text:
    Jacob Aultfather v. The State of Ohio.
    An information upon section 4 of the act to provide against the evils resulting from the sale of intoxicating liquors, is defective if it does not show that the place where the liquor was sold, was a place of public resort. This fact is sufficiently shown if the place is described as either a tavern, eating-house, bazaar, restaurant, grocery, or coffee-house, because each of these names is used in the act, and each of them does, ex vi termini, import a place of public resort. But it is otherwise if the place is merely called a “room;” for, although that word is also used in the act, it does not, ex vi' termini, describe a place of public resort, and that it is so must be averred.
    An information upon section 2 of the act, is insufficient if it does not aver that the seller knew the buyer was a minor.
    A complaint before a justice of the peace for a violation of section 4 only, does-not authorize an information, in the probate court, upon any other section.

      Writ of error to the probate court of Belmont county.
    *The case sufficiently appears in the opinion of the court.

      W. P Simpson, for plaintiff in error.

      McCook, attorney-general, for the state.
   Thurman, C. J.

The plaintiff in error was convicted and sentenced, in the probate court of Belmont county, upon an information containing two counts; by the first of which he was charged as “ the keeper of a room where intoxicating spirituous liquors were sold in violation of law,” and by the second of which he was-charged with selling intoxicating liquors to a minor. To reverse his sentence be prosecutes this writ of error, and, among other assignments, alleges that the information is defective in this, that the first count, which is upon section 4 of the act to provide against the evils resulting from the sale of intoxicating liquors, is insufficient because it does not aver that the “room” where the liquors were sold was a place of public resort; and that the second count, which is upon section 2 of the act, is defective, because it is not averred that the seller knew the buyer was a minor. And to this count it is further objected that the complaint before the justice of the joeace, and upon which the plaintiff in error was recognized, was for a violation of section 4 of the act only.

The facts are as stated in these assignments; and as to the law, the first two objections are fully sustained by the decision in Miller’s case, 3 Ohio St. 475; and the last objection is supported by the judgment in Gates and Goodno’s case, 3 Ohio St. 293. From those decisions, pronounced after full argument and much consideration, we see no reason to depart, and consequently the judgment in this case must be reversed. *»

It may be proper however to add, lest the generality of the language used in Miller’s case might lead to misapprehension, that the fact that the place where the liquor was sold was a place of public resort, is sufficiently averred if it is described as either a tavern, eating-house, bazaar, restaurant, grocery, or *coffee-house, because each of these names is used in the act, and each of them does, ex vi termini, import a place of public resort. But it is otherwise if the place is merely called a “room;” for, although that name is also used in the act, it does not, ex vi termini, describe a place of public resort, and that it is so must be averred.

Judqment reversed.


source: Caselaw Access Project

author: Thurman, C. J.

license: Public Domain

text:
    S. D. Harris v. Joseph G. Gest.
    Reserved from the district court of Franklin county.
    This was a motion to dismiss the appeal in the district court, upon the ground that the appeal bond was not filed “ in thirty days from the rising of the court” of common pleas. The question is entirely as to what constituted the June Term, 1854, of the court of common pleas of Franklin county, Ohio. The facts are as follows : At the June Term of the court of common pleas, to wit, on 9th day of June, a. d. 1854, the plaintiff obtained a verdict against defendant for three hundred dollars, and thereupon judgment was enter'ed upon the verdict and for costs. The defendant at that time gave notice of his intention to appeal. No other order was made in the case at that term.
    On the 26th day of June, at same term, the following order was entered upon-the journal: “Ordered that an additional and adjourned term of this court be held, commencing on the 5th day of July next, such additional and adjourned term being necessary for the purpose of completing the business now on the docket and unfinished for the want of time.”
    On the 26th day of June the following entry was made at the close'of the day: “ And thereupon the court adjourned until nine o’clock on the 5th day of July next.” And on the 5th'day of *July, the following entry commences the day’s proceedings: “Wednesday morning, July 5, A. d. 1854, court met pursuant to adjournment.”
    During the interval between June 26 and July 5, the court of common pleas was held in Madison county by the same judge that presided in the Franklin common pleas. The regular summer term thereof commenced on the 27th day of June, and ended by a sine die adjournment before the 1st day of July. Madison and Franklin are in the same subdivision.
    On the 7th day of July, the following order was made on the journal of the court of commou pleas of Franklin county, Ohio : “ Ordered by the court that all causes on the docket in which decrees, orders or judgments have not been entered, and all motions, applications and petitions on file, and all other matters and things undisposed of, be continued until the next term.”

      On the 10th day of July, the final entry on the journal as follows : “ And the court adjourned sine die.”

    The defendant executed his undertaking for his appeal with good ■ and sufficient sureties, which was approved and filed on the 2d ■day of August, A. d. 1854, within thirty days of the last adjournment, but more than thirty days after the first adjournment.
    The law provides, 52 Ohio Laws 10, sec. 5: “ That whenever the •state of business in any of the courts of common pleas [in the 5th ■district] is such as to render it necessary, such court shall have power to appoint and hold an additional term for the purpose of ■completing the business of any regular term upon notice thereof being entered upon the journals.”

      Swayne & Baber, and Galloway & Matthews, in support of the motion to quash the appeal.
    I. If the “additional and adjourned term ” was a part and continuation of the term at which the judgment was entered, then the ■appeal bond was filed in time, otherwise not. Constitution, art. 4, sec. 3 ; 52 Ohio L. 10, sec. 5; Swan’s new Stat. 107, sec. 2.
    II. *If it was a mere continuation of the regular term, then, in contemplation of law, the common pleas courts were in session in two counties of the same subdivision — Madison and Franklin — at the same time; which is not constitutional. Cons., art. 4, sec. 3. It follows, that the regular term in Franklin ended when the'law required the term in Madison to begin. Gregg v. Cook, Peck, 82; Garner v. Carral, 7 Geyer, 365.
    III. The language of the act is, “an additional term for the purpose of completing the business of any regular term.” Nothing is said of an adjourned term. The use of the word “ adjourned ” in the order of the court, was from carelessness, or accident. The word ■is mere unmeaning surplusage. Now the order shows that the court was acting under the statute, for it limits the business to be done in July, as the statute limits the business of an additional term. Hence, as the statute contemplates a distinct term, the court must ■be held to have done so. The court has no power to so limit the business of any part of a regular term, whether held before or after an adjournment.

      Henry C. Noble, against the motion.
    I. We admit that “an additional term” is different from an ad-, journod term; that an adjourned term is the continuance by adjournment pf the same term. 5 Mass. 535. An additional term is an independent, separate term. If, therefore, the court find this “ an additional term,” the motion should be sustained; if “ an adjourned term,” or an adjournment of the June term, then should the motion be overruled.
    II. We maintain that every court has the right to control its own sessions, unless expressly prohibited by law;-and that in pursuance of that right they may adjourn not only from day to day, but from one day to a distant day specified.
    In The Mechanics’ Bank of Alexandria v. Withers, 6 Wheat. 106, C. J. Marshall says :

      “ The sole question in this case is whether the adjournment *from the 16th of May until the fourth Monday in June was a continuation of the April term, or constituted a distinct term.
    “ There being nothing in any act of Congress which prevents the courts of the district from exercising a power common to all courts, that of adjourning to a distant day, the adjournment on the 16th day of May to tho fourth Monday in June would be a continuance of the same term, unless a special act of Congress expressly enabling the courts of the district to hold adjourned sessions, may be supposed to vary the law of the case.”
    In that case the court decided that a law enabling the court to hold “ an adjourned session ” was simply an affirmance of the common-law power above mentioned, as an adjourned session meant “the same session with that at which the adjournment was made,” and therefore did not affect the question.
    III. That the order of June 26 was out of abundant caution, and not to appoint an additional term under the statute. That this is evident by the using of the words “and an adjourned term" to qualify the words additional term; and we infer this from the journal entry at the end of the 26th June and beginning of the 5th of July sittings; as, also, from the fact that the general order of continuance was not made until July 7.
    IV. We think that the order entered on June 26 does not affect the general power of the court to adjourn its sessions for any length of time, by an adjournment to a fixed day, which it did, as appears by the journal entries.
    V. The constitution, section S, article 4, authorizes two sittings at once in the district, and therefore in the same subdivision, if two-sittings were held at once in Madison and Franklin counties.
   Thurman, C. J.

The judges of the courts of common pleas are judges of their respective districts, and not of the mere subdivisions thereof. The subdivision of the districts is for election purposes merely. Const., art. 4, sec. 3.

