text:
    Benjamin F. Mitchell, for the use of Seneca L. Hand, v. John C. Singletary, Jr.
    A discharge and certificate under the bankrupt law of 1841, will be a complete bar to a suit on a promissory note, given anterior to the proceeding in bankruptcy, but not included in the schedule of debts, unless willfully and fraudulently withheld from the list.
    This is a writ of error to the Court of Common Pleas of Portage county.
    The original action was assumpsit, upon a promissory note for three hundred and twenty-one dollars, given by the defendant, John C. Singletary, jr., to the plaintiff, Benjamin F. Mitchell, on the 19th day of March, 1836, and made payable to the plaintiff or his order, three months after date, with interest.
    The declaration was filed in vacation after the October term, 1848, and contained a single count upon the note.

      The defendant pleaded the general issue, and the special plea of bankruptcy, under the act of congress of August 19, 1841.
    The plaintiff replied to this plea of bankruptcy, “precludi non, because the claim or note of the plaintiff, mentioned in the declaration, was not included in the schedule of debts, filed by the defendant in the U. S. court, pending his petition to be declared a bankrupt, and the plaintiff had no notice of the pendency of any such proceedings in bankruptcy; wherefore, the defendant was not discharged from said claim of the plaintiff, by virtue of such proceedings, etc.”
    The defendant demurred to this replication, and his demurrer was sustained by the court, and defendant had judgment. To reverse this judgment, the writ of error is prosecuted. It is assigned for error, that “ the court of common jDleas erred in sustaining the demurrer of the defendant to the replication of the plaintiff, and in giving judgment thereon, in favor of the defendant, against the plaintiff.”

      Hand & Day, for plaintiff in error.

      Tilden § Ranney, for defendant.
   Spalding, J.

In section 4, of the act of congress, entitled “ an act to establish a uniform system of bankruptcy throughout the United States, approved August 19, 1841,” it is provided, among other things, that “ such discharge and certificate, when duly granted, shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are provable under this act, and shall be, and may be pleaded as a full and complete bar to all suits brought in any court of judicature, whatever, and the same shall be conclusive evidence of itself, in favor- of such bankrupt, unless the same shall be impeached for some fraud, or willful concealment, by him, of his property, or rights of property, as aforesaid, contrary to the provisions of this act, on prior reasonable notice, specifying in writing such fraud or concealment.’

No one will deny that the debt, described in plaintiff’s declaration, was provable under the act. The certificate, then, may be pleaded as “a full and complete bar” to a recovery on the note, and will be deemed “ conclusive evidence, of itself, in favor of the defendant, unless it be impeached for fraud.”

Nothing of the kind is attempted in the record before us. So far from imputing fraud to the defendant, and endeavoring to impeach the validity of the discharge and certificate on that ground, it is not even alleged in the replication, that the claim of the plaintiff was intentionally left out of the schedule. It may have been omitted by mistake. The defendant may have forgotten the claim altogether, or he may have supposed it paid.

The act of congress no where requires the applicant to swear positively to the schedule of his debts, but, indulgent to the frailty of human memory, permits him to set forth a list of his creditors, “ to the best of his knowledge and belief.” As to the question raised by the pleadings, we are not without decisions in point, although we now, for the first time, settle the rule in Ohio.

In the case of Fox v. Paine, 10 Alabama Rep. 523, the defendant pleaded that he was a discharged bankrupt, previous to the institution of the suit. To this the plaintiff replied that the discharge was void and inoperative, having been obtained by fraud, and without rendering a full and complete schedule of debts owed by the bankrupt, and of his property, etc.

On the trial, the record of the schedule was produced, and the debt sued for in the action was not therein mentioned, included, or in any way referred to.

Per Curiam. “We think the omission to include the debt in the schedule, and the neglect to notify the creditor of the application, is not fraudulent in itself, nor, in the absence of circumstances evincing the intention to deceive, is it evidence from which fraud may be inferred.”

In the circuit court of the United States, for the district of Massachusetts, held at Boston, in September, 1842, an objection was taken to the discharge of a bankrupt, that he had not enumerated the objectors among the creditors, in the schedule of the debts due by him. Story, Judge, decided that unless the concealment or suppression was intentional and fraudulent, and not by mere mistake or accident, it did not constitute a valid objection to the grant of a discharge and certificate, under this act. “ The omission to include the debts,” said that learned judge, “ should have been ‘ willful,’ ” that is, knowingly wrongful or fraudulent, to produce a forfeiture of his right to a discharge and certificate : for the language of the fourth section is, that if any bankrupt “ shall willfully omit or refuse to comply with any orders or directions of such court, or to conform to any other requisites of this act, etc., etc., he shall not be entitled to any such discharge or certificate.”

In Hubbel and Curran v. Cramp et al., 11 Paige’s Chancery Reports 310, which was an appeal by the defendant, J. Cramp, from a decision of the vice chancellor of the fifth circuit, denying an application to dissolve an injunction upon a credit- or’s bill, so far as respected the appellant’s property; it appeared that the answer of Cramp denied that there was any thing due by him to the complainants, and as evidence that nothing was due, and that the judgment was not in force as to him, he set out Ms discharge under the bankrupt act.

The complainants stated in an affidavit, read in opposition to the motion to dissolve the injunction, that the defendant Cramp, either from inadvertance or otherwise, had neglected to insert their names as creditors, in the inventory of his debts. And they had no other notices of the proceedings in bankruptcy, than the ordinary notices in the newspapers.

The chancellor reserved the order appealed from, with costs, and dissolved the injunction. The bankrupt act of August, 1841,” he said, “ made the discharge and certificate, when duly granted, a full and complete discharge of all debts of the bankrupt, which were provable under the act. The statute does not require absolute certainty in the petition, either as to the list of the creditors, or as to the inventory of the property of the bankrupt. But it requires that the bank rupt shall set forth both, according to the best of his knowledge and belief. And as the presenting such a petition is necessary to give the court jurisdiction in the case, if it can afterwards be shown that the bankrupt intentionally or knowingly omitted the names of any of his creditors, or willfully mis-stated the place's of their residence, or the amount of their debts, he was not, he said, prepared to say that the discharge could not be avoided on that account; although this might not be one of the frauds referred to in the fourth section of. the bankrupt act, for which the discharge may be impeached.”

I have thus briefly noticed the expositions made of this branch of the law of bankruptcy, by courts and judges, whose opinions are entitled to respect.

The question submitted to our consideration is attended with less embarrassment than either of those adjudicated in the courts of Alabama, Massachusetts or New York.

The simple inquiry here is, may a debt be recovered in our courts, notwithstanding the debtor pleads his discharge and cer tifieate as a bankrupt, if it appears that he has omitted to state the debt sued for in his schedule ?

It is the opinion of a majority of this court, that a sound construction of the late bankrupt law of the United States, will not admit of such recovery. The judgment of the-court of common pleas will, therefore, be affirmed with costs.

Caldwell, J., dissented.


source: Caselaw Access Project

author: Hitchcock, C. J.

license: Public Domain

text:
    Josiah Kepner’s Administrator v. Daniel Snively’s Administrator.
    A judgment of the court of common pleas cannot be reversed because tha jury found the issue against the evidence, unless there was a motion for a now trial; and the same rule applies where the intervention of a jury is waived and the issue is submitted to the court.
    This is a writ of error to the Court of Common Pleas of Mercer county.
    George W. Bomberger, administrator of Daniel Snively, commenced an action of assumpsit in the court of common pleas of Mercer county, against Samuel R. Mott, administrator of Josiah Kepner, and filed a declaration containing the common counts, for money had and received, etc.
    To this declaration the defendant Mott pleaded the general issue, and attached to his plea a special notice, in substance, that the claims on which the suit was founded, were presented to him, as administrator, for allowance and payment, more than six months before the commencement of the suit, and said claims and demands were by him rejected as unjust, and claimed that the plaintiff was thereby barred of his action in the case, according to the statute in such case made and provided.
    At the September term, 1847, of said court, the case was submitted to the court, and the court found the issue joined for the then plaintiff, assessed the damages at one hundred and twenty-four dollars and sixty-seven cents, and entered a judgment accordingly.
    Thereupon a bill of exceptions was tendered and allowed, which is as follows :

      “ Be it remembered, that on the trial of this cause, in the court of common pleas of Mercer county, at the September term thereof, A. D. 1847, the said plaintiff, to maintain the issue on his part, gave in evidence (among other things) the following:
    “ A receipt from' Thomas Arnuth to said Snively, for three dollars and 'fifty cents, dated January 31, 1843, paid by said Snively to said Arnuth for said Kepner.
    “ Also, a receipt from Stephen Bell to said Snively, for sixty dollars, paid by. said Snively to said Bell, for said Kepner, in March, 1843, for a wagon bought by said Kepner of said Bell, in 1842.
    “ Also, a receipt from John Householder .to said Snively, for twenty-six dollars, paid by said Snively to said Householder, for said Kepner, in December, 1843, in payment of a note for that amount held by said Householder on said Kepner.
    “ Also, a receipt from David Heller to said Snively, for nine dollars and fifty cents, paid to said Heller on the 14th March, 1843, by said Snively for said Kepner, for smith-work done in 1842.
    “ It appeared on the trial that said receipts had been on file, but were lost from the files, and the dates and amounts and other description of receipts being agreed on by the parties, and the loss of the receipts themselves being proved, and the existence of the receipts being admitted, and the descriptions as above being admitted to be correct. Admitted also by the parties, that the said claims were presented to said S. R. Mott, administrator of Kepner, for allowance, and rejected by him, and the plaintiff rested his case.
    “ The defendant then, to maintain the issue on his part, proved by E. M. Phelps, that some time before the death of said Snively, he, Snively, sent the above mentioned claims or receipts to him, to be presented to said S. R. Mott, as administrator of Kepner, for allowance; that said Mott refused to receive said claims or receipts, or to allow them against the estate, because "they were not properly authenticated or proven, and because they were not just claims against the estate, as he thought they had been paid by Kepner. That said claims or receipts remained in his (said Phelps’s) hands for some time, could not say how long, but thinks near a year* before the commencement of this suit; said Phelps also stated and proved that said claims or receipts were not properly made out or sworn to, at the time he presented them to said Mott.

