the official bond of ■the said Eoswell J. Jennings, with the said Alexander H. Barber and Eobert Cassidy, his sureties in the premises, and then and there lodged with the clerk of said Portland township. And the said ■State of Ohio further avers, that afterward, to wit, on the 31st day of January, a. d. 1849 (and before the commencement of the suit hereinafter mentioned), at the said county of Erie, one Gershom •Clark caused to be issued from the office of one Z. W. Barker, then ■and there a justice of the peace within and for the said township of Portland, and county of Erie, a certain writ of replevin, directed to the constable of Portland township, sealed with the seal'of said justice of the peace, by which said writ the State of Ohio commanded said constable that, without delay, he cause to be replevied unto said Gershom Clark certain goods and chattels, which one ■Charles Jefferson wrongfully detained, as was said, and also summon the said Charles Jefferson to be and appear before said justice, at his office in said county of Erie, on the 3d day of February, a. d. 1849, at one o’clock, p. m., to answer to the said Gershom Clark, for the wrongful detention of said goods and chattels — damages $25 — and to have then and there the said writ; and which said writ was delivered to the said Eoswell J. Jennings, the constable as aforesaid of said township, to wit, on the 31st day of January, A. d. 1849, at said Erie county, to be executed according to law. And the said state further saith that the said Jennings, so being constable as aforesaid, and having then and there said writ as aforesaid, and to be executed as aforesaid, did not, nor would execute said writ, according to law, or replevy the said goods and chattels, so detained by the said Charles Jefferson as aforesaid, but on the contrary thereof, to wit, on the 31st day of January. A. d. 1849, at said county of Erie, the said Jennings then and *there being constable as aforesaid, carelessly, unfaithfully, ■wrongfully, and unlawfully took from the said John Story certain goods and chattels, to wit, one two-horse wagon, two harnesses, and two horses, which were then and there the property of the said John Story, and of great value, to wit, of the value of two hundred dollars, said Jennings then and there being constable as aforesaid, and acting, as he claimed, by virtue of the said writ of replevin; and the said John Story having then and there, by reason of the misconduct of the said Jennings, constable as aforesaid, sustained great damage, to wit, the damage of two hundred dollars, did afterward, to wit, on the 9th day of February, a. d. 1849, at said Erie county, commence and prosecute an action of trespass against the said Eoswell J. Jennings, before one John M: Brown, a justice of the peace within and for the said township of Portland, to recover his reasonable damages, sustained.by him by reason of the said Eoswell J. .Jennings’ misconduct, in his said office of constable, in taking from him, wrongfully and unlawfully, his property as aforesaid; and such proceedings were had in said action that the said John Story afterward, to wit, on the 17th day of February, A. d. 1849, by the ■consideration and judgment of the said justice, recovered of the said Eoswell J. Jennings the sum of seventy-five dollars, which was adjudged to the said John Story by the said justice’s court, for his ■damages by him sustained, for the misconduct of the said Boswell J. Jennings as constable, as aforesaid, in taking from him his property as aforesaid, and also f>5.88¿, his costs, etc., as by the record and proceedings of said court, duly authenticated, and now to the ■court here shown, will more fully appear; upon which said last-mentioned judgment an execution has been issued and returned, March 1,1849, no goods and chattels found whereon to levy; and which said judgment also remains wholly unpaid and unsatisfied to the said John Story, to wit, on, etc., at etc.; all of which said premises the said Alexander H. Barber and Eobert Cassidy afterward, and before the commencement of *this suit, had notice, to wit, on the 21st day of May, a. d, 1849, at said Erie county, and were then and there requested by the said John Story to pay the said damages last mentioned, etc., so recovered by the plaintiff, which they, and each of them, refused to do. And so the State of Ohio in fact says, that the said Eoswell J. Jennings did not diligently and faithfully discharge the duties of his said office of constable, during his term of office afoi’esaid, and the said John Story, for whose use this suit is brought, hath been injured, as aforesaid, by the misconduct in office of the said Roswell J. Jennings, whereby an action hath accrued to the State of Ohio, to demand and have of and from the defendants in this suit the said sum of one thousand dollars. Yet the defendants have not, nor hath either of them, paid the same, or any part thereof, to the damage of the said State of Ohio of one hundred dollars; and thereupon the state sues, etc. And the- said State of Ohio, who sues as aforesaid, brings into court here a copy of the said writing obligatory, with a copy of the aforesaid condition thereof thereunder written, which are duly certified by Jacob' Hoornbeck, the clerk of the said township of Portland, to be true copies of the said writing obligatory and condition, lodged with and held by him.”
    To this declaration the defendants demurred generally. The common pleas sustained the demurrer, and gave judgment for the defendants, which, upon error, was affirmed by the district court. To reverse these judgments this writ was prosecuted.

      JEL. Goodwin, for plaintiff in error, cited:
    6 Wend. 454; 5 Johns. 173; 6 Ohio, 150; Swan’s Stat. 162, sec. 4; People v. Schuyler, 4 Comst. 173; 4 Mass. 68; 11 Maine, 241; 5 Binney, 184; 4 J. J. Marsh. 299; 5 Monroe, 192; 15 Wend. 623; 8 Cow. 65 ; 14 Ohio, 539; 20 Ohio, 273; 10 Met. 313; 8 Johns. 185. He also cited and commented on Carpenter v. Sloan, 20 Ohio, 330.
    *Lane, Stone & Lane, for defendant in error,
    submitted an argument reviewing the authorities, but making no new citations.
   Thurman, C. J.

