author: .Judge Wood

text:
    *Josiah Osburn v. The State of Ohio.
    The record book is admissible evidence, although the records have not been' examined and subscribed by the president judge.
    A naked statement of facts, in a bill of exceptions, it not being shown wherein their occurrence at the trial prejudiced the complaining party, lays no-ground for reversing a judgment.
    Where, in a prosecution for perjury, a written paper is referred to, the place- and time of subscribing it by the accused being involved in the alleged perjury, as set forth in the indictment, such paper is proper evidence at. the trial.
    It is not error, where the record book has been read to the jury, if the court, refuse to make an order to send it with them to their room of deliberation.
    Upon a writ of error nothing is examinable but what is set forth in the transcript of the record.
    This cause was adjourned from the county of Clermont; It was a writ of error brought to reverse a judgment in a prosecution for perjury, in which the plaintiff in error was convicted and sent to the penitentiary;
    The case was presented to the court upon four bills of exeeptions, taken in the progress of the trial before the common pleas. The indictment set forth that, at a previous term, Osburn bad been examined as a witness, between the state and one W. Aekles, tried also upon an indictment for perjury ; that upon that trial it became a material inquiry whether Osburn was ata certain wedding, which took place at the house of one T. N. Williams, on February 11,1830, and whether said Osburn, at the wedding aforesaid, in the house of T. N. Williams, signed a certain subscription paper, by which he agreed to send one scholar and a half to a school which one Harvey A. Bigam then and'there agreed to teach, and whether the said Wm. Aekles saw the said J. Osburn sign said paper, and whether said J. Osburn signed said paper at a certain shooting-match on the premises of T. N. Williamsi The indictment proceeds to state that Osburn was examined as a witness to these points; that he testified that he was not at the wedding, that he did not sign the subscription paper at the wedding; that William Aekles was within two or three feet of him when he signed the paper, and that it was signe'd at the shooting-match; all which testimony the indictment alleged, with the proper averments, to be false.
    The first bill of exceptions sets forth that, at the trial, the prosecutor, to prove the proceedings against William Aekles, produced the book of records of the common pleas, which the counsel for Os-burn objected to, as inadmissible at all; but as specially inadmissible, because the recorded cases were not subscribed by the presiding judge. Upon this exception the presiding judge signed the records, and the book was admitted.
    The second bill of exceptions recited, that the prosecution offered in evidence, duly certified transcripts of two proceedings before a justice of the peace, in which Harvey A. Bigam was plaintiff, and Osburn defendant, the object of which suits was to recover money as due upon an account. In the first *suit, Bigam was non-suited, and'in the second, recovered a judgment. These transcripts were objected to, but admitted. ,
    The third bill of exceptions stated that, in the course of the trials, one Dennis Smith was called as a witness, by the prosecution, who testified that he was present at the trial of Aekles; that' Osburn was a witness on that trial; that the oath was administered by the clerk, and was taken by Osburn with an uplifted hand. This was objected to by Osburn’s counsel, because the form of the oath was not set forth in the indictment. The objection was overruled. The subscription paper for Bigam’s school was then offered in evidence by the prosecution, which was objected to by Osburn’s counsel, but received by the court.
    The fourth bill of exceptions states that, as the jury were about to retire to consider of their verdict, Osburn’s counsel moved the court for an order that the jury take with them the record book that had been used in evidence. The court refused to make such order, but instructed the jury that they could examine the record book in court, and come into court for that purpose.
    To all these opinions of the court the counsel for Osburn excepted. But no one of their bills of exceptions points out, or specifies any particular matter wherein the points decided prejudiced the accused, Osburn, on his trial.
    The jury found a verdict of guilty. A motion was made for a new trial and overruled, and Osburn sentenced to the penitentiary.
    The errors assigned for the allowance of a writ of error are :
    1. The court erred, as appears by the bills of exceptions filed, and made a part of the record.
    2. The court erred, in refusing to sign the last bill of exceptions ¡tendered, and which was signed by the president, who afterward ■erased his name without presenting it to the associate judges; and ¡in refusing to grant a new trial, as stated in defendant’s bill.
    3. The court erred, in ordering Osburn into custody during the ■¡trial, for not finding bail, without hav-ing fixed any sum in which bail should be given.
    T. Morris and Warren, for plaintiff in error.
    Jollieee, for the state.
   .Judge Wood

delivered the opinion of the court:

The original records of a court are always evidence, where a copy of them duly certified would be evidence. The exemplification, under the seal of the court, is only made evidence, because the originals must be kept at a particular place, for the use and benefit ■of the public, to whom they belong.

It was of no importance, whether the record of the prosecution .against Ackles was signed by the president judge or not. That signature adds no validity to the record. It is required to be made, that the court shall be compelled, to see that the clerk keeps up the records with the business transacted, as nearly as is practicable. The record made out by the clerk would be evidence, though not signed by the judge. An exemplification of it might properly be made, and sent abroad for use, before such signature. Affixing the signature in court was not necessary, but did not vitiate. There was no error in admitting the record book in evidence.

The second bill of exceptions states very imperfectly the facts complained of, in the admission of the justice’s certified transcripts. We do not perceive the pertinency or relevancy of these transcripts to the issue before the court. Neither do we see wherein they tended to prejudice the accused. The admission of immaterial evidence, unless it is shown that some wrong was or most probably would be affected by it, is no ground for reversing a judgment. 4 Ohio, 81, 388.

The bill of .exceptions points to no injury sustained by the accused, in consequence of such admission. A naked statement of the fact does not warrant this court in making it a ground of . error.

The first position of the third bill of exceptions is erroneous in point of fact. The indictment sets forth the form of the oath in these terms: “The said Josiah Osburn was then and there duly sworn as a witness, as aforesaid, before the said honorable (naming the judges), that the evidence which he should give to the court and jury between the said State of Ohio and the said Wm. Acides, the defendant, on the issue then depending, should be the truth, the whole truth, and nothing but the truth.” We can see no color of exception to admitting the testimony of Smith.

The second branch of the third exception goes to the *admission of the subscription paper for Bigam’s school. Between this paper and the alleged perjury there was a direct connection ; that perjury, as charged in the indictment, related to the place and the time, and the persons present, where and when the accused subscribed it. It was expressly alleged that the accused testified concerning it, and that as to particular facts he testified falsely. The fact that such a paper was signed at all was involved in the issue. Its existence and production was the best evidence of that fact. It was, in our opinion, properly received.

The fourth bill of exceptions seems to us of a captious character. The possession of the record book, by the jury, could be of no importance to the accused. If difference of opinion arose, as to its contents, it was open in the court to be examined. Immediate access could be had to it. No prejudice to the accused could occur from its remaining in court. There is its place, appointed by law, and we are not clear that a party litigant has any right to demand that it be placed elsewhere for his benefit or for his caprice. We can not consider it error that, in this case, the court refused to make an order for delivering it to the jury.

The first assignment of errors contains no ground for reversing the judgment.

We find nothing in the record to sustain the second assignment of error asta matter of fact. No notice is taken of any refusal to sign a bill of exceptions, or of any judge erasing his name after having signed it. The record only is before us, on this writ of error, and we can examine no allegation, in respect to facts, not embodied in it. The same difficulty occurs in respect to the refusal to grant a new trial on the admission of the prosecuting attorney. We find no such admission in the record. We can not say what would be the effect of it if found in proper form. It is possible there might be no error in refusing to grant a new trial, in a criminal case, even upon the admissions of the prosecuting attorney. This court could only determine that by having embodied in the record, by way of bill of exceptions, the entire evidence given to the jury.

The third assignment of error is in the same predicament with the second. The facts alleged are not before us.

Judgment affirmed.


source: Caselaw Access Project

author: Judge Lane

license: Public Domain

text:
    *Michael Hess v. Jonathan Lupton.
    Action for damages consequent on an act innocent in itself, and injurious only in consequence of particular circumstances, the declaration must set out the circumstances showing the wrong.
    This is a writ of error reserved for decision in the county of Monroe.

      In the second count of the declaration (the first having been withdrawn), the plaintiff declares that the defendant being possessed of a certain dwelling-house, and uninclosed yard and ground contiguous thereto, in the vicinity of a public highway, unlawfully placed thereon a large quantity of fish, brine, fish-brine, pickles, pickle-brine, and other acrid and corrosive substances, in divers open vessels, viz: casks, hogsheads, barrels, kegs, and pails, and continued the same in the said uninclosed ground, from September 1,1832, until September 1,1833; and during that time he so negligently and improvidently conducted that divers cattle of the plaintiff, viz: six oxen, etc., entered on the said uninclosed land, and then and there ate, drank, and swallowed the said fish, brine, fish-brine, pickles, pickle-brine, salt, and other acrid and corrosive substances, so that they, viz: the said six oxen, etc., died.
    The defendant demurred.
    The court of common pleas gave judgment for the defendant upon this count, to reverse which, the plaintiff brings this writ of error.
    Archbold, for plaintiff,
    insisted that as the plaintiff’s cattle were not wrongfully on the uninclosed land of the defendant, he could not place any substance upon his land injurious to them without negligence and liability for the loss; and he cited 29 Ohio Stat. 456, 471; 4 Ohio, 427; Deane v. Clayton, 7 Taunt. 489; 1.Stark. Cas. 150, 287; 11 Mass. 127; 1 Camp. 517; 3 Ib. 399; 1 Cowen, 78.
   Judge Lane

delivered the opinion of the court:

Where an act complained of is innocent of itself, and injurious only from the circumstances under which it is done, those circumstances should be stated in pleading. If one leave an open pit in an uninclosed lot in a town, into which his neighbor’s beast falls and perishes, an action lies; but if such an accident happen in a pit left open in a place remote from the haunts of cattle, no suit is sustainable, for the risk of *doing mischief is so small that the exposure is not negligent. To show a cause of action in such a case, therefore, it is necessary to set forth in the declaration the situation of the pit; that it was left unsecured in a place where cattle were accustomed to resort. This principle should govern the present case. No wanton or malicious mischief, no intention to injure is pretended. The situation of the place where the noxions substance was left, its proximity to the haunts of cattle, and the risk of injury must be stated more fully than in this declaration, to make a case of liability for negligence.