There is nothing in the constitution that forbids the holding of ^common pleas courts in different counties of a subdivision, at the same time.

Courts are not limited, in their power of adjournment, to an adjournment from one day to the succeeding day. They have an inherent power to adjourn to a more distant day, when not restrained by the constitution or statute law; and there is no such restraint upon the common pleas courts in Ohio. 6 Wheat. 106. When this-power is exercised, the sitting after the adjournment is a prolongation of the regular term, and, in contemplation of law, there is but one term. 6 Wheaton, supra. But the “additional term,” provided for by section 5 of the act of January 31, 1854 (52 Ohio L. 10), is a distinct term, and not a prolongation of a regular term.

When the journal entries leave it doubtful whether it was intended to appoint an “additional term,” under said section, or-merely to adjourn the regular term to a distant day, the former' construction ought to be preferred, since adjournments to a distant day are, in general, highly impolitic, and ought not, except for very weighty and special reasons, to take place. In this case, the limitation upon the business to be transacted at the July sitting, contained in the order appointing that sitting, shows that a distinct term, under the statute, was intended.

An appeal bond executed more than thirty days after the regular term at which judgment was rendered, but within thirty days after an “ additional term,” held under said statute, is not within the time-required by law.

Appeal quashed.


author: Ranney, J.

text:
    Cheadle v. The State.
    On the trial of an information for selling spirituous liquors not inspected, the state is bound to give some evidence in support of the negative averment.
    It,is error to charge the jury, “ that the state is not required to prove that the liquor was not inspected; that, on the state’s proving a sale, the defendant is required to prove that the liquor was inspected.”
    *Eeeoe to the probate court of Morgan county.
    The facts of the case and the questions involved are fully stated in the opinion of the court.

      John E. Hanna, for plaintiff in error.

      H. S. Robinson (prosecuting attorney), and attorney-general, for the state.
   Ranney, J.

The plaintiff in error was prosecuted, under section 1 of the act of May 1,1854, “ to prevent the adulteration of alcholic liquors ” (Swan’s Rev. Stat. 479a), for selling a quantity of spirituous liquors which had not been inspected. The information contained the necessary negative averment, and the only question presented is, whether the state was bound to offer any proof in its support. The court below held that it was not; that upon proof of a sale, the burden was cast upon the accused to show that the liquor had been inspected. The question is not without difficulty, but upon careful consideration, a majority of the court are of opinion that the court erred in this ruling.

It is perfectly well settled, that the indictment or information must, in all eases, contain the negative averment; and there is no doubt, as a general rule, that some proof must be given to sustain it, where the round of action rests upon such negative allegation; or where the statute, in describing the offense, contains such negative matter; and where the negative allegation involves a chaise of criminal neglect of duty, whether official or otherwise. 1 Greenl. Ev., secs. 78-80; 3 East, 192; 3 Bos. & Pul. 302; 19 I. R. 345; 2 Camp. 654; 2 Pick. 139, 4 Ib. 341.

These rules, however, are subject to an established exception, where the subject-matter of the negative averment lies peculiarly within the knowledge of the defendant, can be readily and easily *proved by him, and can not, without great inconvenience, be proved by the party making the averment. 1 G-rocnl. Ev.,. sec. 80.

The adjudged cases have, for the most part, confined this exception to civil or criminal prosecutions, for a penalty for doing an act which the statutes do not permit to be done by any persons except those duly licensed therefor, and have applied it to the averment alleging the want of such qualification. It had its origin in prosecutions under the English game laws, but has since been extended to prosecutions for selling liquor, exercising trades, etc., without license, and the like cases.

But even in these cases, all the conditions to which we have alluded must exist, or the exception does not apply. As stated by Chief-Justice Shaw, in Commonwealth v. Thurlow, 24 Pick. 374, the proof is dispensed with only “from necessity, or that great difficulty amounting practically to such necessity ; or, in other words, where-one party could not show the negative, and whore the other could with perfect ease show the affirmative.” And accordingly in that case, which was a prosecution for selling spirituous liquors without license, it was held that the government must prove the negativeaverment, that the accused was not licensed — the county commissioner's being required to keep a record of licenses granted — and the proof being thus equally accessible to each of the parties.

In this case the negative matter is inseparably connected with the statutory description of .the offense; the prosecution is grounded upon it, and the negative allegation charges a criminal neglect of duty, punished with great severity. It does not refer to acts allowed1 to be done by those licensed therefor, and denied to others; but to a matter prohibited alike to all. It is not a question of personal qualification, but of the infraction of a general criminal prohibition, by engaging in a traffic denied to everybody.

In our opinion the offense must not only be charged, but‘also proved, before the penalties provided by the statute can be *inflicted. It may be difficult for the state to make the proof; but, while that consideration should have great weight in determining-the policy of creating offenses which can not be easily proved, it can furnish no good reason for convicting without it. We can not stretch this exception to a salutary rule of evidence so far as to cover a case like the present; or rebut the presumption of innocence-upon a mere charge of guilt. In many cases it would be very difficult for the defendant to prove that the liquor had been inspected. The law contemplates the inspection upon its importation or manufacture, and requires no further inspection before a sale by those-who have purchased of the importer or manufacturer. In no case-does such a vendor of the article, have any evidence that he can produce that it has been inspected, short of going to the person of whom he purchased. It may be admitted that he could more readily find the witness than the officers of the state, without bringing the-case within the principle upon which proof of the negative averment has been dispensed with.

Thus, in Commonwealth v. Samuel, 2 Pick. 103, which was a. prosecution for peddling goods not being of the produce or manufacture of the United States, it was held that it was incumbent, upon the government to prove affirmatively that the goods were of foreign produce or manufacture; although it is evident that no one-could as readily have found the proof as the accused.

The rule does not depend upon a mere balancing of difficulties, and it is never applied unless the proof is practically beyond the reach of the government, and clearly within the power of theaecus.ed.

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

Judge Swan dissented.


text:
    Morris Sovereign v. The State of Ohio.
    'To authorize a judgment for costs against a prosecuting witness, under the provisions of section 45 of the probate court code, the person accused must have been acquitted either by the probate judge or by a jury of twelve men.
    This is a petition in error, praying a reversal of a judgment of the district court of Muskingum county, etc. The case is stated, in the opinion of the court.

      * Thomas M. Drake, for petitioner.

      McCook, attorney-general, for the state.
   Thurman, C. J.

The facts as shown by the record are these: December 30, 1853, the petitioner, Morris Sovereign, made an affidavit before a justice of the peace of Muskingum county, charging one Catharine Crawford with larceny; upon which a warrant issued, and she was arrested, and, after a hearing, recognized to appear .in the probate court of that county, to answer the charge. The ■prosecuting attorney filed an information, which Sovereign indorsed :as follows : “ I hereby acknowledge myself to be security for costs in this ease, in the event of the failure of the state in this prosecution ; and I do hereby undertake to pay whatever costs may accrue herein, in such event, to the state, February 1, 1854.

(Signed) “ M. Sovereign.”

• February 6, 1854, tbe prisoner, being arraigned, pleaded “Not guilty,” and demanded a trial by jury; whereupon a jury of six men were impaneled, who, after hearing the case, returned a verdict of “ not guilty;” and, thereupon, she was discharged by the court. “ And it further appearing to the court that the prosecution was malicious and without probable cause, it was thereupon by the court ordered that the prosecutor, Morris Sovereign, pay the costs of the proceeding, taxed at forty-five dollars and thirty-four cents.”

The court of common pleas, upon error, affirmed this judgment against Sovereign, with costs; and the district court, upon error, affirmed the judgment of affirmance, with costs.

To reverse these several judgments against him, he now exhibits the present petition.

It is not pretended that the judgment complained of derives any support from Sovereign’s indorsement upon the information. No statute has been pointed out, nor have we discovered any, authorizing that indorsement; but if there were such a statute, *it would not avail the defendant in error, because, first, the judgment is not upon tbe indorsement; and, secondly, we find no jurisdiction conferred upon the probate court to render a judgment, much less a summai’y one, upon any such instrument.

The judgment was rendered in supposed compliance with the provisions of the 45th section of the probate court code, which reads as fallows:

“When the defendant is acquitted, either by the probate judge or by a jury, he shall be immediately discharged ; and if the probate judge certify in his minutes that the prosecution was malicious or without probable cause, he may order the prosecutor to pay the costs of the proceedings, and enter up judgment therefor, which may be enforced by execution.”