The authorities seem to us quite conclusive, that a seizure of the goods of A, under color of pjrocess against B, is official misconduct in the officer making the seizure; and is a breach of the condition of his official bond, where that is that he will faithfully perform the duties of his office. The reason for this is, that the trespass is not the act of a mere individual, but is perpetrated colore officii. If an officer, under color of a fi. fa., seize property of the debtor that is exempt from execution, no one, I imagine, would deny that he had thereby broken the condition of his bond. Why should the law be different if, under color of the same process, he take the goods of a third person ? If the exemption of the goods from the execution in the one case, makes their-seizure official misconduct, why should it not have the like effect, in the other ? True, it may sometimes be more difficult to ascertain the ownership of goods, than to know whether a particular piece of property is exempt from execution; but this ■ is not always the case, and if it were, it would not justify us in restricting to litigants, the indemnity afforded by the official bond, thus leaving the rest, of the community with no other indemnity against official misconduct than the responsibility of the officer might furnish.

This question was vefy fully discussed and considered, in a late-case in the court of appeals of New York — The People v. Schuyler, 4 Comstock, 173; and the authorities reviewed. It was an action of debt, against a sheriff and his sureties, upon his official bond,, conditioned that he would “well and faithfully in all things perform and execute the office of sheriff of said county of Renssalaer,. during his continuance in said office by virtue of his election thereto, without fraud, deceit, or oppression.” The alleged breach was, that under color of a writ of attachment against one Fay, he had seized the goods of one Batehellor, for *whose use the suit was brought. The court held, that the action was maintainable, and sustained their opinion by a citation of numerous authorities, Enlish and American, which it 'is unnecessary to repeat.

I may add, however, that the same doctrine seems to prevail-generally. See Archer v. Noble et al., 3 Greenleaf, 418; Harris v. Hanson, 11 Maine, 241; Skinner v. Phillips, 4 Mass. 75; Lowell v. Parker, 10 Met. 309; Cormack v. The Commonwealth, 5 Binney, 184; Forsythe v. Ellis, 4 J. J. Marshall, 298; Commonwealth v. Stockton et al., 5 Monroe, 129, Derby’s ed. 193.

The judgment of the district court and court of common pleas-must be reversed, and a writ of procedendo awarded.


author: Ranney, J.

text:
    The Cincinnati, Hamilton and Dayton Railroad Company v. Waterson and Kirk.
    In an action to recover damages against a railroad company, for the destruction of horses which were on the track of the railroad when killed, evidence was given tending to prove an obligation resting upon the owner of the land where the horses were pastured, to fence it from the railroad track; and that in consequence of the failure the horses had strayed upon, the track. The court charged the jury, in effect, that the company would be liable for the negligence of its officers and agents, as though the horses were running at large, or no such obligation existed. In this charge there was error.
    The company had the right to protect itself against the inconvenience and hazard of using an unfenced road.
    After devolving the obligation to do this upon the owner of the land, he could not, over the breach of his contract, suffer his animals to go upon the road, without being liable for their trespass.
    In such case he would be a wrong-doer, and not entitled to demand the same degree of care as though he did not occupy that position.
    If the company had succeeded in establishing this fact, they could not. have been charged, short of proof of intentional injury, or of that gross carelessness, involving a recklessness of consequences, which it is so difficult to distinguish from intentional wrong.
    *Error to the district court of Butler county.
    The defendants in error brought their action on the case, in the ■court of common pleas of Butler county, against the Cincinnati, Hamilton and Dayton Eailroad Company, to recover damages for the killing of two horses of the defendants in error, by reason of the careless and negligent management of a locomotive and train of cars of said company, by its servants and employes.
    The case was tried at the February term, 1853, of said court of •common pleas, when a verdict was rendered and judgment given in favor of the defendants in error. The plaintiff in error then appealed to the district court, in which the cause was tried, with a like result, at the May term, 1853. ■ , ,
    The horses, at the time they were killed, were pasturing in a lot adjoining the railroad of the plaintiff in error. Defendants in error had rented this lot, as a pasture, from one John Jones, who had possession of it under a verbal lease from the executors of Daniel Millikin, deceased, to whose estate it belonged. Daniel Millikin, in his lifetime, by a paper dated December 27,1848, had released to said railroad company a right of way through his land, ■on the line occupied by said road, at the time of the injury complained of. This release, among other things, provided “ that said •company shall pay me [Daniel Millikin] the one-half of the cost of putting up good post and board fences, on .each side of said road, •.so far as it shall pass through my said tract of land.”
    On the 12th day of March, 1851, the executors of Daniel Millikin gave their receipt to said company, acknowledging payment of $470.60, in-full of half the cost of building said fences, and binding said executors to build the same.
    It appears that, in March, 1851, the second engineer of the company gave permission to said executors to build the fence on the west side of said road, on the top edge of the embankment, and that Daniel Millikin, under their direction, commenced to *build said fence on the top of the embankment; that in the spring of 1851, the contractor on the road objected to making the fence “at that place at that time,” as it would hinder hauling up gravel to ballast the road; that cattle-guards were temporarily erected, instead of fences, to enable th e proprietors to cultivate the land; that said executors rented, for the year 1851, “ all the tillable land ” west of ;said road, to John Jones, and that no fence was constructed between it and the road; that the cars commenced running on the -track of the railroad in September, 1851, and that in the December following the horses of the defendants in error were killed; that said Jones had permitted said defendants to pasture their two horses upon his land, rented as aforesaid, from which they could, and did without difficulty, pass upon the railroad track ; that on the day said horses were killed, about five o’clock in the evening, .a train of passenger cars was going northwardly; the horses were seen upon the track; just before reaching the “ backbone,” the whistle sounded, the steam was shut off, and the train proceeded slowly for some distance; the steam was then let on and off several times, and the speed increased and decreased alternately, the whistle blowing at frequent intervals, until the train stopped seventy-five or a hundred yards from the New River bridge; that at the first alarm of the whistle, the horses commenced running northwardly, keeping the track, jumped the cattle-guards, and continued their course until they jumped into the bridge, and were killed.