Judgment affirmed.


text:
    Francis Le Clercq and others, Inhabitants of the Town of Gallipolis, v. The Trustees of the Town of Gallipolis.
    Individuals owning lots in a town, adjoining an alleged public square, may sustain a bill in chancery to establish the dedication, and to preserve the public use.
    Where land in a town has been dedicated as a public square and used as such, the legislature can not authorize the town corporation to change its character.
    This is a bill in chancery, brought by five citizens-of the town of Gallipolis owning lots adjoining the public square, to assert the property of the inhabitants of the town in it, and to restrain the defendants from converting it to any other use.
    In October, 1790, a colony of Frenchmen was introduced into the territory northwest of the Ohio by an association called the Scioto Company, who contracted to sell them lands, including a city, to be laid off near the mouth of the Great Kanawha. As delays occurred in the progress of the settlement, the company stipulated to give each colonist one city and one four-acre lot as a compensation. In December, 1790, the company surveyed for the colony the town of Gallipolis, in its present form, leaving a large unsurveyed tract in the center, being the ground in question, which the colonists designated by the name of “La Place.” A kind of distribution of the lots was made among the colonists. “ The Place ” was occupied by a block-house and some slight erections. The affairs of the Scioto Company soon fell into confusion, so that they could not complete their contracts with the colonists, and to add to their embarrassment, the title to the land on which the town was situate was found to be in the Ohio Company. In 1795, the colonists appointed Messrs. Bureau, Barthlet, and Meigs to negotiate for the purchase, *who, on December 14, 1795, reported to a regular meeting of the inhabitants of the colony the terms on which the land might be obtained. The colonists accepted these terms by vote, and appointed seven commissioners by ballot to value the lots of the town and ascertain the rights of pre-emption, which arose from occupancy. These commissioners, in the execution of their duties, resolve, “ that the public good and convenience, and the interest of the inhabitants, require the streets and the Public Place shall remain free, and never be alienated or obstructed on-the bank of the river by any kind of buildings.” They number the lots, after the old survey, and set a value to each. The lots fronting “The Place” are appt'aised higher, because they say they are “ a source of wealth by tjieir situation,” and those more remote are set at a lower price, proportional to their distance from the center. This report, which is made an exhibit in the case, was communicated to the inhabitants at a meeting held on December 17, 1795; the plan of valuation was agreed upon by vote, and was signed individually by all the colonists, the amount of the valuation was collected, and commissioners were appointed to procure the title of the land.
    On January 7, 1790, the two. particular square miles on which the town of Gallipolis is situate was conveyed by the Ohio Company to Fearing and Meigs, in fee, but “ in trust for the inhabitants of Gallipolis, according to their several rights and interests, and agreeable to a plan adopted by the inhabitants of' Gallipolis on the 17th of December last.” The trustees have executed their trust by conveying the lots to individuals; they have made a plat of the town after the old survey, in which the controverted ground is left open, which plot was acknowledged on December 26, 1796, and has been recorded. No private buildings have been erected on the square except those of a very temporary character, and long since removed. A court-house and a market house now stand upon it. A jail was once erected there, but in 1817, when a proposition was made to rebuild it, the trustees of the town (the present defendants) remonstrated with the commissioners of the county against this proceeding, and declared by vote that “ they found of record an express reservation of the public square, as an ornament to the town, not to be alienated.” For nearly forty years the ground has been used as a ^public square, except so far as the court-house and market house have interrupted this occupation.
    By the act of February, 1834, Ohio L. L. 32-120, the president and trustees of the town of Gallipolis are authorized to survey this ground, lease it for ninety-nine years, and apply the avails to the improvement of the landing. The corporation have taken steps to execute these powers. The defendants show they own lots contiguous to the ground in controversy, the value of which is affected by this disposition, and asserting it was dedicated as a public square for the inhabitants of the town, seek to declare this use, and restrain the defendants from interrupting.it.
    Nye and Brazee, for complainants.
    Vinton, for defendants, maintained:
    1. The injury (if any) being to the public, the plaintiffs show no right to sue. 6 Ohio, 101.
    2. That no dedication was ever made by the proprietors of the town. That the declaration, “ that it should remain open,” was the act, not of the inhabitants, but of the committee, and unauthorized by their powers. That the “plan ” spoken of was not a plan of the town, for that was made before, but a plan of distribution, and as such was referred to in the deed of the trustees; that the proprietors of the town, at their meeting on the 17th of December, did no act affecting the public ground, but merely ratified the rights of pre-emption and the tariff of prices, found by the committee; that the land, therefore, has never been-dedicated to public uses, but remained with the proprietors an undisposed residuum, which either passed to the trustees of the town on its incorporation, or was liable to be devoted, like a highway, to any public purpose, by the supreme authority of the legislature. 4 Pet. 282.
   Judge Lane

delivered the opini on of the court:

No perticular words or ceremonies, or form of conveyances, is necessary to render the act of dedicating land to public uses effectual. Anything which fully demonstrates the intention of the donor, or the acceptance by the public, works the effect. The beneficial interest in the land was in the colonists since 1780. The legal title was acquired by their ^trustees in 1796, and it is convincingly, shown that all parties have united in some act of dedication for the use of a public square. The original survey of the town left the ground for this purpose, in conformity to our habits — in greater conformity to the habits and customs of the people composing the colony; the words “La Place” [the place], by which it is designated on the recorded plat, and by which it has always been distinguished, and to which no other interpretation can be fixed, in this connection, than a public square, or a plat of ground devoted to some public object. The acts of the commissioners, valuing the lots adjoining “La Place” at a higher price, “because it was forever inalienable, and to be kept open,” thus furnishing evidence of the object; the ratification by the inhabitants of these acts, in adopting this plan of valuation; the registration of the town plat by the legal owners, in 1796; the’ uses for thirty-eight years; the general belief of its dedication; the acts of the defendants, resisting the encroachments of the county, and declaring the reservation for this object by vote; all these show conclusively the dedication of the ground for the use of the inhabitants of the town.

The fee of lands dedicated to public objects sometimes passes directly to the corporation for whose use it is intended, and is sometimes held by a corporate town, or by a county, in trust for the uses designated. In the first case, as where land is given to a town for corporate purposes, a vesting by the present statute, 29 Ohio Stat. 351, or where land is acquired by a county by purchase, or where given for county objects, a vesting by section 4 of the act of 1800, 2 Ter. Laws, 43, an absolute estate is held by the corporation, which they may alien, 5 Ohio, 204, and third persons are not permitted to interfere with the management of their agents. 6 Ohio, 101. But when such corporation take as trustees, to hold to prescribed uses, the cestui que use requires a vested estate, the enjoyment of which may be obtained in chancery. In this case the land was either vested in the town for the use of the inhabitants by the general acts of dedication, or it passed to the county by the statute, to be held for this use. It has been settled in this court, that where land is dedicated to the use of the inhabitants of a town, one, or more, especially one.whose property is affected in value, may enforce the execution of the trust. 6 Ohio, 304. The plaintiffs may sustain ^their suit, unless the defendants prove the authority they claim, under the act of the legislature.

Among the inestimable advantages secured' by the constitution of Ohio to its citizens, is the inviolability of private property. The power of divesting the owner of his rights is limited by section 4 of article 7, to those cases where it is necessary for the public welfare. The transfer of specific property from, one individual to another, without pre-existent right, or the forfeiture for a penalty, or the consent of parties, can not be accomplished by direct legislative action. 3 Mass. 106; 11 Ib. 396; 16 Ib. 76, 215. So the franchises and powers held by a private corporation, can not be revoked, unless a forfeiture from misconduct by the company. 2 Mass. 143; 6 Cranch, 88; 7 Cranch, 164; 9 Ib. 43, 229; 7 Cond. 53; 1 Paige Ch. 107; 2 Kent Com. 305, 2 ed. And in public corporations instituted for political or civil purposes, as cities or towns, where no such limitation • attaches to the powers of the legislature, in case of a dissolution of the body by a repeal of the charter, the property it holds for others does not become the property of the state; it continues private property, 16 Mass. 76, 215; the trust does not cease when the trustee fails. Co. Lit. 115, a note. If the object of its creation can be attained, the court of chancery will enforce its execution. 9 Cranch, 52. Where circumstances are so changed, that the direction of the donor prescribing the use, can not be literally carried into effect, the legislature or the court, in those cases where general intention can be effected, may lawfully, in some cases, enforce its execution as nearly as circumstances admit, by the application of the doctrine of cy pres. 7 Vern. 36, 490; 9 Ib. 405; 1 Vern. 248; 2 Cox, 365. And where the object of the trust wholly fails, the fund does not become public property, but reverts to the donor.

