text:
    William Fee’s Administrator v. Moses Fee.
    A fraudulent concealment by which the plaintiff has been delayed will not enlarge the time for bringing an action under the statute of limitations.
    This is an action of assumpsit from the county of Gallia.
    The declaration contains three counts, all for money had and received. The first charges the money to have been received in the lifetime of the intestate and avers the promise to have been made to him. The second charges the money to have been received in the lifetime of the intestate and avers the promise to have been made to the plaintiff as administrator. The third avers the money was received to the use of the plaintiff as administrator and a promise to him as such.
    The defendant plead: 1. Non assumpsit; and 2. Actio non accrevit infra sex annos.

    470] *To the second plea the plaintiff replied that the defendant in the lifetime of the intestate received the money without the knowledge of the intestate, and until his death fraudulently concealed the same from him, and that the intestate in his lifetime did not know of the receipt of the money, nor did the plaintiff as his administrator know it till within six years next before the commencement of this suit. To this replication there was a demurrer and joinder.
    Coombs, for the plaintiff:
    In England, the question whether fraudulent concealment on the part of the defendant of the plaintiff’s cause of action, so that it does not come to the knowledge of the plaintiff until within the time limited for bringing the action, can be set up in an action at law, to avoid the statute of limitations, appears not to be well settled. Chitty on Con. 313; 1 Chitty’s Gen. Prac. 766 ; Granger v. George, 5 Barn. & Cres. 149; 7 Dowl. & R. 729, S. C.; Howell v. Young, 5 Barn. & C. 259; Bree v. Holbeck, Doug. 655.
    The American authorities upon this question do not all agree. In New York, Yirginia, and North-Carolina, it has been decided that such fraudulent concealment can not be set up at law to avoid the statute of limitations. It is believed, however, that all the Other states where the question has been considered, have decided it differently. Homer v. Fish, 1 Pick. 435 ; Wells v. Fish, 3 Pick. 74; Bishop v. Little, 3 Greenl. 405; Jones v. Conway, 4 Yates, 109; Sherwood v. Sutton, 5 Mason, 143; Croft v. Arthur, 3 Des. 223; Raymond v. Simonson, 4 Blackf. 77; Harrell v. Kelley, 2 McCord 426. The last case cited is one precisely like the present. In that case the action was brought i'or money had and received, and in avoidance of the statute of limitations, the plaintiff relied upon the fact that the money had been received by the defendant without his knowledge or authority, and the receipt of the same afterward denied by the defendants — amounting to a fraudulent concealment. The pleadings in this case set forth the same state of facts.
    *Nash, for the defendant,
    maintained that the replication [471 was no answer to the plea. The statute begins to run as soon as the right of action accrues, and ignorance of that right on the part of the plaintiff is no excuse. 5 Missouri, 454; Granger v. George, 5 Barn. & Cres. 149; 11 Eng. Com. Law, 185; Thomas v. White, 3 Litt. 183. The authorities in Massachusetts are not applicable to this case. They disclose a fraudulent transaction. Turnpike Co. v. Field, 3 Mass. 201; Wells v. Fish, 3 Pick. 74; S. P., 1 Pick. 435 ; Miles v Berry, 1 Hill, 298 ; Chitty on Contracts, 313. There is a disagreement in the American authorities, but the better opinion seems now to be that a replication of fraud or concealment by which the plaintiff has been delayed in his remedy will not be received to enlarge the time. Troup v. Smith, 20 Johns. 33; Leonard v. Pitney, 5 Wend. 30; Allen v. Mille, 17 Wend. 202; Bank of Utica v. Childs, 6 Cowen, 238; Collin v. Waddy, 2 Munf. 511; Cook v. Darby, 2 Munf. 444 ; 2 Harris & Johns. 327 ; 2 Phil, on Ev. 351; Hamilton v. Shepherd, 2 Murphy, 115 ; Maddock v. Bond, 1 Ridg. Irish Term, 349.
   Grimke, J.

From the statement of the case it is evident that the cause of action accrued on the receipt of the money. In such a case it is not sufficient in order to avoid the effect of the statute, to aver that the party was ignorant of the fact that he had a 'cause of action. The plea of the statute goes to the existence of the cause of action, and not to the knowledge of it. This, although it is a sort of elementary principle, and has its foundation in necessity and convenience, has been sometimes questioned, but I am not aware that it has ever been shaken. The case of Grange v. George, 5 B. & C. 149, is one of the last in which the point has been made. It was an action of trover. The conversion had taken place more than six years before the commencement of the suit. The plaintiff attempted to avoid the bar of the statute, by replying that the fact of the conversion did not come to his knowledge till within six years. But it was held, notwithstand472] ing that the statute *was a bar, and that the circumstances which were set out in the plea were entirely foreign to the issue.

The replication in the present case, however, goes further. It attempts to show a fraudulent concealment on the part of the defendant. Can a plea of the statute, then, be avoided by replying that the cause of action had been fraudulently concealed by the defendant. This is a question about which there has been a great diversity of opinion. Mr. Ohitty, in his late treatise on Contracts, page 313, remarks that it does not appear to be settled whether fraud in the defendant prevents or suspends the operation of the statute. But he confesses that there would be great difficulty at law in setting up even an undiscovered fraud as an excuse for not commencing an action. Nor has he been able to find a single case where it has been held that it may be done. The groat diversity in the cases is to be found in this country, and that is attributable in a great measure to the circumstance that in many of the states there is no court of chancery. Where there is no tribunal to administer equitable relief, a court of law is very apt to adapt its own rules to the system of equity jurisprudence.

I shall not stop to inquire whether the replication in form is sufficient. Chitty, after remarking that it had been suggested that fraud would prevent the running of the statute, says, “ at all events, if in assumpsit the statute be pleaded, and fraud undiscovered within six years be relied on, the general replication and the fraud should be specially replied.” The determination of the principal question in the case renders it unnecessary to notice this point. One of the earliest American cases in which this doctrine of fraud has been considered, is that of the Turnpike Co. v. Field, 3 Mass. 201. It was there held that a fraudulent concealment by the defendant, that a cause of action has accrued to the plaintiff, is a good replication to a plea of the statute of limitations. The replication stated that the defendant fraudulently concealed the bad foundation of a road he had engaged to make, the unsuitable materials, and the unfaithful execution of the work by covering the same with earth, and smoothing the surface, so that it appeared to the *plaintiffs that the contract had [473 been truly complied with. There is no court of chancery in Massachusetts, and the only authorities which are referred to, are the South Sea Co. v. Wymondell, 3 P. Wms. 143; and Breo v. Holbeck, Doug. 654. The last was a case in a court of law, but the point was not decided. It is only said, by way of argument, that there may be cases which fraud will take out of the statute of limitations. The authority of this case has, however, been recognized in Homer v. Fish, 1 Pick. 435; Sherwood v. Sutton, 5 Mason, 143 ; and Bishop v. Little, 3 Greenl. 405.

A totally different view of the law is taken in Miles v. Berry, 1 Hill. The principle of the decision which had been made in the previous case of Harrel v. Kelly, 2 McCord, 426, is reluctantly admitted, although the two cases arc very distinguishable from each Other. In the last, fraud constituted the foundation of the action; the suit was brought upon the fraud, but in Miles v. Berry, it was on the note. The evidence showed that the defendant had fraudulently obtained possession of it, and concealed that fact till the statute of limitations bad run out. In reply to a plea of th® statute, it was contended that this fraudulent conduct prevented the running of the statute. But the court, true to the principles which are administered in a cour.t of law, held otherwise. It was said that if the plaintiff’s action was predicated upon the defendant’s fraud, as in action on the case for fraudulently obtaining possession of,a note, or an action of trover for its recovery, it might then be urged that the statute would not run. Admitting that this distinction is well founded between those actions which are founded upon the fraud and those which are not, though I confess I am by no means satisfied with it, the authority of Harrel v. Kelly will still stand, while Miles v. Berry is a direct and decisive determination against the validity of the replication in the present case. Id South Carolina there is a court of chancery, and as I before remarked, the decisions in the different states vary very much according to the constitution of their tribunals.

Collins v. Waddy, 2 Munf. 511, and Cook v. Darby, 2 Munf. 444, 474] enforced the same doctrine. The last was an action *against a common carrier for fraudulently taking articles from the packages intrusted to him to carry. To a ploa of the statute, it was replied that the plaintiff had no knowledge of the fraud till within the time limited, but the court held the action barred. In this case, too, it must be remembered the action was founded upon the fraud. This case then goes further than that of Miles v. Berry, though not further I am convinced than the'courts of South Carolina would go if the case of Harrel v. Kelly were not in the way. Yirginia, however, as well as South Carolina, had a court of chancery, at least when these two cases in Munford were decided. On the other hand, in Jones v. Conway, 4 Yates, 109, and in 12 Serg. & Rawle, 128, the courts of that state appear to be disposed to administer equitable relief.

The most luminous and best considered case to be found in all the books, is undoubtedly that of Troup v. Smith, 20 Johns. 33. It was there held in an action of assumpsit for negligence and unfaithfulness in the performance of work, that the plaintiff, in answer to a plea of the statute, can not reply a fraudulent concealment'of the badness of the work, in consequence of which the plaintiff did not discover the fraud until within six years. The distinction between the proper jurisdiction of courts of chancery and courts of law was stated and unanswerably enforced.