      The district court, on the trial of the cause, among other things,, charged the jury, “that the facts and circumstances in evidence, relied upon to show the want of proper care and diligence, on the part of the officers and agents of the company, in conducting the train, were for their exclusive consideration; and whether such-facts and circumstances established the want of such care and diligence, or the contrary, was a question of fact, proper for the exclusive determination of the jury; and that if they should find ■from the evidence, that these officers and agents, in running the *train, did not use proper care to prevent injury to the plaintiffs’ horses, and the safety of the passengers, and that, by reason of the want of such care, the plaintiffs’ horses were killed, it would be their duty to find that the horses were killed by the negligence of the defendant, notwithstanding said, horses were upon the track of defendant’s railroad, in consequence of a want of fences, which the plaintiffs, or those under whom they claimed, were bound to construct, or from being left to run at large by the-owner.”
    The defendants below (here plaintiffs) moved for a new trial, om account of the alleged error of the court in instructing the jury, and because the verdict was against the weight of evidence. The overruling of this motion is assigned for error, as is also the overruling of a motion in arrest of judgment.

      Thomas Millikin, and Scott & McFarland, for plaintiff in error:
    I. The Supreme Court may reverse the judgment of the district ceurt, in refusing to grant a new trial when the motion is made on the ground that the verdict is against the weight of the evidence-Act of March 12, 1845, vol. 43, p. 80 ; act of March 23, 1852, vol. 50, p. 93; act of April 30, 1852, vol. 50, p. 102; same vol. p. 67, sec. 4;. Shepler v. Dewey, 1 Ohio St. 331; Lessee of Beardsley v. Chapman, 1 Ohio St. 125.
    II. The allegation in the declaration, that the horses were killed “ by the mere negligence of the defendant’s agents,” is a material allegation. 1 Swan’s Prac. and Prec. 436.
    III. The court erred in instructing the jury as to the exclusive-consideration and determination by the jury of the question of negligence. The question what degree of care and diligence is required of the defendant, under the circumstances of the case, must necessarily be a question of law. Whether this requisite degree of care was in fact exercised, is admitted to be a question of fact merely.
    ■*IY. When the negligence or wrongful act of the plaintiff .-co-operates with the negligence of the defendant to produce the ^damage, an action will not lie. Blyth v. Topham, Cro. Jac. 158; Bush v. Brainard, 1 Cowen, 78; Sarck v. Blackburn, 4 C. & P. 297; Blackman v. Simmons, 4 C. & P. 138; Brock v. Copeland, 1 Esp. 203; Howland v. Vincent, 10 Metc. 371; Jordin v. Crump, 8 M. & W. 782; Brownell v. Flagler, 5 Hill, 282; Cook v. The Champ. Trans. Co., 1 Denio, 99; Story on Bail, secs. 19, 22; Gardner v. Heart, 3 Denio, 255 ; S. C. 4 Comst. 349; Marsh v. N. Y. & Erie R. R. Co., 14 Barb. S. C. 364; Suydam v. Moore, 8 Barb. 358; Waldron v. The Renssalaer and Saratoga R. R. Co., 8 Barb. 390. The case of Quimby v. Central R. R. Co., 23 Vt., 387, is really an authority in favor of plaintiff in error.
    In that case, the plaintiff was not bound to construct the fence, •the want of which occasioned the injury complained of; and as the .court places its decision expressly on that ground, the inference is fair, that had the fact been otherwise, the decision would have been for the defendant. That very circumstance, then, which, in the case .at bar, the jury were instructed to consider as wholly irrelevant and immaterial, was in that case regarded as so vitally important as to be decisive of the case. The weight of American authorities is .largely against the principle decided in the case of Davies v. Mann, 10 M. & W. 545 ; but even admitting it to be law, the case is by no means analogous to the one at bar. That was a case in which the injury complained of was done on a public highway, to the use of which the plaintiff aDd defendant were equally entitled, and in which the plaintiff was bound by no special contract with the defendant, to secure him in the undisturbed and exclusive use of the locus in quo, by the erection of suitable fences.
    (Counsel for the plaintiff in error also referred to the following cases*: New York and Erie R. R. v. Skinner, Am. L. Reg. for December, 1852, p. 97, and notes appended by the editor; Louisville and Frankfort R. R. Co. v. Milton, West. L. Journal for August, 1853, p. 483; Edward Williams v. Michigan Cen. R. R. Co., 4 U. S. Monthly Law Mag. 281; Jackson v. Rutland and Burlington R. R. Co., Liv. Law Mag. for January, 1854, 44, and authorities .there cited.)