In the case, then, before us, wherever the fee was vested it was held in trust as a public square, for the use of the inhabitants of the town. It was valuable property, appurtenant to the estates of the lot-holders. The statute professes to authorize the defendants to apply the land to a different purpose, without the consent of those interested, from the surmised greater convenience of the citizens. Our course of reasoning has led us to the conclusion, that the act confers upon the defendants no power to divert this property from its original use. Perpetual injunction awarded.


text:
    *John Cheney v. State of Ohio.
    Association with horse-thieves, or subsequent confederation to steal horses, not admissible evidence on a prosecution for stealing a specified horse.
    This cause was' reserved in the county of Richland. The plaintiff in error was arraigned below on an indictment for stealing a gelding, the property of one Lucius Doolittle, in the year 1833. To this indictment, he pleaded not guilty ; and to support the affirmative of the issue thus joined, the state gave in evidence, under the direction of the court, certain confessions of the prisoner, “that subsequently to the alleged larceney, he and divers other individuals had been engaged in one line as horse-thieves.” Also, the pertinent fact, “that defendant was intimate with persons known to be of suspicious character in that respect.” Also, the following to prove the scienter, to wit: “Particular conversations which the prisoner had with witness in regard to horse stealing,” generally. To the admissibility of this evidence, counsel for the prisoner below objected; and on the objection being overruled, took the exceptions on which the present writ of error is predicated.
    J. Stewart, for the plaintiff in error.
   Judge Lane

delivered the opinion of the court:

The testimony admitted, in this case, was altogether inadmissible. The intimacies of an accused person with suspicious or guilty persons do not prove him guilty of any particular crime; neither can a combination to steal horses, formed subsequently to the larceny on trial, be proved to establish that larceny. Evidence to convict a person of a specific offense, must bear upon that offense, and not upon others, or it avails nothing.

Judgment reversed; remanded for new trial.


text:
    *H. A. Sharp v. E. A. Ward.
    . Days of grace not allowed upon common notes of hand.
    This was a writ of error, adjourned for decision here, from the County of Cuyahoga. The object of bringing the case into this court was to settle and publish a rule of mercantile law, respecting days of grace, upon negotiable notes, payable at no particular place. The case was this,
    Ward, indorsee, brought suit against Sharp, his indorser, upon a note of hand, payable to an order one year after date, and dated June 12, 1830. Payment was demanded, and notice of non-payment given, on June 13, 1831. The court of common pleas of Cuyahoga county held the demand and notice good, and gave judgment for the plaintiff, to reverse which this writ is brought.
   Judge Lane

delivered the opinion of the court:

The single question presented upon this record is, are days of grace allowed, in this state, upon notes like this ? In the absence of legislation, and of decided cases, this depends upon custom, that is, upon the usual mode of transacting the business upon which the controversy arises. In 6 Ohio, 66, this court held that some descriptions of negotiable paper, such as notes payable at banks, are subject to the rules of the general law merchant. Upon such notes, and upon commercial bills of exchange, it is a well-established usage to allow days of grace. In' relation to .mere ordinary notes of hand, made -in the common transactions of life, no such usage is understood to prevail. It is customary to interpret the contract according to its terms, and treat it as requiring performance on the day stipulated. The judgment is in accordance with this usage, and must be affirmed.


text:
    State, for the Use of Bartlet, v. Humphreys.
    Suit against sureties in a guardian’s bond sustainable without previous liquida- , tion of the amount due from the principal.
    Adjourned from the county of Washington.
    This was an action of debt upon a bond, in which the defendant was surety for one G-erman, appointed guardian of Bartlet. German was dead. The declaration assigned the general breach, besides special breaches, but set forth no ^settlement or liquidation, by suit or otherwise, ascertaining the amount of liability of German. The defendant demurred generally.
    Goddard, for plaintiff:
    Nye, for defendant.
   Judge Lane

delivered the opinion of the court:

It has been decided, in this uourt, that suits against the securities' of administrators are not sustainable, before the amount of debts has been adjusted in a suit against the administrator. Treasurer of Pickaway v. Hull, 3 Ohio, 225; Stewart v. Chapline, 4 Ohio, 101; Treasurer of Montgomery v. Kemp, 5 Ohio, 240. Since these decisions, this rule has been incorporated into our statutes with some modifications. Such suits are now sustained upon liquidation or admission of the amount due, by the administrator. 32 Ohio L. 36.

A similar rule of decision has never been applied to other bonds than administrators’. It has been refused in respect to an insolvent’s bond, and a clerk’s bond. 3 Ohio, 508; 6 Ohio, 150. The statute just referred to, enacted in view of the existing state of the question, confines its provisions to administrators’ bonds, and thus sanctions the practice of excluding other bonds from the application of the rule. Considering ourselves at liberty to treat a new case as presenting an open question, we deem it proper to adopt the rule that seems to us most just and convenient. We apply to this bond that rule that holds it absolute upon a breach of the condition, and sustain the suit against the sureties without requiring previous liquidation of the claim against the principal.


author: Judge Dane

text:
    *John Patterson et al., Administrators of Martin, v. Johnston et al.

      A lien on land sold for the purchase money, is preferred to the lien of judgment creditors, without notice.
    A mortgage to secure indorsers upon a note contemplated to be discounted at a particular bank, and so expressed in the deed, is valid to secure the same indorsers, though the discount took place in a different bank from the one named, and was subsequently transferred to a third bank, with the same indorsers.
    .This is a suit in chancery, reserved from the county of Belmont. It is brought to settle priorities of lien, to a sum of money, made upon a sale of land under judgment, which by agreement was bought by plaintiffs, to remain in their hands, subject to this adjustment.
    In 1806, Posey bought and received a conveyance of one hundred and twenty acres of land froA Martin, for which he paid a part, and gave his notes for the residue. Shortly after, Posey became security for Martin, on an injunction bond, and Martin placed the unpaid notes in Jenning’s hands, for his indemnity. In 1808, Posey and Martin formed a partnership, to erect and carry on a mill upon the land, one of the terms of which was, that Posey should reconvey one-half the land, and Martin was to indorse the proportional part of the purchase money upon such note. Posey was compelled to pay five hundred dollars on the injunction bond for Martin. He never made a conveyance of the land. In June, 1811, a suit was instituted by Posey against Martin, to adjust the partnership and other matters between them, which was terminated by a decree in 1819, by which two hundred and twenty-seven dollars was found to. be due from Posey to Martin, and made a charge upon the land, to be paid in preference to other claims.
    In January, 1810, Posey mortgaged the land to Johnston and Hammond, to indemnify them for their indorsement of his note for five hundred dollars. It was the condition of this mortgage to be void on the payment by Posey of “ a note for the sum of five hundred dollars, indorsed.by them, payable at the Washington Branch of the Bank of Philadelphia.” The note, described in the mortgage, was presented at the branch at Washington, but not discounted. Another note made by the same parties, for the same sum, was presented and discounted at the Bank of Steubenville, which, being unpaid, was prosecuted to judgment in 1816. To pay this judgment, the parties, in 1816, procured the discount of another note, at the Belmont Bank of St. Clairsville, for the amount of principal, interest, and costs; this note was not paid, and a judgment was obtained in 1819, for six hundred and forty-six dollars and fifty-four cents.
    In 1815, Caldwell recovered judgment against Posey; the Hand was sold in 1823, by the agreement of all parties to this suit, and without prejudice to any rights, and this bill is brought to determine who has the right to the money.
    Goodenow, for Patterson and executors of Martin.
    Genin, for Caldwell.
    Peck and Hammond, for Johnston and Hammond.
    Hubbard and Cowan, for bank.
   Judge Dane

delivered the opinion of the court:

Four distinct liens upon the land are presented upon this suit: 1. The lien for the purchase money in the sale in 1808, found due and charged upon the land by the decree of a court of chancery, rendered in 1819, in a suit instituted in 1811. 2. The mortgage to Johnston and Hammond, in 1810. 1. The lien of Caldwell, judgment rendered in 1815. 4. The lien of the judgment in favor of the Belmont Bank of St. Clairsville, rendered in 1818.

The lien for the purchase money is well established against the parties and their representatives, and all claiming under them with notice. The decree charging it upon the land is not necessary for its validity; all who are bound by it in this ease are bound from the time of the sale. 5 Ohio, 39; 4 Wheat. 255 ; Wr. S. O. 356. Although it is a lien in equity only, yet being specific, attaching to certain property, it is entitled to a preference over subsequently accruing general liens at law. Bank of Muskingum v. Adm’rs of Carpenter et al., decided this term. The judgments, therefore, of Caldwell, and of the Bank of St. Clairsville, must be postponed to this; and it is entitled to a preference over all later rights, except those of a purchaser for a valuable consideration without notice.

The mortgage by Posey to Johnston and Hammond was intended to possess this character. It conveyed the legal estate to a mortgagee, who has the privileges of a purchaser. No-actual notice of the equitable lien is shown ; no constructive notice arises before the pendency of suit in 1811.