The reason why a party may avail himself of the fraud in the former courts is well explained by Lord Redesdale, 2 Sch. & Lef. 634. Although the statute, he says, does not in terms apply to suits in equity, it has been adopted there in analogy to the rules of law. And the reason which he gives why, if the fraud has been concealed by the one party until it has been discovered by the other, it shall not operate as a bar, is, that the statute ought not in conscience to run, the conscience of the party being so affected that he ought not to be allowed to avail himself of the length of time. But in a court of law the statute must necessarily receive a strict construction. That court can not introduce an exception to the statute which the legislature have not authorized. In Evans v. Bick 475] nell, 6 Ves. 174, Lord Eldon, in noticing the position of some of the common law judges in Paisley v. Freeman, that if there was relief in equity, there ought to bo relief at law, observes, that it was a proposition excessively questionable, and that it could only have been made from not adverting to the constitution and doctrine of a court of chancery. I agree with the opinion in Troup v. Smith, that as the statute declares that certain actions shall be commenced within a limited period, the courts of law possess no dispensing power whatever. The law of Ohio, like that of New York, contains'a saving in favor of infants, feme coverts, non residents, and persons non compos, but it does not make fraud one of the exceptions. The true inquiry, therefore^ at law, is, when did the cause of action arise, and not when did knowledge of that fact come to the plaintiff, or by what circumstances was he prevented from obtaining the information ? These are questions which may be properly addressed to a court of chancery, but of which a court of law is bound to have no knowledge. Troup v. Smith was also decided in a state which has a court of chancery, and the bounds of the jurisdiction of the other court are therefore preserved.

Whatever may be thought of the propriety of having two tribunals administering a totally different law, yet so long as they exist, every motive of convenience and justice concur in securing to each its appropriate functions. They may be no other use in this arrangement than what arises from the great principle of the division of labor, in consequence of which all human exertion, whether it be of the mind or of the body, is sure to be more vigorous and successful. When the rules of equity law were first introduced, they wore only scattered exceptions to the general system of jurisprudence. They did not themselves constitute a system. They gained ground only occasionally, and by piece-meal. But at the present day equity law is as regular a scheme of jurisprudence, and proceeds upon rules as completely settled, as those which are dispensed by the common law courts. To confound the distinction between the two tribunals now, would be not merely to invade a solitary and occasional exception to a rule, but to *over[478 turn a whole system, and for that reason, to introduce the greatest injustice into the administration of the laws. Demurrer sustained

      The act of limitations begins to run from -the time of the injury and not from the time of damage or discovery of the injury. Kerns v. Schoonmaker, 4 Ohio, 331.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    R. R. & A. R. Seymour v. The Milford and Chillicothe Turnpike Company.
    Under the act of February 8, 1826, for the regulation of turnpike companiei, an execution can not bo levied upon the right of a company to take tolls unless notice has first been given, according to the provisions of the act, to some receiver of toll on the road.
    This is a certiorari to the court of common pleas of the county of Ross.
    The record shows that on June 26, 1841, the plaintiffs in error recovered a judgment against the defendants, in the court of common pleas for Ross county, for 11,736.77, besides costs of suit. On the 14th day of July of the same year, a writ of ft. fa. was issued and put into the hands of the sheriff, and which writ was returned at the November term of said court of common pleas, 1841. From the sheriff’s return it appears, that finding no goods and chattels whereupon to levy, he had, on July 16,1841, levied upon the toll-houses of the Milford and Chillicothe Turnpike Company, to wit one toll house near the crossing of Main Paint creek, one nine miles west of Chillicothe, one five miles, and one one-half mile west of the same place; and also upon the right of said company to take toll at each of the toll-houses above named, situate in Ross county. And that afterward, on the 20th day of September, after having given notice according to law, he sold the right of taking toll at said gates to said R. R. Seymour, for the period of sixty years, 437] and the toll-houses for *the same period, to satisfy this execution, and also three other executions against the defendants, in his hands at the same time.
    The defendants, by their counsel, moved the court to set aside the levy and sale for the following, among other reasons:
    * 1. Because the right to take toll was not at the time the levy
    was made, nor has it been since subject, to levy and sale on execution.

      2. Because the State of Ohio was, at the time of said levy, and is still, the owner of a moiety of the capital stock of said company.
    3. Because no bill, stating the amount of said judgment and costs, was ever sent by the clerk of said court, or any one else, to some one of the persons employed in receiving the tolls at some one of the gates on said road, within thirty days after the judgment was rendered.
    . 4. Because said purchase was made by said R. R. Seymour, in pursuance of an agreement made under seal, prior thereto, between the several judgment creditors of the oijp part, and the commissioners of Ross county of the other part, that the said Seyl mour and others, judgment creditors, should become the purchasers, in trust for the uses specified in said agreement, the principal object of which was, that they should hold in trust for the use and benefit of Ross county, so that in effect the commissioners of Ross county were the real purchasers, and it is charged they have no right to make such purchase.
    5. Because said agreement tended to prevent competition at said sale, and was such a competition as made said purchase illegal and void.
    6. Because said property and privileges were sold for less than one-twentieth part of their value.
    7. Because no part of the purchase money was paid by the purchaser to the sheriff. 4

    The court of common pleas, on hearing, sustained the motion, and ordered the levy and sale to be set aside. '
    All the evidence exhibited, and facts agreed, are set forth in *a bill of exceptions, and made a part of the record. But [478 as this bill of exceptions is very voluminous, no more will be recited than is necessary to a correct undei’standing of the points decided by the court.
    It was admitted by the parties that no bills stating the amount of said judgments and costs were ever sent by the clerk of the court, or any one else, to any one of the persons employed in receiving the tolls at some one of the gates on said road. It was also admitted that the State of Ohio, by its proper officer, had subscribed §163,050 of stock, being one moiety of the whole capital stock of said company, and that said stock was and still is held by the State. That the county of Ross is a subscriber to the stock of the company to the amount of $42,000. And that said Seymour is one of the stockholders' of said company. That the consideration of the judgments recovered, and to satisfy which the. sale was made, arose out of work done and materials furnished for the construction of the road, and that there are other outstanding debts of the same character against the company, amounting to $7,000 or $8,000. The several judgments to satisfy which the sale was made, amount to $9,817.90. The amount of tolls received at the several gates levied on and sold for the year ending September 20, 1841, waj $4,288.96.
    It is further admitted that an agreement, was entered into between the several judgment creditors and the commissioners of Boss county prior to the sale, which is spread at length upon the bill of exceptions. By the terms of this contract it was agreed, in substance, that the judgment creditors should become the purchasers at sheriff’s sale in trust for the county of Boss, as the county of Boss was a large stockholder in the company, and would sustain great loss and sacrifice if the right of taking toll should be sold unreservedly to an individual. On the part of the county it was agreed that one-third of the accruing tolls should be appropriated to the repair of the road, and two-thirds to the payment of the judgment creditors until their debts were satis¿79] fled, and, after these debts *were paid, then-to the payment of other debts now due from the company. After which these tolls to be appropriated to finish the road to the Boss county line. And after the road was so completed, then the tolls were to be to the sole use and benefit of Boss county during the remaining period of time for which the right of receiving the tolls should be purchased.
    Tho general error is assigned that the court of common pleas erred in setting aside the levy and sale.
    Creighton, Green, Leonard, and Taylor for the plaintiffs in error.
    Thurman and Thompson, for the defendants.
   Hitchcock, J.

The questions arising in this case are of great •interest, inasmuch as the rights of the state, of a county, and of ■individuals, members of an incorporated company, are involved. They are of interest, too, because should they be decided one way, .and should the laws of the state remain unchanged, an end would, in all probability, be put to any further imj>rovement of the state by companies.associated for the purpose of constructing turnpike •roads, and the improvements of that character already made would soon fall into the hands of a few individuals, or possibly of the counties in which such improvements have been made.

As evidence of this, it is not necessary to go beyond the present case. The facts show that a line of road, from seventeen to twenty miles in length, has been constructed in Ross county, at an expense of more than $100,000, of which $42,000 has been paid by the county, and the balance by the state and individuals. By sheriff’s sale, if that sale be valid, the right of receiving the foils upon this road has become vested in the county of Ross for the term of sixty years, to the exclusion of the state and the individual corporators; while the tolls, in all probability, would in two years be sufficient to satisfy the judgments under *whieh [480 the sale was made. These considerations, however, should have no further influence upon the court than-to induce it carefully to examine the questions of law raised and submitted.

This sale has been objected to by the corporation, and has been held by the court of common pleas to be void, and has been set aside. To reverse this decision this writ of certiorari is prosecuted. In the examination of the case, we will consider the objections to the levy and sale as they are presented upon the record.

1. The first objection is, that the right to take toll was not, at the time the levy was made, nor has it since been, subject to levy on execution.

There can be no doubt that the right of taking toll upon a turnpike road is a franchise, and is not at common law, nor by our law regulating judgments and executions, the proper subject upon which to levy an execution. Such interests may be subjected to the payment of debts by proceedings in chancery; and to our apprehension that court alone can give full and adequate relief. Still, the legislature have power to subject such interests to exeutions at law, and it is supposed by plaintiff’s counsel that the franchise of taking tolls upon turnpike roads has been thus subjected in this state. On February 8, 1826, an act amendatory to the act for the regulation of turnpike companies was passed, by which it is claimed this right is conferred.

The two first sections of this act are as follows.

“Sec. 1. In all cases where any judgment,has heretofore been rendered against any turnpike company in this state, which shall remain unsatisfied for fifteen days after the taking effect of this act; and in all cases where a judgment shall hereafter be rendered against any such company, which shall remain unsatisfied for fifteen days after tho rendition thereof, it shall be lawful to issue execution thereon against the goods and chattels of such company, which shall be levied upon and sold as in other cases; but if sufficient goods and chattels can not be found to satisfy such 481] execution, then it shall be lawful *for the officer holding such execution to levy upon the right of such company to take toll at any turnpike gate or gates within the jurisdiction of such officer, which right he shall advertise and sell as personal property; and the person who will pay tho amount duo upon such execution, for the right of using such gate or gates, and of taking tolls at the same, for the shortest time, shall be the purchaser.