      James Clark, for plaintiff in error.
    I. The negligence of the plaintiff, in order to preclude him from-, a recovery for an injury caused by the negligence of the defendant, must amount to a want of ordinary care. Butterfield v. Forrester, 11 East. 60 ; Chaplin v. Hawes et al., 3 Car. & Payne, 554; Bridge v. The Grand Junction Railway Co., 3 Mee. & Wels., 244; Lynch v. Nurdin, 1 Adol. & El. 35; Birge v. Gardiner, 19 Conn. 512; Beers v. The Housatonic R. R. Co., 19 Conn. 566; New Haven St. and Tr. Co. v. Vanderbilt, 16 Conn. 420; Marriott v. Stanly, 1 M. & G. 568 ; Smith v. Smith, 2 Pick.621; Thompson v. The Inhabitants of Bridgewater, 7 Pick. 188 ; Lane v. Crombie, 12 Pick. 177; Adams v. The Inhabitance of Carlisle, 21 Pick. 146; Washburn v. Tracy, 2 Chip. 28; Bird v. Holbrook, 4 Bing. 628.
    II. The negligence of the plaintiff to preclude him, must proximately conduce to the injury of which he complains. Davies v. Mann, 10 Mee. & Weis. 545; Flower v. Adam, 2 Taunt. 314.
    III. The decisions relied on by the plaintiff in error, are based upon a rule of the common law, which does not exist in Ohio. Swan’s Stat. 410, sec. 8; Seely v. Peters, 5 Gilm. 130. But even, where the common law upon this subject has been held to prevail, the absurd deduction has not been uniformly drawn from it, that animals permitted to run at large by the owners became therefore outlawed. Jackson v. Rutland and Burlington R. R. Co., reported Jan. No. Livingston’s Monthly Law Mag., 1854; Ricketts v. E. & W. India Docks & Birm. June. R. R. Co., 12 Eng. Law & Eq. 520.
    *IV. The case of Quimby v. Central R. Co., 23 Verm. 387; very nearly resembles that at bar.
    V. “ There is no distinction between railroads and ordinary highways in regard to the degree of care, which the law requires on the-part of those who have the direction or management of vehicles' upon them.” Beers v. Housatonic R. Co., 19 Conn. 566.
    VI. The court was not bound to say anything to the jury as to-what degree of want of care, on the part of the agents of the railroad company, would render it responsible, unless requested by one or both of the parties. Jones v. State, 20 Ohio, 45. But there was' no erroneous instruction given. The most that can be said is, that the court failed to instruct upon that question : but whether the-the facts and circumstances established such care, or the contrary, was a question of fact, and as such properly left to the jury. All complex issues, in which law and fact are intimately blended, are-necessarily left to the jury, the court, in its discretion, instructing or not instructing them, in regard to the matters of law. 1 Greenl. sec. 49. But the hill of exceptions does not profess to give more than an extract from the charge of the court. How then, do wo know from the record, that the court did not, in some other part of their charge, fully instruct the jury, as to what constitutes proper care ? Error is not to he presumed. All intendments of law, are in favor of the validity of judicial proceedings. Coil v. Willis, 18 Ohio, 28.
    Y1I. Where the language of a verdict is equivocal, the court will give it such meaning as to give effect to the verdict; and every reasonable construction is to be adopted in its favor. Carr v. Stevenson, 5 Humph. 559; Aye v. Maxwell, 14 Vt. 14; Huntington v. Ripley, 1 Root, 321. But the plaintiff is not bound to aver in his declaration, what degree of want of care, on the part of the defendant, caused the injury complained of.
    YIII. A motion for a now trial, especially on the ground that the verdict of the jury was against the weight of evidence, *is always addressed to the sound discretion of the court; and unless authorized by express statute, a court of error can not review the exercise of that discretion. Marine Ins. Co. of Alexandria v. Young, 5 Cranch, 191; Norwich & Worcester R. Co. v. Cahill, 18 Conn. 484; Henderson v. Moore, 5 Cranch, 11. The law was the same in Ohio till modified by the “ act to regulate the judicial courts, and the practice thereof,” passed March 12, 1845; 43 Ohio Stat. 80. That statute took away the right of appeal to the Supreme Court, in cases at law; and jwovided, by way of conrponsation, that the opinion of the court of common pleas, or superior court of Cincinnati, in overruling a motion for a new trial, might be reviewed in the Supreme Court on error. This statute has been repealed by the “ new code; ” but, were it still in force, it could have no applicability to a case, in which a motion for a new trial had been overruled by the district court, for two reasons : 1. The reason of the statute, viz: the absence of a right of apjjeal from the court in which the case was first tried, has ceased to exist. 2. The statute, by its terms, is confined to cases in -which motions for new trials have been overruled by the court of common pleas, or the superior court of Cincinnati — of neither of which courts, as organized at the time of the passage of said act, is the present district court the representative or successor.
   Ranney, J.

This case was elaborately argued, upon the general question of the liability of railroad companies for the destruction of stock running at large, before the case of Kerwhacker v. Cleveand, Columbus and Cincinnati Railroad Co., 3 Ohio St. 172, was decided by this court. The decision in that case has made it unnecessary to examine the general question in this. I fully concurred in the judgment of reversal rendered in that case; but not altogether in the grounds upon which it was placed, or the reasoning by which it was supported. But as my difference related rather to the inapplicability of some of the ^principles invoked, than to their abstract correctness, I did not then deem it necessary to express a separate opinion. I will, however, take this occasion to say, that, in my judgment, the owner of domestic animals, in suffering them to run at large under the limitations expressed in the statute, is in no fault; and that there is, therefore, no room for the application of the doctrine which determines when a party in the wrong, may, nevertheless, recover for injuries arising from the negligence of another.

In other words, the owner has a perfect right to suffer his animals to go at large, without incurring any responsibility to the owners of uninclosed grounds, upon which they may wander. I am aware, that this is flatly opposed to the common-law doctrine upon the subject, and if that rule of the common law was in force in this state, would be entirely inadmissible. But it is not in force; and it is not in force because, in addition to being utterly inconsistent with our legislation, it lacks all the essential requisites that give vitality here to any principle of the common law, and is opposed to the common understanding, habits, and even necessities, of the people of the state.

Indeed, with the strict enforcement of such a rule, the state never could have been settled. The lands were all heavily timbered, and the introduction of domestic animals, from the scarcity of herbage, requiring a wide range for their support, became indispensable before the forests could be removed. It would have been a novel proposition to a hardy pioneer, when he listened in the morning for the bell that indicated where the oxen that hauled together his logs for burning, might be found, to have told him that his cattle were trespassers on every other man’s uninclosed land upon which they might have fed during the night; or that he could plant corn without inclosing the ground, and sue his neighbor whose cattle had eaten it up.