      “ Whereupon, the court rendered judgment in favor of said plaintiff; whereupon, the defendant excepts to the opinion of this court, in rendering said judgment, and prays that this, his bill of exceptions in this behalf, might be allowed, which is accordingly done, and upon his motion,- is ordered to be made part of the record in this case.”
    To reverse the judgment so as aforesaid rendered, this suit in error is prosecuted, and the following errors are assigned:
    1. That the claims on which judgment was rendered against the plaintiff in error, in the court below, were, at the time suit was brought on them, barred by the statute of limitations applicable to such cases.
    2. The general error that the judgment in the court below was in favor of the defendant in error, when it should have been in favor of the plaintiff in error.

      J. S. Conklin, for plaintiff in error.

      Hart & Hart, for defendant.
   Hitchcock, C. J.

The only exception which is taken m this case, as appears from the bill of exceptions, is to the opinion of the court rendering judgment. There could be no error in this. An issue was joined between the parties, and this issue was submitted to the court. Upon hearing the evidence in the case, the court found this issue in favor of the then plaintiff, and assessed the damages sustained. So far the court had been acting as a jury. In this state of case, it followed, as a matter of course, that judgment should be entered upon this finding of the issue, unless some motion was interposed, as a • motion for a new trial, or a motion in arrest of judgment. No such motion was made, and the court very properly entered the judgment.

It is nos claimed that there was any error in this, but the special error assigned is,, “ that the claims on which the judgment was entered in the court below, against the plaintiff in error, were, at the time suit was brought on them, barred by the statute of limitations applicable to such cases.” This was the question to be determined by the evidence in the case, and which was submitted to the court. But for the agreement of the parties, it must have been submitted to the jury, and although the verdict of the jury might have been against the evidence, the judgment could not have been reversed on that account. The same rule applies where the intervention of a jury is waived, and the issue in fact is submitted to the court. In either ease, to lay the foundation for a writ of error, there must be a motion for a new trial, and if that be overruled, the case can be brought into this court by writ of error, pursuant to the provisions of the act of March 12, 1845, “ to regulate the judicial courts and the practice thereof.” (44 Ohio L. 80.)

In the case under consideration, the plaintiff in error has entirely failed to present the question which he wishes to have considered by this- court, in such a manner that we can take any notice of it.

The judgment of the Common Pleas is affirmed with, costs,


author: Avery, J.

text:
    Geauga Iron Company v. Augustus R. Street.
    Error cannot be assigned upon any ruling of tlie court in the progress of a trial, unless by the bill of exceptions it appears that an exception was taken to such ruling.
    This is a writ of error to the Court of Common Pleas of Lake county.

      Perkins & Osborn, for plaintiff in error.

      Hitchcock & Wilder, and Horace Foote, for defendant.
   Avery, J.

Augustus R. Street brought an action of assumpsit against the Geauga Iron Company, in the common pleas of Lake county. The declaration contained several special counts, and the common money counts.

Plea, non-assumpsit.

The cause, as appears by the record, was submitted to a jury, who returned a verdict for Street, the plaintiff; thereupon, the court rendered a judgment in his favor. To reverse this judgment, the present writ of error is prosecuted.

A paper, which is called a bill of exceptions, is sent up to this court, as a part of the record ; it appears to have been signed and sealed by the judges, at the instance of the defendant in the court below, and to have been made a part of the record of that court, and to give a detail in part of the proceedings and testimony in the case.

Now, an examination of the. whole record shows no error, unless it may be discovered in some one of the assignments based upon this bill of exceptions. It becomes necessary to inquire, therefore, whether this bill furnishes any foundation for the reversal of the judgment.

According to our statute, either party may allege an ex ception to any opinion, order, or judgment of the court, and is then entitled to a bill containing such exception. The judges, if required by such party, must sign and seal the bill during the progress of the cause; or, with the consent of the party, may postpone the execution of it till after the trial, though it must be done during the term, and when sighed and sealed, must, if the party desire it, be made a part of the rec-. ord. 43 Ohio Laws 80.

In the progress of a trial, if a motion to direct a nonsuit be made to the court, it must be decided; and to the decision upon that motion, either party has a right to except. But to claim any benefit from the right, the party must exercise it, by actually excepting to the opinion, and showing that he did so except, by the record. When an objection is made to the introduction of testimony, the court must decide whether it be admissible or not. If either of the parties, upon hearing the decision, is not satisfied with it, he may except; but if no exception appears upon the record, it will be presumed that none was taken. To the charge of the court, or the refusal to charge when requested, the exception must appear, or no ground will be shown by the record to justify a reversal of the judgment.

Upon the trial of this cause before the common pleas, the plaintiff offered to introduce, at different times, certain evidence, to the introduction of which, the defendant objected; the court decided in each case, upon the question submitted; but it is no where stated that any objection-was taken to the decision. The defendant moved for a nonsuit, which the court refused, but no exception to the refusal appears. The court gave a charge to the jury, and when asked by the defendant to charge in a particular manner, refusedbut no exception is taken to either charge or refusal.

At the close of the document, it is said that the defendant presents this, his bill of exceptions, praying that it be signed and sealed, and made a part of the record, which is done.

This is but giving a name to the paper, not showing an exception to any opinion, as either alleged or recorded.

A professional statement from one of the counsel engaged in the cause, is placed upon file, with a letter, intimating a be lief that the judges would be willing to amend; but it is too late to amend the bill of exceptions.

In the opinion of the court, there is no error in the record, and the judgment of the common pleas must be affirmed.

Hitchcock, C. J., having been one of the original counsel in the cause, did not take part in the decision.


author: Caldwell, J.

text:
    David Stewart v. The State.
    In a trial for murder,, it is competent for the defendant to prove how he was employed at the time he met with the person he is charged to have killed, and what was his conduct a short time before the affray which resulted in the killing.
    It is competent, on cross-examination, to ask a witness how he was employed during the time of the transaction he has detailed in his examination in chief.
    In such case it is competent for the defendant to prove that the person alleged to have been murdered, and others, had agreed to go to the house where the defendant boarded, for the purpose of quarreling with him, and that they had approached him with that intent at the time the affray commenced which resulted in the homicide ; and to prove the conversation of the parties, in relation to such agreement, though the defendant had not been informed of the intent of the parties in approaching him.
    It is competent for the defendant to ask a witness who had seen the transaction, whether, when the deceased rushed on him, there was time enough for him to escape, and get out of the way before the deceased rushed on him, or not. ■
    This is a writ of error to the Court of Common Pleas of Clark county.
    The defendant, David Stewart, was tried in the court of common pleas of Clark county, on an indictment for murder in the second degree, charging him with killing James R. Doty, and found him guilty.
    Numerous exceptions were taken, during the trial, to the rulings of the court, in the admission of evidence. The court reduced their charge to the jury to writing, on which errors have been assigned. A motion was also made for a new trial, and overruled by the court, which ruling of the court was excepted to, and the evidence in the case has been spread upon the record, and it is contended that it does not warrant the verdict.
    'The bill of exceptions is very voluminous, and the errors assigned are numerous. Only a part of them were considered by the court, and a full statement, as to them, will be found in the opinion of the court.

      Anthony & Goode, and John A. Corwin, for plaintiff in error.

      William White (prosecuting attorney), and William, Rogers, for defendant.
   Caldwell, J.