“Sec..2. That tho officer making sale of the right to take toll at any gate or gates aforesaid, shall give to the purchaser a certificate thereof, which certificate shall be sufficient to authorize the purchaser to take possession of such gate or gates, and to hold the same during the time for which the same was sold; and thei person so purchasing as aforesaid shall have the full right to demand and receive the same toll of and from all passengers passing through said gate or gates, which shall have been established and! posted up by said company; and during the possession thereof, such purchaser or his agent shall conform to all the rules and regulations of such company in the same manner as required of tho gatherers of said company, excepting that such purchaser shall hold for his own use all tolls collected at such gate or gates, for and during the time for which such purchaser purchased tho same; provided, however, that whenever a judgment is entered against any turnpike company,-it shall be the duty of the clerk or justice of the peace, before whom such judgment was obtained, to send a bill stating the amount of the judgment and costs to some one of the persons employed in receiving the tolls at some one of the gates on such road, within thirty days after such judgment was rendered.”

There can be no doubt but that this act makes ample provision for the sale of the franchise of taking toll upon execution. This is not denied by the counsel for the defendant; but they claim that the law has been virtually repealed so far as relates to turnpike companies incorporated since its passage. It is not pretended that it has been expressly repealed, but that it has been done by implication. This argument is urged with, much force and ability. It is a principle well' established, that *where [482 a statute is passed which conflicts with, contradicts, or is inconsistent with a former statute, the latter must have effect. If the two can not stand together the former must give way; it will be considered as repealed. It would, however, be a little extraordinary to hold that a general law of the land was repealed by an act of incorporation. Still, if the act of incorporation contains provisions contrary to the general law, that general law being previous in date, can not bo applied to the corporation thus formed.

At the time of the passage of the law of 1826, above cited, although there were many turnpike roads upon paper within the State of Ohio, there had in fact beeu but two or three constructed or been put in a way of being constructed. It was not until after the passage of the act of March 24, 1837, “to authorize a loan of credit, by the State of Ohio, to railroad companies, and to authorize subscriptions, by the state, to the capital stock of turnpike, canal, and slack-water navigation companies,” that the people of the state engaged to any considerable extent in constructing such roads.

In order to show that the act of 1826 has been repealed, só far as relates to the Chillicothe and Milford Turnpike Company, the charter of that company is referred to, and several things noted as being inconsistent with this law. It is said, that by the act of 1826 the purchaser “shall have full right to demand-and receive the same toll, of and from all passengers passing such gate or gates, which shall have been established and posted up by such company." That is, the purchaser shall have the same tolls which the company shall have established and posted up in pursuance of section 17 of the act to which this is an amendment. By a provision to section 10 of the act of incorporation of this company, it is declared “that the legislature may, at any time after the expiration of five years from the completion of said road, make any alteration in the rates of toll aforesaid.” It is supposed there is an inconsistency in these two provisions.

If the legislature intended, by the act of 1826, to confer uj>on “he purchaser all the rights of the corporation over that *part [488 of the road, on which by his purchase he had the right to take toll, and to fix the rate of toll for the whole period of time (or which the purchase was made as it had then been fixed by the company, here would bp an inconsistency. But if the intention was merely to confer the same right to take toll as was before tho purchase vested in the company, then the inconsistency would be removed. This I suppose to have been the real intention of the law, although it is not clearly expressed. Give the law this construction, and all the apparent inconsistencies between it and the act incorporating the Milford and Chillicothe Turnpike Company will be removed. The right to take toll, if it would cease had there been no sale, and had the right remained in the company, will cease although that right is transferred to the purchaser. If, the road being out of repair, the company could not take toll, neither can the purchaser. If, the road not being finished within a specified time, the right to take toll by the company will be forfeited, so, under similar circumstances, will the right of the purchaser be forfeited. To give any other construction to the law would be to hold that a purchaser at sheriff’s sale might acquiro-a better right or title than had the judgment debtor.

2. The next reason assigned for setting aside this sale is, because the State of Ohio was, at the time of said levy, and still is, the owner of a moiety of the stock of said company.

This objection is based upon the proposition that, whatever may be the situation of other companies, the law of 1826 is not in force against those companies in which the state is a stockholder.

There is much difficulty in disposing of this objection. The state, as such, can not be subjected to an action at the suit of one of its citizens, and of course its property can not be subjected to an execution, for there can be no execution unless there is first an action and a judgment. But if the state becomes interested as a stockholder in a corporation, such interest will not protect the corporation from a suit, nor will it protect the property of the corporation from execution. But the state may lend its aid to a corporation 484] under such laws *and under such circumstances, that its interests in the corporation shall not be subject to the ordinary process of execution. If the state becomes interested in a corporation, it must be in pursuance of laws previously enacted, and those laws are of the same obligatory force as any other laws passed by tho legislature. They must be executed, and if they can not be carried into execution without interfering with pre-existing laws, those pre-existing laws must so far be considered as repealed.

In the law authorizing the loan of the credit of the state to railroad companies, and authorizing a subscription of stock to turnpike, canal, and slack-water navigation companies, great care has been taken to protect the interests of the state, and to secure to it its dividends in proportion to the amount of money paid upon its stock. No advance of money is to be made on turnpike stock until an equal amount has been previously advanced by individual stockholders. No part of the money advanced by the state is to be applied “ other than in the actual construction of such road,” and the necessary fixtures, right of way, etc. By an amendatory act passed on March 21,1841, it is made the duty of the board of directors of each and every turnpike road company, annually, or semi-annually, as the ease may be, to declare a dividend of all tolls and fines received upon said road, first deducting “from the gross amount of receipts, the amount actually expended for the necessary and permanent repairs of such road, if the whole of said road be in public use, and if not, then the amount so expended in repairs of such portion as was in actual use during the time such tolls or other revenues were accumulated.” No provision is made that any deduction shall be made for the payment of debts, for repairs upon any other parts of the road except such as were in actual use, nor for expenses in further extending the road.

In section 2 of this act, it is provided that any and every company upon the use of whose works revenues have accumulated, the directors of which shall have failed to make dividends, or report the same, or when the *tolls or other revenues shall have [485 been appropriated to the further completion of the road, shall make out and certify to the auditor of state, the amount of moneys so received, after deducting the amount expended in necessary repairs, “upon such part of such works in public use.” It is then made the duty of the auditor to draw upon the company for the amount of dividends due the state in proportion to its stock, whether the dividends are made or accrue under the first or second section of the act.

And it is further provided that if any company shall fail to make report in accordance with sections 1 and 2 of the act, or shall refuse to pay any draft drawn by the auditor of state, such company shall forfeit and pay for every such offense the sum of $500, to be recovered by action of debt.

It is clear from these several provisions of law, that the directors of a turnpike company in which the state is interested, can not appropriate the tolls of the company to the payment of its debts in such manner as to prevent the state from receiving its dividends. And it certainly would seem to be inconsistent that that should be done indirectly through the instrumentality of the law of 1826, which can not be done directly. If that law is in force, through its instrumentality the state may be, and in all probability will be, deprived not only of these dividends, but from the receipt of anything in return for the large amount of money invested in turnpike companies and in -kindred associations.

It is proper here to refer to another statute, and that is the law of March 28, 1840, “ to regulate the receipt and disbursement of the canal fund.”

Section 2 of this act provides : “ That all moneys arising from tolls and water-rents, all dividends arising from stock in incorporated companies of, or upon public works, wherein the state is a stockholder, and all revenues arising from taxation for canal purposes, or purposes of public improvements, shall be in like manner certified and paid into the state treasury, and charged to the 486] treasurer as a ^separate fund, and such fund, with the exception of so much of the revenue arising from taxation as may be appropriated to the sinking, fund, shall, only be drawn lor the purpose of paying repairs upon the canals or other public works, the property of the state, and for the payment of interest on the public debt; the purpose of all dralts being distinctly set forth upon the face thereof.”

If the law of 1826 is in force, the provisions of this section of the law may, in part at least, be defeated. By this section the revenue derived from turnpike stock is expressly appropriated to the payment of the interest of the public debt. By operation of the law of 1826, it may be diverted from that object and appropriated to the payment of debts due from turnpike companies.

From a careful examination of the acts before cited, and comparing them with the'law of 1826, I incline to the opinion that this latter law must be held to be inoperative as to those turnpike companies in which the state is-a stockholder, but as a court, we are not prepared so to decide without further reflection. ■ It is a doubtful question. Those doubts might be easily resolved or removed by that branch of the government whose duty it is, by good and wholesome- laws, to protect as well the interests of the .state as of the citizens of the state.

3. The third objection to this sale is, that no bill stating the amount of said judgment and costs was ever sent by the clerk of said court, or any one else, to some one of the persons employed in receiving the tolls at some one of the gates on said road, within . thirty days after the judgment rendered.

Whether this objection is well taken, must depend upon the proper construction of. the statute of 1826. By this statute an extraordinary mode of proceeding is authorized to enable creditors to enforce their claims against turnpike companies — a mode of proceeding entirely unknown to the common law, or to any previous practice of this state. It is therefore proper that any person who would avail himself of the provisions of the act should be held to a strict compliance with its requisitions.