Nobody, either lawyer or layman, ever thought of such a thing. The practice of letting cattle go at large was considered as a right, treated as a right, and regulated by numerous statutes as *a right. So early as 1792, it was expressly provided, “ That the open woods and uninclosed grounds within the territory, shall be taken and considered as the common pasture or herbage of the citizens thereof, saving to all persons their right of fencing ” (5 Ch. -St-at. 125) ; and although this specific provision has not been continued, the multiplied regulations as to strays, fences, and inclosures, since passed and still in force, and which are referred to in the case I have cited, abundantly show that the general assembly .has always entertained the same opinion.

Bailroad companies have been incorporated with the capacity to acquire lands, and placed under no obligation to fence, as a condition to using them for the purpose of running trains. They hold them as other proprietors do, and if they see fit to leave them unfenced, they can no more treat the intrusion of domestic animals as a trespass than other proprietors can. It has therefore always seemed to me, that suffering cattle to run at large, and running trains upon an unfenced railroad, were each equally lawful — binding the owners of each to submit to the inconveniences and increased hazards of using their property in that manner — but subjecting neither to the imputation of unlawful conduct, so as to give or bar a right of action, when either right had been fairly and reasonably exercised. And that the legal consequence was that each, as against the other, was entitled to require the exercise of reasonable and ordinary care to prevent injury. This I regard as the fair result of our •present legislation. If a change is desirable, it belongs to the general assembly to make it, by either requiring the railroad companies to fence, or prohibiting cattle from running at large; but neither can be done by the judiciary: especially in view of the fact, that tho legislature has repeatedly refused to do either.

This conflicts with no decision made elsewhere. In every case where the owner of cattle has been denied a remedy for their destruction by the - carelessness of railroad agents, the common-law doctrine was in force; and the cattle were held to be trespassers ■*on the uninclosed road. The remedy was denied because the unlawful act of the owner directly contributed to the injury. This maybe a correct conclusion, when the injury has resulted from mere negligence, and still be very far from being correct when no' such unlawful conduct is established.

In this case, we should find no fault with the charge of the court if the ease had depended wholly upon the relative rights and obligations of the owner of the cattle running at large and the railroad company. The court wore right in saying that the facts and circumstances relied upon to show a want of proper care, were for the exclusive consideration of the jury; and if more specific instructions, as to the degree of care required, were wanted, they should have been asked for. - Of still less importance is the criticism, predicated upon the awkward wording of the bill of exceptions, as to the same care being required t© prevent injury to horses as for the safety of passengers. This part of the charge, if it had any application, was in favor of the company; as it made the safety of the passengers the first object of attention, and allowed the destruction of the horses if necessary to that end.

But the company gave evidence tending to prove an obligation resting upon the owner of the land where the horses were pastured to fence it from the railroad track, with which he had failed to comply, and in consequence of the failure, the horses had strayed upon the track. This evidence was, in effect, taken from the jury, and ’they were told that the company would be liable for the negligence of its officers and agents, as though the horses were running at large, or no such obligation had existed. In this, we think, there was error. The company had the right to protect itself against the inconvenience and hazard of using an unfenced road. After devolving the obligation to do this upon the owner of the land, he could not, over the breach of his contract, suffer his animals to go upon the road without being liable for their trespasses. In such case he would be a wrong-doer, *and not entitled to demand the same degree of care as though he did not occupy that position. If the company had succeeded in establishing this fact, they could not have been charged, short of proof of intentional injury, or of that gross carelessness involving a recklessness of consequences which it is somewhat difficult to distinguish from intentional wrong. As the plaintiffs below occupied this ground under the owner, we think they are subjected to the same rule.

The judgment is reversed, and the cause remanded for further proceedings.


author: Kennon, J.

text:
    George W. Dunn v. Isaac Hazlett.
    Where two are sued as joint contractors, one of whom resides in the county in. which the suit is brought, and the other in another county, and service of a summons is made on each in the county in which he resides, and it turns out that the person residing in the county where the action is brought is not liable as a joint contractor, the plaintiff ought not to recover against the-one residing in the foreign county.
    In such case, the person residing out of the county can be required to answer-in another county upon the ground only that a joint contractor resides, and is sued, in the county where the action is brought.
    In such case, if the person residing in and the person residing out of the-county, jointly plead to the merits, and the court find that they were not' joint contractors, and nonsuit the plaintiff, it is error in the court to set aside the nonsuit, with leave to the plaintiff to strike out the name of the-person residing in the county, and proceed against the one residing out of the county alone.
    After such leave granted, it is error in the court to refuse to dismiss the proceedings, for the reason that no service of a summons was made within the county where suit was brought.
    Petition in error, to reverse a judgment of tbe court of common pleas of Clinton county.
    *The case is stated in the opinion of the court:

      Mr. Hinkson, for plaintiff in error.

      Mr. Harlan, for defendant in error.
   Kennon, J.

The record and bill of exceptions taken by the petitioner in this case, show the following facts, viz.: That the action was originally brought by Isaac Hazlett against George W. Dunn, and Joseph Smith, as partners, for a breach of contract; that at the time of the commencement of the action, Smith resided in Clinton county, and Dunn in Ross county; that a summons was-issued to each county, and one served on Smith in Clinton, and the other on Dunn, in Ross county, requiring him to appear in Clinton to answer to the plaintiff’s demand.