, With the policy of this law we, as a court, have nothing to do : but speaking for myself alone, I can not help remarking that it seems strange to me, that, in this humane and civilized age, our statutes create a direct pecuniary interest in the clerks and sheriffs who draw our juries, and by the latter of whom vacancies are filled with bystanders, and also in the worst class of prosecuting witnesses, namely, those suspected of malicious motives, to convict piersons accused of crime. To make the fees of clerks and sheriffs depend upon the conviction of the prisoner, and to increase 1be zeal of a prosecuting witness by threatening him with a judgment for the costs if there is a verdict for acquittal, has always appeared to me a strange mode of securing that impartial trial which both justice and the constitution imperatively require.. Nor have I been able to see that it is entirely consistent with the dignity of the state or the dictates of sound public polity, to carry on doubtful prosecutions at individual expense, and, because the state is idemnified from a paltry sum of costs, to place a citizen upon trial who would otherwise be suffered to go unmolested.

The argument of the plaintiff in error is, that Catharine Crawford was not acquitted by either the probate judge or a jury, and consequently the court had no authority to render a judgment against him.

*That she was not acquitted, within the meaning of the act, by the judge, is very evident; and that she was not acquitted by such a jury as the constitution contemplates, to wit, a jury of' twelve men, is decided by Work’s case, 2 Ohio St. 296. In that, case, it was held that the act under consideration, “ in so far as it provides for a jury of six only, and authorizes a conviction upon-their finding, js unconstitutional and void;” and that the probate -court, before the passage of the amendatory act of April 26, 1854-\Swan’a Stat. 7536), had no power to impanel a jury of twelve in a criminal case, is very apparent. The constitution secures the right of trial by such a jury, but does not execute itself; and no power could be derived by the court from the common law, because “ our courts have no common-law jurisdiction in criminal cases.” Winer v. The State, 10 Ohio, 345. It follows, that there was no-law in force when Catharine Crawford was tried, providing a constitutional jury to try her case.

But this, says Mr. Attorney-General, was a defect of which she alone had a right to complain, and if she waived her privilege, Sovereign, who is within the letter of the statute, can not insist, upon it. The statute provided for her trial by six men, and upon their verdict of acquittal, authorized a judgment for costs against him, if the prosecution was malicious or without palpable cause.

To this reasoning we can not assent. For myself, if the decision turned upon the question whether there was a waiver by the accused, I should hesitate a long time before answering that question in the affirmative. I do not clearly see how a prisoner can be said to have waived a trial by a jury of twelve, when no law had provided such a jury. But it is unnecessary to decide this question, for in our judgment, this case does not depend on it. It is sufficient, in our opinion, that the legislature intended to provide a constitutional tribunal for the trial of offenses, and as incident to a trial by such a tribunal, to authorize in certain cases a judgment for costs against the prosecuting witnesses. But failing in their main purpose — the tribunal provided not being - a ^compliance with the constitution — the incident, or minor purpose fails too. It sometimes happened that a clause in an act has been adjudged unconstitutional and therefore void, without affecting the remain-der of the act; but in no case, I imagine, has a provision wholly dependent upon the constitutional clause, been held to remain un.affected.

Catharine Crawford could not have been lawfully convicted by a jury of six, had she seen fit to object to that tribunal; and possibly •she could not whether she objected or not, no jn’ovision having been made for a constitutional jury. Shall we hold, that although she could not be thus convicted against her will, yet her acquittal by ■such a jury shall condemn a witness to a judgment for the costs? Were we to do so, the strange anomaly would be presented, of a law under which a witness could by no possibility convict the ac-cuscd, and might yet have to pay the costs in case of an acquittal.

The judgment of the district court must be reversed, and proceeding to render such judgment as that court ought to have rendered, we also reverse the judgments of the common pleas and probate courts.


text:
    Jonas Shaver v. Joseph Starrett.
    The statutory provisions authorizing the establishment of township roads, do. not contravene the constitutional provision that “private property shall ever be held inviolate, but subservient to the public welfare.”
    A township road is as subject to public travel, and as free and open to every individual, as any other road in the state.
    But the-statute is fatally defective in this, that it makes no provision for a jury,, in the proper sense of the term, to assess the damages of the property-holder. Lamb and McKee v. Lane, affirmed.
    Error to the court of common pleas of Muskingum county.
    The case is sufficiently stated in the opinion of the court.

      Jewett & O'Neil, for plaintiff in error:
    This question must bo decided by the construction to be given to-one, or both, of two provisions of the constitution of 1851 — article I, section 19, article XIII, section 5.
    The first of these sections may be safely divided. It contemplates - two classes of eases; and whilst it seeks to secure a compensation to the owner of the property taken in both, it recognizes *a difference between property taken for purely public purposes, and property taken for purposes partially public. In the first it leaves the question with the legislature to determine how the compensation shall be assessed, secured, or paid; in the second it provides expressly that such compensation shall first be assessed by a jury,, and first paid or secured.

      There is no doubt about the right to appropriate private property to the public use, and of the power of the legislature in the absence ■of any constitutional provision to direct the mode and manner of making compensation to the owner. Such has been the practice in this state and everywhere else.
    There is nothing in the nature of the case itself that requires a jury; it has never been so treated or considered, and surely we .are safe in concluding that in the absence of the provisions of the ■constitution, which we have quoted, no question of this kind could have arisen. Do these provisions then require, that in a case like this, compensation should be assessed by a jury of twelve •men?

      “ When taken in time of war,” when taken “for the purpose of ■.making or repairing roads which shall be open to the public without charge, a compensation shall be made to the owner in money.” Thus far this section is complete, both as to a class of cases in which the public, as such, is alone interested, and from which no individual is to be benefited to the exclusion of another; it is complete also as to the remedy, providing that compensation shall be made, but leaving it to the wisdom of the legislature to determine how it should be assessed, and when paid or secured. The section then .goes on and provides for another and the remaining class of eases, having no other connection with the previous division of the section than to exclude therefrom the benefit of its provisions. And as to this remaining class, it is provided and required that the compensation shall be assessed by a jury, and shall be first paid, or first secured. Considered seq>arately, they are harmonious; but make the provision of the *one apply to the other, and they are incongruous. If a jury is required in the first class of cases, upon the same reasoning compensation must first be made or secured and thus the object of the first clause of the section is entirely destroyed.
    If in error in this view of the first of these sections, we claim ■that the second sustains the construction given to it by the legislature in the passage of the law in question. A jury is any number of persons designated by the law to determine difficulties between parties. In civil it is not as in criminal proceedings. In the former there has been no uniformity in the number required to ■try questions of this kind. In some instances they are entirely withdrawn. In others they in number the character of the case, and the amount involved, always being subject to the law-making power of the country in which the question may arise. Not so in the latter. A jury to try crime has always been regarded and understood as consisting of twelve men. When, therefore, the constitutional convention provided that compensation should be assessed by a jury, it meant such a jury as the general assembly should authorize and require for the trial of questions of that character. When it was determined that the jury should consist of twelve, as in the case of a right of way, that number was expressly mentioned, thereby withdrawing from the legislature the discretion which it could otherwise have exercised.
    In any other view of the case there was no necessity for incorporating into the constitution section 5 of article 13. If a jury in every case, of necessity consisted of twelve men, it was fully provided for in the first of these sections.

      Marsh & Ball, for defendant in error:
    The. defendant in error' claims that section 19, article 1, of the •constitution, is not correctly interpreted by the plaintiff in error; that it is not divisible, as by him suggested; that a jury is required to determine the compensation to be paid to the owner *of land through which a road is laid out; that the framers of the constitution meant something when they substituted the word jury for the word viewers; that a jury in civil as well as criminal eases must be composed of twelve men; that section 5 of article 13 can not have the bearing upon article 1, section 19, that the plaintiff •contends it has; that costs in the probate court, on appeal, should be taxed against the appellee when the compensation is increased on the review; that costs in that court should not be taxed against the appellant when, upon the review, the location is materially changed, as in this case.
    That exception to the proceedings in the probate court which is based upon the fact, which appears by the record, that the case was heard in that court on a different day from that to which it was continued, I wish to withdraw; we ask nothing in consequence of that delay, whether the exception was well taken or not.
   Thurman, C. J.