*The act provides that in all cases where a judgment has [487 been rendered, or shall hereafter be rendered, against any turnpike company in this state, which shall remain unsatisfied for fifteen days after the passage of the act, or for fifteen days after the ren- ■ dition of the judgment, as the case may be, it shall be lawful to issue execution thereon against the goods and chattels of such company, which shall be levied upon and sold as in other cases, So far there is no innovation. Without this law the goods of the 'company might have been seized and sold upon execution. The statute next goes on to provide, that if there be no sufficient goods and chattels, then the execution may be levied upon the right of the company to take tolls at any turnpike gate or gates within the jurisdiction of the officer, who shall advertise and sell such ■right as personal property, and the person who will pay the amount due upon the execution for the right of taking tolls for ■ the shortest time, shall be the purchaser; and the officer making the sale shall give to the purchaser a certificate of the sale, which shall be sufficient to authorize him to take possession of such gate or gates, and hold the same, and have the right to demand and receive the tolls, etc., “provided however, that when any judgment is entered against any turnpike company, it shall be the duty of the clerk, or justice of the peace before whom such judgment was obtained, to send a bill, stating the amount of judgment and cost, to some one of the persons employed in receiving the tolls at some one of the gates on such road, within thirty days after such judgment is rendered.”

On the part of the plaintiff it is contended that this proviso is merely directory. That it imposes a duty upon the clerk, or justice of the peace, which they are bound to perform, and that the neglect of these officers ought not to operate to the injury of the purchaser. • This would be a good argument if the attempt was to impeach the sale collaterally, and the purchaser was á stranger. This is, however, a direct attempt to set aside the sale, not collaterally to impeach it, and the purchaser is one of the judgment creditors at whose suit the property was sold. The argument is 488] not without, force as the *case is now presented. It is based upon a supposed incongruity in the law upon any other construction, because it is said that thirty days are allowed within which to give this notice; still, the execution may be levied after fifteen days, and the right sold in twenty-five. ¥e apprehend, however, that this proviso is in the nature of a condition. It must be complied with before the right to levy upon the right to take tolls attaches.

The judgment is perfect without this notice. The judgment creditor may have execution, and whether there has been notice or not, it may be levied upon the goods and chattels of the defendants. But if the intention be to acquire the privilege of selling the right to take tolls, the terms of the proviso or condition must be complied with. A bill, stating the amount of judgment and costs, must be sent to one of the persons employed in receiving tolls at some one of the gates. It must bo done within thirty days after the rendition of the judgment, otherwise the privilege of levying upon the franchise is forever lost. It may be done immediately upon the rendition of the judgment, and then the execution can be levied upon the franchise at the end of fifteen days, and the franchise itself may be sold at the end of twenty-five days. There is no incongruity in this.

But it is said that, if the clerk or justice of the peace should fail to send this bill, the judgment creditor may sustain a loss. I apprehend, however, that the plaintiff’s counsel are mistaken'as to the duties of the clerk or justice of the peace. True, it is made the duty of these officers to send this bill. So it is the duty of these officers to issue mean and final process, but they are not bound to do it, neither ought they to do it without the direction of the party interested. Neither are .they bound to send this bill without the direction of the party interested. I t is for the judgment creditor to see that the thing is done. If, upon application, the clerk or justice of' the peace should refuse to make out the bill, they would be liable in the same manner they would for refusing to issue executions, or to perform any other minsterial act. *If there were any judgments in existence at the time of [489 the passage of the act, the proviso does not affect them. It manifestly was intended to apply only to the judgments which should be rendered after the act took effect.

In the opinion of the court, the third objection to the levy and sale was well made, and properly sustained by the court of common pleas. No bill of the judgment and cost having been furnished as required by the law, the franchise of taking toll could not be levied upon and sold to satisfy this judgment, and never can be.

4. The fourth objection to the sale is on account of the agreement set forth in the bill of exceptions between the judgment creditors and the commissioners of Ross county, in pursuance of which the purchase was made.

In the opinion of the court, this objection is equally fatal with the last. In sheriffs’ sales, everythingshould be fair, and any agreement between two or more to prevent competition, will avoid such sale, provided any one engaged in such combination becomes a purchaser. ¥e have no doubt that the agreement in this ease was of that character. The object is explicitly declared to be, to prevent the interest from falling into the hands of an individual. The. debt of the creditors was not satisfied by it. As to them, it is only a change as to the body to whom they give credit. Previous to the sale, they had given credit to the turnpike company, subsequently to the county of Ross, with a pledge, however, that two-thirds of toll arising from the road should be appropriated to the payment of their debts. It was, in truth, a cunningly devised scheme, by which one of the stockholders of this company was to get rid of her co-stockholders, and appropriate their joint labors and expenditures to her own benefit. A sale made under such circumstances can not be sustained.

It is unnecessary to examine the other three objections which are made to the sale in this case. It may be proper, however, to say that we see nothing in them which would- induce us to hold that the sale was void, had it been otherwise conducted in conformity with law.

*The order of the court of common pleas is affirmed with [490 costs. Judgment affirmed.


author: Wood, J.

text:
    John Taylor et al. v. Charles W. Wetmore et al.
    Where a letter of credit is addressed to a particular firm, no one else can relj on it as a guaranty.
    Where a bill of goods is taken upon the faith of a letter of credit, notice of it must be given at once to the guarantor.
    This is an action of assumpsit from the county of Portage.
    The declaration contains two special counts. In the first, it is averred that one C. D. Farrar, on November 26, 1836,. being desirous of purchasing a general assortment of goods in the city of Pittsburg, for a retail country store, on a credit, and being unknown to the business men of said city, applied to the defendants, Messrs. Wetmores, then doing business at Cuyahoga falls, in Portage county, for. a general letter of credit, directed to some one or more of their correspondents in the said city of Pittsburg, by means of which the said Farrar might be enabled to make his purchases ; and the said defendants upon such application, made and delivered to Mr. Farrar a letter of credit, or written guaranty, addressed to Messrs. A. I). McBride & Co., merchants, in Pitts-burg, in the words following:
    “ Cuyahoga .Falls, November 26, 1836.
    “ Messrs. A. D. McBride & Go.

    “Gentlemen: Mr. C. D. Farrar has concluded to purchase a few goods; we have that confidence in Mr. Farrar, that we will say that we will bo responsible to the amount of $2,000 for goods delivered him. We are truly,
    “ C. W. & S. ID. Wetmore.”
    And which said letter, the plaintiffs aver was taken by Mr. Farrar, and presented to Messrs. McBride & Co. at Pittsburg, who retained it, as security for themselves and such other merchants 491] *in the said city, as should, at that time, and on the faith of said guarranty, sell goods on a credit to the said Farrar.
    It is also averred that Mr. Farrar was unable to obtain a general assortment of goods from the house of the Messrs. McBrides, whose business was confined to that of grocers, and therefore he made application to the plaintiffs, upon the strength of the said guaranty, then in the hands of McBride & Go. referring the plaintiffs to the house of McBride & Co. and to the said guaranty; that the plaintiffs did in fact, call upon McBride & Co., examined the letter of credit, and being satisfied with their statements in regard to the responsibility of the defendants, and of the guaranty, in consideration thereof, sold and delivered to Mr. Farrar, upon a credit of six months, a bill of dry goods, amounting to $760.75; of all which the defendants had due and timely notice. The plaintiffs then aver that the credit has expired, and that Farrar has omitted to pay, etc.
    The second count states that on November 6, 1836, etc., in consideration that the plaintiffs at the special instance and request of the defendants, would sell to said Farrar, on credit, all such goods as said Farrar should have occasion for and require of said plaintiffs in their trade and business of wholesale dry-goods merchants, they, the defendants, undertook and promised to pay the plaintiffs therefor; this count then avers the sale and delivery of goods to the amount of $760.75, on a certain credit, agreed upon between the parties, that the- credit had expired, that Farrar had not paid, of which the defendants had notice; avers their liability, and breach in the non-payment.
    To this declaration the defendants filed their plea of the general issue.
    The testimony submitted on the part of the plaintiffs, proves: 1. The execution and delivery of this mercantile guaranty, as set forth in the first count of the declaration; and 2. That a few days after its date, it was handed to the firm of McBride & Company, who not being dealers in dry goods, the ^witness, who was [492 a partner of the last mentioned firm, went with Mr. Farrar to the plaintiffs, and the said guaranty was shown to Mr. Taylor, one of the plaintiffs; the witness stated to Mr. Taylor, that he had sold a bill of groceries on the strength of the letter, and Mr. Taylor then said he would sell a bill of goods on the strength of the same, and Mr. Farrar accordingly obtained the goods. The clerk and salesman of the plaintiffs prove the amount of the goods sold to be S760.75, and on a credit of six months.
    The evidence on the part of the defendants proves that Farrar was in business at Cuyahoga Falls from December, 1836, until April or May, 1837, when he transferred all his goods to the defendants, and closed his store. That he paid none of his debts in Pittsburg. That in September, 1837, the witness was present at a conversation between Taylor, one of the plaintiffs, and C. W. Wetmore, one of the defendants, in which the defendant asked Taylor, if he considered him responsible, either legally, morally, or honorably, for the goods Farrar had purchased of him. To which Taylor replied he did not, but that the defendants had more goods in their possession, received of Farrar, than they were holden to the house of McBride for; that the goods would amount to $500 or $700. To this the defendant replied ho did not know how that was; that there was also loft with them, by Farrar, notes and accounts to the amount of about $200, and what they could not make up out of them, must be made up out of the goods; and if there was any balance, so far as he was concerned, that should go to the plaintiffs.
    Burchard, for the plaintiffs,
    insisted that the letter of the defendants was a general letter of credit, authorizing any one to trust Farrar on their responsibility, and that the undertaking was absolute and unconditional, and therefore no notice was necessary. He cited McIver v. Richardson, 1 Maule & Selw. 557; Lawrason v. Mason, 3 Cranch, 492; Duval v. Trash, 12 Mass. 155; McClung v. Means, 4 Ohio, 196; Hargrave v. Smee, 19 Eng. Com. Law, 69. 493] *Otis & Turner, for the defendants, maintained that they could bo made responsible only to McBride & Co., to whom the letter was addressed, and that the plaintiffs ought to have notified the defendants that they had sold the goods to Farrar on the faith of their letter. Miller v. Stewart, 9 Wheat. 702 ; Bacon v. Chesney, 2 Eng. Com. Law, 352; Myers v. Edge, 7 Term, 254; Grant v. Naylor, 4 Cranch, 224; Robins v. Bingham, 4 Johns. 476; Walsh v. Bailie, 10 Johns. 180 ; Penoyer v. Watson, 16 Johns. 100 ; Combe v. Wolfe, 21 Eng. Com. Law, 253 ; Hunt v. Smith, 17 Wend. 179; Dobbin v. Bradley, 17 Wend. 422; Glyn v. Hestol, 4 Eng. Com. Law, 72; Pidcock v. Bishop, 10 Eng. Bom. Law, 197; McClung v. Means, 4 Ohio, 196; Lawson v. Mason, 3 Cranch, 492; Wright v. Johnson, 8 Wend. 512; Russel v. Clarke, 7 Cranch, 69 ; Adams v. Jones, 12 Pet. 207 ; Lee v. Dick, 10 Pet. 482 ; Edmonson v. Drake, 5 Pet. 624; Douglas v. Reynolds, 7 Pet. 113; Ludlow v. Simons, 2 Caines Cas. 1; Massy v. Rayner, 22 Pick. 223; Babcock v. Bryant, 12 Pick. 133; Adams v. Jones, 12 Pet. 213.
   Wood, J.

