author: By the Court :

text:
    Higgins v. The Commissioners of Logan County.

      Compensation of county commissioners — Personal expenses while attending hoard session not allowed hy section 897, Revised Statutes — Order on hoard allowing such expense not valid, when.

    1. The statute governing the compensation and allowances to a county commissioner (see section 897, Revised Statutes), does not authorize the payment of personal expenses, while attending the sessions of the hoard, nor mileage for more than one session in a month.
    2. Such expenses and mileage can not form the subject of a valid claim against the county for any amount, and an order of the hoard of county commissioners allowing them will not hind the county. (Jones v. The Commissioners, 57 Ohio St., 189, followed and approved.)
    (Decided May 8, 1900.)
    Error to the Circuit Court of Logan county.
    The board of commissioners brought suit against Higgins in the court of common pleas upon eighty-two causes of action set out in the amended petition. Higgins had himself been a member of the board from the first Monday of January, 1888, to the first Monday in January, 1894. The causes of action from one to eighty-one inclusive are on the receipt from the county treasurer by the allowance of the board for mileage and personal expenses in excess of those allowed by the statute. The causes of action do not substantially differ except as to the dates and the amounts of the allowance. The following sufficiently represents each, one of the eighty-one causes of action:
    On October 1,1892, the defendant, as such commissioner, demanded and received of the treasurer of said county, on Warrant No. 291, as and for his mileage for attending seven sessions of said board during the month of September, 1892, $6.00, and for boarding and other expenses of defendant incurred while attending said sessions, $9.80; which sums he then received out of the moneys of said county, upon the claim therefor, then fraudulently and collusively presented to and allowed by said board, with full knowledge of its members and of the defendant of the illegality thereof, in addition to his full statutory compensation, mileage and expenses by him received for said month, and which he still retains.
    The first defense in the answer interposed by Higgins has been treated as though it Avere a denial of the allegations of the petition. The second defense is as folloAvs:
    For a second answer to said petition the said defendant says that for all moneys and each of the several items mentioned in the said eighty-two causes of action set out in the petition he duly presented itemized statements of his accounts for per diem, mileage, services and expenses as aforesaid, Avliich accounts were duly submitted to and examined by the prosecuting attorney and the probate judge of said Logan county, who, as the board and court, established by law for that purpose, duly certified to and approved his said several accounts and thereupon, in each case, he submitted his said claims to the board of county commissioners of said Logan county, which board of county commissioners then and there adjudicated upon and allowed his said claims respectively, and ordered the county auditor of said county to issue warrants upon the county treasurer for the payment of same respectively; and the plaintiff and defendant in this action were parties in those several proceedings before said board and tribunal, and said prosecuting attorney and probate judge and said' board of county commissioners as such tribunal, adjudicated said defendant’s said several claims and accounts and rendered judgment in favor of this defendant thereon on the merits and the same then and there became res judicata.

    To the second defense a demurrer interposed by the plaintiff was sustained by the court to which there was an exception. Upon the trial the evidence offered by the plaintiff did not tend to show actual fraud or collusion on the part of Higgins with the other members of the board in the allowance of the claims. With respect to the eighty-one causes of action the defendant requested the court to instruct the jury: 1. That if the warrants in his favor were issued by the county auditor on orders of the board of county commissioners that such orders were based upon the examination and allowance by said board of itemized claims of the defendant for services, mileage and expenses claimed by him to have been rendered as county commissioner, and that a record of such allowance of said claims was duly made by the board and such allowance and record became and are judgments in law and cannot be disregarded in this proceeding and the plaintiff cannot recover. 2. That there could be no recovery in the action unless the plaintiff had established by a preponderance of the evidence that the defendant Avas guilty of actual fraud and collusion in making and presenting the claims in the petition. 3. That the fraud and collusion necessary to be established against the defendant to entitle the plaintiff to recover must consist of guilty knowledge and intentional act of the defendant in making and presenting a claim for services, mileage and expense which was in excess of the amount allowed by law known at the time to be so, and must have beén known by his associates on the board of county commissioners to be in excess of the amount allowed by law.
    These requests were refused. The instruction given upon the subject was in substance contained in the folowing portion of the charge:
    “I say to you gentlemen, that if the defendant drew moneys from the county treasury during the time sued for, either as mileage or for his reasonable and necessary expenses or both, for days while he was exclusively engaged in the office of the board in the discharge of his duties as commissioner in attending a regular or called session of the board other than mileage for one day each month, then such allowance and receipt by him of mileage or expenses therefor was illegal and in violation of the provisions of the statute of Ohio, and in contemplation of law was fraudulently allowed and received and for such illegal mileage and expenses so received and retained by the defendant the plaintiff is entitled to recover in this action.”
    The eighty-second cause of action was for moneys received by the defendant as such county commissioner as and for his mileage, boarding, car-fare and other personal expenses incurred January 10, 11 and 12, 1893, on a journey made by him to Columbus to attend a certain convention called The County Commissioners’ Association. With respect to this eighty-second cause of action the trial judge instructed the jury that no recovery could be had upon it because the county commissioners were the sole judges of the necessity of the attendance upon the commissioners’ association.