On March 6, 1854, the plaintiff, Shaver, and ethers, petitioned the trustees of Blue Rock township, Muskingum county, to lay out and establish a township road through the lands of the defendant, Starrett, and others. Such proceedings were had that, on April 3, 1854, the road was established by the trustees, and $40, Starrett’s damages, assessed by the viewers, ordered to ho paid to Mm. He appealed to the probate court, by which reviewers were appointed, who reported in favor of establishing the road, with a slight variation, and assessed his damages at $50. • The court confirmed this report, and he filed a petition in error in the common pleas ; on the hearing of which, said order of confirmation was reversed. To reverse this judgment of reversal, the present petition is prosecuted.

It is unnecessary to notice the various assignments of error filed in the common pleas. There is one of then — going to the very foundation of the proceedings — that fully sustains the judgment *of the court, to wit, that Starrett’s land was taken for a qmblic use without compensation having been assessed by a jury.

The constitutionality of the statutory provisions for the establishment of township roads, has lately been questioned, upon the ground that the land appropriated for such roads is not taken for a jpublic use. If this were so, the invalidity of the statute would be-manifest, since tbe constitution provides (art. 1, see. 19) that “ private property shall ever be held inviolate,” and the only exception, to this rule is, that it shall he subservient to the public welfare.” It follows that it can not be taken for a mere private use; nor could it, I apprehend, were there no express constitutional provision upon the subject — and this for the plain reason, to say nothing more, that no such power has been delegated to the assembly.

But is a township road a mere private way, and tbe land appropriated for it taken for a mere private use? We do not think so,, and have held the contrary at the present term, in the case of Ferris et al. v. Bramble et al. It is true that that case arose under the former constitution, but that makes no difference, for that constitution also prohibited the taking of private property fox any but a public use.

The objections to tbe statute under this head are, that the road may be established if found necessary for the “ convenience ” of the applicant or ap]3licants, and their neighbors; that it is to be kept open and in repair at the expense of the applicants, and that it is not expressly declared by statute to be a public highway, but on fhe is denominated a “ or road.” These provisions and characteristics, it is said, show that the road is not laid out for the public use.

It is unnecessary at this time to elaborately answer these objections, for it is not in this case that they were made; and, besides, I consider it more proper to refer to the opinion that will be drawn up in the case above mentioned. I will say, however, that if there is any validity in them, they were equally valid *against every township road law ever enacted in this state, and it is somewhat singular that their force was not perceived until after the lapse of nearly half a century.

What is a public use, and how many of the people must be interested in the establishment of a road before it can be said to be laid out for the “public welfare?” Is not a use public, when every person in the state has a right to it ? If so, why is not the use of a township road a public use ? It is true, it is kept open and in repair at the expense of the applicants, but they- have no more right in or over it than any other citizen or inhabitant. It is just as subject to public travel, just as free and open to every individual, as any other road in the state; and this public character is in nowise affected by the name given to it in the statute or the failure to call it a public highway.

But there must be a public necessity for the use, it is said, to justify taking private property for it. The words of the constitution are, “public welfare,” but I have no objection to the term “necessity,” provided that it be not used as synonymous with “ indispensable.” Eightly understood, I assent to the proposition; but what is a public necessity or the public welfare ? Must every citizen in the state have a particular interest in the establishment of a state road, every citizen of a county a like interest in respect to a county road, and every citizen of a township such an interest in a township road, before it can be said that they are required for the public welfare? I think this will hardly be pretended, and if not, then it must be admitted that the welfare — or the “ convenience,” which may mean the same thing — of a less number of the people may suffice. And applying the familiar maxim, that a law is to be construed with reference to its subject-matter — which is just as true of constitutions as of statutes — it will not be found difficult to say that the persons interested in the establishment of a mere township road need not be so numerous as would be required to create a public necessity for a state or road. A for the convenience of *the applicants and their neighbors, is what the statute requires, and if it be properly understood and be administered as it ought to bo — and not converted into an instrument to take private property for mere private advantage without any public necessity— we do not think the constitution will be violated in the particular I have been considering.

But there is a fatal objection to the present law, growing out of a provision in the existing, that was not contained in the former constitution. The statute makes no provision for a jury, in the proper sense of the term, to assess the damages of the property holder. This defect we-hold to bo fatal in the case of Lamb and McKee v. Lane, ante, 167, and after carefully reconsidering the grounds of that decision, with the aid of the reargument of them in this case, we find no reason to change our opinion, but, on the contrary, are more strongly confirmed in it.

The judgment of the common pleas must therefore be affirmed.


text:
    The Schooner Marinda v. Valentine Swain.

      Wilson, Wade & Wade, for the Marinda.
    H. Foote, for Swain.
   Thurman, C. J.

This cause presents the same question decided in the preceding case of The Marinda v. Dowlin. The leave to file the petition must be rescinded and the cause stricken from the docket.


author: *Kennon, J.

text:
    Mary A. Rorerts et al. v. Joseph E. Dust et al.
    Where a person is restrained by injunction from making a race to his mills and the conditions of the injunction bond are, that the obligors will pay all moneys and costs due and to become due, from the complainant in the bill, and all moneys and costs which shall be decreed against him, and the bill is dismissed at the costs of the complainant, the person so restrained can sustain an action on the bond against the complainant and his sureties, to recover the damages sustained by reason of the injunction.
    Error to the district court of Miami county.
    The case is stated in the opinion of the court.

      F. Parsons, for plaintiff in error.

      Conover & Craighead, and C. L. Vallandigham, for defendant in error.
   *Kennon, J.

Mary A. Boberts and others brought an action of debt on an injunction bond, in the court of common pleas of Miami county, against Joseph E. Dust and others.

The bond was conditioned in these words:

The condition of the above obligation is such that whereas the above-named Joseph E. Dust has obtained the allowance of an injunction in the court of common pleas of Miami county and State of Ohio, to enjoin and restrain the above-named obligees from exca- or out a race certain of said Dust, situated in the town of Tippecanoe, Miami county, and around the mill of said Dust, situate therein; and also restraining and enjoining them from using any part of the water from the Miami canal through the same premises to the property below, as more fully shown in the bill of said Dust, filed.on the chancery side of the Miami county common pleas, until the matter thereof can be heard in equity. Now, if the said Joseph E. Dust shall pay all moneys and costs due and to become due from him, and all moneys and costs which shall be decreed against him in case said injunction shall be dissolved, then this obligation shall be void; otherwise in full force and virtue in law.”

The plaintiffs in their declaration assigned for a breach of the bond, that on June 20, 1850, the Supreme Court dismissed the bill in chancery and dissolved the injunction, at the costs of the defendants ; that the plaintiffs, from the time of the allowance of the injunction until the time of its, dissolution, were deprived of the control and use of the mill-race, and of the waters that used to flow through the same to the mills of the plaintiffs, by means of which the plaintiffs were deprived, during all that time, of the use of one saw-mill, one oil-mill, one corn-mill, and a carding-machine; and that by reason thereof they sustained damage to the amount of §1,500, and that therefore they were entitled to judgment for the penalty of the bond.

The defendants craved oyer of the bond and condition, and pleaded that they had, after the commencement of the action at *law, paid the costs of the proceedings in 'chancery as well as the costs of the action at law, up to the time of filing the plea. To this plea the plaintiffs demurred, and the district court of Miami county overruled the demurrer, and held the plea a good bar. To reverse this decision this writ of error is prosecuted.

The only question presented for our consideration is whether the obligors in the bond were bound to the plaintiffs for anything more than the amount of the decree of the court in favor of the plaintiffs at the time of the dissolution of the injunction and dismissal of the bill. The district court held that, as.the decree of the old Supreme Court was for costs only, that the payment of these costs was a full compliance with the condition of the bond.

The plaintiffs in error contend that the obligors were bound to pay to/ them such damages as the plaintiffs had sustained by reason of being restrained from using the water accustomed to flow along the race, thereby depriving them of the use and benefits of their mills. This question must be determined by the bond. What is a fair construction of the instrument? What did the parties intend by this instrument? In determining this question we look not only to the words of the bond, but to the facts and circumstances referred to in the bond itself. That part of the condition of the bond upon which the plaintiffs rely, is in these words: “Now, if the said Joseph E. Dust shall pay all moneys and costs due and to become due from him, and all’ moneys and costs which shall be decreed against him in case said injunction shall be dissolved, then this obligation to be void.” The construction put upon this bond by the district court was, that if the said Joseph E. Dust should pay all moneys and costs which should be decreed agsinst him in the chancery proceeding, he would have fulfilled the condition of the bond. This construction makes entirely inoperative that part of the condition of the bond which provides that Dust should pay all moneys and costs due and to become due from him. By the words of the bond he is not only to pay all moneys and costs due and to become due, but *he is also, by the express language, to pay the amount which may be, decreed against him on the dissolution of the injunction: it is not that he shall pay all moneys due and to become due, or the moneys that may be decreed against him, but he is, by the express condition of the bond, to do both.