Under the averments in the declaration, and the testimony submitted, are the plaintiffs entitled to judgment? — and I may here remai'k, in the outset, in this case, that I know of no arbitrary rule applicable to actions founded upon mercantile guaranties, which creates obligations between the parties to which they have neither expressly, nor impliedly assented. In all actions founded in contract, the agreement as set forth must be proved, or the circumstances existing between the .parties must be such as to leave it clearly to be inferred. .In enforcing them, courts of justice, though they may sometimes be confined by technical rules, always endeavor to ascertain the understandings and intentions of the parties, and these are considered as the essence of their agreements in carrying them into execution. Mercantile guaranties are either general or special; though a single letter of credit may bear upon its face both of these distinctions. It may be general, as to the whole word, to whom the bearer may be accredited, and to *any portion of whom, at his own option, [494 he may make the guarantor a debtor, and special, as to the amount of the credit; or unlimited or general in the amount, and special as to the parties.

The first inquiry which arises here, is, whether the guaranty in question is not special as to persons. It is directed to the house of McBride & Co., in the city of Pittsburgh, and nothing upon its face evincing an intention to give Parrar credit, or to incur responsibility with any other house.

The counsel for the plaintiff here admit, that a surety can not be held beyond the terms of his engagement, but they insist that although it is addressed only to McBride & Co. as it does not say “ we will be responsible, to you,'’ it is a letter of credit to any otherj who will advance the goods. It seems to us, this reasoning is more ingenious than sound. The guaranty being addressed to A. D. McBride & Co., it is to them the defendants speak when they say, 11 we will be responsible to the amount of $2,000 ; ” and it contains no general terms, by which either Farrar, or the house of McBride, had the authority to transfer it to the plaintiffs, and they to make the defendants their guarantors, without their assent, express or implied.

But another question is made, which may as well be settled, though the want of a privity of contract is decisive cf this count in the declaration as appears upon its face. It is said by the defendants’ counsel, that had this guaranty been addressed to the plaintiffs, in order to fix the defendants’ liability, notice was necessary to be given to them by the plaintiffs that they bad acted on such guaranty and had delivered the goods. This is resisted by the counsel for the plaintiffs, who claim the guaranty to be a positive and original promise, and notice, therefore, unnecessary.

The language of the guaranty seems to us clearly to convey the meaning that if the house of McBride & Co., would sell goods to any amount not exceeding $2,000, the defendants would be responsible that the vendee, Farrar, should pay for them at such 495] time as he should agree to make payment, and if *he did not pay, they, the defendants, would. If this interpretation be right, the promise is clearly what may be termed collateral. Beckman v. Hale, 17 Johns. 141, is cited as an authority that notice is not necessary to entitle the plaintiffs to recover. The defendant wrote to the plaintiff, to whom others were indebted, that it would be hard for one'of them to pay, desired the plaintiff to show him some lenity, and then-says, “I will stand responsible, if you please.” Spencer, who gave the opinion of the court, says: It can not be pretended this was an absolute, unconditional, guaranty, and it was held that notice was necessary. Platt, Justice, dissented ; but .unless a dissenting opinion be the greater authority, this case does not help the plaintiffs. In 7 Cranch, 70, it is laid down as a general rule, in cases of guaranty, to be the duty of him who gives credit to another, upon the responsibility of a third person, immediately to give notice to the latter of the extent of his engagements. In 12 Pet. 207, the Supreme Court of the United States have declared, that upon a letter of credit, addressed to a particular person, or to persons generally, foi; a future credit, to be given to a party, in whose favor the guaranty is drawn, to charge the guarantor, notice is necessarily to be given to him, that the person giving the credit has acted upon the guaranty, and has given credit on the faith of it, and that this is no longer an open question.

This notice should be given immediately on closing the transaction, for such notice may be most material to the guarantor in relation to his dealings with him for whom he has volunteered his responsibility or credit. The cases to which reference has been made, are clearly decisive of the cause of action laid in this count upon the last point raised; for the evidence shows the guaranty was received by the plaintiffs, and the goods delivered early in November, and no notice is proved to the defendants until September following

As to the second count.

Here again is a guaranty for goods to be delivered on a future credit, and the same objection applies as to the want of proof of notice and privity of contract, and even if this, declaration ^contained the common counts, there is no proof to show [496 any balance of goods in the defendants’ hands, after their own •liabilities for Farrar were discharged, to render them liable on any express promise. There are no circumstances which would raise an implied one; but there is the express declaration of one of the plaintiffs' that he did not consider the defendants either legally, morally, or honorably obligated to pay Farrar’s liabilities to them. In no aspect of the case ate the plaintiffs entitled to judgment. Judgment for the defendants.


author: Lane, C. J.

text:
    G. J. McMurchey et al. v. Robinson & Kain.
    On a bill drawn March 20th, due at four months, a demand and notice on the 22d is not good.
    Mo protest of the dishonor of a bill, drawn by a citizen of one state on a citizen of another, is necessary, except to recover statute damages.
    Time, in eases of demand and notice, is reckoned, it seems, by calendar months-
   Lane, C. J.

This is an action of assumpsit from the county of Clermont.

It is brought against the makers on the following bill of exchange :

“ Ticks burg, March 20, 1839.
“ Four months after date, pay to the order of G-. & J. MoMurchey, $500, United States money, value received, and charge to the account of Robinson & Kain.
“ To J. W. Robinson,
“ Batavia, Clermont County, Ohio.
“Accepted, J. W. Robinson.”

The declaration avers, and the proof shows, the demand was made, and notice of non-payment given, on the 22d of July. No notarial protest was offered in evidence. The jury having. 497] Returned a verdict for the plaintiff, the defendants move for a new trial for the two reasons:

Thos. L. Hamer, for the plaintiffs.

1. The want of j>rotest.

2. Tho non-presentment for payment, and the want of notice to the drawer at the proper time.

The objection as to the want of protest, upon a bill like this, was examined at tho last term of this court: Case v. Heffner, 10 Ohio, 180, and held that our statute relieves the holder, from the necessity of procuring a notarial protest of bills drawn by a person living in one state, upon one living in another, except for the purpose of claiming tho statute damages.

The bill bears date on the 20th of March, and is payable at four months. The time (being computed by calendar months, by the mercantile law) expires on the 20th of July. To this time the statute adds days of grace, and the bill falls due on the 23d of July, and should be presented for payment on that day. The only presentment proved to have been made, is on the 22d day of July, 'a day too soon.-

The plaintiff’s counsel deny that days of grace properly belong to this note; but without stopping to examine the grounds of his position, it is enough for present purposes to say, that if no grace attaches, the demand and notice were equally out of season, for they were a day too late.

New trial granted — Costs to abide tho event.

It being surmised that the drawers of this bill had no effects in the hands of the drawee, and had no right to expect the honor of -the bill, by which it is claimed demand and notice are dispensed ■with, leave was given to amend the-declaration.