It appears from the evidence in the case, that the deceased, Doty, on the evening he lost his life, in company with three others, McCartney, White, and Jennings, went to Hagenbaugh’s tavern, where the defendant, Stewart, boarded; that Stewart came out of the house on to the pavement, where the deceased, and his company were standing; that an altercation ensued between the deceased and the defendant, about a small sum of money which the latter said the former owed him; that the deceased called the defendant a liar, to which the defendant replied that the deceased was a damned liar; that deceased then closed in upon defendant, that a fight ensued, that deceased very soon said he was stabbed, that he received several stabs, of which he died, and which were inflicted by defendant. It appears, too, from the evidence in the case, that after Stewart came out of the house, a few minutes intervened before the fight commenced. The state called Nathaniel Criger, who testified to the circumstances attending the affray, and also testified that he came out of the house with Stewart, the defendant, On cross-examination, the defendant’s counsel propounded the following question: “ How were you employed, and how was the defendant employed, from the time you came out of the tavern till the fight began ?” This question was objected to by the counsel on the part of the state, and the court sustained the objection, and would not permit the question to be answered To this ruling of the 'court, the defendant excepted, and assigned the same as error on the record. We see nó objection, whatever, to the question. Indeed, we think, under the circumstances, it was one very proper to be asked. The witness had testified to facts that transpired between the time that he and Stewart came out of the house, and the time of the fight, as well as what happened during the fight. Now, to ask the witness how he was employed during the short interval before the fight occurred was a very pertinent question. It would tend to show whether the witness was situated so that he was able to note all that passed, whether his attention was directed solely to the parties, or whether he was engaged in anything else, that occupied a part' of his attention ; it might tend to east light upon the distinctness of his recollection of what was going on, and in many respects might be important. As to the other branch of the question, we regard it, in this case, as of vital importance. The defendant was on his trial for murder in the second degree, of which he has been convicted. If the killing was the result of a sudden quarrel, he could not be convicted of murder. How vitally important, then, to the proper determination of the case, it was, to prove what his conduct was, when he came out of the house, in the presence of the deceased and his party ? Bid he make any hostile demonstrations ? Did he do any act that was calculated to bring on a quarrel, or do any thing that showed that he wished to bring on a fight ? Or did he en gage in something that went to show no such disposition ? What he did, or how he was employed, during this time, is a matter of so much importance, that the case could not be properly tried, without a scrutinizing inquiry into everything that was calculated to cast light upon it. We think the court clearly erred in not permitting this question to be answered. It would appear, from an interlineation in the bill of exceptions, that the question was objected to on the ground that it was not competent for the defendant to prove what Stewart did before Doty arrived. Now, the witness to whom this question was propounded, does not state that Doty and his company were standing about the tavern when Stewart came out; but it is fairly inferable from what he says that such was the fact. But the first witness called by the state, McCartney, and the only witness that had been examined before Criger, the witness to whom this question was propounded, had stated in his examination in chief, that Doty and his company were all standing about the tavern door, and gives the position of each, when Stewart came out.

On the part of the ptate, a witness by the name of White, who was one of the four persons who were in company with Doty, at the time of the fatal affray, and he having testified to the facts of the case, the defendant, on cross-examination, propounded the following question: “ State what conver sation took place on Monday evening, Sept. 9th, 1850, whilst McCartney, Doty, Jennings, and yourself were together, in relation to the subject-matter of dispute, between the defendant of the one part, and Doty, or McCartney, or either of them, on the other part, in relation to your going together to Stewart’s boarding house, and your purpose in going there ?”

This question was objected to by the counsel for the state, which objection was sustained by the court, and the quos t-ion was not permitted to be answered. This is assigned for error by the defendant. Several other questions were put by defendant’s counsel, varying the form of the question, but substantially the same, which were also ruled out by the court. Now we think, under the circumstances of this case, as detailed in evidence, this was a proper question. It appears that on the Saturday evening before Doty and the same three persons, of whom the witness was one, had gone to this same house, that they and Stewart had got into a quarrel; that Doty and two of the others rushed at Stewart, and that some other persons interfered to prevent the affray, and that Stewart escaped behind the counter. When the same persons went there on Monday evening, it certainly was important to prove whether they went there with a hostile intent or not.

Anything that would tend to prove whether they went there with a hostile intent, or whether they went with some different intent, or happened there casually, might be important evidence. This question, although embodying some circumlocution, was calculated to ascertain what these persons went to this house for, on Monday evening; whether it had any reference to the existing quarrel between them and Stewart. If they had had any conversation, or had come to any agreement on the subject, it would be proper to prove it. If such had been the object of these persons, in this visit that night, it ought to be proved, although no information of the kind had been, in language, conveyed to the defendant. He might be able, when they met, from their manner and conduct, to discover their intention, although they had made no verbal expression indicating such intention. An agreement to do any thing, or go any where, is a fact; the conversation by which that agreement is made, is the legitimate evidence of that fact, and does not in any way come under the head of hearsay evidence. Whether there was evidence to prove any such intention on the part of Doty and his friends, is not the question; but whether the defendant might offer evidence tending to prove that fact. We think the court erred in not permitting this question to be answered.

The defendant called a witness, Harvey B. Corwin, and propounded to him the following question: State whether, when Doty rushed upon Stewart, there was time enough for Stewart to escape, and get out of the way before Doty rushed on him, or not.”

This question is rather in a leading form. It is, however, a question of that peculiar kind, that to call the attention of the witness to the precise point on which information is wanted, it is almost impossible to avoid putting the question in a form more or less leading. No objection is noted as being taken to the question on the ground of form, and the fair inference is that the question was ruled out as substantially incompetent. We think the question was proper, and should have been answered. This may be said to be taking the opinion of the witness, and therefore objectionable. It is true, as a general rule, that the opinion of a witness cannot be given — the witness relating the facts from which the jury form their opinion. This rule, however, is not universal. The fact here sought to be proved, to wit, that the defendant could not avoid the conflict, could not be well proved to the jury by a statement of facts. The time occupied by the deceased, in passing from where he stood to the defendant, a distance of only a few feet, could hardly be stated, with any accuracy of measurement. The rapidity of his motion could not be calculated, so as to convey any very definite idea of his velocity. The particular position of the defendant in reference to surrounding objects, as well as the position of his body, at the time, were important items in determining the fact whether he could have got out of the way or not, and yet it would be very difficult, perhaps impossible, to convey any very clear idea to the jury, in reference to these matters. A variety of circumstances that could only be perceived, but not detailed, would constitute the aggregate from which the opinion would be formed. The person who had witnessed the transaction, could alone, most probably, form any idea on the subject that could be relied on with safety.

For these errors, the judgment of the common pleas will he reversed. The other points raised in this case are numerous, and some of them important, but we do not think it necessary to proceed further into the examination of the case.