A declaration was filed against both defendants, jointly. They appeared and plead the general issue, and the issue of fact thus made was submitted to the court. The court found that Smith was not jointly bound with Dunn, and nonsuited the plaintiff. On the motion of the plaintiff, the nonsuit was set aside, at the costs of the plaintiff, at the trial term. A motion was then made by the plaintiff for leave to file an amended declaration, by striking out the name of Smith in the proceedings, and declaring against Dunn alone. This last motion was resisted by Dunn, but the court sustained the motion, and an amended declaration was filed against Dunn alone. To the amended declaration Dunn plead the general issue ; a trial was had by the'court without the intervention of a jury; the issue found for the plaintiff; damages assessed, and judgment rendered in favor of Hazlett, against Dunn, for damages and costs. Dunn moved an arrest of judgment, and assigned for cause, that he was not a resident of Clinton county, but of Boss; and that the service of the writ was made on him in Boss county; but the court overruled that motion also.

The first question presented on this record for the consideration ■of the court is, whether, when two are sued as joint contractors, *the one residing in and the other out of the county in which .the suit is brought, and service is made on each, and it turns out, on the trial, that the one residing in the county is not liable as a joint contractor, the action can proceed against the one residing in another county, and upon whom service was made, in the county in which he resided, and not in the county in which the action was •brought.

By section 7 of the act entitled an act to regulate the practice of the judicial courts (SAvan’s old Statutes, 652), it is provided, that if two or more persons are bound jointly, or jointly and severally, by any bond or writing obligatory, bill of exchange, promissory note, or other contract, and the persons so bound shall .reside in different counties, it shall be lawful, in an action to be •brought on such bond, writing-obligatory, bill of exchange, promissory note, or other contract, to file with the clerk of the court, of the county in which either of the parties so bound shall reside, and against whom a writ of summons or capias ad respondendum shall have been directed, a praecipe, directing that a summons or capias ad respondendum be issued to the sheriff or coroner, of the counties in which such other person or persons, so bound as aforesaid, may reside, or may be found, who shall ‘issue the said writ or writs, as by said prmcipe shall be directed; and the sheriff, or other officer, ■shall execute and return the same, in the same manner and under ■the same penalties as if the capias ad respondendum or summons had issued from the clerk of his county; and the court “to whom-such writ is returned, shall proceed in the same manner thereon as if it had been returned by the sheriff of their own proper county.”

As a general rule, civil actions can be brought only in the-county in which the defendant resides, or may be served with process ; and in the ease under consideration, the defendant, Dunn, being a resident of the county of Ross, could not have been sued: in the county of Clinton, and process served on him in Ross, unless the plaintiff had at least claimed that he was jointly *bound with some other person, who actually resided in Clinton county.

The 7th section, above recited, is an exception to the general rule, and applies only to cases where one of two or more joint, obligors or contractors resides in the county in which suit is brought. If the action had been brought against Dunn alone, in Clinton county, and process of summons issued against him to the sheriff of Ross, and actually served on him, the summons and service would, on motion, have been quashed by the court. The real question here is, whether Hazlett can, by joining Smith, who resides in Clinton county, with Dunn, who resides in Ross, upon the mere pretext that they are partners, and jointly bound as contractors, compel Dunn, alone, to answer to an action in a county in which no process was served upon him, and in which he does not in fact reside. If he could, then all any creditor would have to do, would be to join in the action, in any county in which he pleased to bring his suit, a person resident therein, and bring to. that county the real debtor, from any county in the state, even the. most distant. To put such a construction on section 7 of the act. referred to, would be to make it operate upon persons never intended to be included within its provisions. By such construction, it would include several as well as joint contractors, when, by the express provisions of the statute, it extends to joint contractors only, and would enable a creditor to do that indirectly which he could not do directly. The very condition upon which a debtor can be made to answer, by summons or capias ad respondendum, in any other county than that in which he resides, was, that he was-sued jointly with one who was in fact a joint contractor with him, and who resided in the county in which the suit was brought.

In this case, however, the court "expressly found, on evidence,. that Smith, who resided in Clinton county, was not a joint con-■tractor with Dunn, but still permitted Ilazlett to amend his ■declaration, so as to leave out Smith’ from the proceedings, and ^declare against Dunn, as though he had been severally ■sued and process served on him, in Clinloh county. In this, we think the court of common pleas erred.

It may be claimed, how.ever, that Dunn waived any right he might have by pleading to both the first and second declarations. As to pleading to the first declaration, he put in issue, by the general issue, the very fact of whether service was properly made on him, or whether he was bound to answer in that court. He denied •that he had jointly contracted with Smith to the plaintiff, and the •court found his plea true, and nonsuited the plaintiff, and judgment was rendered against him for costs. The case was, thereupon, properly out of court, and Dunn had effected everything which he ■could expect by his plea of the general issue.

Afterward, on motion of the plaintiff, the nonsuit was set aside, .and “ leave granted to the plaintiff to amend his declaration by ■.striking out the name of the defendant, Joseph Smith, and to pro-need against George W. Dunn.” At this stage of the proceedings, Dunn, by his counsel, moved the court to dismiss the case for want •of jurisdiction against him, the said Dunn, but the court overruled his motion.

The record showed that no process was served on Dunn in Clinton ■county. That he was not a joint contractor with Joseph Smith, had, on trial to the court, been found true, and yet the court not ■only set aside the nonsuit, but granted leave to the plaintiff to declare and proceed against Dunn alone, in the same manner as if he had been sued alone, and a proper service made on him. In all this we think the court erred, and this error was not cured by either the plea to the first or second declarations; surely, not by pleading to the joint action, in which Dunn succeeded, and the error was •committed by the court before pleading to the second, both in allowing the plaintiff to proceed against Dunn alone, and in refusing to •dismiss the suit, on the motion of Dunn, for want of service on him in the county in which suit was brought; we think that, after this last error was committed, Dunn did not waive his rights by pleading to the merits.

-'-The judgment of the common pleas is therefore reversed, with costs.