text:
    *The Lessee of Buckley et al. v. Blackwell’s Heirs.
    A call “ up the creek,” in a patent, means ordinarily to run with the creek.
    This is an action of ejectment from the county of Pickaway.
    The defendants are the owners of two surveys, 534 and 1286, on the west side of Darby creek. The plaintiff owns survey No. 1678, on the east side of the creek.
    The plain line on the plat represents the original calls of Blackwell’s two surveys: Beginning at A, on Darby’s creek, “ at a walnut, elm, and honey locust, running up the creek N. 46° W. 20 poles,” and so on by course and distance,as represented on the plat, without any artificial marks, till you come to D, three sycamores, “thence N. 87° W. 38 poles,” and so on by the course and distance, as represented on the plat, without any artificial marks,' till you come to E. To make the survey close, however, the last course has to be changed so as to terminate at B, two red oaks and a white ash, upper corner on the creek, of survey No. 534. From B, following the calls of survey No. 1286, “ up the creek N. 24° E. 165 poles,” and so on by course and distance till you come to F. To make the survey close, however, the last course has .to be changed so as to terminate at C, a timber corner on the creek.
    The dotted line on the plat represents the original calls of'Clonson’s survey,' under whom the plaintiffs claim: Beginning at G, “ lower corner on the creek, two white oaks and a Spanish or red oak, thence S. 65° W. 10 poles, crossing the creek to three sycamores (H), thence up the creek, on the lower sido, N. 87° W. 38 poles,” and so on by course and distance, as represented on the plat, without any artificial marks, till you come to I. The last line calls to terminate at the corner at B,' and to effect this the course and distance are to be changed accordingly. From B “up the creek N. 24° E. 165 poles; N. 20° E. 100 poles; N. 3° E, 138 poles. This line terminates at J, but calls to cross ihe creek and terminate at K, two hickories and a buckeye, upper corner on the creek of Clenson’s survey.
    509] ^Blackwell’s surveys and patents are the eldest.
    Darby creek is a small stream not navigable.
    The defendants are in possession of all the land on the west side of the creek, and the plaintiffs seek to recover so much of it as is without the plain, and within the dotted lines.
    Creighton and Green, for the plaintiffs,
    insisted that the defendants were bound by the calls of Blackwell’s patents. The original corners are on the ground; and the rule is well settled that monuments shall control course and distance. If the defendants are confined to the actual calls of their patents, they have no reason to complain. If they intended to make the creek the boundary, they would have called for it as a controlling monument. McIver’s Lessee v. Walker, 4 Wheat. 444.
    Olds, for the defendants, maintained that Blackwell, beyond all doubt, intended the creok as his eastern boundary; that it is preposterous to suppose he intended for so many miles to cut off all communication with the creek; that where one calls to run “up the creek,” reason as well as authority carries him to the water. Rix v. Johnson, 5 N. H. 520; Jackson v. Louw, 12 Johns. 252; Rogers v. Mabe, 4 Dev. 180; Jefferson Seminary v. Wagnon, 1 Marsh. 243; Steele’s Heirs v. Taylor, 3 Marsh. 225; Cockrell v. McQuinn, 4 Mon. 61; Alexander v. Lively, 5 Mon. 159; Bruce v. Taylor, 2 J. J. Marsh. 160; Reid v. Langford, 3 J. J. Marsh. 420; 2 Over. 305.
   Lane, C. J.

The plaintiff’s survey and patent is bounded on the east line of the defendants’ two patents, so that when the defendants’ line is found it settles both. The description begins at a corner, which it describes by its timber, being the upper corner of Parker’s survey, on Darby creek, running “up the creek,” many stations described by course and distance only, to another corner, described by timber. The other patent calls are like this, beginning at the last named corner, thence up the creek, by course and *distance to a third timber corner. The corners are [510 all identified and stand on the bank of the creek. No original line was marked, but the described line corresponds, generally, with the meanders of the creek, and is found, on survey, to be but few poles from it. The case, then, is settled by a single point, whether a call “up the creek,” by course and distance, means with the creek and bounded on the creek, or whether the notice of the creek is intended to indicate the general direction of the line, which is to remove locality by the course and distance.

Some cases are understood to have been decided on the circuit, many years ago, recognizing the latter as 'the true rule. Those decisions probably depended on special circumstances, not now known to us. The general principle is, first look for visible monuments, one of the most natural of which is a stream, and a line extended, referring to a stream, is presumed to lie on it, unless some circumstances appear indicative of a different intention. The present case furnishes abundant reason to reject any such intention. All the corners are on the creek, and it would be one of the most improbable suppositions; to presume a tract of land, lying for miles on a stream, and described by a line running parallel with its meanders, within a few poles or yards, was not intended to be bounded by the water. Judgment for the defendants.


text:
    George Grummond v. The State of Ohio.
    An indictment for stealing bank bills is not sustained by proof that the prisoner stole the orders of the Ohio Railroad Company.
    This is a writ of error to the court of common pleas of the county of Cuyahoga.
   Wood, J.

From the inspection of the record in this case, it appears the plaintiff in error was indicted, at the January term of 511] the court of common pleas of Cuyahoga county, for *grand larceny. At the same term he was arraigned, plead not guilty, was tried by a jury, convicted and sentenced to imprisonment in the penitentiary.

The indictment contains two counts, substantially the same, in which it is averred the plaintiff in error, at the township of Brooklyn in said county, on etc., nine five dollar bank bills, given for the payment of money, of the value of five dollars each, respectively, two dollars in silver coin, and of the value of two dollars, of the personal goods and chattels and money, of one William Clarkson, then and there being found, ho the said George Grummond, then and there, well knowing the said bank bills to be such bank bills; feloniously did steal, take and carry away, etc.

The indiccment is framed upon section 19 of the act, entitled an act providing for the punishment of crimes, passed March 7,1882, which among other things, enacts, “ That if any person shall steal, or maliciously and feloniously destroy any bank bill or bills, etc., of the value of thirty-five dollars or upward, knowing them to be such, every such person shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be imprisoned in the Peniten. tiary and kept at hard labor not more than seven, nor less than one year.”

A bill of exceptions was taken by the counsel for the plaintiff in error, during the trial, from which it appears the counsel for the prosecution, to maintain the issue on the part of the state, offered evidence that three of the bills described in the indictment, were <}f the following purport:

'“The treasurer of the Ohio Railroad Company will pay five dollars on demand to A. B. or bearer, at their office in Ohio city.
“ H. Foot, Sec’y. N. Allen, Pres’t.”

This evidence was objected to by the counsel for the plaintiff in error, but admitted by the court, and the jury returned the value of the property stolen fit forty-seven dollars.

The admission of this evidence is assigned for error, and by reason thereof, it is sought to reverse this judgment. Did the court of common pleas err ?

*No person in Ohio can bo held to answer upon trial, for a [512 crime, except it be by the indictment or presentment of a grand jury, and ho has the right by the same organic law, to demand the nature and cause of the accusation against him, Bill of Rights, secs. 10, 11. He has the right to require such accusations to be embodied in a methodical and legal form, with time, place and circumstances, otherwise he will be unable to prepare his defense to resist the charge.

It is a rule, as applicable to criminal, as to civil proceedings, that judgment should be given not only according to allegations made against the accused, but according to the proof made upon the trial, and the single inquiry here is, did the evidence to which the exception was taken, tend to prove the averment in the indictment ?

It appears to us not. To help out the averment that the plaintiff in error stole nine five dollar bank bills, evidence was admitted that three of the supposed bank bills were orders drawn by the Ohio Railroad Company upon their treasurer. These instruments are no more bank bills than the promissory notes of the Cuyahoga Steam Furnace Company, nor can it be presumed that unless the charter of that company confers upon it banking powers, which question is yet to be decided, they have been issued with the de» sign to circulate as bank bills or currency, in opposition to the severe penal laws of this state.

In admitting evidence to prove the plaintiff in error stole the orders of this company, in order to prove he stole bank bills, the court of common pleas, in our opinion, err, and that error prejudiced the rights of the accused, by increasing the value of the property, and, consequently, changed the punishment from fine and imprisonment in the county jail, to imprisonment at hard labor in the penitentiary. The judgment and proceedings of the court of common pleas are reversed up to and including the trial and the case remanded for further proceedings.

Judgment reversed.

No argumonts came to the hands of the reporter.


author: Grimke, J.

text:
    *The Lessee of Whitney et al. v. Webb and Westenhaven.
    The disability of “ beyond seas,” in the act of limitations, is removed by death, and the heir, whether himself under disability or not, is barred of his ejectment, unless he sue it within twenty'years after the death of his ancestor.
    This is an action of ejectment from the county of Hocking.
    It is submitted to the court on this agreed case : “It is agreed by the parties that the land in controversy Was patented by the’ United States to Rufus Putnam and others on May 10, 1792; that said patentees, on May 12, 1792, by deed duly executed, conveyed the same land to Manassah Cutler; that said Cutler, on July 2, 1792, by like deed conveyed the same laijd to Elisha Whitney ; that said Whitney having duly executed his last will and testament, whereby he devised said land in fee to Eunice Whitney, his widow, departed this life on February 22, 1807,'which was duly proved and recorded in Hocking county prior to the institution of this suit; that the said Eunice Whitney departed this life, intestate, on April 28, 1819, leaving the lessors of the plaintiff her sole heirs at law. It is further agreed that neither the said Elisha Whitney, nor the said Eunice, nor the lessors of the plaintiff, nor any of them, ever were in the State of Ohio, but that the said Elisha and Eunice always were, during their several lifetimes, and that the lessors ■ of the plaintiff always have been, residents and citizens of the Commonwealth of Massachusetts. It is also further agreed that the defendants, and those under whom they claim, went into possession of said land, claiming, title thereto by deed from Upton Farmer, who derived title thereto by deed from Ephraim Cutler in the-year 1805, and have ever since and still remain in possession thereof, claiming title as aforesaid.”

      The declaration was served on November 4, 1839.
    The single question in the case is, whether the lessors of the plaintiff are within the saving clause of the act of limitations *of 1804, which provides : “ That if any person or persons [514 is or shall be entitled to have, sue, or bring any such action or actions as aforesaid, shall be within the age of twenty-one years, insane, feme covert, imprisoned, or beyond sea, at the time when any such action or actions may or shall have accrued, then every such person or persons shall have a right to have, sue or bring any of the action or actions aforesaid within the times hereby before limited in this act, after such disability shall have been removed.” 1 Chase’s Stat. 393.
    Mr. Brasee, for the plaintiffs,
    cited Cotterell v. Dutton, 4 Taunt. 825; Blanchard on Limitations, 18; Roscoe on Real Actions, 29; Bunce v. Wolcott, 2 Conn. 27 ; Adams on Ejectment, 60; Stowell v. Zouch, Plowd. 366 ; Brent’s Lessee v. Trasker, 1 Harr. & McHen. 89 ; 4 Bibb, 44; 2 Litt. 114; 4 Litt. 314 ; 5 Litt. 35.
    Ewing (Stanbery & Hunter were with him), for the defendants,
    cited Stowell v. Zouch, Plowd. 355 ; Davereux v. Wykoff, 3 Johns. Ch. 138 ; Eager and wife v. Commonwealth et al., 4 Mass. 187; Preston on Abstracts of Title, 341; 1 Law Lib. 11; Doe v. Jesson, 6 East, 80.
   Grimke, J.