      Howenstine & Huston, for plaintiff in error.
    The statute requires the county commissioner’s claim for compensation to be certified to by the pros» ecuting attorney of the county, and to be approved by the probate judge, and after that to be allowed by the full board of county commissioners, before a warrant can be issued therefor- by the county auditor, or the same can be paid by the county treasurer. Revised Statutes, section 897.
    This proceeding of approval by the probate court and allowance by the county commissioners in legal effect is a judgment.
    From that judgment appeal may be taken to a higher court. Revised Statutes, section 896.
    Such judgment of the county commissioners cannot be impeached, except for fraud or collusion. Ridenour v. State, 14 C. C. Rep.; 7 Circ. Dec., 481; Commissioners v. Noyes, 35 Ohio St., 201; McCurdy v. Baughman, 43 Ohio St., 78;Van Fleet on Collateral Attack, sections 3, 15; Paragraph 314, 1 Bates Digest, page 1378; many cases there cited; Jones, Aud., v. Commissioners, 57 Ohio St., 189.
    The original petition in this case was filed May 26, 1896. It contained no charge against Higgins or his co-commissioners that any claim was made or allowed, fraudulently or collusively.
    After the original petition was filed, the decision of our circuit court, in case of Ridenour v. State, supra, was reported.
    The substance of that decision was that the allowance of a claim by the county commissioners was in effect a judgment, and could not be impeached except for fraud or collusion.
    Thereupon, on October 18, 1897, plaintiff below filed his amended petition, and incorporated therein the words charging fraud and collusion.
    This was an admission by the plaintiff that without fraud and collusion, alleged and proved, no recovery can be had. Commissioners Scioto Co. v. Gherky,
      Wright, 493; Ridenour v. State, 14 C. C. R., 393; 7 Circ. Dec., 481; Board County Commissioners v. Noyes, 35 Ohio St., 201, 207, 208.
    Fraud must be distinctly plead: 8 Am. & Eng. Ency. Law, 653 and note 3; Bartholomew v. Bentley, 15 Ohio, 659; 1 Kinkead Pleading, section 607, page 564; Kerr on Fraud and M., p. 384 and notes and cases cited.
    If fraud must be alleged it must be proved. Stitt v. Wilson, Wright 503; Wilson v. Delorack, 3 Ohio, 290; Lake v. Doud, 10 Ohio, 415; Bohart v. Atkinson, 14 Ohio, 228; Landis v. Kelly, 27 Ohio St., 567; Kerr on F. & M., pages 382-383 and notes; Mitchell v. Dedds, 95 Am. Dec., 621; Nichols v. Patton, 36 Am. Dec., 713; Bartlett v. Blake, 58 Am. Dec., 775; Stubblefield v. McRaven, 43 Am. Dec., 502; Pearson v. Keedy, 43 Am. Dec., 160.

      S. II. West, for defendant in error.
    The office and compensation of the county commissioners are purely statutory, and fall within the strict rule obtaining in Ohio that fees not specially provided for by statute, cannot be charged or collected. Debolt v. Cincinnati Township, 7 Ohio St., 237; Anderson v. Commissioners, 25 Ohio St., 13; Jones, Aud., v. Commissioners, 57 Ohio St., 189.
    By the terms of section 897 the plaintiff in error was limited in his legal claims for mileage for attendance on sessions of the board, to one session per month : and in his legal claims for expenses paid out, to expenses incurred in attending to business of the county pertaining to his office, other than attending sessions of the board, and in attending to business calling him from the county.
    Two classes of compensation paid out to Higgins are sought to be recovered:

      1. Mileage for attending more than one session of the board in any single month.
    2. Higgins’ personal expenses, boarding, etc., incurred while attending the same sessions. Neither of these classes of compensation is provided for by section 897; both are, therefore, illegal, and the amended petition, which recites the facts showing them to be so, their payment to plaintiff in error on accounts fraudulently presented and allowed, and his retention of the fees, in addition to his full statutory compensation, states a case against him.
    This defense sets forth the approval of certain statements of account containing the various items of charge mentioned in the amended petition, by the prosecuting attorney and probate judge of the county, and their regular alloAvance by the board of county commissioners, pleading these facts as a final and conclusive adjudication of the claims, behind which the county cannot noAV inquire, and which forbids any recovery of these items from the defendant below, whether they were originally legal or illegal.
    The charges of the defendant below being “wholly illegal,” being “demands illegal because of being upon a subject which can admit of no claim,” as stated in the opinion in the case of Jones, Aud., v. Commissioners, 57 Ohio St., 216, their allowance by the board of county commissioners falls within the rule laid down in the syllabus of that case.
    The Jones case and that at bar being identical as to their essential facts, the illegal character of the claims allowed, the manner and form of allowance by the board, etc. We submit that that case is decisive of all questions made in this as to the sufficiency of the second defense. Richland Co. v. Miller, 16 So. Car., 224; English v. Chicot Co., 26 Ark., 462 Carroll Co. v. Roberts, 60 Mo., 404; Ousteroudt v.
      Rigney, 98 N. Y., 222; Winchester v. Commissioners, 22 Atl., 1075; Herman on Estoppel and Res Ad judicata, section 437.
    Each of the 81 causes of action before the court seeks to recover mileage and expenses paid out for attending more than one session of the board in a single month — a claim which is “wholly illegal”— illegal and unwarranted in every part, to its full extent.
    But even if the claims, as passed on and adjudicated by the board, in addition to items not allowed, by section 897 and therefore illegal, contained other charges proper and legal, it is submitted that the allowance of the entire claim in such form would not operate to validate any portion of the claim, or to prevent the recovery of that part or those items not warranted by law.
    To give this effect to the allowance of such a claim would fritter away the entire benefit and protection of the decision. It would only be necessary, in order to avoid its effect, to include in a claim made up of many illegal items, one which was authorized by law, and have the whole allowed as an entirety.
    The allowance of the board in the supposed case, which, however, is not the case presented by the record, is final unless appealed from, only as to those items of charge authorized by statute; as to all others —distinct items of illegal overcharge — it is a nullity, because rendered Without jurisdiction. Bigelow v. Forrest, 76 U. S., 9 Wall., 339; Ex Parte Lange, 85 U. S., 18 Wall., 163; Windsor v. McVeigh, 93 U. S., 274; Cornell v. Williams, 87 U. S., 20 Wall., 250; Ex Parte Reed, 100 U. S., 13; United States v. Walker, 109 U. S., 258; Gilliland v. Sellers, 2 Ohio St., 223; Spoors v. Coen, 44 Ohio St., 497; Black on Judgments, section 532.
   By the Court :

The compensation of county commissioners is fixed by section 897 of the Revised Statutes. Its material provisions are as follows: “Each county commissioner shall be allowed three dollars for each day that he is employed in his official duties, and five cents per mile for his necessary travel for each regular or called session, not exceeding one session per month * * * . ■ Each commissioner * * * for his services wh'en necessarily engaged in attend-, ing to the business of the county, pertaining to his office under the direction of the board, and when necessary to travel out of the county, shall be allowed in addition to his compensation and mileage as herein-before provided, any other reasonable and necessary expenses, actually paid in the discharge of his official duty.” The recovery in this case was for moneys received by the plaintiff in error as a county commissioner in excess of any allowance that might lawfully be made to him by the terms of this section, and the claims should therefore not have been allowed to him by the commissioners.

The questions which arise on the demurrer to the second defense and on the refusals of the trial court to instruct the jury are all determined adversely to the claim of the plaintiff in error in Jones v. Commissioners, 57 Ohio St., 189. Further discussion of the subject is unnecessary.

The sufficiency of the eighty-second cause of action is not before us, and our judgment will not be regarded as an approval of the instruction which the trial judge gave with respect to it.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 6031.
    Miller et al., Commissioners, v. State ex rel. Yancey.
    (Decided February 13, 1900.)
    Error to the Circuit Court of Delaware county.

      George Ooyner and Jones & Jones, for plaintiffs in error.

      F. M. Marriott, for defendant in error.
   Judgment affirmed.


text:
    No. 6034.
    Egger v. Smith.
    (Decided February 13, 1900.)
    Error to the Circuit Court of Stark county.

      Beemann & Beemann and A. A. Thayer, for plaintiff in error.