An attempt is made to invalidate the mortgages by denying the right of the mortgagee to apply it to a purpose different from that expressed on its face, viz : to secure the payment *of a note at the bank at Washington, which was never incurred. If a person had been misled by this description, and after due inquiry had advanced money upon, or acquired an interest in this specific land, in the confidence of the non-existence of such a lien, perhaps his rights might be preferred; but a mere general incumbrancer, if he acquires no paramount legal right, occupies the position of the debtor, and holds his interests subject to all the equities which may be exacted against him. It is evident, in this case, that the grantor of this deed intended it as a protection to his indorsers for their responsibility, upon a contemplated loan for five hundred dollars; it is permitted in equity to trace this debt in favor of securities wherever contracted, and under any form it may assume in the usages of business, and attach the security to it. 4 Johns. Ch. 55. The judgment creditor has no reason to complain of rights infringed by this rule, for the mortgage transferred the the legal estate and defined the extent of the burden it imposed upon the land, differing from the case in the New York Reports,, where a mortgage for three thousand dollars was recorded as for three hundred dollars, and held to incumber the estate no farther; it was, then, of no moment to the later incumbrancers who held this lien, so long as it did not transcend the original amount. Since then it is shown that the debt contracted at the Bank of Steubenville, and afterward transferred under bank usages to the-Belmont Bank, was intended by the parties to be secured by the mortgage, and that the mortgage was taken by the grantees without notice of the non-payment of the purchase money; it is the preferable item. The lien for the purchase money is to be next satisfied; lastly, the liens by judgment in the order of their dates.


text:
    Joseph Scott v. Richard Douglass.
    A party tracing title through a’ regularly executed deed of conveyance is concluded hy its recitals.
    This was a bill in chancery, from Ross county, to review a decree in the Supreme Court in bank, made in December, 1831, a» reported in 5 Ohio, 199 where the facts are stated.
    T. Scott and Leonard, for plaintiff. ■
    *Swan and Douglass, for defendant.
   Judge Lane

pronounced the opinion of the court:

The title of Douglass depends upon the validity of a sale of land, which Kerr held in possession under an execution againse him. Scott holds an assignment of the equitable estate of Kerr, and a conveyance of the legal title from the trustee of the heirs of Massie; and he insists that as Kerr had an equitable interest only in the lands at the time of the judgment, a sale under execution passed no right at law.

But it is too late to question that a man, in possession of lands, has an interest which may be sold by process of execution at law. We do not attempt to define the extent of this interest; something passed, and the judgment debtor is not permitted to, dispute the estate of him who chooses to take it as his property. 2 Ohio, 225; Wright’s S. C. 117, 362; 18 Johns. 84; 5 Ohio, 55.

The counsel for Scott assert, that admitting a title passed by this sale, it was, at best, the bare legal right of possession, which left the equities of Kerr unaffected; that as these equities have long since passed to Scott, hé may enforce them against the holder of the legal estate. It is plain .that a mere equity can not be sold by process at law. 1 Ohio, 314; 18 Johns. 94. These facts may raise the question, whether the equity of a person in possession be not so connected with his legal estate as to pass by a sale of the latter, even under execution, so that it may be enforced by the purchaser. The determination of this point is not necessary in this case. The peculiar advantage of Douglass’ position, in protecting his title, consists in the right to fasten upon Scott the disability of contesting the legal title of Kerr. If Kerr •can hot deny his estate; if Scott, holding from Kerr, is subject to the same disqualification, his better equities are unimportant; the legal estate of Douglass is paramount to these rights, and the statute authorizes him to quiet his possession by this bill. A renewed examination of the principles, which guided us before, has ■confirmed our opinion in their correctness; and Scott can not evade the conclusion to which we were led, except by tracing his title from some other source.

This is attempted to be done under the deed from Wallace; and if that • conferred a title without any relation to Kerr or Montgomery, he would not be affected by the admissions they *have made. But the rights arising from that deed were peculiar. The legislature, by private statutes (18 Ohio Stat. 93; 19 lb. 80), invested Wallace with power as a trustee to convey the lands, which Massie in his life had become bound to convey, “ to the person holding the evidence of the claim legally obtained, or ■otherwise entitled to such conveyance.” I have heard it doubted, if the legislature could confer such authority. But waiving this ■objection, he possessed no power to transiera distinct, independent title; unless he conveyed to the holder of the equity, his deed was void. The defendant makes .the title to the equity from Kerr, and the deed from Montgomery to Kerr is the evidence of his equity. Since, then, he must trace his title through that deed» he can not shake off his privity with its recitals.

Bill dismissed.


author: Judge Wood :

text:
    Nicholas Headington v. Hannah Neff, for the use of Conrad Neff.
    Security, who has given, notice in writing to the creditor to proceed against the principal debtor, must set forth the fact in a plea; he can not otherwise avail himself of it as a defense at the trial.
    Upon a demurrer judgment is always given against the party that commits the first fault in pleading.
    Reserved in the county of Knox.
    The action is a debt on a sealed note. The declaration contains but one count, in which the defendant in error, in the court of common pleas, declared that the plaintiff in error, on August 25, 1819, at Knox county, by his certain writing obligatory, sealed with his seal, etc., acknowledged himself to be held, etc., to the defendant in error, in the sum of forty-nine dollars and twenty-five cents, to be paid to her twelve months after date.
    The defendant in error pleads: 1. Hon est factum; 2, 3, and 4. Special pleas substantially the same, setting up as a defense that the said note on which the suit was brought was a joint and several undertaking, in which one George Ogg was principal, and the plaintiff in error and others sureties; and that after the obligation became due, to wit: on August 25, 1821, at Baltimore county, in the State of Maryland, to wit: at Knox county aforesaid, he notified and urged the defendant in error to proceed immediately and collect the money, and that she neglected and refused to do so; that the principal debtor was, at that time, solvent and able to pay the money, and payment might have been obtained of him; but that he afterward ^became insolvent, and the defendant in error being now unable to obtain payment of the principal, seeks to recover the amount of said obligation of the plaintiff in error.
    There is also a fifth special plea of the statute of Maryland, limiting the cause of action to twelve years’ standing. This plea •avers that the parties, at the execution of the said contract, were both residing in the State of Maryland, and that the action was not commenced within twelve years after the execution of the said note, nor within twelve years after it became due.
    To the second, third, and fourth pleas the defendant in error demurred specially, and assigned, among others, as cause of demurrer, that said pleas did not aver that the notice given by the plaintiff in error to the defendant in error, to prosecute tho principal, was in writing. ■

    To the fifth plea the defendant in error replied that the matters therein contained were not true; said note was not executed within the State of Maryland, and this he prays may be inquired of by the country. To this replication the plaintiff in error demurred specially. The court of common pleas sustained the demurrer to the second, third, and fourth special pleas, and the demurrer to the replication to the fifth plea, and, at the next term, neither party requiring the intervention of a jury, the cause was submitted to the court, and judgment given to the defendant in error for the amount of the noté, with interest and costs.
    Delano, for the plaintiff.
    Hall, for the defendants.
   Opinion of the court, by

Judge Wood :

The plaintiff contends the court of common pleas erred in sustaining the demurrer to the second, third, and fourth special pleas, and that its proceedings must be reversed. This is the principal error he has assigned, and the only one on which be appears to rely. We do not know the reason that court gave for its decision, and it would be time misspent to inquire, for we do not reverse its decision, because an erroneous reason may be given for it, so long as the judgment itself is, in our opinion, correct.

The declaration avers the note was executed in Knox county.' *The pleas under consideration do not controvert this fact.

No question, then, as it is sued in our courts, can arise as to its not being subject to be controlled by our laws. If a party in Ohio will screen himself from liability, because he was surety, and notified the creditor to proceed against the principal debtor, such notice must be given in writing. 29 Ohio Stat. 461. Jenkins v. Clarkson, decided the same question at the present term. Counsel say, however, that it may be shown on the trial that such notice was in writing, but it is unnecessary to aver i.t in the plea. We entertain a different opinion. When a promise is required to be in writing, it may be declared on, generally, in a declaration; but a plea must be more certain, and show the promise in writing, or such plea will be bad on special demurrer, and such is the authority of Chitty. 1 Chit. Pl. 213, citing 1 Saund. 276 a, n. 2. The demurrer was, therefore, properly sustained to the special pleas.

The demurrer to the replication to the fifth special plea is now to be considered, and it may be truly said to contain scarcely one-requisite to make a good replication. It neither denies, confesses, avoids, nor estops the plaintiff in error from setting up any One fact the plea contains. 6 Dane’s Abr., chap. 180. It has no legal commencement. It is more general than the declaration it is intended to sustain, and is a proper answer to the plea in no one particular. It is most clearly bad, and the demurrer to it is correctly sustained, provided the plea itself is good ; but the demurrer to the replication opens the plea for inspection, and judgment must be given against him who committed the first fault in pleading. This plea of the statute of Maryland, in bar of the action, avers that the parties resided in Maryland, at the time of the execution of the contradi but does not aver that they resided there wheu the cause of action accrued. If, then, the defendant had left that state before the note became due, and this the plea does not negative, the statute of Maryland would be no bar to the action. The plea, then, is bad, and the court of common pleas erred in sustaining the demurrer to the replication, for the replication is good enough for the plea. The court, on this demurrer to the replication, should have overruled' the plea, and its decision would have been technically correct. The court of common pleas has, however, given judgment for the defendant in error, and the judgment is right, ^though the reason assigned for it may be wrong. The judgment of the court •of common pleas is affirmed with costs.


author: Judge Wood:

text:
    The Commissioners of Gallia County v. Abner J. Holcomb.
    The commissioners of the county can not maintain an action, in their capacity as commissioners, against individuals who may carelessly or-willfully destroy roads or bridges.
    Beserved in the county of Gallia.
    It is stated in the declaration, that the plaintiffs, as commissioners ■of Gallia county, were possessed of a certain wooden bridge of the value of five hundred dollars, then lawfully being over Baccoon creek, in said county, on a road leading across said creek, at a place ■called Gray’s mills, to wit: at Gallia county aforesaid; and afterward, to wit: on May 1, 1832, at Gallia county aforesaid, said defendant, by himself and servants, was navigating certain rafts down said creek, from a point above said bridge, and did then and there, in navigating said rafts, throw down, demolish, ruin, and destroy «aid bridge, and the same was, by reason thereof, taken away by the current of said creek, and wholly lost, to wit, etc.