Thurman, C. J., did not sit in this case.


author: Bartley, J.

text:
    Eli Bailey v. The State of Ohio.
    Where an indictment charges two or more offenses, arising out of distinct and different transactions, the court trying the cause, may require the prosecutor to elect upon which charge he will proceed; but the action of the court, in this respect, being a matter of discretion, can furnish no ground for a writ of error
    Several distinct offenses may be joined in different counts of the same indictment, as a general rule, either where they arise out of, and are connected with, the same transaction, or where they are connected by the same subject-mattei'.
    Where an indictment contained seven counts, and the verdict was not guilty upon the sixth and seventh counts, and guilty on the first, second, third, fourth, and fifth counts, the verdict is equivalent to a general verdict of guilty on the first five counts
    Where the defendant is found guilty upon several distinct counts of an indictment, some of which are bad and some good, a judgment and sentence in general terms, on such a verdict, is not erroneous, provided the sentence be proper, and warranted by the laws applicable to the good counts.
    Writ of error to the court of common pleas of Ashland county.
    Reserved in the district court for decision here.
    At the March term, 1854, of the common pleas of Ashland county, the plaintiff in error was indicted, tried, convicted, and sentenced .to five years’ imprisonment in the penitentiary, for the crime of .selling, bartering, and disposing of false, forged, and counterfeit bank notes. The indictment contained seven counts — six under section 29, and one under section 22 of the statute for the punishment of crimes. The first, second, *third, and fifth counts were for selling, bartering, and disposing of certain false, forged, and counterfeit bank notes; the sixth and seventh counts for having the same in possession with intent to pass, etc.; and the fourth for disposing of a certain false, forged, and counterfeit negotiable promissory note. On the trial, exceptions were taken by the plaintiff in error to the ruling of the court. The jury in their verdict found as follows, to wit: “ That the said Eli Bailey is guilty in manner and form as he stands charged in the first, second, third, fourth, and fifth counts of the indictment, and not guilty as he stands charged in the sixth and seventh counts thereof.” Tho plaintiff in error moved for a new trial, and also in arrest of judgment, but the motions were overruled by the court, to which the plaintiff in error' excepted.

      Fulton & McCombs, Given & Jeffries, and P. B. Wilcox, for plaintiff in error.

      G. W McCook, attorney-general, for the state.
   Bartley, J.

Tho following alleged errors are relied on as ground for the reversal of tho judgment:

1. That the court overruled the motion of the plaintiff in error, to compel the attorney for tho state to elect upon which of the charges in the indictment ho would proceed.

2. That the indictment is bad for repugnancy, on the ground that the term a false, forged, and counterfeited, as applied to spurious paper, are inconsistent.

3. That the indictment contained a misjoinder of offenses, one of the counts being for an offense under section 22, and tho others •under section 29 of tho statute.

4. That the verdict was not a general verdict of guilty,but a special verdict, inasmuch as it found against the plaintiff in error, upon each of tho first five counts, and for him on tho two last counts of the indictment, and that, the two first counts being fatally defective, the court erred in refusing to arrest tho judgment.

*Of these in their order :

1. When an indictment charges two or more distinct offenses, differing in their nature, or arising out of distinct and different transactions, the court may compel the prosecutor to elect upon which charge he will proceed. But such election will not be required to bo made, whore the several charges in the indictment relate to the same transaction, or are simple variations or modifications of the same charge, with a view of meeting the proof. The exercise of this authority, however, to compel tho prosecutor to-make the election, rests in the sound discretion of the court. And where an act, or an omission to act, rests in the discretion of the court, it can not lay any foundation for a writ of error.

2. The second assignment of error, which is founded on a supposed repugnancy in the terms used as descriptive of the spurious paper, presents a question which was directly settled in tho case of Stoughton & Hudson v. The State of Ohio, 2 Ohio St. 563, against the position of the plaintiff in error, in this case. And we see no reason to disturb that decision.

3. Was the indictment bad for misjoinder of offenses? It appears to be settled, that different and distinct offenses of kindred character, may be charged in separate counts in the same indictment. This was held in the case of Barton v. The State, 18 Ohio, 221, where the accused was charged in one count with horse stealing, and in another count with grand larceny of other property; crimes under different sections of the same statute. And the same doctrine seems to have been recognized in Wilson v. The State, 20 Ohio, 26, in which’ the party was charged with “ an assault with intent to commit a murder ” in one count, and in another count with “ shooting with intent to kill.” In Massachusetts, it is said to be the practice to join counts for distinct felonies, when framed under different sections of the same statute: Com. v. Hope, 22 Pick. 1. And in Tennessee, it seems, that the joinder of several distinct felonies Of the same degree, although committed at different times, was no Aground of demurrer or arrest of judgment: Cash v. The State, 10 Humph. 111. The limit to the rule, however, allowing distinct offenses to be joined in the same indictment, has not been defined by the adjudications on the subject, with that degree of precision and certainty which is desirable. In this state, it would seem to have been limited chiefly, either to offenses arising out of and connected with the same transaction, such as burglary and larceny, or horse stealing committed at the time of a larceny of a buggy or other property, or the uttering and publishing of counterfeit bank notos together with §, forged promissory note, etc.; or to offenses connected by the same subject-matter, such as the making of counterfeit and spurious paper, and the uttering and publishing the same, etc. In any view of the subject, however, it requires no enlargement Of the rule, to show that there was no misjoinder in this case.