text:
    David Kemper et al. v. James McClelland’s Lessee.
    Where two counties were attached for the purposes of taxation, the commissioners, by the tax law of 1827, were to be governed in fixing the per centum, by the aggregate value of all property entered upon the list for taxation, and if they established at any time a higher rate than the law authorized, all tax sales to pay such rate are void.
    This is a writ of error to the Court of Common Pleas of Hardin county.
    The defendant in error brought an action of ejectment in the court below, against the plaintiffs in error, claiming title to the lands in controversy under a patent from the United States, dated the 25th of January, 1823, granted to the heirs and legal representatives of Benjamin Forsythe, for 6061- acres of land situated in Hardin county.
    The defendants were in possession, holding by virtue ot a tax title.
    The tax sale took place on the last Monday of December, 1831, at the court house in Logan county, and under proceedings conducted by the county officers of Logan county. At this sale, which was for the taxes, penalty, etc., of the years 1830 and 1831, David Kemper, one of the plaintiffs iii error, purchased 425 acres of the above mentioned 6061 acres, and received a deed therefor, dated the 24th of February, 1849, from the auditor of Logan county. This deed is the foundation of title on the part of plaintiffs in error.
    The cause in the court below was submitted to a jury; and in the progress of the trial a bill of exceptions was taken, for the purpose of showing all the acts of the county officers, and all the proceedings and rulings of the court of common pleas.
    It is as follows :
    Be it remembered, that on the trial- of this cause in the. court of common pleas of Hardin county, Ohio, at the April term thereof, A. D. 1850, the plaintiffs, to maintain the issue on their part, offered in evidence the patent and depositions hereto attached, marked “A” and “B,” and made part hereof, which was received in evidence.
    The defendants then offered in evidence, without proof of execution, the deed, a copy of which is hereto attached, marked “ C,” and made part hereof, to sustain the title of defendants, which was objected to by the plaintiffs, but the objection was overruled by the court. The defendant then offered in evidence two instruments marked “ D ” and “ E,” the execution of which was proved, and the plaintiffs objected to the introduction of the same in 'evidence, but- the court overruled the objection, and received said deeds in evidence.
    The defendants then offered in evidence the deed hereto attached, and made part hereof, marked “E,” and it was agreed that the same should be received in evidence, if a duly certified copy thereof, from the recorder’s office, where it was recorded, would be evidence, and the plaintiff objected to the introduction of the same, but the court overruled the objection, and received the same in evidence. Also the deed marked “ EE,” which was objected to, and the objection overruled. The plaintiff then introduced the 'depositions hereto attached, and made part hereof, marked “ G,” and the same were admitted. The plaintiff also offered in evidence the following records, which were admitted by the defendants to be the records they purport to be, from the auditor’s office, in Logan county, being the records of that office, to wit:
    1. The auditor’s and treasurer’s duplicate of taxes for Logan and Hardin counties for the years 1830 and 1831.
    2. The list of lands returned delinquent by Martin Marmon, treasurer of Logan county, for the year 1830, and of the settlement thereon stated, as made with B. S. Brown, auditor.
    3. The record of the proceedings of the commissioners of Logan county, for 1830 and 1831, and of the taxes by them levied for said years.
    4. The record of the notice of the delinquent tax sale for 1831, purporting to contain list of lands advertised to be sold at delinquent tax sale of 1831, in Logan county, and certificate thereto.
    5. The record of delinquent tax sales for 1831, in Logan county.
    The several papers hereto annexed, it was agreed by the parties, are correct copies taken from said records, and that said copies contain all that is material from the several records aforesaid, to sustain defendant’s deed; but it was agreed that the defendant or plaintiff might, on the hearing of a writ of error in this case, produce and use the original records in evidence as aforesaid, or said copies. The plaintiff then’ proved that the deed marked “ C ” was executed by William Stokes, auditor, etc., without the production of any certificate of sale issued upon the delinquent tax sale of 1831, and without the production of a survey; but it was also proved that diligent search had been made in the auditor’s office of Logan and Hardin counties for such certificate of tax purchase, and that none could be found. The plaintiff also proved that the record of the notice of the delinquent tax sale of 1831, was in the handwriting of George Krouskop, who was the auditor, but that the name of George Krouskop, auditor, was signed in said record at the foot of the notice of sale, in the handwriting of Noah Z. McColloch, and that the certificate of the publication of said notice, made at foot of said record, with the name of George Krouskop, auditor, thereunder written, was also in the handwriting of said McColloch. The defendants then proved that in 1830 and 1831, N. Z. McColloch was cleric of common pleas of Logan county; that he had been auditor prior to 1828 or 1830, and that after Krouskop was elected auditor in 1830, during the years 1830 and 1831, McColloch frequently assisted Krouskop, and gave him instructions in the duties of the office, and assisted him in making tax sales, but the witness could not state that McColloch was a deputy in the auditor’s office.
    The plaintiff then moved the court to rule out all the deeds and instruments in evidence by defendants, both as evidence of title and for all purposes.
    The court ruled out all of said deeds and instruments, so far as they sustained the title of defendants, but received them in evidence and refused to rule them out so far as the defendants claimed under the occupying claimant law.
    The cause being submitted to the jury, a verdict was rendered for plaintiff, and the defendants then moved the court for a new trial, for reasons on file, which motion the court overruled.
    The defendants then made application for the proceedings under the occupying claimant law in their behalf, upon the evidence by them offered, to which the plaintiffs objected, but the court overruled the objection, and made an order for proceeding under the occupying claimant law. The plaintiffs excepted to all the decisions of the court in overruling the objections made by them to defendant’s evidence, in refusing said motions by them made, and in making the order under the occupying claimant law, and in granting motions made by defendants; and the defendants in like manner excepted to the decisions of the court in overruling objections by them made to evidence in granting motions made by plaintiffs, and in refusing a new trial; and the parties respectively prayed the court to sign and seal this their bill of exceptions to all matters as aforesaid, and said exceptions are allowed, and this bill signed and sealed accordingly, and made part of the record.

      JB. Stanton, for plaintiffs in error.
    It is said' the tax sale under which we claim title is defective:
    1. Because the delinquent list is not sworn to by the treasurer. This objection is answered by the decision of this court in the case of Winder’s Lessee v. Starling, 7 Ohio Rep., part 2, p. 190.
    The jurat to the delinquent list, in this ease, was made by the same officer, under the same law, and is a literal copy of the one which was held sufficient in that case. The court in that case say, page 194: “ There is all the evidence of this fact, and the only evidence which the legislature have thought proper to require by the statute, or in the forms prescribed.” It is sought to take the case at bar out of the authority of that decision, by saying that the forms under which that return was made, were prescribed by the collector, whose office was abolished, and the duties of the office devolved upon the treasurer by the act of January 24, 1827.
    2. It is said that the duplicate footings are not certified by the county auditor. If it was true, we think the objection would not amount to much. But it is a mistake. Certified copies of the duplicate footings for 1830 and 1831, will be found amongst the exhibits.
    3. Because the delinquent list was not returned, nor settlement made with the auditor, on the first Monday of January, A. D. 1881.
    The 8th section of the act of January 24, 1827, 3 Chase 1545, provides that the county treasurer, on the first Monday of January, in each year, shall make his return in the manner prescribed in 'the act defining the duties of county auditor. The second section of the act of February 1, 1825, 2 Chase 1493, prescribing the duties of county auditor, defines the mode of ascertaining delinquencies and making up the treasurer’s return.
    A copy of the settlement made by the treasurer, in January, 1831, is made an exhibit, to which is annexed the certificate of the auditor, stating the sums found in the hands of the treasurer for the several funds in his possession. This certificate bears date the 13th of January, 1831. When the settlemeni was made, does not appear. The “ settlement ” is the examin ation and computation of the delinquencies, to ascertain the amount in the treasurer’s hands. This must, of course, be done before the results of the settlement can be recorded, or the delinquent list sworn to. When this settlement was made, does not appear, nor is it necessary that it should appear from the record. And in the absence of proof, it will be presumed that the officers have done their duty, and that it was made at the time prescribed by law.
    It is said in this connection, that the treasurer’s affidavit to the delinquent list is dated January 13,1830, instead of 1831. This is a mere clerical error, of the kind that is frequently made at the beginning of the year, from the force of habit. But it is abundantly corrected by other parts of the record, and can do no harm. The date is no part of the affidavit, and might have been omitted entirely. It is at best but prima facie evidence of the time when the affidavit was made, and may be, as it is, abundantly corrected by other record evidence in the case. It was made on the 13th of January, 1831, and the law does not require it to be made sooner.
    4. It will be found upon computation, that the auditor, to avoid fractions of a mill or cent, took a fraction from the state and canal tax, and added it to the county and school tax. This, is said to be an overcharge. But the aggregate is precisely right.for both years. The defendant’s taxes are an entire thing,, and if the aggregate is not overcharged he has no cause of complaint. Or, if he insists that the different kinds of taxes were separate and several demands, I answer, that his land was-property sold for the payment of the state and canal tax, which was not overcharged. ^
    5. It is said that the penalty and interest on the taxes off 1830, should have been charged in a separate column on théduplicate of 1831. 3 Chase 1809, § 21, and 1811, § 59, are cited in support of this objection, but they failed to sustain it. I presume no duplicate was ever so made, and that no law required it. It is also said that the taxes of 1831 exceed the levy for that year. That is because the interest and penalty for 1830 is added, which it is assumed cannot be done.
    In this, counsel for defendant in error is mistaken, and hence the objection fails.
    6. “ That the county commissioners levied higher taxes for county purposes, etc., than were authorized by law.”
    The 5th section of the act of January 31, 1827, 3 Chase 1593, provides, that when the taxable property of any county shall not be less than $500,000, nor more than $1,000,000, that the levy for county purposes shall not exceed three mills. When it is less than $500,000, it shall not exceed five mills. The levy was not more than five mills, nor was the taxable property of Hardin county $500,000. But it is claimed that the taxable property of Logan must be added, because Hardin was then attached to Logan. The taxable property of the two counties was over $500,000. This objection turns upon the question whether both counties are to be considered as one, within the meaning of this section of the statute. Hardin county was “ attached ” to Logan (not merged in it) February 12, 1820, 3 Chase 2134. It was, by the same act, erected into a separate county, its boundaries defined, and a name given to it.
    But, as its inhabitants were not then able to support a separate organization, it was “ attached” to Logan, and the officers of Logan county were thereby made ex-officio officers of Hardin county. But, for various purposes, and especially for the purpose of finance and taxation, it was treated by law as a separate county.
    The funds of the counties were to be kept separate. Appropriations for bridges and other local purposes were to be made from the funds of the proper county. And upon the organization of the county attached, a settlement and distribution of the county funds was to be had. 2 Chase 1081. Act of January 11, 1820.