      To this declaration, the defendant demurred generally, and th© plaintiff joined in demurrer.
    Yinton and Nye, for the defendant.
    Brazee, for the plaintiff.
   Opinion of the court, by

Judge Wood:

Are the plaintiffs entitled to recover on the case made in th© declaration? They are a corporation, and claim to maintain th© action in their corporate character. Can they do so? Corporations, whether strictly or quasi such, are limited to the exercis© of those powers which are specifically conferred od them by law. The corporate franchise, being restrictive of individual right, cau not be extended beyond the letter and spirit of the act of incorporation. 2 Kent’s Com. 226 ; 1 Pet. Cond. Sup. C. U. S. 374. Counties, townships, etc., are quasi corporations, 7 Mass. 169; and instead of having more enlarged powers than a corporation proper, they are, it is said, more restricted and liable to responsibilities from which corporations proper are exempted.

^Section 7 of the act establishing boards of county commissioners (3 Chase’s Stat. 1749) confers upon them power to sue and to be sued, to plead and be impleaded, and enumerates a class of cases in which they may sustain an action, as follows: “And they are hereby authorized and required to ask, demand, and recover, by suit or otherwise, any sum or sums of money or other property due to such county, on account of advances made by them on any contract, with any person or persons, for th© erection or repairs of any public building or bridges, or any other contract which, by the provisions of this act, they are authorized to enter into; and, in like manner, to sue for and recover in money the value or amount of any labor or article of value subscribed instead of money, to aid in erecting or repairing public buildings or bridges, when such labor or article of value upon their requisition shall not have been performed, delivered, or paid in a reasonable time, and the money, if recovered in either of th© above cases, shall be by them paid into the treasury of th© county,” etc. The case made in this declaration is not, in express terms, provided for in this statute. The inquiry, then, is, can it be necessary as an incident to the very existence of this quasi corporation, or to the complete discharge of all the powers, duties, and obligations conferred upon it by law, that it should have the authority to sustain an action for the willful or negligent destruction of a public bridge; for where such necessity does not exist, a power not granted in express terms can not be conferred-by implication. 4 Pet. Con. S. C. U. S. 543.

Section 10, page 1799, of the same statute, authorizes the commissioners to “ make any necessary order or contract in relation .to the building, finishing, furnishing, or repairing the public buildings, poor houses, or bridges, the improvement or inclosure of public grounds, the maintenance and support of idiots or lunatics, or the expenditure of the three per cent, fund, within their counties.” In case of violation of any such contract by the obligor, the complete performance of their duties creates the power ex necessitate to sue; and in the absence of the express authority conferred by section 7, it would necessarily be implied. These cases have, if any, but a remote connection with trespasses or injuries committed on the public property. It can not be claimed as necessary to complete a contract for building a bridge that the commissioners ^should have power to sue for its destruction, after it is once erected; and unless such power is expressly given by the act, is necessary to the complete performance of some duty conferred upon them by law, or is incidental to their very existence, it can not be exercised. The county commissioners have neither the property, possession, nor right of possession in a public bridge. They have no authority nor control over it, even for the temporary purpose of repair. The most they can do is to appropriate money from the county treasury, in certain cases, and enter into a contract to build or repair a public bridge; but when built or repaired, the possession and control are in the inhabitants of the road district, under the direction and supervision of the supervisor. 3 Chase’s Stat. 1857, sec. 9. There is far more reason for saying the supervisor or the inhabitants of the road district may maintain the action for an injury to the road or bridge within his district, than to say such right of action is vested in the plaintiffs. The statute for the punishment of certain offenses therein named (Chase, 1731), provides for the security of bridges by imposing a penalty of fine and imprisonment on such as willfully and maliciously destroy them; but no-remedy seems to be given by civil action, either to the commissioners of the county or any other person. Unless, then, some person can be found who has either that general or special property in a public bridge that will enable him, on common law principles, to sue.for an injury to it, no action can be maintained. Whether the law has provided that person it is not necessary to decide, but it is clear to us that the plaintiffs have not that power.

It may be said, however, that the declaration avers possession in the plaintiffs, which is admitted by the demurrer, and gives the plaintiffs, for all the purposes connected with this case, a right of recovery. The answer is, a demurrer only allows what is well pleaded, and the case made shows, as the commissioners of the county, the plaintiffs have, under the law, no possession.

The demurrer is sustained.


author: Hitchcock, J.,

text:
    *James Collier, Commissioner of Insolvents, for the Use, etc. v. Joseph Johnson and others.
    Under the law for the relief of insolvent debtors, applicants having property to surrender, are required to give bond to the commissioner. If the applicant have no property, it is discretionary with the commissioner to require a bond, or grant the application without it. In such case, the penalty of the bond must not exceed two hundred dollars.
    ¡Bond to the commissioner by applicant for the benefit of the insolvent law is good, if the condition is substantially in conformity with the law.
    Reserved in the county of Greene.
    This is an action of debt upon a bond executed by the defendants to the plaintiff, as commissioner of insolvents for the county of Greene, and the declaration contains several counts, which it is unnecessary to specify.
    The defendants, after craving oyer of the bond and condition, pleaded the general issue, and gave notice of special matter to be given in evidence under that plea.
    The bond was executed on February 12, 1833, for the penal sum of fifteen hundred dollars, conditioned as follows, to wit: “Now, if the above-named Joseph Johnson will be and appear before the /court of common pleas, at the court-house in Xenia, on the 29th. day of April next, then and there file his petition and make application to said court for a final certificate 'of his insolvency, and •obtain the same, and pay the costs of this his application, and answer to said court such other questions as may be put to him. touching his insolvency, and abide the order of said court, and not depart without leave, or deliver up his body into the custody ■of the sheriff of said county in case of a failure to obtain a final -certificate, then this obligation to be void and of none effect, otherwise to be and remain in full force and virtue in law.” •
    The case was submitted to the court upon an agreed statement of facts, taken in connection with the bon'd itself, which agreed . statement of facts is as follows:
    “ It is agreed, by the undersigned, attorneys for both parties, ■that the cause of action set forth in the several counts of the declaration filed in this suit, arises out of a bond which the defendants made to the plaintiff, to enable the defendant, Joseph John■son, who was an applicant to the plaintiff, as commissioner of insolvents for the county of Greene, to obtain a certificate of insolvency. That said Johnson, before and at the time of his appli- • cation to the commissioner, was under arrest and in the custody of the sheriff of the county of Greene, by virtue of a writ of capias ad satisfaciendum, duly issued on a judgment at law, rendered in the court of common pleas for Greene county, in an action, being a civil suit wherein Newell and Campbell were plaintiffs, and Etipp and the said ^Johnson were defendants. That the bond of the defendants in this suit was made on the requisition •of the plaintiff, as commissioner, and was given to obtain the discharge of Johnson from his then arrest, and a final certificate of •his insolvency. And that if the law is with the plaintiff, then the court may render judgment for the penalty of the bond and for ^costs; but if the law is for the defendants, then judgment may be entered for them against the plaintiff for costs to be taxed.” Which agreement was signed by the attorneys of both parties.
    A. Harlan and B. Clarke, for the plaintiff,
    cited sections 8, 13, 14, and 17 of the act for the relief insolvent debtors, 29 Ohio Stat. 329; 1 Ohio, 170; 2 Ohio, 277; 3 Ohio, 103.
    They insisted that the bond was substantially in accordance with the statute, but if not good as a statutory bond it was good as a. bond at common law.
    J. Alexander, for the defendants,
    cited Tidd’s Pr. 960; 15-Johns. 259-260. He also referred to the statute, and insisted that the bond was void, inasmuch as it did not' conform to the-statute in its condition. The condition requires that, upon failure to obtain a certificate of insolvency, Johnson should surrender-himself to the sheriff. This is not in accordance with the statute,, but is in restraint of liberty and therefore void.
   Hitchcock, J.,

delivered the opinion of the court:

From the manner in which this case is submitted to the court, two questions present themselves for consideration ; and from the view we take of the subject, these two questions alone are necessary to be decided:

1. From the circumstances disclosed, was it proper for the commissioner of insolvents to require of Johnson a bond; or, if a bond-was required, was it proper to require a bond in the sum specified-in the case before the court ?

2. If it was proper for the commissioner to require such a bond is the condition in conformity with the law?

Both these questions are involved in considerable difficulty, audit has not been without much labor that the court have been able to arrive at a satisfactory conclusion with respect *to them. This difficulty grows out of the loose phraseology of the act for-the relief of insolvent debtors.