If any effect can be fairly given to the first clause of the condition, it ought not to be rejected as mere verbiage. As a general rule, a liberal construction should be put upon written instruments, so as to uphold them if possible, and carry into effect the intention of the parties. In Broom’s Legal Maxims, p. 347, it is said: The two rules of most general application in construing a written instrument, are — 1. That it shall, if possible, be so interpreted ut res magis valeat quam pereat; and 2. That such meaning shall be given to it as may carry out and effectuate, to the fullest extent, the intention of the parties. It is laid down repeatedly by the old reporters and legal writers, that in construing a deed, every j>art of it must be made, if possible, to take effect, and every word must be made to operate in some shape or other. The construction, likewise, must be such as will preserve rather than destroy; it must be reasonable and agreeable to common understanding, and as near the minds and apparent intents of the parties as the rules of law will admit.”

The bond in this case is in the penal sum of $1,500, and is required to be so by the order of the judge allowing the injunction; and it recites, that whereas the plaintiffs have been enjoined from excavating and clearing out a race, running through the premises of the defendant, and from using any part of the water of the canal through said premises to the property below, etc. It plainly appears what the object of the bill of complaint was, and what the plaintiffs were enjoined and restrained from doing. The court might have allowed the injunction upon such condition as it saw proper, and the order was, simply, that the defendants give bond and security in the sum of fifteen hundred dollars. The bond, however, has a condition, and is binding upon the parties *according to the condition; although following strictly the order of the judge, the condition might have been the payment of the whole $1,500, if the injunction should be dissolved. We, however, look at the bond and condition as they are, and to which defendants, by their signatures, agreed. It would be rather a strained construction of the instrument (and a still stranger condition to be in such a bond), that the plaintiffs should be enjoined; for an indefinite period of time, from doing a lawful act, and an act very beneficial to themselves, and yet the only condition upon which such restraint was imposed, was, that the defendants should pay the costs of the bill in chancery, an'd in order to secure such payment, the bond should be in the penal sum of $1,500. There is no doubt that the court having jurisdiction of the matter by the bill filed, might, upon the dissolution of the injunction, have retained the case, and assessed the damages in favor of the plaintiffs in this case, arising in consequence of the injunction; but there is as little doubt, that the court might simply dismiss the bill, and leave the parties to their action at law on the injunction bond. If the court in this case had assessed the damages on the final hearing of the chancery case, and decreed that the complainants pay the same, it is very clear-that the obligors in the bond would have been liable for the damages thus decreed, under the words, “ and all moneys and costs which may be decreed against him.” The court, however, have decreed nothing against the defendants except costs. The defendants, in substance, admit by the pleadings that the plaintiffs have sustained damages, over and above the costs, by reason of the illegal restraint imposed upon them, but insist that, the condition of the bond, are not bound to of these damages; that the words, “ all moneys due and to become due,” have no meaning, or at least can not be construed to extend to damages. But the known maxim of the law, “ that all the words of the instrument are to be made to operate if possible,” would seem to require of us to give the words, “ all moneys and costs due and to become due from him,” some operation, if possible.

*These words, however, can have no operation at all, unless they apply to the damages which the plaintiffs may sustain by reason of the injunction. If no bill had been filed, and if the plaintiffs in this case had, by force, been restrained by defendants from taking the water of the canal through the race to their mills, an action might have been sustained against the defendants and damages recovered; but what would these damages have been but money, and money coming from the defendants to the plaintiffs ? and money, too, which the defendants ought to have paid without suit, and which, in the ordinary and common acceptation of the words, would be due from the defendant to the plaintiff. The plaintiff, on the dissolution of the injunction, had sustained damages by the act of the defendant. Money which he ought to pay without any litigation, and which, without giving to the words “money due,” any strained interpretation, means damages; and by giving to them the same meaning as though the word damages had been used, then every word in the condition would have an operation, and, as a majority of this court think, would cany out the intention of the parties to the instrument. Any other construction would give to the instrument a meaning which the parties never intended, and would render a portion of it a mere nullity. It is. thought however that, inasmuch as a part of the defendants are mere sureties, the instrument should be so construed as to operate favorably to sureties ; but I know of no principle of law which would require us to reject a part of the instrument because part of the obligors were sureties.

The judgment of the district court is reversed.


text:
    Jacob F. Aubrey Stephen O. Almy.
    Where a court has jurisdiction of a form of action, its jurisdiction, in a particular case brought in that form, is not ousted by the evidence showing that the action is misconceived, and that some other form of action should have been resorted to. It is,'simply, good matter of defense.
    Under the act of 1831, to regulate proceedings in forcible entry snd detainer, the court of common pleas had no authority to cause an assessment of rents, and damages to be made, by a jury- or otherwise, and give judgment therefor, except in cases where the justice’s judgments were affirmed.

      A court of common pleas overruled an application for sueli an assessment, in a case in which the justice’s judgment had not been affirmed. The order overruling the application was reversed by the late Supreme Court upon the circuit, and a procedendo awarded. The common pleas then caused the assessment to be made and gave judgment for it. Held, that the decision of the Supreme Court was no bar to a writ of error to reverse said judgment.
    *Writ of error to the common pleas of Hamilton county. Eeserved in the district court.
    The case is sufficiently stated in the opinion of the court.

      Chase & Ball, for plaintiff in error.

      Woodruff & Hopkins, for defendant.
   Thurman, C. J.

April 15,1845, Almy recovered a judgment, in forcible detainer, against Aubrey, before a J. P. December 2,1845, the judgment was reversed, on certiorari, by the common pleas, and the cause retained for trial. November 16, 1846, a trial was had, a verdict of guilty rendered, and a motion for a new trial made by Aubrey; which, after several continuances, was withdrawn December 30, 1847, and a judgment rendered upon the verdict, that Almy recover his costs and have restitution. Thereupon, Almy moved the court to impanel a jury to inquire into and assess the value of the rents and damages to which he had become entitled after the service of the notice to quit, or, at least, after the service of the summons; which motion was overruled, and he excepted. May, 1848, the Supreme Court in Hamilton county, upon certiorari prosecuted by Almy, reversed the order overruling said motion, and awarded a writ of procedendo to the common pleas. December 17, 1850, the common pleas, in obedience to the writ (after overruling a motion of Aubrey to dismiss the cause), impaneled a jury, who returned a verdict for Almy of $396.41. Aubrey moved for a new trial, and also in arrest of judgment, both which motions were overruled, and he excepted. Judgment being rendered upon the verdict, this writ of error is prosecuted to reverse it.

Yarious errors are assigned, some of which go to the judgment of restitution, and impeach the jurisdiction of the court to render it. The facts in proof, it is said, presented a controversy in respect to the title to the premises, a question that could not be *tried in an action of forcible detainer. If this position is correct, both in fact and law:, there was a valid defense to the action, but it is not perceived that there was a want of jurisdiction. It was not the province of the court to find the facts — that was the business of the jury; and if the facts, when found by the jury, were such as, under the law laid down by the court, would not support an action of forcible detainer, the verdict should have been not guilty. Upon such a verdict the court could have rendered judgment; whereas, if it was wholly without jurisdiction, it could render no judgment at all, except to order the case to-be stricken from the docket.

But all this is immaterial here, for the reason that no bill of exceptions setting out the facts proved, was taken, and we can not, therefore, know what the facts were. The bill taken before the justice of the peace in 1845, and that taken in the common pleas on the-trial in 1850, are no evidence of what was proved on the trial in 1846.

And here I may add, that the common pleas had not erred in retaining the cause for trial after reversing the justice’s judgment; for even tif the transcript showed that the justice should have rendered a judgment for the defendant before him, because the proof made a case of controverted title in which forcible detainer would not lie, it did not follow that the proof would be the same in the, common pleas. Justices had jurisdiction of the action of forcible detainer, and when their judgments were reversed by the common pleas, the statute required the cause to be set down for trial in the latter court.

Again, we are restricted by the writ of error, to the judgment of November term, 1850, for that is the only judgment mentioned in the writ, the only one it seeks to review.