      This latter act shows clearly, that for the purpose of taxation, the two counties were regarded as separate. The levy, therefore, was not excessive.
    7. But it is said, if the counties are separate, and the levy not excessive, that, the officers of Logan county had no powei to sell.
    When the fourteen counties in the N. W. corner of the state were laid out and attached to adjoining organized counties, the object and effect was well understood. It was not to withdraw the property within them from taxation; but to give to their scattered population the protection of the laws, without subjecting them to the expense of county organization. By attaching ” them to other counties, the officers of the older counties to which they were attached, became ex-officio officers of the new counties, with the same powers that they had in the counties in which they were elected. Hardin is attached to Logan, “ for all the purposes of taxation.” 3 Chase 1517, $ 4. The powers of taxation include the power to enforce the statutory penalty for the non-payment of taxes. A cotemporaneous construction has been put upon this law, by the state and county officers charged with the execution of the laws, from the time these counties were attached until they were organized. And in Winder’s Lessee v. Starling, 7 Ohio Rep. 190, this court sustained a sale for taxes made by the auditor of Logan county, of land lying in Hardin.
    8. Sundry objections are made to the record of the advertisement of the delinquent list, all of which are fully answered by reference to the record itself, or by the familiar maxim, that all officers will be presumed to have done their duty, until the contrary is shown. The record of the advertisement shows that the delinquent list was published “ four weeks in succession, agreeably to law.” But it is said the words, agreeably to law, are not sufficient to show when the publication commenced, nor when it ended, and that it cannot be known that the publication was between the first of October and the first of December. But the record of the tax sale shows that the delinquent list was published the first time, on the 7th of October, and the last time, on the 28th of October.
    The record, therefore, shows that the law was complied with by publishing four weeks in succession, between the first of October and the first of December. It is no matter in what part of the record you find the evidence of the timo of publication, if it appears from the whole record. Winder’s Lessee, v. Starling, 7 Ohio Rep. 190. It will be presumed that the paper was of general circulation in Hardin county. 7 Ohio Rep. 190.
    9. It is said that the record is not certified and signed in'the handwriting of the auditor.
    The proof shows that these are the genuine records of the auditor of Logan county, and that they are kept in the proper place, and in the custody of the proper officer.
    The certificate and signature in question, purport to ba the certificate and signature of the auditor whose duty it was to make it, and in whose custody the records were then kept. They import absolute verity, and it is submitted with confidence, that they cannot be impeached or contradicted by parol.
    It is further claimed, that if it were competent to go into such proof, and it was shown that the auditor, from accident, or any other cause, stood by, and saw another write his name upon his records, at his request, and he acted upon it, and recognized it as his own act, that it would be good, and the record could not be impeached on that ground. Who ever heard of the record of a court being impeached by proving that it was not in the handwriting of the clerk, or his sworn deputy ? If it is found to be the “ record ” of the court, that closes all inquiry, and no evidence can be offered to contradict it. -This objection cannot be sustained. *
    10. It is said that the record is not certified, and does not purport to be made out by the auditor, or his deputy; and 8 Chase 1811, section 34, is referred to in support of this objection. It will be seen, by reference to this section, that it required a copy of the record of the tax sales for each year, to be made out and certified by the auditor, and sent to the auditor of state. But it does not require the auditor to make a certificate, and incorporate it into the record of sales.
    The record, of course, would not show what copies had been taken from it and certified, and evidence of that fact would not be kept by the county auditor.
    And an exhibit from the auditor of state’s office shows that this was done.
    11. That it does not appear that a certificate of sale was ever issued.
    It is made the duty of the auditor, upon the sale, to give the purchaser a certificate of purchase. If less than the entire tract is sold, the purchaser, after two years, goes with his certificate to the county surveyor, has the quantity sold laid off in a square form in the N. W. corner; and with this certificate and survey, goes to the auditor, and has his deed executed.
    The proofs and exhibits in this case show, that the purchaser, supposing the auditor of Hardin county to be the proper officer to make the deed, procured a deed from him in 1839. It will be presumed, as the fact undoubtedly was, that the certificate and survey were surrendered to him at the time his deed was made. It is the purchaser’s duty to surrender the certificate upon the receipt of a deed, and no one would expect to find him in possession of both. The proof is, that the auditor of Hardin county has lost it, or rather,- that he cannot find it, the law not making it his duty to preserve it. When it is surrendered, and a deed executed, it has performed its office, and is no longer worth preserving. The deeds, with the certificate and survey, furnish at least prima facie evidence, that there was a certificate and survey, which is certainly not rebutted by any proof in the ease. The absence of the certificate and survey furnish no presumption whatever, because they were of no value or importance, and it was nobody’s duty to preserve them after the execution of the deed. ■
    The absence of the record of the survey, in the records of the surveyor of Logan county, comes to nothing.- I doubt whether the law made it his duty to make a record amongst the records of Logan county. But if he did, it would go to the surveyor of Hardin county, upon its organization, and would not be in the hands of his successor, in this county.
    It will be seen from the patent, that the heirs of Forsythe have had title to this land, some twenty-eight years, and have never paid any attention to it, until the commencement of this suit. They cannot plead infancy, for that does not last twenty eight years. If they plead coverture, let them redeem, upon payment of the improvements and taxes, with the statutory penalty, and not seek t« escape it by an action of ejectment. If they are not willing to do this, it will be no great calamity, if they should lose a part of their land.
    It is a duty which the state owes to her resident tax-paying citizens, to enforce the payment of taxes by such penalties as will make it the interest of non-resident landholders to pay their taxes promptly.

      William Lawrence & Stillings, for defendants in error.
    The facts sufficiently appear in the bill of exceptions, from which it is manifest that the tax sale was totally void.
    I. No law authorized a sale of the land for non-payment of taxes. The land in controversy is in Hardin county. It was sold for taxes by the officers of Logan county. The law did not authorize them to sell. 3 Chase 2134 — 2147 1517 —1518 and 4 2 Chase 1081 — 3 Chase Stat. 1811 and 32.
    This proceeds, of course, upon the idea that Logan and Hardin are distinct counties; and if they are so regarded, then the tax sale was void, for the law only authorizes officers of Logan county to sell lands in their county.

      II. If this construction is not given to the law, Hardin and Logan must be regarded, for all purposes of taxation and tax sale, as one county. If so, the county commissioners levied more tax than was by law authorized. The fifth section of the act of January 31, 1827 (3 Ch. 1563), provides that “ where the aggregate amount of the value of all property entered for taxation,” “ shall be $500,000 or more, and less than $1,000,000, the tax for county purposes shall not exceed three mills on the dollar.” In 1830, the aggregate value of all property entered on the duplicate of Logan and Hardin, was $533,053, and the tax levied for county purposes was 4f. mills, being 1J mills more than was authorized by law. If these two counties, for purposes of taxation, are to be regarded as one county, then too much tax was levied; if not, but as two distinct counties, then all the laws authorizing tax sales, do not apply to, or authorize sales of land in Hardin. These questions were not made in 7 O. R. 190, and have never been decided.
    III. The tax duplicates were insufficient.
    1. They were not properly closed with duplicate footings, and the auditor’s certificates. 2 Chase 1376, 1476, 1493 ; 3 Chase 1543, 1807. It is perhaps sufficient for the purpose of this case to examine the duplicate of 1830, and the law applicable to it. By the act of February 3, 1825, (2 Ch. 1846,) forms are prescribed, which “ shall be pursued by the several officers.” These forms (p. 1491) require duplicate footing, and a certificate signed by the auditor, to close the duplicate. 3 Chase 1563; 7 Ohio R. 190.
    2. The several kinds of taxes are not accurately charged in separate columns. The statute (3 Ch. 1809) requires the auditor to “ charge the state, county, township and road tax, in separate and distinct columns.” This is imperative. It is not now objected that the aggregate amount of taxes is too much, but in one of the duplicates there is five mills too much tax put into the column for county and school tax. If a sale was made for the purpose of paying a mill of tax illegal in kind, then the sale is void. (Beach et al. v. Walker, 6 Cow. 197.)
    3. The duplicate of 1831, does not purport to include the tax, interest and penalty of 1830, and if not, the taxes are overcharged for 1831. It cannot be presumed that this duplicate includes the tax, interest, and penalty of a former year. 3 Ch. 1809, § 21-2; 1811, § 29.
    IV. 1. 2. The delinquent list was not returned, nor settlement made with the auditor, on the first Monday in January. By law, the treasurer is required to settle with the auditor on the first Monday in January, and make his delinquent return. (3 Ch. 1545.) This return can only be made “.within the time prescribed by law,” and within that time the treasurer must “ sign such list and testify to the correctness of the same under oath, to be administered by the auditor.” (2 Ch. 1498 § 2.) He cannot make the return until the oath is made, because without it there is no legal return. In this case the oath is dated January 13, after the time prescribed by law, and the return was then made, for the settlement bears the same date. 'T maintain that the law presumes the date of a recorded transaction to be the actual time of the transaction, and that’ when the record is produced, it must, upon its face, show that the statute has been pursued in time, form, etc. Thatcher v. Powell, 6 Wheat. 127 ; Sherwood v. Read, 7 Hill 431.
    3. The treasurer’s oath to the delinquent return made in January, is defective in two particulars. 1st. Though subscribed by the treasurer, the auditor has failed to affix his jurat. In Winder v. Starling, 7 Ohio Rep. 192, a similar affidavit was held sufficient as to the collection of taxes in 1826, and the treasurer in 1827. The ground of that decision is, that the law prescribes the form of oath (2 Ch. 1491) without a jurat, but the point was not made, or argued to the court, that there is a distinction between the law, as to the old office of collector and the office of treasurer, and the court inadvertently applied the same decision to the oath to be made by both officers. In the absence of any form prescribed by law, a jurat of course will be required. The statute prescribing a form, only applied to the old office of collector, and not to treasurer. The act of January 24, 1827 (3 Ch. 1543), abolished the office of collector and substituted treasurer. By that law (3 Ch. 1547, § 17) the treasurer is required to make his return of delinquencies, according to the act of February 1, 1825 (2 Ch. 1493), in which no form of oath is prescribed, and he is not governed by the act of February 3, 1825 (2 Ch. 1486), prescribing a form, as was the collector. As to the treasurer, then, the case in 7 Ohio Rep. must be overruled.
    Judge McLean has overruled it in a case reported in the "Western Law Journal. 3 West. Law J. 1845, 6 p. 4.
    In the second place, the oath is void, because dated January 13, 1830, instead of 1831. Inasmuch as there is no jurat showing that the proper officer administered the oath, no presumption can arise that it is a mistaken date, especially in the absence of any proof tending to show mistake. 8 Ohio Rep. 14.
    4. The delinquent list shows no reason why the land is returned delinquent. This is required by law. (2 Oh'. 1493, § 26;) 6 Wheat. 119.
    V. The record of notice of sale is insufficient.
    1. It does not designate the several kinds of taxes, as in the duplicate. (3 Ch. 1811, § 29.)
    Besides this, the published list, to give it validity, being a copy of the return, must be certified and signed by the auditor. (2 Ch. 1811, § 29, 30.) This objection also applies to the delinquent return.
    2. The notice, “ published four weeks agreeably to law,” is insufficient. When was it published ? The facts must be stated so that the court can judge if it was agreeably to law.
    Unless the record shows upon its face the facts that make a legal publication, it is illegal. 1 McLean’s Rep. 322; 6 Wheat. 127 ; 3 Ch. 1811, § 30 ; 8 O. R. 114; 12 O. R. 271; 3 Chase 1811, § 31; 2 West. L. Jour. 1844-5, 544; 5 Ib. 1847-8, 304.