Section 7 authorizes any person desirous of having his body-exempt from liability to imprisonment for debt, who shall have-resided two years in the state, and six months within the county where the application is made, to apply for the relief specified in the act. -29 Ohio St. 330. Section 8 refers to those who are in-custody of the sheriff, upon civil process, and authorizes them,, whether residents of the state or not, to make a similar application. It is unnecessary here to be more specific as to th e course of proceeding. It will be remembered, however, that when Johnson made application to the commissioner, he was in the custody of the sheriff, and of course within the letter of section 8. By Bection 14, applicants under section 7 are required to give bond to the commissioner, with surety to his acceptance, in any sum required by him, not less than two hundred dollars, conditioned as in that section prescribed. In section 17 it is provided, “ that-the commissioner may give such certificate as is hereinafter provided for, to any person, who, being in the custody of an officer, shall have made application to him, in the manner provided in section 8 of the act, without requiring any bond of such applicant ; if the commissioner shall be satisfied that the applicant has no property of any kind; where said applicant shall have complied with the foregoing provisions of the act, or the commissioner may require the applicant to give bond with surety, in the manner provided in section 13, in any sum not exceeding one hundred dollars, conditioned as is provided in said section.” These, it is believed, are the only parts of the law requiring bonds upon the> first application. It is not a little singular that, in this section, reference should be made to the 13th, as specifying the manner of giving bonds. Section 13 is upon a subject entirely different.. It relates to the form of the oath to be made before the commissioner, when application is made under section 8. It should have reference to section 14, and we must so consider it, if we would carry into effect the provisions of the law.

Take this section 17 literally, and it authorizes the commissioner, where the applicant is in custody, and “has no property of any kind” to require of that individual a bond with security, before he gives him a certificate; while, if he has ^property, the commissioner can neither require of him a bond, nor can he give him a certificate. Or, perhaps, it would be more proper to say,, that if the individual “ had no property,” the commissioner might retain him in custody until he should give the bond; but if he had property it would be the duty of that officer to give him the certificate without bond, relying upon his own personal responsibility, and his naked promise to comply with the other requisitions of the act.

Such could never have been the intention of the law. It would be absurd. And a careful examination of the section will show that such could not have been the design of the legislature. In this section the legislature proceed upon the hypothesis that by the several provisions of the law, all applicants are required to give bonds. And here they extend to a particular class of debtors a privilege. Where the debtor “ has no property of any kind,” it is discretionary with the commissioner to give him a certificate,, without requiring any bond. But if he does require any, it shall be in a sum not exceeding two hundred dollars. This section was evidently intended to apply only to this class of creditors.

There is no other way to carry into effect the manifest intention of the legislature, than by supposing that all cases of application under the act are covered by the provisions of section 14, and by giving to section 17 the effect to exempt particular cases from these general provisions. It does not appear that Johnson was of that class of debtors provided for in this section, and, therefore, it was proper for the commissioner to take from him a bond, with security, in such amount as to him seemed proper, provided the sum was “not less than two hundred dollars.” No objection to this bond can be sustained, on the ground that it was taken in an improper state of case, or that the penalty is too great in amount.

The next question to be considered is, whether the condition is ■•in conformity with the law.

In section 14 of the law already referred to, it is required that the bond given to the commissioner, and which shall, in all cases, be in a sum not less than two hundred dollars, shall be “ conditioned that such applicant shall appear in the court of common pleas of the county, at such time as the commissioner shall return copies to said court, as hereinafter provided, and that the said applicant shall then and there pay *the costs of his application, and, in all respects comply with the requisitions of this act.” 29 Ohio Stat. 331.

It is true that the condition of the bond, in the case under eon- • sideration, is not literally according to the form prescribed in the , statute, but if it is substantially the same it is sufficient. 1 Ohio, 170; 3 Ohio, 103. Inasmuch, however, as this bond is one required by the statute, if the condition varies from the statute, by imposing upon the obligors anything more onerous than is required by the statute, then the bond is void, and can not bo enforced. This we take to be a well-settled principle of law. At least it can not be enforced as a statutory bond. Whether it could be as a common law bond, we do not now undertake to decide.

Let us, then, take this condition and compare it with the condition required by the statute in similar cases. This bond is conditioned, in the first place, that the “above-named Joseph Johnson •will be and appear before the court of common pleas on the 29th -day of April next.” The corresponding part of the condition .specified in the statute is, “ that the applicant shall appear in the • court of common pleas of the county at such time as the commis- . sioners shall return copies to the said court.” Is here any ma-f - terial variance? By section 26 of the before-cited act, it is made • the duty of the commissioner to return copies of the several schedules, etc., on or before the first day of the next term of the-court of common pleas of the proper county, provided fifteen-days intervene between the day of making the application and-the term of the court.

The application, in this case, was made on the 12th day of February, and the next succeeding term of the court of common pleas commenced on the 29th day of the next succeeding April. Here was the intervention of the fifteen days. And it was the duty of the commissioner to return his copies on or before the 29th d.ay of April. On this day the applicant could be bound by law to appear before the court. The only variance between the condition of this bond and that prescribed is, that by the condition of the bond a particular day is specified on which the applicant is to appear before the court, which is the very day on or before which the commissioner was, by law, bound to return his copies-; whereas, the condition prescribed by statute is, that the applicant should appear in the court of common pleas “at such time *as the commissioner should return copies to said court.” There is, in this part of the condition, no variance. 3 Ohio, 103.

The condition then proceeds, “and then and there file his petition, and make application to said court for a final certificate of his insolvency and obtain the same.” By the condition specified in the statute the applicant is to “ file his petition,” but nothing is said in express terms about his applying for a final certificate or obtaining the same, although a part of the condition therein set forth is, that “ he shall, in all respects, comply with the requisitions of the statute.” The great, the leading object of the whole proceeding is to obtain a final certificate. For this purpose the petition is filed, and if “the requisitions of the statute” are complied with a certificate will be obtained. And there can be no doubt that if the applicant fail to obtain this final certificate, a bond, conditioned precisely in the words of the law, would be forfeited. The only difference, then, between the condition in the bond and that set forth in the statute, so far as this part of the /condition is concerned, is, that in the former, particular acts to be performed áre stated; acts which the law requires to be performed; while in the latter, the condition is general. He shall, “in all respects, comply with the requisitions of the statute.” In this part of the condition there is no substantial variance.

The condition next proceeds, “and pay the costs of this appli■cation, and answer the said court such other questions as may be put to him touching his insolvency, and abide the order of the •court, and not depart without leave.” This is substantially like the statute, and so far, if the condition specified in the bond is not in the words of the law, the legal effect is the same, and, of course, there is no material variance.

But there is still, superadded to the condition of the bond in this case, a further clause, to which there is nothing in the statute •corresponding. It is in these words, “ or deliver up his body into the custody of the sheriff of said county in case of a failure to •obtain a final certificate.” A clause like this was required by the insolvent law of 1821, but is not by the law of 1831, now in force. If this clause adds anything to the duty of the obligors; if it makes it more difficult for them to perform their undertaking, the bond is void, and payment *of the penalty can not be enforced. It will be observed that this part of the condition is in the alternative. Expunge this clause, and in order to save the penalty of thebond, it would have been necessary for Johnson, the applicant, to have complied with all the requisitions of the law, and to carry into effect his application by procuring a final certificate. Such, too; would have been the case had the condition of the bond been in words like the condition prescribed in the statute. But retain the clause and the penalty of the bond might have been saved, although the requisitions of the law had not been complied with. It would be at the option of Johnson either to comply with these requisitions, or in failure thereof, to surrender himself into the custody of the sheriff of the county. In either event the bond would have been saved. I am aware that it is urged by the defendant’s counsel that the sheriff would here have no power to retain him in custody. If it be so, and we are not disposed to controvert the position, it makes the case still stronger .against the defendants. Johnson might have delivered himself into the custody of the sheriff, and if that officer had no authority to detain him, he must have gone at large. Still, the alternative ¡part of the condition would have been complied with and the ■bond saved. This superadded clause, then, was altogether more ¡favorable to the obligors than would have been the condition ’without it, and it would be unjust to permit them to avail them¡selves of the fact of its introduction to defeat the bond itself.

. In the opinion of the court, it was proper for the commissioner •of insolvents to require a bond upon the application of Johnson; •and further, that the bond which was by him taken is obligatory upon the obligors. And inasmuch as Johnson neither complied with the requisitions of the law, for the relief of insolvent debtors, nor surrendered himself to the custody of the sheriff, according to the condition of the bond, judgment must be entered against the defendants for the penalty of the bond.


author: Judge Hitchcock

text:
    *John J. Cooper v. The Warren Canal Company.
    Upon an appeal from the adjustment of damages by arbitrators, under the act incorporating tbe Warren Canal Company, the cause m'ust be proceeded in by proper pleadings'and an issue to a jury, as in other cases.
    ' The declaration should be as a special action in the case.
    Reserved in the county of Warren. This case was certified into this court from the court of common pleas of Warren county, on the ground that there was not a competent number of disinterested judges in that court to try it. It was brought into that court by an appeal from an award of arbitrators, made pursuant to the act to incorporate the Warren County Canal Company.
    The declaration is in case, and sets forth, “ that the said John J. Cooper, long before and at the time of the passage of an act of the legislature, hereinafter mentioned, and since, has been, and still is possessed of a certain tract or piece of land in the county of Warren aforesaid, and being so possessed and having a right to the use, benefit, and advantage of said land, the Warren County Canal Company,” by authority, of an act of the legislature of this state, entitled “an act incorporating the Warren County Canal Company,” passed February 22, 1830, dug and constructed a canal for the purposes of navigation, by which, etc., and by form and effect of the statute aforesaid, the-defendants beeame liable to pay damages to those who sustained! injuries by the location and construction of said canal, etc.; and which said canal, after the passage of said act and before the-commencement of the suit, to wit: on September 25, 1834, in the county aforesaid,' dug, constructed, and carried through the land aforesaid of the said John J. Cooper, in the county aforesaid, by occasion of which, etc., the land aforesaid of the said John J. Cooper, which before was valuable and of convenient form, is cut, divided, and thrown into.inconvenient form, and thereby rendered of much less yálue, and a great part thereof, to wit: ten acres, which before was valuable and productive, is covered' and occupied by said canal, so that it is totally lost to the said John J. Cooper, and a great part thereof, to wit: ten acres, adjoining and contiguous to said canal and through the banks thereof, is so overflowed and drowned, that the said John J.. Cooper has totally lost the benefit and profit of the grass and corn thereon growing, and the said land is become totally barren, unproductive, and of no value, although before it was-^productive and valuable,” etc., and concluding, to the damage of the plaintiff of one thousand dollars.
    To this declaration there is a general demurrer.
    A. Brown, for plaintiff.
    Williams and Collett, for defendants.
   Judge Hitchcock

delivered the opinion of the court:

In the consideration of this case, the principal, if not the only difficulty is in giving construction to a provision in the law incorporating the Warren County Canal Company. Section 8 of this act provides, “that whenever any lands, waters, or watermills, shall be taken for the construction of said canal, or any of its feeders, or works connected with it, and the same shall not be given or .granted to said corporation, and the proprietor or proprietors do not agree with said corporation as to the compensation to> be paid therefor, it shall be lawful for the person or persons claiming compensation as aforesaid; to select for themselves one arbitrator, and the said corporation shall also select one arbitrator,, and the two thus selected shall take to themselves a third, who-shall award as arbitrators between the parties and report the result to the said parties in writing; from which said award either party may appeal to the court of common pleas of their county in which said lands, waters, or materials may he situate, and in all cases where compensation shall be claimed for lands or waters,, it shall he the duty of the arbitrators, or the court, to estimate any advantage which the location and establishment of said canal maybe to the person or persons claiming such compensation; and such advantage, if any, shall be set off against the compensation so claimed of-said corporation ; and said appeal, when taken, shall in all respects proceed as appeals in other-cases to said court, and be brought into said court by filing the award with the clerk of the eourt, whose duty it shall be to enter the same on his docket, setting down the person or persons who claim compensation as-plaintiffs, and the corporation as defendants.” 28 Local L. 126.

This is the only provision in the laws for making compensation to those who may be injured in consequence of the canal passing through their lands, or by having materials taken from them for its construction. Similar provision is made in *other acts of incorporation, and it is necessary to give such a construction if it can be done consistently with the wording of the act as shall do right and justice to all concerned.

Under this section arbitrators were selected by the parties, who made their award, from which an appeal was taken to the court of common pleas. So far, there is no difficulty. But the appeal having been taken, how is the case to be disposed of in court? No course of proceeding is pointed out. It is made the duty of the arbitrators of the court ” as the case may be, “ to estimate any advantage which the location and establishment of said canal may be to' the person or persons claiming compensation,” and set off such advantage against the compensation claimed. In other words, it is the duty of the arbitrators, and of the court acting upon this subject, to take into consideration the advantage con- • ferred upon the individual as well as the injury inflicted by the construction of the work, and if the balance be found in his favor, then an award is to be made accordingly. From this part of the section, it would seem to have been the intention, that the court should merely review the proceedings of the arbitrators, and correct them if found necessary. Such construction, however, would, deprive the parties of the constitutional right of trial by jury, and of course ought not to be adopted, if it can- properly be avoided. Nor would it in fact be justified by the subsequent part of the section.

The section next provides that the appeal when taken “ shall in «11 respects proceed as in other cases.” And it is made the duty of the clerk to enter the case upon the docket, setting down the person claiming compensation as plaintiff, and the corporation as defendant. The phrase “ shall in all respects proceed as appeals in other cases,” is not very definite. If there were uniformity of proceeding in all cases which came before the court of common pleas by appeal, the intention would be perfectly clear. But it is ■not so. An appeal is allowed tp that court from an inquest of lunacy, 29 Ohio L. 328 ; from the decisions of county commissioners, 29 Ohio L. 269, 356, 364; in certain contested elections, 29 OhioL. •53 ; and from the decisions of township trustees relative to township roads, 29 Ohio L. 366. In these cases, the manner of pro-needing on the appeal is prescribed, but that particular manner could not be followed in a case like the one before the court. But by far the most numerous class of appeals + which come into the court of common pleas are from justices of the peace. And generally, if not uniformly, after the case is brought into that court, the proceedings are according to the course of the common law. It is treated substantially as if instituted in that court. The provision, that the case should be docketed, and that the clerk should set down one of the parties as plaintiff, and the other as defendant, would seem clearly to indicate, that in saying the appeal shall-in all respects proceed as in other cases,” the legislature must have had reference to appeals from justices of the peace. Such we believe to be the proper construction of the section. The proceeding before the arbitrators is in the nature of process to bring the parties before the court. If they are satisfied with the award, it is well. If not, either party may appeal, and that, too, without bond. And when in court, the proceedings must be the same as in other common law cases. An issue must bo made up to be tried by the court and jury, according to the nature of that issue. If the issue is decided in favor of the plaintiff, then the benefit which he derives from the location and construction of the canal, must be ascertained, and set off against the damages sustained, so far as is just and equitable.

Haying settled the construction of the statute, the next question is as to the sufficiency of the declaration.

The plaintiff has declared'in case. To this we see no objection. He has stated his cause of action with all necessary precision. If the facts stated are true, he is entitled to damages. The form of the declaration is somewhat novel, but the case itself is equally so. From anything we can discover, there is sufficient stated to put the defendants upon their defense.

Leave is given to the defendants to withdraw the demurrer, and the case is remanded to the county of Warren for plea,' and in failure of plea, for an inquiry of damages.


text:
    *The State of Maryland, for the Use of Charcella Shipley, v. Elias Shipley, impleaded with Ezekiel Shipley and Peter Shipley.
    To an action of debt on an executor’s bond, executed'in the State of Maryland, the statute of limitations of that state is a good plea in bar in Ohio. If the act has began to run in Maryland, it continues to run in Ohio.
    This cause was reserved in the county of Knox.
    The action is on a bond executed by the defendants on December 6, a. D. 1817, at Baltimore, in the State of Maryland. The penalty is three thousand dollars. It was executed by the two first-named defendants as principals, and by the last as security, and was conditioned for the faithful discharge of the duties of the principals, as executors of the last will and testament of Charles Shipley, deceased.
    It is averred in the declaration, that at Baltimore, on January 1, 1818, to wit: at Mount Yernon, etc., two thousand dollars came to the hands of the said executors, as assets of the estate to be distributed ; that the said Charcella, for whose use the suit is brought, is the widow of the testator, and entitled by will to five hundred dollars, which was adjudged to her, on settlement, by the orphans’ court of Baltimore county, on January 10, 1820; that she has often requested the .executors to pay the same, and assigns "the nonpayment as a breach of the condition of the bond.

      The defendant, Elias Shipley, pleaded specially, in bar of the action, the statute of limitations of Maryland, passed at a session of. the general assembly of that then province, commenced on July 10, and ended on August 8, 1729, entitled “ an additional and supplementary act t.o th.e several acts for the administration of justice in-testamentary affairs,” and still in force; By this statute, it is enacted, inter alia, that all actions upon administration and testamentary bonds shall be commenced within twelve years after the passing of the said bond, and not after.
    The plea avers that all the parties to this suit, at the execution and passing of this bond, resided in the State of Maryland, and that the action was not commenced within twelve years next thereafter. To this plea, there is a general demurrer and joinder.
   Opinion of the court, by

Judge Wood :

For all the purposes connected with our inquiry, the facts set up in the plea are admitted by the demurrer. Is the plea *a bar to the action? At the execution of the bond, all the parties to it, and to this suit, resided in the State of Maryland, and the statute began to run the moment the bond was delivered. The terms of the act-can not be misunderstood. The action is limited to twelve-years after the bond shall be executed and passed. The time when the cause of action accrued is wholly immaterial. Nothing ig shown to except this case from the operation of the general rule, that when a statute of limitation once commences, it continues to run ; and as it commenced on December 6, 1817, and no action was commenced for more than twelve years next thereafter, we are of the opinion the right to sue in the State of Maryland is barred, as shown by the plea.

One question remains. If the action is barred in Maryland, does-it continue barred if a suit be instituted in Ohio? In the interpretation of a contract, we are governed by the lex loci; in enforcing it, by the lex fori; and the statute of limitations of the state where the suit, is brought, it is settled, is the only one which can be pleaded in bar of the suit. Without the aid of the statute of Ohio, the plea of the statute of Maryland could not be sustained. The statute of Ohio, however, provides (vol. xxix, 315, sec. 4), “ That in all actions founded on contract, either express or implied, made between persons residing without this state at the time such contract was made, and which are, or hereafter may be, barred by .the laws of the state, country, or territory where made, shall be and continue barred when brought in any court of this state.”