That the court of common pleas was bound to obey the writ of procedendo from the Supreme Court, is obviously true; from which it follows, that if we reverse their judgment, we disregard the decision of the Supreme Court. But, however inconvenient *in practice this may be, we do not perceive how it can be avoided, if we find the judgment to be erroneous. The decision is plainly no bar to the present writ, the object of which is to reverse a judgment rendered long after the decision was made; and although the question presented is the same as that formerly decided, it would have been equally so had the decision been made between different parties. It is unnecessary to consider what would be the proper practice had the procedendo been awarded by the court of the last resort —the Supreme Court in bank — for it was ordered by no such tribunal. It is true, that the court in bank was but a special session, of the Supreme Court; nevertheless, the Supreme Court on the circuit was so far an inferior tribunal that its judgments were reversible by the court in bank, and are so by this court.

The question upon which this case turns is : was it lawful to assess and give judgment for Almy’s rents and damages, in the action, and mode in which it was done ? The solution of this question depends upon the construction to be given to certain sections of the act of 1831, regulating proceedings in forcible entry and detainer. Swan’s Statutes, old ed., 419, 420. By this act jurisdiction in forcible entry and detainer was conferred upon two justices of the peace, subject to review, upon certiorari, by the court of common pleas. By section 10, the plaintiff in certiorari is required to give bond to the defendant, “conditioned for the faithful prosecution of the said suit; and in case of failure, that he will pay all costs, rents and damages, which may be assessed to the defendant in certiorari, as hereinafter provided.” By sections 11 and 12, it is enacted, that if the judgment of the justices shall be reversed, tho plaintiff in certiorari shall recover costs, and the court shall retain the cause and proceed thereon to final judgment, as in cases of appeal, and if on trial, the jury find the defendant guilty of forcible •entry and detainer, or forcible detainer only, the court shall render judgment for costs, and that the complainant have restitution of the premises. Sections 13 and 14 are as follows:

*“ Seo. 13. That if the plaintiff in certiorari shall fail or neglect to prosecute the said suit to final judgment, or if the judgment and proceedings in the court below shall be affirmed; then, and in every such case, the court of common pleas, on motion of the defendant or his-counsel, shall render judgment affirming tho judgment and proceedings below, and for costs; and shall award execution therefor, as in other cases.

“Seo. 14. That thereupon, if the plaintiff in 'certiorari were’ defendant below, it shall be the duty of the court, on motion, to direct a jury to be impaneled and sworn, to inquire into and assess the value of 'the rents accrued, and damages, if any, sustained, from and after the day on which notice to quit was served on such plaintiff in certiorari; or if no such notice was given, then from the time such plaintiff in certiorari was summoned in the proceedings below.”

¥e think it quite clear, that the only authority here given to assess rents and damages, is in cases where the judgments of the1 justices are affirmed; in other words, section 14 relates only to the cases mentioned in, the 13th, and the condition of the bond relates to the same cases. There is no provision for any such assessment if the justice’s judgment is reversed, nor was any such thing Contemplated. If it had been, the jury impaneled to try the issue of guilty or not guilty, would have been authorized to make the assessment, for surely no such absurdity could have been designed, as that there should be one jury to try that issue and another to assess the rents and damages. But this absurdity is inevitable, upon any other construction than that we have arrived at; for it is admitted, and correctly too, that no authority is given to the jury that tries the issue to make any assessment.

The language of the act, also, is sufficiently plain, especially when proper regard is paid to its connection. The “ faithful prosecution of the said suit,” which is a condition of the bond, means a prosecution of the writ of certiorari; and there has been *such faithful prosecution when a judgment of revei’gal is obtained. The “case of failure,” mentioned in the bond — and upon the happening of which a liability to pay costs, rents, and damages, “ as hereinafter provided,” is incurred — is a failure to obtain a judgment of reversal. When a reversal takes place, “ the said suit” of certiorari spoken of in the bond, has no longer an existence, and the cause is retained “ as in cases of appeal.” The connection between the 13th and 14th sections shows that they are upon the same subject, and, with the other considerations I have mentionéd, makes it apparent, that the latter is limited to the cases specified in the former, which are all cases of affirmance.

It results from these views that the judgment in question must be reversed.


text:
    Isaac J. Fullerton v. William Sturges.
    F. and others, sureties of 0., signed an instrument payable to S. or order, in blank as to the date, amount, and time of payment, but with a private agreement that it should not be filled for more than $1,000 or $1,500, and delivered it to C., the principal, to procure the discount. While in the hands of C., seals were affixed to the signatures by some one, without the knowledge or consent of the sureties; and, subsequently, the instrument was presented by C. to S., the payee, and filled up and discounted for the sum of $10,000. Held:

    1. That one who intrusts his name in blank to another, to procure a discount, is liable to the full extent to which such other may see fit to bind him, when the paper is taken in good faith, without notice, actual or constructive, that', the authority given has been exceeded.
    2. Such blank signature has the effect of a general letter of credit; and the rule is founded as well upon that principle of general jurisprudence which casts the loss, when one of two innocent persons must suffer, upon him who has put it in the power of another to do the injury, as also upon the rule *of the law of agency which makes the principal liable for the acts of his agent, in violation of his private instructions, when he has held the agent out as possessing more enlarged authority,
    3. The material alteration of a written instrument, made by a stranger, will not avoid it.
    4. To have that effect, the alteration must be made by, or with the privity of, one claiming a benefit under the instrument, and (to give application to the doctrine upon that subject) after the instrument has been delivered and taken effect.
    6. In such case, a remedy is denied, and the instrument is destroyed, as a punishment for the fraud of the party claiming a benefit under it.
    6. In this case, C. was the authorized agent of F., to fill up the paper and procure the discount, having no title to, or interest in, the paper; and although not authorized to affix seals to the signatures, and, therefore, incompetent to bind F. thereby, his attempt to do so can not affect S., the payee.

      1. Having fully executed and not exceeded his authority, by procuring the discount of the paper as a promissory note, his unauthorized act in affixing a seal may be treated as a nullity, and the instrument enforced in the manner and to the extent contemplated by the surety, as such promissory note.
    Error. Reserved in the district court of Perry county.
    The judgment in the court of common picas was for Sturges, a motion for a new trial made by defendants being overruled. The case was taken on error to the district court. The facts were submitted to the court in an agreed statement, as follows:

      “ Upon the trial of this cause, the parties, by consent, submitted the issue herein to the court in lieu of a jury, and the plaintiff then gave in evidence a paper, of which the following is a copy:
    $10,000. Thornville, Ohio, November 16, 1852.
    Six months after date, for value received, we or either of us promise to pay William Sturges or order, at his banking-house in .Zanesville, Ohio, ten thousand dollars. And vre hereby authorize and empower any attorney, of any court of record in the United States of America, at any time after the above sum becomes due, to appear in any court within the said United States of America, for us and in our names, and confess judgment in favor of the legal holder of this note, for the said amount, interest and costs, and to release all ^errors and the right of appeal, and waiving stay of execution on said judgment. Witness our hands and seals, this 16th day of November, 1852.
    (Signed,)
    James Culbertson, James Culbertson, I. W. Burkit, Jacob Burkit, David Zortman, Jeremiah Woodring, Solomon Zortman, Abraham S. Hoover, Wm. J. Fullerton, Elijah Foster, J. H. Mitchell, Jacob Goodin, seal. 'seal.' SEAL.' SEAL.’ SEAL." SEAL.' SEAL.’ SEAL.’ 'seal.' 'seal.' "seal.' SEAL.'
    .And rests his case. The defendant then proved that, when he -.signed the paper, there was a blank following the word ‘Nov.,’ in in the first line, and a second blank preceding the word ‘ months,’ in the second line, and a third blank preceding the word ‘thousand,’ in the fifth line, and a fourth blank, occupying parts of the tenth and eleventh lines, between the word ‘ for ’ and the word ‘ and,’ and a- fifth blank in the seventeenth line, between the word ‘ this ’ and the word ‘ day.’
    “ Defendant further proved, that the plaintiff was a banker in Zanesville, and that the said blanks were all filled by the plaintiff on said November 16, 1852, when he discounted the paper; so that, after filling said blanks, the paper read as above at largo set forth.
    “ The defendant then further proved, that when he signed the paper there was no seal on the same, and there were no seals on the ■same at the time when all the signatures of all the had been affixed, but that such seals, including the seal annexed to this defendant’s name, were added (the evidence did not show by whom) after the parties had signed the same, and without this defendant’s knowledge, authority, or consent, and before it came to the possession of the plaintiff.
    “ The defendant further proved, that he signed his name to said *paper in blank, and unsealed as aforesaid, at the request, and for the accommodation, of James Culbertson, whose name is first-signed to it; the said Culbertson being the principal, and all of the other parties his sureties thereon. Defendant further proved, that when the plaintiff received the instrument of writing from said James Culbertson, the plaintiff advanced to him a part of said ten thousand dollars in money, the residue of the consideration being something equal to money. The defendant further proved, that when he put his name to the paper, no one was present but the said James Culbertson, and that he told Culbertson that he would, not agree to become surety for more than a thousand or fifteen hundred dollars.