As the plaintiffs, and those under whom they claim, have always been non-residents of this state, the question which arises is, whether the former are within the exception in the statute of limitations in favor of absentees.

This is the first time that this question has been made in the-courts of Ohio, which may seem remarkable, as controversies must have repeatedly arisen involving a consideration of the same point. But it frequently happens that principles the most firmly established entirely elude observation, until some startling controversy springs up, which rouses the mind to a survey of the whole field of dispute. In Perry v. Jackson, 4 Term, 516, Lord Kenyon remarks, as surprising, that it was the first time the question in that case had arisen in an English court, and yet it was one which could not have been of unfrequent *occurrence. Some accidental [515 circumstance suddenly drew the attention of the mind to it in that particular instance.

The saving clause in favor of non-residents is the same in the-act of 1804 and in that of 1810. They both contain an exemption for persons “beyond sea,” at the time the cause of action accrued. And this term, beyond sea, has received a fixed signification in Ohio. It means persons out of the state, although they may have been in the United States. If it were confined literally to persons who were on the other side of the Atlantic, the consequence would be that individuals residing in Mexico or Buenos Ayres would be placed on the. same footing as those residing in the State of Ohio. I can not help thinking, however, if the question were a new one, that it would better promote ■ the ends of justice and public tranquility to say, as the courts of Pennsylvania have, that the statute referred simply- to persons who were beyond the bounds of the United States. A non-resident does not, like an infant, a person non compos, etc., labor under any disability to sue, either mental or legal. Information circulates so readily through every part of our country, that no one who possesses any ordinary degree of vigilance can be unapprised of his rights, and the absentee has the double advantage of being able to sue either in the federal or the state courts. The construction which has hitherto been given to the statute confers upon them a treble advantage; it permits them to lie by until property which was of no worth has acquired a very groat value, in consequence of the labors of residents, from-whom everything is then suddenly torn away.

One remark which I would now make, and which is more immediately to my present purpose, is that the construction which has actually been given to the law, is by no means founded on its literal meaning, but has been supposed to be in conformity with the intention of the legislature; in other words, it is admitted to be a sound maxim, that in ascertaining the meaning of a law, it is •often necessary to inquire what was the intention in framing it. 516] It is a principle which should be *made use of very -cautiously, but it'is one of undoubted force and application.

The statute which was of force when the present cause of action arose, declares that if any person or persons are beyond sea at the time the right accrued, every such person or persons shall have a -right to sue within twenty years after he or they come into the state. If the heirs of Elisha Whitney, the present plaintiffs, are within this exception as well as Elisha Whitney himself was, they .are entitled to recover, and that depends upon the determination of a question which has been greatly agitated both in England, and this country, whether an heir can unite his disability with the disability of his ancestor; in other words, whether successive disabilities in different persons are within the true meaning of the statute of limitations.

The case of Stowoll v. Zouch, Plowd. 358, was the first in which the question was discussed, whether the exception in favor of infants was confined to the person to whom tho right first- accrued, or whether it was extended to the heir, who was an infant at the time the title descended to him. The case, we are told, was argued with great ability twice in the common pleas, and twice in the exchequer chamber before all the judges of England, and it was determined that tho exception extended only to such infants to whom the right accrued, and that no such right had at that time descended, for the ancestor was then alive; that the plaintiff being an infant when his father died, was of no consequence, because the exception expressly afforded the excuse of infancy to those only to whom the right first accrued. It was observed that if every heir should be allowed the full period of limitation after he arrived at twenty-one, the controversy might be delayed many hun - dred years, for the heir of the heir might labor under the same, or some other disability, and so on successively for several generations, and when tho titlo came ultimately to be tried, the evidence on which the defendant’s title was founded, would have been lost in obscurity. For tho sake, therefore, of the public repose, as well as in accordance with what seemed to *be the evident inten- [517 tion of tho legislature, the heir was denied the privilege of sheltering himself under his disability.

This case did not present an instance of successive disabilities, because the plaintiff’s father never himself labored under any disability. It is oí the same importance, however, as if it had, because it determines the material question who is the person who may take advantage of the exception, he to whom the right first accrued, or the person to whom it afterward descended.

But tho case of Doe v. Jesson, 6 East, 80, is similar to the present. Here the owner of the estate was disposessed when he was an infant; he died in infancy, leaving an infant sister his heir. And it was held that she was not allowed a period of twenty-one years after the death of her brother, within which to bring her ejectment. As remarked by Lord Ellenborough, the time allowed by the statute fox- making an entry might be indefinitely postponed if a different construction wore given ; “ that there was no calculating how far it might be carried by parents and children continuing under disabilities in succession.”

The case of Eager v. The Commonwealth, 4 Mass. 182, is a case of still greater importance, as it arose in our own country. The plaintiff was an infant, and before the termination of her infancy the disability of coverture accrued, but the court held that the disability which should have the effect of protecting the plaintiff, must exist at the time the right first accrued, and as this was not the case the statute was a complete bar. This case, it will be observed, goes further than oven the last. Mr. Blanchard, in his treatise on the statute of limitations, remarks that “ successive disabilities in the same person will continue to him the protection of the statute.” But Eager v. The Commonwealth does not countenance that doctrine. And I think it may be asserted that whether successive disabilities exist in one and the same person, or in diffex-ent persons, the law is the same, and that it is only where several disabilities exist in one and the same person, and at the same time, that the statute affords a protection.

518] * *The doctx’ine taught in the above case has been confirmed by that of Bunce v. Wolcott, 2 Conn. 27, where a female heir being under age at the time the title descended to her, and having married before she arrived at the age of twenty-one, it was decided that she could take advantage of the saving of the statute in favor of infancy alone. If this wore not the true doctrine; if disability were permitted to lap over disability, there might be no tei’mination to many controversies. As Lord Eldon remarks: “ A right might tx-avel through minoidties for two centuries.”

But the most full and elaborate of all the eases is that of Demarest v. Wynkoop, 3 Johns. Ch. 129, where the same doctrine is expounded and enforced with masterly ability. Indeed, this must be considered as the settled and established law in England and in this country. There are but two cases that contradict it: Eaton v. Sanford, 2 Day, 523, which was afterward doubted in Bush v. Bradley, 4 Day, 298, and finally ovenmled in Bunce v. Wolcott, to which I have already referred. The other is the case of Cottrel v. Dutton, 4 Taunt. 826. It is entirely opposed, however', to the preceding English determinations as well as to the oninions of the profoundest lawyex-s in that country.

But tho proviso in the statute of Ohio is not the same as in the English statutes, or in those of the other states to whose decisions I have referred. The statutes of limitation of Massachusetts, New York, and Connecticut are borrowed from that of James. It is this difference which creates the real difficulty in the case. If the proviso in our statute were the same as.in the last, we might stop and rest satisfied with the great weights of reason and authority which have been thrown into one of the scales. But as this is not the case we are constrained to go further, and to examine whether the difference is so great as to involve a totally different construction. In all the last-named statutes the period of limitation is prolonged in favor of persons living under any of the disabilities mentioned, although those disabilities existed at the time the right first accrued. Under one of these five, and under the others, *ten years may be added to tho twenty, so that in [519 some cases twenty-five, and in others thirty years, but never exceeding that period, may have run out before the bar -will finally operate. In other words, the infant, the non-resident, etc., are allowed five or ten years after their disability has ceased, notwithstanding the full period of twenty years has already expired. There is no similar provision in any of the statutes of Ohio until the year 1831, when, for the first time, the proviso in the statute of James, except so far as regards the case of non-residents, was endeavored to be imitated. But I think it clear that this difference does not make any sensible or just distinction between the case at bar and tho English and American cases. The true interpretation of our laws of 1804 and 1810 is, that twenty years, and no more, is allowed to the person or persons to whom the right first accrued, after their disability is removed. The words of those acts are, “that if any person or persons entitled to bring any of the actions enumerated, shall bo beyond seas, infants, non compos, etc., when any such action accrued, then they shall have a right to commence such actions within the time limited, after the disability has ceased ; and the question is not whether the law has still further prolonged the time in favor of the heirs of such persons, for that it evidently has not done; but whether the saving clause only extends to the persons to whom the right first accrued, without including their heirs or representatives. And here is another difference between the law of Ohio, and the English and New York statutes. In the two last, the word first precedes the words accrued or descended, while in our statute it is entirely omitted. But the meaning of the clause is in reality precisely the same, whether that word bo inserted or not. The use of the words person or persons, it is clear, does not authorize us to say that it intends to speak of the several persons in succession, to whom the right may have fallen, for the English and New York statutes also contain that phraseology. The words person or persons are used merely because the right may accrue either to one person singly, 520] or to many persons jointly. And if the *word person only were used, then there could be no doubt that the person to whom the right accrued was the person to whom it first accrued, whether the word first was inserted or not; and that the word in the plural is afterward added, can not vary the signification, because, as I have already observed, that is merely for the purpose of indicating that there may exist a joint right in several persons as well as a single right in one person. But the statute of Massachusetts which gave rise to the decision in Eager v. The Commonwealth, is in this respect precisely like our own, the word first is entirely omitted; and yet this circumstance does not appear to have afforded a ground for any just distinction between their law and the statute of James. It is true no allusion is made to this difference, but it is to be presumed that it would have suggested itself to the learned judge who delivered the opinion if it was entitled to much weight.