4. Conceding that the first, second, and fourth counts of the indictment were fatally defective, did the court below err in rendering judgment on the verdict? No objection to the verdict can arise from the acquittal, on the sixth and seventh counts. Where an indictment contains numerous counts, there may be a verdict of not guilty as to one or more counts, and a general verdict of guilty as to the several remaining counts. And this is not what is technically termed a special verdict. A general verdict of guilty in manner and form as the defendant stands charged in the indictment, is a finding of the defendant guilty upon each of the several counts of the indictment; and the verdict would not bo any more specific if the several counts were specified in the verdict by their numbers. The verdict, therefore, of guilty on the first, second, third, fourth, and fifth counts of the indictment, in this case, is equivalent to a general verdict of guilty on the five first counts. A practice has prevailed both in England and in this country, where there has been a general verdict of guilty on an indictment containing several counts, some bad and some good, to pass judgment on the counts *that are good; and a judgment and sentence generally, on •such a verdict, is held not to be erroneous, as the presumption of law will be that the court awarded judgment on the good counts, providing the judgment and sentence be such as is warranted by the laws applicable to the offense charged in the good counts. It is true, this practice has been somewhat disturbed in England, by the late decision of the house of lords, in O’Connell’s case, 11 Clark & Fin. 15, wherein the judgment of the court of queen’s bench of Ireland, on an indictment containing some good and some bad •counts, was reversed because the judgment was entered generally •on the verdict, instead of being entered severally on the good counts. 'The facts, however, that this decision was made under the influence ■of high political excitement, and carried by a bare majority, lord Lyndhurst and lord Brougham with others dissenting, have so far •weakened its authority that it has not been allowed to shake a prac■tice which had obtained very generally, and with but little variation, in the American courts. And even in England, as it would ¡seem, it has not been quietly acquiesced in. Irvine v. Douglass, 3 Eng. 23.

It has been held, that an exception to this rule prevails in Yir¡ginia, in cases punishable by imprisonment in the penitentiary, inasmuch as the evidence applicable to the bad counts may aggravate the punishment imposed by the verdict; where the jury is authorized to ascertain the term of the imprisonment. Mowbray v. Com., 11 Leigh, 643. But the Supreme Court of Massachusetts, in Kite v. Com., 2 Metcalf, 581, adjudged, that where an indictment •charged a burglary in one count, and a larceny, on the same day, in .another count, and a general verdict of guilty was returned, the judgment, whether the sentence was proper for burglary only, or for burglary and larceny, could not be reversed on error, because the record did not show whether one offense only, or two offenses, had been proven on the trial, on the ground that the sentence will be presumed to have been according to the law that was applicable to the facts proven.

*In the case before us, the j udgment and sentence of the court would have been proper under either the third or the fifth count of the indictment, the sufficiency of either of which is unquestioned. Inasmuch, therefore, as the verdict was equivalent to a general verdict of guilty on the five first counts of the indictment, and the sentence was warranted by the law applicable to the offense charged in the good counts, the presumption of the law prevails that the court awarded judgment on the good counts.

The judgment of the common pleas affirmed.


text:
    Lessee of Adam C. Ford v. Henry Langel et al.
    The grantee or heir of one protected from the operation of the statutory bar, is entitled to the full benefit of that protection, and may bring a suit within the same time, and to the same effect, as though no change of ownership had occurred, and the suit was prosecuted in the name and for the benefit of the original owner.
    *An action can not be maintained, on the demise of husband and wife, after the statute has run for the full period -against the husband, while the coverture continues.
    Ejectment ; reserved in Fairfield county.
    Tbe case is sufficiently stated in the opinion of the court.

      John T. Brazee, for plaintiff.

      H. H. Hunter, for defendant.
   Ranney, J.

It appears from the agreed statement of facts, upon which this cause is submitted to the court, that the lands in controversy were patented to the heirs of John Dodge, on the 12th of July, 1802. These heirs were five in number, one of whom, Theodocia, married in 1812, and on the 23d of September, A. D. 1850, in connection with her husband, conveyed her undivided interest in the property to the lessor of the plaintiff. It is admitted that the defendant and those under whom he claims, have been in the exclusive and uninterrupted adverse occupancy of the premises for more than twenty-one years prior to this conveyance. The question is, does the act for the limitation of actions bar a recovery ?' On the part of the plaintiff, it is insisted that it does not, as the-said Theodocia was, during all that period, a feme covert, and exempted from its operation. While the defendant’s counsel admits that the statute did not run against her, he insists that the exception in that act affords only a personal privilege, and is only operative where she is a party to the action, and can not be set up by a-grantee claiming under her. But if this objection should not prevail, he still further insists that such grantee can, in no event, stand upon better ground than would the husband and wife, if the suit were brought by them; and that in such case, the bar upon the husband’s right of possession being perfect, no recovery could be-had upon their joint demise — the husband during the coverture having the exclusive right of possession, and a recovery inuring to his sole benefit.

^Without going at length into the reasons which bring us-to the conclusion, wo are all of opinion, that the first of these positions- is not well taken, and that the grantee or heir of one protected from the operation of the statutory bar, is entitled to the full benefit of that protection, and may bring a suit within the same time, and to the same effect, as though no change of ownership had oc-curred, and the suit was prosecuted in the name and for the benefit of the original owner. To hold otherwise, would be to deprive infants, insane persons, and femes covert of much of the benefit the statute was designed to afford, and would be utterly subversive of the well-established principle, that as against such persons, the-statute does not begin to run, or to have any effect upon their interests, during the continuance of the disability. Such interests, therefore, pass to the heir or purchaser, wholly unaffected by any lapse of time that.may have run, while the owner was without the provisions of the statute.

But in the case of Thompson’s Lessee v. Green, we have stated our reasons fully for holding that an action can not be maintained, on the demise of husband and wife, after the statute has run for the full period against the husband, while the coverture continues. It would hardly be supposed that their grantee occupied a better position, and that case is, therefore, decisive of this.

Judgment must be entered for the defendant.