      The court cannot supply this, by a presumption that officers do their duty, until the contrary is shown. The rule is, that “ where a matter not of record is required to be done, it will Be presumed; but matters of record must, on their face, appear to be legally done.”
    The record is signed, not in the handwriting of the auditor, as is required by law. (3 Ch. 1811, § 31.) His genuine signature is requisite to its validity. Section 34 of this law author izes the auditor, or his deputy, to do certain acts; but the deputy cannot sign this record. The provision as to the deputy in one class of cases, excludes the idea that any person but the' auditor himself can perform this duty.
    4. It does not purport to “ be copied from the paper in which it was published.” (3 Ch. 1811, § 31.)
    VI. 1. It is proved that the tax deed issued without the production of a certificate of sale, and it is not proved that one ever issued. (3 Ch. 1812, § 28.)
    In case of loss there is no remedy, unless it be set up in chancery.
    But its loss is not proved. As it is an instrument which by law goes to the purchaser, the onus is on him of proving its loss. But as he cannot procure a deed without it, he must prove, 1st its existence; 2d, its loss, by oath or otherwise; 3d, diligent search; and 4th, its contents. 1 Greenl. Ev., § 558.
    2. The same section of the statute last referred' to, requires the production of a survey made by virtue of the certificate of sale. None was produced. It is not proved that a survey was ever made, but it is proved that none was produced or can be found in the surveyor’s record of Logan county, which is a record required by law. (Swan’s Stat. 895.)
    It will be seen, also, that the bill of exceptions does not state that diligent search was made at any time or place, for the survey, but only for the certificate of sale.
    It cannot be replied that the survey is presumed to be in dorsed on the certificate. Neither does the law require the survey to be indorsed on, or appended to the certificate, any more than it does an administrator’s report of sale to be indorsed on the order of sale.
    It is undoubtedly a work of supererogation to lengthen this argument for the purpose of sustaining the judgment below. But a question is made in the bill of exceptions, which it may be well for the profession and the public to have settled. The common pleas decided that the tax deed should be introduced in evidence by the party holding it, without the production of the tax records. This was wrong.
    In Turney v. Yeoman, 14 Ohio Rep. 207, it was decided that on forfeited sales, under the act of March 14, 1831, the deed was prima facie evidence of title, without preliminary proof. That decision rests solely upon the ground that the statute (Swan’s Stat. 938, § 6) declares that the “ deed shall be prima facie evidence of title,” without any provision requiring the holder of the deed to show that it was made in pursuance of the provisions of the statute. That, then, is the law as to forfeited sales under that act.
    In the case now before the court, the tax sale was made under a different act, the delinquent tax act of March 14, 1831. (3 Ch. 1812.) This act first recites the steps necessary to authorize a sale, and then declares “ that the deed so made shall be received as prima facie evidence.” The terms, “ so made,” cast upon the holder of the deed, the onus of showing all the preliminaries. Lessee of Holt’s Heirs v. Hemphill’s Heirs, 3 O. R. 233 ; Carlisle v. Longworth, 5 O. R. 368.
    In this latter case it was decided that -the holders of the tax deed must produce the tax records, because the statute (sec. 9) declares “ the deed made as herein before specified,” etc. The terms, “ so made,” in the act of 1831, are equivalent to the terms, “ made as herein before specified,” in the act of 1825.
    If this construction is given, it will reconcile the cases just referred to; otherwise the one is overruled by the other. It is high time that this court should stand by its own decisions, that no more conflicts in cases may be made than can reasonably be avoided; else the lawyer, as he contemplates our eighteen volumes of Ohio Reports, may well inscribe upon the whole,
    --“ Ml fuit urnjuam
    Sic impar site.”
    And I can certainly see no reason why a tax d.eed shall have more favor than a sheriff’s deed, to sustain which, though made by law prima facie evidence, the party holding it must show a judgment, execution, levy, sale and confirmation.
    If this view is sustained, then the judgment below must be affirmed, as only a part of the tax records are before the court. The assessor’s appraisement, the return made in 1831, showing that the taxes were not paid so as to authorize a sale, and other records recited in the deed, must all be before the court, to sustain this tax sale. Finally, as a matter of public policy, tax sales should not be sustained, unless the laws are shown to have been complied with. In the varied transactions of men, absolute punctuality in paying taxes is impossible. Misfortune, disease, death, every where pervade the world, and interrupt the performance of the duties of the citizen. Widows and orphans will be plundered of their estates, to add to the wealth of calculating and heartless speculators, buying “ acres for cents,” unless their rights are protected in courts of justice.
   Avery, J.

After an examination of the bill of exceptions, the court has come to the conclusion that enough is shown in it, to give jurisdiction of the case, and to warrant an inquiry into the several matters discussed in the argument.

There is no denial of the right to recover in the ejectment, if the tax sale did not pass the title.

The counsel for the defendant in error alleges that the purchaser at the tax sale acquired no title, for the following reasons:

“ I. The law did not authorize the officers of Logan county to sell land in Hardin, which, for ‘ purposes of taxation,’ was ‘ attached ’ to Logan.
“ II. " If a sale was authorized because Hardin was ‘ attached ’ to Logan, then being but one county, no greater rate of taxes could be levied than by law was authorized upon the ag gregate duplicate footings of the two counties, which was done, and so the sale was void.
“ III. There is no legal duplicate of taxes for 1830 and 1831, with duplicate footings signed and certified by the audit- or, with columns stating separately the taxes of 1830 and 1831, or even purporting to include delinquent taxes. The duplicates of 1830 and 1831, do not state the accurate amounts of .the several kinds of taxes in separate columns.
“ IV. The list of lands delinquent for 1830, returned by the treasurer to the auditor, is invalid, because: First, it was not returned on the first Monday in January, but on the 13th; Second, the settlement between the auditor and treasurer was not made on the same first Monday; Third, the treasurer’s oath to the delinquent return, though subscribed by him, is not certified by the auditor, and is dated January 13, 1830 —long before he even received the duplicate; Fourth, the delinquent return does not show any reason why this land was returned delinquent.
“ V. The record of the published notice of the tax sale -is insufficient: First, it does not designate the several kinds of taxes, nor the taxes of each year, separately, nor is the list certified and signed; Second, it. does not show a legal publication,-reciting only ‘four weeks according to law;’ Third, the auditor’s name is signed to it in the handwriting of another person ; and finally, it does not purport to be copied from the published newspaper notice.
“ VI. The record of the tax sale is not certified or signed by the auditor.
“ VII. The tax deed was executed without the production of a certificate of sale or survey. No survey is found in the surveyor’s book ; nor is the existence or loss of such certificate and survey proved.”

The counsel urge that the law gave no authority to the officers of Logan to sell lands in Hardin; but supposing it to have conferred such power, that then both must be regarded, “ for the purposes of taxation,” as one county, and the valuation upon the tax list of the counties united, must form the basis of the per centum to be levied! The law in this particular, it is said, has not been pursued by the county officers.