      “ No other evidence was given in the case. Upon this evidence being heard, the plaintiff’s counsel asked permission to give the-paper in evidence, under the second and third counts of his declaration, which was accordingly done.
    “ It is agreed, that the above statement contains all the evidence introduced upon each of the trials, at the March term, 1854, of the Perry common pleas, wherein William Sturges was plaintiff, and each of the above-named singers, except the two Culbertsons, were ■ defendants. March 16, 1854.”

      J. D. Maginnis, and Hunter & Finch, for plaintiff in error.

      Mr. Hunter, in argument, cited Master v. Miller, 4 Term, 320; Bank U. S. v. Russell and Boone, 3 Yates, 391; Woodworth v. Bank of America, 19 Johns. 391; Nargo and Green v. Fuller and Patterson, 24 Wend. 374; 1 Smith’s Lead. Cas., top page, 572, 598, 599 ; United States v. Linn, 1 Howard, 104; 8 Pick. 325 — as establishing that any material alteration, however insignificant, made by an intermediate party, as an indorser, etc., or while the instrument is in his hands, unexplained, renders it utterly void as between the1 holder and the maker, or any prior party.

      *C. B. Goddard, for defendant in error,
    cited 2 Parsons on ■Contracts, pt. 2, chap. 3, p. 223, sec. 8, “ of alteration; Truett v. Wainwright, 4 Gilman, 411; Waring v. Smith, 2 Barb. Ch. 119; Thornton v. Appleton, 29 Maine, 298; Arnold v. Jones, 2 Rhode Island, 345; Lambert and Pollard v. Carrol, Wright, 108; Selser v. Brock, 3 Ohio St. 302; Huntington & McIntyre v. Finch, Ib. 445.
   Ranney, J.

This was an action of debt. The declaration contained three counts. The first set out a single bill for ten thousand •dollars, dated November 16,1852, payable to the plaintiff below or order, at his banking-house in Zanesville, six months after the date thereof. The second counted upon the same instrument as a promissory note; and the third was the indebitatus count, for money had .and received, and money lent.

To the first of these counts, the defended pleaded non est factum, verified by affidavit; and to the two last, nil debet. The case was .submitted to the court, and from an agreed statement of the evidence, appended to the bill of exceptions, it appears that the instrument was signed by the defendant below and eleven others; one of whom, James Culbertson, was, as between him and the other signers, principal, and the others his sureties, although not so expressed on its face. That at the time the paper was signed by all the parties thereto, and, by the sureties, placed in the hands of Culbertson, it was in blank as to the date, amount, and time of payment, and had no seals affixed to the signatures thereon. That, after that time, and before it came to the possession of Sturges, seals were affixed to each of the signatures; but by whom, was not shown by the evidence. The defendant, Fullerton, further proved, that the seal affixed to his signature was done without his knowledge, authority, or consent; and that at the time he signed the paper, at the request •and for the accommodation of Culbertson, he informed the latter, that he would not agree to become his surety for more than a thousand or fifteen ^hundred dollars. In this condition the paper was presented to Sturges, by Culbertson, on the day it bears date; and the blanks being filled by the former, the same was discounted for the sum of ten thousand dollars.

As nothing in the case tended to show any notice to Sturges, that Culbertson, in directing the instrument to be filled up for that sum, was exceeding the authority given him by Fullerton, it is very clear that the violation of any private instructions, which the latter may Rave given to the former, as to the amount for which he was willing to become liable, could not have been used to prevent a recovery for the sum named in the paper.

No rule is better settled, or founded upon stronger reasons, than that which affirms the liability of one intrusting his name in blank to another, to the full extent to which such other may see fit to bind him, when the paper is taken in good faith and without notice, actual or implied, that the authority given has been exceeded, or the confidence reposed has been abused. It has the effect of a general letter of credit; and the rule is founded, not only upon that principle of general jurisprudence which casts the loss, when one of two equally innocent persons-must suffer, upon him who has put it in the power of another to do the injury, but also upon that rule of the law of agency, which makes the principal liable for the acts of his agent, notwithstanding his private instructions have been disregarded, when he has held the agent out as possessing a more enlarged authority. Those rules are indispensably necessary to prevent fraud and surprise upon third persons, and in their application to the usual course of dealing in commercial transactions, are to be considered as of vital importance. They are not questioned by the-learned counsel for the plaintiff in error; nor does he contend that there was anything in the case that should have prevented a recovery, from the fact that the instrument was filled up for a larger amount than had been agreed upon between Culbertson and Fullerton. But he insists that Culbertson must bo presumed to have added the seals, *after the paper was placed in his hands by the sureties, and that this effected a material alteration of the instrument ; and, being done without the knowledge or consent of Fullerton, avoids it in the hands of Sturges, notwithstanding he had no notice of the fact. . That the alteration was made without the knowledge or express consent of Fullerton, must be admitted; that it was made by Culbertson, after the paper came into his hands, and before its presentation to Sturges, is highly probable.

It is also very true, that affixing a seal to the name of a party to a written instrument, when its legal effect would be in some way thereby changed, unquestionably is, and has often been held to be, a material alteration. But it is wholly unnecessary to consider whether such an addition made to an instrument of the character of the one declared upon in this case, should, in this state, where it has the same effect, is subject to the same defenses, and barred in the same time, whether sealed or not, be deemed material. There has been no recovery had upon this paper as a sealed instrument. No evidence was given under that count of the declaration ; but the evidence was received and the recovery had upon the count describing it as a promissory note. That the plaintiff in error, by the paper he signed, fully authorized Culbertson to obtain a discount upon a promissory note, for the amount and in the manner he did, is unquestionable; and that this instrument, when deprived of the seals, is, in legal effect, a promissory note, is not doubted. The true question therefore is, has Sturges, under the circumstances, a right to treat this paper as and -for such an instrument as Fullerton authorized to be made; or is it avoided by the unauthorized addition of a seal, made by Culbertson or some other person, without the knowledge of Sturges and before it came to his hands ?

It certain ly binds Fullerton for no more than he authorized; it contains no stipulations, that Sturges had' not a right to suppose Culbertson authorized to make for Fullerton. Sturges committed *no fraud, and knew of no fraud. The instrument remains precisely as it came to his hands, without addition or diminution. This fact shows the entire inapplicability of most of the cases relating-to the alteration of written instruments. To give application to many of the doctrines they enforce, the alteration must have been made after the delivery of the instrument, and after it has taken effect, and by or with the privity of one claiming a benefit mnder it. The rule of the English courts, that a material alteration, made by a stranger, avoids the instrument, has been universally repudiated in this country. To have that effect, the alteration must be material and intentional, not by accident or mistake ; and by a party entitled to a benefit under the instrument, and not by a stranger, or one adversely interested. 1 Gall. 69 ; 14 Serg. & Rawle, 405; 8 Cow. 71; 1 Watts, 237. Fraud in the interested party lies at the foundation of the rule ; and as a punishment for his fraud, the law deprives him and all claiming under him of all remedy upon it.

The question in this case depends upon entirely different principles. Here is no fraud to be punished, for the party entitled to the benefit of the paper, and the only one ever having a legal interest in it, has neither done or intended any wrong. At the time the seals were affixed, there was no agreement to be altered, for none had been made; none perfect in either form or substance had even been written — much less delivered or taken effect.

Assuming Culbertson to have affixed the'seals, while the skeleton remained in his hands, it was done by one having no rights under the instrument, and, neither at that time or ever afterward, any remedy or right of action upon it. In respect to the custody, filling np, and ultimate delivery of the instrument to the payee, he was acting, not only for himself, but as the authorized agent of Fullerton ; clothed with apparent authority to bind Fullerton for any sum that he might see fit to insert, and to make the instrument perfect, in every respect, for the purposes’ intended, *where Fullerton had left it imperfect. He had no right to change what Fullerton had done for himself; but he had perfect anthority to supply what Fullerton had omitted. If he did - more than the authority given him by Fullerton seemed to authorize, he failed to bind him for such excess, even in favor of one who might in good faith take the paper.