I have already noticed another difference between the statute of Ohio and the English, and other American statutes. The last contain a proviso in favor of the heirs of the person to whom the right accrued, acldiDg five or ten years, as the case may be, to the period of twenty years. There are two classes of persons, then, to whom a right may accrue. First, the ancestor; second, his heir. The last only is entitled to the additional period, and his caso is provided for in the last part of the clause. The ancestor is provided for in the part which procedes, and therefore it is that the word first is from abundant caution inserted to indicate with absolute precision the order in which the several persons are entitled to the respective periods of twenty, twenty-five, or thirty years, as the case may happen. I say from abundant caution only, because the statute of Massachusetts contained the whole of this proviso in favor of the heir, and vet has omitted the word first.

There is a still further difference between our statute and the others to which I have referred. The language in these last is this, “so as such person or persons, or his or their heirs, shall within ten years after full age, diseoverture, coming into the country, etc., or death, commence their action.” The *words or [531 death are omitted in our law; and this is supposed to have a most important bearing upon the subject. But those words are inserted in a part of the proviso, which is not contained in our law, and therefore could not properly have a place in this last. They are inserted to indicate the rights of those who are entitled to the additional period of ten years, and for no other purpose whatever, and-as this additional period is not afforded in the Ohio law, they aro necessarily not to bo found in it. In Doe v. Jesson, these words were referred to as governing the determination in that case. And very properly, for there the question was whether the infant heir of an ancestor who died in infancy was entitled only to ten years after his death, or whether the whole period of his own disability was not to be allowed, so as to give him the whole time of its continuance, and the ten years in addition. And it was held that he was entitled to ten years after the death of his ancestor, and not to ten years after his own disability ceased. It is evident, then, that these words could not be inserted in the same place which they occupy in the statutes of James, etc., because no such place existed in our statute.

But that the insertion of these words in the statutes of James and of the other states was unnecessary, is evident from the case of Stowell v. Zouch, which was decided upon the statute of Hen. 7, in which they are entirely omitted; and yet, as we have 'seen, this is the leading cáse in England, and contains the foundation of the whole law with regard to successive disabilities. The doctrine established in that case was that the exception extended only to such infants to whom the right accrued; that no such right had at that time descended to the plaintiff, because his father was then alive; that he was bound to make his claim before the expiration of the five years, and that the circumstance of his being an infant when his father died was of no avail, because the exception in the statute afforded the excuse to those only to whom the right first accrued. These words are also omitted in the proviso of the English statute which regards personal actions. And although I-am not aware of any decisions as to the effect of suc522] cessive ^disabilities where the cause of action is personal, yet it is evident from the last case, which places no reliance upon the omission of the word “death,” what such decisions would be. Indeed, it is an established principle that the several statutes . of limitation, being in pari materia, ought to receive the same construction, although the phraseology in all may not be exactly the same.

From every examination which I have been able to give to this very intricate subject, and I have endeavored to make that examination as thorough as possible, in consequence of the great importance of the questions involved, I am of opinion that the statute of Ohio, equally with the English and the other American statutes, lends no countenance whatever to the doctrine of successive disabilities. If this interpretation is not given, the bar of the statute can never take effect. Elisha Whitney lived abroad and died abroad while this disability existed. The difficulty, then, is infinitely greater than was apprehended in the several cases I have referred to. There it was said that the title might float through a whole century if disability were permitted to be added to disability. But in this case, death having intervened during the existence of the disability, this can never cease, but will literally run on to infinity. This is a consequence too monstrous and absurd to be admitted, and never could have been within the intention of those who made the law. The omission of the words “ or death ” renders the proviso in our law more, instead of less, restrictive, as I have shown ; and this circumstance, together with the fact that the advantage of the disability is given to the person to whom the right accrues, and not to his heirs, shows that the death of the ancestor must be deemed to be an extinguishment of the right — at any rate after the full period of twenty years has run out, counting from the commencement of the adverse possession. If the statute were not sufficiently clear without, we should be absolutely compelled to give it this interpretation, otherwise a law without a parallel would be found in our statute book. Statutes of limitation have, with very great reason, been termed statutes of repose. But if any different construction 523] *were given to our law, instead of being a statute of repose it would be one of perpetual disquietude.

It is evident, from the preceding view, that the whole difficulty and embarrassment which surround the case, arise from the total omission of an important part of the proviso contained in the statute of James. The consequence is, that the death of a person while laboring under disability, is entirely unprovided for. The only alternative, then, to which we can cling, is to say that such person stands upon the same footing as residents of the state, and that the lapse of twenty years from the time the cause of action accrued, will be a bar to the assertion of the right. To say that it shall be twenty years from the death, will be going even beyond the statute of James, in which express provision is made for extending the period, not however to twenty, but only to ten years, and without which provision this advantage could not, by construction, have been given to the heir. Even the act of 1831 is entirely silent as to the case of a person dying under disability ; and it is for that reason that I have said it has endeavored to imitate, not that it has actually imitated, the statutes of James and of the other states. It has prolonged the period of limitation, but n ot in favor of the heir. These repeated acts of legislation distinctly manifest throughout the intention of the legislature. Death is a casus omissus, and as there is no “inherent equity” growing out of the statute of limitations, 'in favor of persons under disability, and not actually provided for, we must say that death, combined with the lapse of twenty years, operates a total extinction of the right. Judgment for the defendants.


text:
    *Robert Ridley and another v. John Hettman et al.
    Equity ordinarily acts in analogy to the law in giving effect to the statute of limitations.
    Therefore, where the owner of an elder entry and junior patent, who was never in the state, dies with an adverse possession under a junior entry and elder patent against him, equity, after the lapse of twenty years from his death, will allow the act of limitation to be set up as a bar against his heirs seeking to get in the legal title under the elder entry
    This is a bill in chancery, from the county of Clermont.
    The complainants are the heirs at law of Thomas Ridley. By virtue of a military warrant granted by the State of Yirginia to Tliomas Ridley, an entry was made of 166§ acres of land, situate between the Little Miami and Scioto rivers, in the county of Clermont, which is in these words: “No. 3,406. Tbos. Ridley enters 166§ acres of land on part of a military warrant No. 4,676, on the waters of the east fork of the Little Miami, beginning at the lower back corner of Nathaniel Darby's entry No. 2,058, running N. 43, 200 polos, thence N. 47 "W. at right angles for quantity.” This entry was surveyed December 17, 1798, and patented to Thos. Ridley September 17, 1806. On June 12, 1800, Francis Peyton made an entry or location of 600 acres in the following words: “No. 3,856. Francis Peyton enters 600 acres of land on part of a military warrant No. 3,234, on the waters of the east fork of the Little Miami, beginning at a sugar tree, ash, and dogwood, in the line of G-eo. Matthhws’ survey No. 3,814, running south with Matthews’ line to his south-east corner; thence west to the line of Jas. Meriwether’s survey No. 1,136 ; thence south and from the beginning east with the line of Herrons, 200 poles to the line of Tarlton Fleming’s entry No. 3,855 ; thence with his line to the line of Nathaniel Darby’s survey No. 2,058; thence with his line S. 43 W. so far that a line west will include tho quantity.” The bill charges that afterward this last entry was fraudulently surveyed so as to include and cover part of Ridley’s entry, and a patent issued thereon to Henry Massie, who was assignee of the survey, and that the legal title is thus vested in the defendants.
    525] *The answer admits the entry and surveys of Francis Peyton and the issuing of the patent. It requires proof that the entry is sufficiently special, and that it has been 'Surveyed according to law. They aver that they and those under whom they claim have been in the quiet possession of the land, claiming' to hold the title thereto for upward of thirty years, and have regularly paid all taxes.
    The cash was argued by Fox, for the plaintiffs, and Marshall & Hamer, for the defendants ; but as tho decision of the court rests upon other grounds than those taken in argument, the discussion of counsel is omitted.
   Grimke, J.

It is very evident from the survey made in the cause, that the patent and survey of Peyton under which the defendants .claim, covers the land in controversy. But as the defendants claim under the oldest patent, the complainants, in order to obtain tnat legal title, must show a superior equity to the land. And this would-render it necessary to enter into an inquiry concerning the nature of that title, and among other things to ascertain whether a call for an entry may not be construed to mean a call for a survey.

But there is one circumstance which entirely dispenses with any investigation of that kind, and must cut the case short before arriving at that stage. The defendants in their answer rely expressly npon the statute of limitations as a bar to the complainants’ relief. The complainants, on the other hand, have taken proof, the object of which is to bring them within the saving clause of the statute. But in so doing they have proved too much. They show that not only Thomas Ridley, to whom the patent issued in 1806, never was in the State of Ohio, but that the two persons to whom the property has descended, Francis Ridley and Thomas Ridley, were never either of them in the State of Ohio. This is completely established by the deposition of a witness who proves that Thomas Ridley, the elder, died abroad a great many years ago; that Francis I. and Thomas Ridley were his sole heirs > that Francis *died soon after his father, leaving Francis I. [528 his sole heir, and that neither ho nor Thomas Ridley, Jr., were over in this state. The consequence is, that the case falls directly within the determination already made at this term in the ejectment suit of Whitney v. Webb et al. The principle there decided was that successsive or cumulative disabilities in different persons are not within the true intent and meaning of the proviso in the statute of limitations; that where the person to whom the right has accrued is beyond the state, the statute does not commence running against him until he comes into the state; but that if he dies abroad, his heirs can not unite their disability to his, so as to bring them within the protection of the law. It was shown in the case I have referred to, that any other construction would involve the greatest absurdity, and be productive of incalculable mischief; that a controversy, instead of having some limit put to it, might be protracted to an indefinite length of time, for each person to whom successively the right accrued, might bo a nonresident, an infant, feme covert, or insane. The principle there determined is then decisive of the present case, and the bill must be dismissed. Bill dismissed.

      Ante, 513.