In order to determine the force of this objection, it will be necessary to look at some of the sections in several of our statutes ; these we proceed to examine:

On the 12th of February, 1820, an act of the state legisla ture was passed (3 Chase 2134) which provides in the first section, “ that all that part of the lands lately ceded by the Indians to the United States, which lies within this state, shall be, and the same is hereby erected into fourteen separate and distinct counties.” Hardin was one of the counties created by this section. As these newly made counties contained but a few inhabitants, they were attached to such other counties, already organized, as happened to be adjoining or near to them. By the second section of the act, Hardin was attached to Logan, which was then an organized county, having county officers - for the management of its concerns. At an early period provision was made by law, directing the mode of appropriating the money belonging to counties or districts attached. By the law of January 11, 1820, it was declared that while a new county should remain attached to an organized county, the expenses should first be paid from the whole tax, except appropriations for roads-, bridges, or public buildings. The act to amend “ the act establishing an equitable mode of levying taxes, passed January 17,1826,” (3 Chase 1517,) attached the county of Hardin to the county of Logan for all the purposes of taxation,” and the supplementary act, passed the next year, (3 Chase 1562,) limited the power of the county commissioners, in fixing the amount per centum which they might levy, and made the amount to depend upon the aggregate value of all the property on the list for taxation. Their power was limited first with reference to the road tax by the following provision: “ When the aggregate amount of the value of all property entered upon the general list for taxation, shall be one million five hundred thousand dollars, or more, the road tax shall not exceed one mill upon the dollar, and when such amount of valuation shall be less than one million five hundred thousand dollars, such road tax shall not exceed three mills upon the dollar of such valuation,” and concerning the tax to be levied for county purposes, the act provides that “ when the amount of valuation shall five hundred thousand dollars or more, and less than one million of dollars, such tax shall not exceed three mills on the dollar, and when said amount of valuation shall be less than five hundred thousand dollars, such tax shall not exceed five mills upon the dollar of such valuation.” The question is now made upon the several statutes above referred to, whether the limit to the power of the county commissioners applies to counties attached, as well as to counties then acting separately; and we are of the opinion that the limit is the same in both cases, since the two counties make but one district for the purpose of taxation, their taxes being all levied and collected in common, and under the direction of but one board of commissioners. When the power of the commissioners is so limited, a tax of any greater amount is unauthorized and void. In every case where an individual tax is upon trial shown to be greater than the amount authorized, a sale of land for the payment of such tax, will be deemed void, and certainly a general tax must be void, when no power exists for levying it. It only remains to look at the proof and see if the present is such a case. The proceedings of the commissioners show that a tax of 41-mills was imposed for county purposes; the certificate of the auditor of Logan county shows that the valuation for the two counties’ for the year 1830 was upwards of $537,000. That it was over $500,000 is taken for granted in the argument. The tax, therefore, could not legally exceed three mills on the dollar. As it was in this case 4-|- mills, the tax sale in controversy, and the deed made in pursuance of it, were void.

The determination of this point puts an end to any defense in the action of ejectment, by virtue of the tax purchase, and we have not thought it necessary to decide upon either of the other questions discussed.

The judgment in the common pleas was for the plaintiff in ejectment, and must, therefore, be affirmed.


author: Spalding, J.

text:
    Lycurgus G. Bane and another v. Caleb B. Wick and others.
    If the language of the testator, in a residuary clause of Ms will, will admit of a limited application, as well as one of a more general character, a court of equity will give it that construction which will be most favorable to the heir at law.
    This is a bill in chancery, reserved in Trumbull county.
    The documents and exhibits show the following state of facts: Plenry Wick, of Youngstown, Trumbull county, Ohio, died in November, 1845, leaving as his heirs at law, his sons, Caleb B. Wick, Lemuel Wick, Henry Wick, Hugh B. Wick, John D. Wick, and Paul Wick; and his grand children, Mary Wick, Eliza Wick, and Thomas L. Wick, minor children of his son Thomas L. Wick, deceased, and the complainants, minor children of his daughter Matilda Bane, deceased.
    He also left, at his death, a widow, Hannah Wick, who elected to take under the will of her husband, but who has deceased since the original bill in this case was filed.

      The said Henry Wick left property to the amount of about sixty thousand dollars, in addition to that which he had, during his lifetime, distributed among his children. This prop erty consisted of about $9,000 cash on hand, bank stock, canal stock, notes, bonds, and real estate.
    He had been in the habit of making advances to his children in equal proportions, and in 1837, he leased to all of them, separate farms and town lots, reserving a nominal rent to himself.
    After the decease of his son Thomas L. Wick, and before the making of his will, to wit, on the 5th day of April, 1843, he divided among his seven children, then living, $24,000 ■And, to make the children of Thomas L. Wick equal with the others, he took from each of his children an agreement, in writing, to pay the sum of thirty dollars, yearly, (equal, in all, to seven per cent, on $3,000,) for the support and education of his said grand children, but to terminate when they came of age, and -in case of the death of one or more of them, “ to be proportionably deducted.”
    On the 16th day of June, 1843, the said Henry Wick made his will, in the following words:
    “I, H. Wick, do constitute and appoint my sons, H., H. B., and J. D. Wick, my executors, to settle my estate. I will and bequeath to my wife Hannah, at my death, $100, and in lieu of her dower, $500, each and every year during her natural-life; also, the use of my present dwelling house, in Youngstown, and the three lots adjoining and near the same, not otherwise disposed of; also, the land near the village of Youngstown, that I now occupy for meadow, pasture, etc., not otherwise disposed of; also, all my household and kitchen furniture she may want for keeping house, so long as she continues my widow, but at her death or marriage, my executors will take possession of said property, and dispose of it, as hereinafter directed; but if she chooses to get her dower as the law directs, so far as it respects her, to be void, and the residue of my will to be complied w'ith as near as may be. And I will and bequeath to my children, now livings what land and town property I have rented to them, as theii property forever; and the farm and town property rented to Thomas L. Bane, I will to his wife, Matilda Bane; and the farm and town property rented to Thomas L. Wick, I will to the three children of said Thomas L. Wick, providing they live to legal age; also each of my children is to pay $30, each and every year, for the support and education of said children, all to be under the control and direction of my executors, and is to be in full of their support and education, without any further charge against said children; and when the said children arrive of age, or when my executors may think most to the advantage of said children, they may give each of them $1,000, which I will to them, providing they live to legal age; but when paid, the $30, to be paid by my children, to stop; and if said children all die before they arrive at legal age, this will, as it respects them, to be void, as I wish none but my blood kind to enjoy my property; and I direct my executors to retain in their possession, all my bank and canal stock, and the lands and town property, the use of which my wife has the use of, or as much as will be all-sufficient to pay all my debts, legacies, and donations, and the balance to be equally divided among my children, then living; and my farming utensils, live stock, and what my wife don’t keep, to be sold at vendue. And if there should not be property of canal and bank stock to pay all claims, I wish my executors to retain in their hands, as much of other debts due me, as will pay all. Also, I allow my executors to sell a house and lot at the mouth of Mill Creek, and a lot in Yernon, as they may think best; and I wish all disputes that may arise with my children, to be decided by a majority of them, and that decision to be binding upon all, provid ing it don’t make void any of my before mentioned will.”
    This will has been duly proved and recorded.
    Matilda Bane, the daughter of testator, and mother of complainants, was living at the date of the will, but died before her father.

      The bill claims that, as to a large part of his estate, said Henry Wick died intestate, and that the same descended to his heirs at latv, and that the complainants, in right of their mother, Matilda Bane, deceased, are entitled to one-eighth part thereof, and to secure to them that portion of said estate, this bill is filed.
    Hannah Wick, the widow of Henry, before her decease, answered the bill, setting up, in substance, that she was well acquainted with the intentions of her deceased husband, and that he meant to dispose of his whole estate by his will; that it was the declared intention of the testator to exclude the complainants from any further or greater share in his estate than what was specifically devised to their mother.
    The children of Thomas L. Wick have answered, admitting, substantially, the facts set forth in the bill, and insisting upon a construction of the will similar to that claimed by complainants.
    The surviving children of the testator, six in number, who claim the entire residue of the estate, after the specific bequests and devises are satisfied, have demurred to the bill.

      M. Birchard, M. Sutliff, B. F. Hoffman and John Hutchins, for complainants, made these points
    1. The construction contended for by the defendants, in regard to the contested clause, is incompatible with other parts of the will, and other and important parts and provisions of it are, by such construction, annulled and defeated.
    2. Such construction implies an entire change of feeling on the part of the testator, at the time of making his will, from that entertained by him at the time of distributing a portion of his property among his children, and other representatives.
    3. Such construction is inconsistent with those parts of the will which secure to the minor children of Thomas L. Wick, the interests therein named, thus evincing, at the time of executing the will, a regard to equality and justice in the distribution of his estate.