But if he did it fraudulently, it is still but the fraud of Fullerton’s agent, acting outside of his authority, and, therefore, in the legal sense, a stranger to both him and Sturges. He is a stranger to Fullerton, because quoad the excess, he has acted without authority ; and he is a stranger to Sturges because, as between him and Fullerton, he has derived no title to the instrument through or from Culbertson. But it would indeed be singular that Sturges should be punished for the fraudulent or unauthorized act of Culbertson, for whom he was in nowise responsible, and of which he had no knowledge; rather than Fullerton, whose agent he was, and who had incautiously or negligently placed in his hands the means that enabled him to obtain the money. There is not a word in the case that points to any bad faith on the part of Sturges; and therefore nothing that could justify visiting him with the loss of his debt, as a penalty for his conduct. If he must lose, it is because Culbertson has exceeded the authority given by Fullerton, and, for that reason, failed to bind him. It is a simple question of agency, and a settled rule of the law of agency furnishes the solution. What Culbertson has done, is exactly what Sturges had a right to suppose him authorized to do, except the addition of the seal. But without the seal the instrument is perfect, and a frill execution of the power. When that is the case, and the party dealing with the agent has acted in his acts are so far as are authorized, and void only for tbe excess; provided tbe boundaries between tbe excess and the rightful execution are clearly distinguishable. The rule is thus stated'by Lord Coke: “Begularly, it is true that, where a man doth less than the commandment or authority cornmitted unto him, then the commandment *or authority being not pursued, the act is void. And where a man doeth that which he is authorized to do and more, there it is good for that which is warranted, and void for the rest.” Co. Litt. 258a.

The same principle is stated by Mr. Justice Story, and supported with a large number of authorities. Story on Agency, sec. 4G6, et ■seq. He says: “ "Where 'there is a complete execution of the authority, and something ex abundanti is added which is improper, ¡there the execution is good, and the excess only is void. But whore ithere is not a complete execution of a power, or where the boundaries between the excess and the rightful execution are not distinguishable, then the whole will, be void.” It is true' that most of the cases cited involved attempts by the agent to bind the principal ■to the performance of something more or less than was authorized; firat surely the application of the principle can not be more doubtful ■where the excess relates to a mere useless formality in the execution ¡of the instrument that evidences the contract, binding the principal ;to precisely what he had authorized the agent to do.

But the precise point has been adjudicated. It is impossible to ■distinguish the case from that of the United States v. Linn et al., 1 How. 104, decided by the Supreme Court of the United States ‘The action was brought upon the undertaking of Linn, as receiver ■of public moneys at Yandalia, Illinois. Duncan, one of his sureties, pleaded that, after he had signed the instrument and delivered it to Linn, to be trasmitted to the plaintiffs, it was, without his con¡sent, direction, or authority, materially altered by affixing a seal to ‘his signature. The court sustained a demurrer to this plea, because iit did not show that the seal was added with the knowledge, consent, or authority of the plaintiffs. The court say: “ The plea not alleging by whom the seals were affixed, it is open to two intondments. Either that this was made by the plaintiffs, which would make the instrument void, or that it was done by a stranger, which would not invalidate *it.” They then proceed to apply the .rule that requires the pleading to be construed most strongly against the party alleging it; and arrive at the conclusion, that if the plea ihad concluded with a verification, and the plaintiffs had replied that the affixing the seal was done without their knowledge, eonseht, or authority, and this state of the case had been sustained by the proof, it would not have avoided the instrument.

The plea in that case, contained precisely what the proof shows in this; what was reached by intendment there, is positively admitted here, namely, that the alteration was made without the knowledge, consent, or participation of the plaintiff; without which, we have the authority of that court for saying, the instrument is not avoided. The doctrine was carried still further, and, perhaps, to an unwarrantable length, in Truett v. Wainright, 4 Gil. 411; where the addition of a seal by an agent, to the signature of the party to a warrant of attorney, with the knowledge and at the request of the attorney of tho adverse party, was held not to vitiate the instrument. The court place the decision upon the ground that the instrument was sufficient without the seal, and could not be avoided by the unnecessary addition of it, without authority on the part of the agent.

The judgment must be affirmed.


author: Bartley, J.

text:
    Washington Matthews v. The State of Ohio.
    It is essential that an indictment for robbery should contain a substantial averment of ike intent to steal or rob.

    And this averment is not sufficiently made by the words, “feloniously did seize, take, and carry away.”

    Writ of error to the court of common pleas of Butler county.
    *At the September term of the court of common pleas of Butler county, 1854, the plaintiff in error was put upon his trial, on an indictment containing four counts, the first of which charged, an assault with intent to murder; the second, an assault with intent to rob; and the third and fourth counts, respectively, a robbery, under section 15 of the statute for the punishment of crimes. After .the close of the evidence, a nolle prosequi was entered on the first two counts, and the cause having regularly gone to the jury, the defendant was found guilty on the last two counts of the indictment, on which judgment was rendered, and the plaintiff in error sentenced to imprisonment in the penitentiary for the term of three years.. To reverse this judgment, this writ of error is prosecuted.

      Clark & Christy, and Alex. F. Hume, for plaintiff in error.

      Q. W. McCook, attorney-gen eral, for the state.
   Bartley, J.

The first error assigned is, that the indictment is defective in this, that it is not averred, in either of the two counts on which the plaintiff in error was convicted, that the taking of the property therein alleged, was done with intent to rob or steal. • .

The language of the section of the statute, under which these two counts of the indictment were fi’amed, is as follows:

“ That if any person shall, forcibly and by violence, or by putting in fear, take from the person of another any money or personal property, of any value whatever, with intent to rob or steal, every person so offending shall be deemed guilty of robbery,”, etc.

Three ingredients are essential to constitute the crime of robbery :

1. The use of force and violence, or the use of means whereby the injured person is put in fear;

2. A taking from the person of another of money, or other personal property;

*3. An intent to rob or steal.

All these elements are essential, and each must exist in order to constitute the crime. The first and second, without the third, would be a simple trespass; the third, without the first and second, would be a bare intent to commit a crime without the overt act; and the second and third, without the first, would be a simple larceny.

In the case under consideration, the corpus delicti is averred, in the two counts of the indictment on which the plaintiff in error was convicted, as follows:

“3. . . . Washington Matthews, ... on the seventh day of August, in the year 1854, ... in the county of Butler, . . . .in and upon the said Owen McArdle, . . . feloniously did make an assault, and him, the said Owen McArdle, by violence, in bodily fear and danger of his life, . . . then and there feloniously did put; and three twenty-dollar gold pieces, of the value of twenty dollars each, of the personal property of the said Owen McArdle, from the and the will of the said Owen McArdle, . . , then and there feloniously and violently did seize, take, and carry away, contrary,” etc.

“4. . . . Washington Matthews, ... on the seventh day of August, in the year 1854, . .' . in the county of Butler, . . . in and upon the said Owen McArdle, . . . did unlawfully make an assault, and him, the said Owen McArdle, in bodily fear and danger of his life, . . . then and there feloniously did put; and three twenty-dollar gold coins, of the value of twenty dollars each, of the personal property of the said Owen McArdle, from the person and against the will of the said Owen McArdle, . . . then and there feloniously and violently did seize, take, and carry away, contrary,” etc.

The first two constituents of the crime are sufficiently set out in each of these counts; but the proper averment of the intent *is omitted. Whenever a particular intent constitutes an element of a crime, it is essential that it be substantially averred in the indictment. It is true that in the case of Turner v. The State of Ohio, 1 Ohio St. 422, it was held, that where an indictment for robbery avers an actual stealing, the requisite intent is, ex vi termini, included, the term steal, in its legal signification, importing a larceny. But the words of this indictment, “ did seize, take, and carry amay,” import a trespass, but do not express a larceny. And the deficiency is not helped by the word “ feloniously ” which is used. The predicate of an act that it is felonious, is simply to assert a legal conclusion, as to a quality of the act; and unless the act' charged of itself imports a felony, it is not made so by the application of this epithet. Indeed, the term felony has no distinct and well-defined meaning applicable to our system of criminal jurisprudence. In England, it has a well-known and extensive signification, and comprises every species of crime which, at common law, worked a forfeiture of goods and lands. But under our criminal code, the word felonious, although occasionally used, expresses a signification no less vague and indefinite than the word criminal.

Both of the counts of the indictment therefore upon which the plaintiff in error was convicted, are fatally defective. Other errors are assigned, but it is not necessary to go further in this ease.

Judgment of common pleas reversed, and cause remanded.