If the action is barred in Maryland, as we have already seen, .the statute of Ohio permits the statute of limitations there to be plead in bar here. The demurrer to the plea must be overruled.


text:
    J. Hays v. N. Armstrong.
    'The provision of the judiciary law of 1836, respecting appeal bonds, embraces cases pending on appeals, at the time of its passage.
    Appeals not quashed in certain cases, unless motion made at the term the appeal is entered.
    This case was adjourned from the county of Licking. It was a motion to quash an appeal, taken in the cause, from the court of common pleas to the Supreme Court. The facts were as follows:
    The appeal was taken by'the defendant, and docketed in the Supreme Court, in 1831. At the September term, 1832, it *was continued. At the term of 1833, continued and referred to arbitrators. No court hold in 1834. At the September term, 1835, a motion was made by the plaintiff to quash the appeal, on the ground that the appeal bond was not taken in-double the amount of the damage recovered, and costs. This fact appeared upon comparing -the bond with the recovery of damages and taxation of costs.
    ,H. Stanbert and J. Dille, for plaintiff.
    .J. D. King, for defendants.
   Judge Lane

delivered the opinion of the court:

This appeal, according to decisions heretofore made in this court, -must be quashed, unless it is protected by the provisions of the judiciary law passed at the last session of the general assembly. .'Section 4 of that act is as follows:

“That no exception to an appeal bond, in any case removed by appeal from a justice of the peace to the court of common pleas, -or from the court of common pleas to the Supreme Court, shall be taken unless the same be done at the term of the court in which the appeal is entered, and the failure to take such exceptions at that time shall be considered as a waiver of all exceptions ; and if, upon exception taken, the bond shall be found to be defective, either in form or in any other respect, the appellate court may order a new bond to be given with such security, to the satisfaction of the clepk of said court; and if such new bond be given according to said order, said appeal shall not be dismissed, but the appellate court shall proceed to hear and determine the cause in the same manner as if the bond originally given had been sufficient; provided, that nothing in this section contained, shall be construed to extend to bonds not executed within the time limited by law for giving appeal bonds.”

It is the object of this section to provide for a class of eases of which this is one. The provision is a remedial one, calculated to aid in the advancement of justice, and should be interpreted liberally to effect that object.

But it is objected that, if this provision is construed to embrace this case, a retrospective operation is given to it. We see no reason why this should prevent its application. The appellee has no vested rights, in the forms of administering justice, *that precludes the legislature from modifying them, and better adapting them to effect their great ends and objects. The new law touches no executed power. It does no more than confer a jurisdiction, in a case pending and undetermined, where, without it, such jurisdiction would be declined by the court. It secures to the parties an investigation of their rights, in a case where a clerical mistake would, otherwise, preclude them from such investigation. The appeal is sustained.


author: Judge Collett

text:
    Cad. Wallace’s Lessee v. Alexander Minor.
    A patent for lands from the United States can not be presumed, where the proper records contain no evidence or indication of a grant having been made.
    A previous possession of land for twenty-five years, adverse to a regular grant, ' can not be held to operate a defeat of such grant.

      A patent issued to an assignee stands on the same foundation, as to remedy, a® if issued to the party originally entitled.
    The statute of limitations does not begin to run until a patent has issued from, the government empowered to make a grant.
    This cause was originally adjourned from the county of Ross. A reference to the facts of the case, and the manner in which it now came up, is fully stated in the opinion of the court. The re-argument was made by
    R. Douglass, for a new trial.
    T. Scott & Son, against it.
   Judge Collett

delivered the opinion of the court:

This action of ejectment was tried on the circuit in Ross county in 1834, a verdict taken for the plaintiff, and the defendant mad© a motion for a new trial, which was reserved for decision here. The motion was heard and overruled by the court in bank at December term, 1834, and the court at the same time, on motion of the defendant, granted a rehearing of the motion, and continued the cause. 6 Ohio, 366.

The rehearing was granted on two points only, but the counsel for the defendant, by leave of the court, have reargued the whole cause. They again contend that a patent to Massie, as assignee, of Powell, should be presumed to have issued. The one hundred acres in controversy are a part of an entry and survey of eight hundred and sixty-five acres in the Virginia military district, made for Powell in 1793. In 1795, N. Massie was in possession of the whole tract, claiming as assignee of Orr, who was assignee of Powell. In 1808, Massie sold the one hundred acres in controversy to Abrams, who, in 1809, sold and conveyed the same to Eindley, and he, in 1814, sold and conveyed to Kerr. *Possession accompanied these sales, and was peaceably held until after the defendant purchased the premises now in dispute, as the property of Kerr, at a sheriff’s sale in 1829, on a judgment obtained against Kerr in 1816. In 1818, a patent was issued, at Kerr’s instance, to the heirs of Powell, on this survey, for the eight hundred and sixty-five acres.

Powell’s survey was made in 1793; the patent to his heirs did not issue until 1818, twenty-five years after. .It is believed that it is not very uncommon for surveys in the Virginia military district to remain unpatented for twenty-five years, especially where the owners die, or are non-resident, as is frequently the case. Since 1807, the title of an owner of an entry and survey of a tract of land, in the Virginia military district, is nearly as secure as it would be if patented. Congress, in that year, passed a law providing that no location should thereafter be made of any land which had been surveyed, and that if any location should be made of any land which had been surveyed before the making of such location, and a patent taken out on such relocation, that the patent should be void. Acts of Congress, with similar provisions, have ever since been in force. This makes owners of surveys neglect to cause their patents to issue.

Before the creation of the general land office, patents for these lands issued from the office of the secretary of state, and were there recorded; since, they all issue from and are recorded in the general land office. If a patent had issued to Massie on Powell’s survey, it is not probable that the-officers in the land office would have issued another on the same survey; and if they had, a copy of the one issued to Massie might have been produced by the defendant. Wallace, in his deposition, says that Kerr, in 1817, discovered that no patent had issued on this survey. He discovered this probably by examining the records of these offices and of the war office, where these surveys are examined before patents issue. 5 Pet. Cond. 243. It seems to us, as it did to the court last year, very clear that no patent in fact issued on Powell’s survey before the one to Powell’s heirs. The defendant’s counsel urge that if the court come to this conclusion, still, after so long an adverse possession, justice and policy require that a grant be presumed, or that Wallace should not be permitted to set up the patent of Powell.

*In 1817, Kerr discovered that this survey was unpatented. Until then he probably believed that he held the fee in the premises, for Findley had made him such a deed, with warranty, in 1814, as would have conveyed the fee if it had been .held by him. Kerr, then, to secure his equitable estate, endangered, as he thought by McArthur’s entry and by the title being in the United States, caused the patent to issue to Powell’s heirs. Kerr continued'in possession until after the property was, as his, sold by the sheriff in 1829, on the judgment of 1816.

The twenty-five years of adverse possession, before the issuing ■of the patent, could not authorize the court to say that it was void, which would virtually be the case if the court were on any grounds to refuse to Powell’s heirs the right of setting it up. We have before said that it is not unusual for these surveys to be unpatented for this length of time. Kerr placed the legal title in the heirs of Powell. After that, the possession of Kerr, in the aspect we are now viewing the case, could hardly be said to be adverse. The title of the defendant can be no better than that of Kerr, and Kerr’s was an equity only, with possession — a right to obtain in chancery a conveyance of the legal estate. 5 Ohio, 455.

The heirs of Powell could set up this patent against the defendant in this action if they had not aliened, and we see nothing in the case to prevent Wallace from doing so. He is a trustee for the heirs and creditors of Massie,'appointed in 1820, with power to get in the title to all lands belonging to them, in their names, and to sell and convey the same for the benefit of the creditors and heirs. 19 Ohio Stat. 30. Wallace obtained, in his own name, a conveyance of the whole of the survey of eight hundred and sixty-five acres from the heirs of Powell, in 1826 and 1830. The deed from Massie to Abrams, although not executed so as to have conveyed the legal estate if it had been held by Massie, contained a covenant of warranty, of which Kerr might have availed himself if his title had failed; yet, as Kerr put the legal title into the hands of Powell’s heirs, Wallace' might have questioned whether if it failed, on that account, the heirs of Massie were liable. As to the equitable estate in the balance of the survey, we do not know where it-was when Wallace became trustee in 1820. It is, then, -clear that Wallace, by taking these conveyances in 1826 and 1830 to himself and not to the heirs of Massie, violated his *trust, ■or that he intended to aid Kerr in defrauding his creditors? If it was, in this court it could make no difference. Kerr had the equity only with the possession. To hold that Wallace’s deed was void, would return the legal title, not to Kerf, and so to the defendant, but to the heirs of Powell. And so, as to the creditors and heirs of Massie. Wallace got the legal title with knowledge of Kerr’s equity, and holds it subject thereto — in chancery, so ha holds in relation to the creditors and heirs of Massie.

It is insisted that when the legal title came to the heirs of Powell, it inured immediately to the alienees of Massie. Powell! sold to Orr, and Orr to Massie. We do not know how Powell-1 conveyed his interest in this survey, whether by assignment or otherwise. It is not probable that, owning the equity only, he assumed to own the fee, and conveyed with warranty in such manner as would have conveyed the fee, if he had then held it. We can not presume that he did so. If he did, the instrument might have been produced, or a copy from the records. Unless the transfer of Powell’s interest was made in this manner, the legal title did not pass by operation of law from Powell’s heirs. Lessee of Patterson v. Pease et al., 5 Ohio, 190; Bond v. Swearingen, 1 Ohio, 395.

Again, it is contended that the defendant is protected in his possession by the statute of limitations. It is the opinion of a majority of the court, that the owner of an entry and survey, in the Yirginia military district, can not sustain an ejectment to recover the possession of the land entered and surveyed. That he must, before he brings his action, obtain the legal title from the United States; that before he does this, his title is an equitable one only. No right of action having accrued to Powell in his lifetime, nor to his heirs, until their patent issued in 1818, which is not yet twenty-one years, this action is not barred by the statute. Upon the whole case, the court are of opinion that the motion for a new trial must be overruled, and judgment entered on the verdict for the plaintiff.