      4. It is inconsistent with other parts of the will in this, that it disposes of the bulk of the testator’s estate by a general and vague expression, while it is specific and precise in regard to small and comparatively unimportant items.
    They relied upon the following authorities: Foster v. Wick’s Lessee, 17 Ohio Rep. 258; Lovelass on Wills 276, 282; 2 Jarm. on Wills 741, 2, 3 ; 2 Powell 5, 7; 3 Term Rep. 86; 5 Term Rep. 323; 1 Eden 43; Ram. on Wills 32, 56, 257, 259; 1 Jarm. on Wills 349, 465; Brown v. Thorndike, 15 Pick. Rep. 400 ; Crocker v. Crocker, 11 Pick. Rep. 259 ; 3 Pet. Rep. 113.

      R. P. Ranney, and Hitchcock,. Wilson & Wade, for defendants, maintained,
    1. That adopting the construction contended for by them, made the will accomplish exactly the object avowed by the tes tator in its commencement, which was to provide for the settle ment of his estate.

    2. The construction contended for by complainants, would be in contravention of that principle of law which requires a will to be so construed, as if possible, to prevent intestacy as to any of the testator’s property. A
    3. It would violate another established principle, by giving to the general words used in the residuary clause, a limited operation, when there were no words used showing that the testator contemplated such a limited operation.
    They cited the following authorities: Earl v. Grim, 1 John. Ch. Rep. 494; Smith v. Coffin, 2 H. Black. Rep. 444; Ib betson v. Beckwith, Cases Temp. Talbot 157 ; 3 Ves. Rep. 450, note 3 ; Reeves v. Reeves, Dev. Eq. 386 ; Wadley v. North, 3 Ves. 367; Booth v. Booth, 4 Ves. 403 ; Bird v. Hunsdon, 2 Swan 345; 9 Ves. 206; Leake v. Robison, 2 Meriv. Rep. 386; Brown v. Higgs, 4 Ves. 716; 1 Jarm. on Wills 700; 8 Ves. 26, note 4; James v. James, 4 Paige’s Rep. 115 ; 2 Ves. 272, note 6 ; Gore v. Stevens, 1 Dana 206 ; 6 Paige 600; Boys v. Morgan, 3 Myl. & Cra. Rep. 661; 2 Jarm. on Wills 744; Doe v. Lansing, 2 Burr. Rep. 410; Stehman v. Stehman, 1 Watts Rep. 466.
   Spalding, J.

The only question raised by the pleadings for our consideration, is this: Did Henry Wick, by his last "will and testament, dispose of his entire estate ?

If he did, there is an end to the case, for no one has doubted his right, under all the circumstances, to make a full testamentary disposition of his property.

If he did not, then, under the statute of “ descent and distribution,” the complainants, as the legal representatives of Matilda Bane, will take the one-eighth part of such intestate estate.

“ In the construction of wills,” says the learned Mr. Jarman, “ the most unbounded indulgence has been shown to the ignorance, unskillfulness and negligence of testators.” Yet he continues, “ conjecture is not permitted to supply what the testator has failed to indicate; for, as the law has provided a definite successor, in the absence of disposition, it would be unjust to allow the right of this ascertained object to be superceded by the claim of any one not pointed out by the testator, with equal distinctness.”

With this chart before me, I will proceed to inquire wdiat class of persons is entitled to the residuum of Henry Wick’s estate; after satisfaction is made of all specific bequests and devises.

The obvious difficulty arises from the obscure meaning of the testator, as involved in the following paragraph, inserted towards the close of the will:

“ And I direct my executors to retain in their possession, all my bank and canal stock, and the land and town property, the use of which my wife has the use of, or so much as will be all-sufficient to pay all my debts, legacies and donations, and the balance to be divided equally among my children, then living.”

It is insisted with much force, and it has been urged -with great ability by counsel for demurrants, that the words, “ the balance,” as here used, are equivalent to “ the residue of my estate,” and that they are sufficiently potent, in legal signification, to carry with them, to the six surviving sons of the testator, a large mass of property, real and personal, not otherwise disposed of in the will.

It is not claimed that a different construction, and one which would admit the five infant grand-children of the testator to participate, to some extent, in the residuary estate, would run counter to his own practice while living, or, in the least degree, do violence to the course of the testator’s natural affections.

But it is insisted that the testator designed, by this instrument, to dispose of his whole estate, and therefore, the residuary clause may, and should be taken in its largest sense, so as to exclude the whole.

This reasoning I believe to be predicated upon good law, but in looking through the will of Henry Wick I no where find his declared purpose to make disposition of his whole remaining property by that instrument.

He does, indeed, say, in the commencement, that he appoints his sons, Henry, Hugh, and John, his executors, “ to settle his estate.” This is very far, however, from evincing a disposition to take all his property out of the course of. statutory descent and distribution. Suppose with the same commencement, and after carving out a life support and maintenance for his wife, the testator had said, the balance of my estate I leave to my heirs at law,” would it have been any thing other than a settlement of his estate, if the executors had found it in the line of their duty to pay over to the infant children of Thomas L. Wick, the share to which he would have been entitled ? and to these complainants the share to which their mother, Matilda Bane, would have been entitled, if living ? I think not.

It is true, “ a court of equity is never disposed to put such a construction upon a will as would be likely to lead to an intestacy.” But, where the testator has wholly failed to give his meaning, or any clue to the same, and the residuary clause will admit of more than one construction, a court of equity will be expected to adopt that which will affect the least injuriously, the heir at law.

It is said, that “ very special words are required to confine a. gift of a residue to a limited operation,” and counsel for demur-rants call the attention of the court, in a particular manner, to the ease of Boys v. Morgan, 2 Mylne & Craig 661, which settled, in the English chancery, the construction of a will in which the residuary clause was as follows :

I guess there will be found sufficient in my banker’s hands to defray and discharge my debts, which I hereby desire Mrs. Eliza Morgan to do, and keep the residue for her own use and pleasure.”

The question was, says the learned counsel who cites the case in argument, whether this residuary clause was to be confined to the particular fund in the hands of his banker, or extended ,to the whole balance of his estate; and the court held the latter to be the true construction of the will.

I have looked into this case, and see no. cause to find fault with the decision.

In point of fact, John Boys had by repeated donations, while living, transferred to Eliza Morgan, the bulk of his property, consisting of stocks in the English funds. The bill was filed by his administrator and next of kin, to have these transfers of stock declared fraudulent. Mrs. Morgan, in the meantime, established, in the prerogative court, the validity of an instrument called a will.

This was simply a recital, by John Boys, of his munificent gifts to Mrs. Morgan, and specified that it was given by him as a voucher of the truth, that none might question or trouble her,” and concluded with a provision for the payment of his debts, from moneys in the hands of his banker, with the residuary clause as already stated.

The Lord Chancellor, in deciding the case, takes occasion to remark, that, in considering what he (the testator) meant by the word “ residue,” it is extremely important to see what, on the face of his will, he shows to have been his view of the interest which this person was to take in his property. He supposed she had got the whole, or nearly the whole of it. Me had actually transferred to her his funded property, etc.

We have nothing of this kind to aid us in giving an interpretation to the doubtful testament of Henry Wick.

In looking through the will, however, I find that the testator, after setting apart a sufficient amount of property, real and personal, for the use of his wife, attaches to the devise the following somewhat'significant language: “ but at her death or marriage, my executors will take possession of said property, and dispose of it as hereinafter directed."

After devising to his children, the lands and town lots that he had leased 'to them, respectively, at a nominal rent, taking care to make the representatives of his deceased son, in all respects equal to. one of his surviving children, so far as it regarded previous advancements, he provides a fund of a permanent character, consisting of canal and bank stock, and the lands and town property appropriated to the use of his wife, for the payment of debts, legacies, and donations, and directs his executors to retain in their possession, all, or as much as will be sufficient to pay them, and the balance to divide equally among his children, then living. He then adds a clause which would seem to indicate' that the property assigned to the use of his wife should remain intact, as it regards the payment of debts, although it continues subject to a division among the surviving children at the termination of her estate — “ and if there should not be property, of canal and bank stock, to pay all claims, I wish my executors to retain in their hands as much of other debts due me as will pay all.”

Upon a critical examination of this will, although our minds are by no means free from doubt in regard to the interest of the testator, the court feel constrained to limit the operation of the words “ the balance,” so as to reach nothing more than the particular fund with which they stand in immediate connection, to wit, the bank and canal stock, and the lands and town property, the use of which had been given to the wife of the testator. This fund, after being charged with all the “ debts, legacies, and donations,” will yield the only “ balance” to be distributed exclusively to the six living children.

The general residuum of the estate will be distributed among the eight children of the testator, and their legal representatives, share and share alike — the three children of Thomas L. Wick, deceased, taking the one-eighth part, in right of their father, and the complainants, children of Matilda Bane, deceased, taking the one-eighth part, in right of their mother.

Demurrer overruled.