      Lorin G. Wise and Wann & Boio, for defendant in' error.
   Judgment affirmed.


text:
    No. 6157.
    Lockland Lumber Co. v. Marsh et al.
    (Decided February 13, 1900.)
    Error to tlie Circuit Court of Hamilton county.

      CoM & Howard and Oliver 0. Bailey, for plaintiff in error'.

      Drausin Wulsin; Oliver B. Jonesj John G. O’Connell; Lundy & Molony; Harmon, Colston, Goldsmith & Hoadly; Morrow & Oldham and Louis A. Ireton, for defendants in error.
   Judgment affirmed.


text:
    No. 6660.
    City of Salem et al. v. Mulford.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Columbiana county.

      A. IF. Taylor, for plaintiffs in error.

      George 8. Walton and Carey, Boyle & Mullins, for defendant in error.
   Judgment affirmed.


text:
    No. 6712.
    River Furnace & Dock Co. v. Daley.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Ford, Henry, Baldwin & McGraw, for plaintiff in error.

      William Howell and Foran, McTighe & Baker, for defendant in error.
   Judgment affirmed.


text:
    Motion. No. 3601.
    Waldron v. Fuchs.
    (Decided February 20, 1900.)
    Motion by defendant to dismiss cause No. 6838, on tbe General Docket.

      William L. Dickson, for plaintiff in error.

      Charles Phares, for defendant in error.
   Motion sustained on authority of Kennard v. Kennard, 35 Ohio St., 660.


text:
    No. 5861.
    Kemper v. Martin.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Columbiana county.
    A. TF. Taylor and Billingsley, Taylor & Clark, for plaintiff in error.

      J. A. Ambler and J. A. Martin, for defendant in error.
   Judgment affirmed.


text:
    No. 5882.
    Field et al v. Railway Company et al.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Ashtabula county.

      L. H. Means; F. R. Smith; 8. A. North-way and Jones & Anderson, for plaintiffs in error.

      Theodore Hall; IF. F. Carr and George C. Greene, for defendants in error.
   Judgment affirmed.

Spear, Williams and Minshall, JJ., dissent.


text:
    No. 5885.
    Gates et al. v. Moorhouse.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Richland county. ,

      J. M. Reed and Cummings & McBride, for plaintiffs in error.

      Bradford & Moorhouse and Donnell & Marriott, for defendant in error.
   Judgment affirmed.


text:
    No. 5914.
    Andrews et al. v. Favorite Stove and Range Co.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Miami county.

      A. F. Broomhall; J. Norman Martin and William Ft. Gilbert, for plaintiffs in error.

      William C. Johnson and M. H. & W. D. Jones, for defendant in error.
   Judgment affirmed.


text:
    No. 5939.
    Wolf v. Railroad Company.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Warren county.

      Frank Brandon and George A. Burr, for plaintiff in error.

      F. W. Strong and Runyan & Stanley, for defendant in error.
   Judgment affirmed.


text:
    No. 5973.
    Batavia Turnpike & Miami Bridge Co. v. Railroad Company et al.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Hamilton county.

      Harmon, Colston, Goldsmith & Hoadly and Burch <& Johnson, for plaintiff in error.

      Hollister ct Hollister; William W. Prather and William Hartley Pugh, for defendants in error.
   Judgment affirmed.


text:
    No. 5978.
    Rounds v. Nelson et al.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Medina county.

      Frank Spellman, J. Andrew and Henderson & Quail, for plaintiff in error.

      J. W. Seymour and Kline, Carr, Tolies & Goff, for defendants in error.
   Judgment affirmed.


text:
    No. 6033.
    Hickox, Admr. v. Adams et al. Exrs. et al.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      J. E. Ingersoll, for plaintiff in error.

      Boynton & Horr, for defendants in error.
   Judgment affirmed.


text:
    No. 6198.
    Thompson v. Scottdale Iron & Steel Co.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      W. E. Polhamus, for plaintiff in error.
    1 White, Johnson, MoCaslin & Cannon, for defendant in error.
   Judgment affirmed.


text:
    No. 6647.
    Logan, Admr. v. Railroad Co. et al.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Franklin county.

      Selwyn N. Owen and Rankin & Rector, for plaintiff

      J. E. Collins, for defendants in error.
   Judgment affirmed.

Minshall and Spear, JJ., dissent. Williams, J., not sitting.


text:
    No. 6737.
    Village of Carthage et al. v. Street Railroad Co.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Hamilton county.

      Samuel B. Hamel and John R. Sayler, for plaintiffs in error.

      John W. Warrington and E. W, Kittredge, for defendant in error.
   Judgment affirmed.


text:
    No. 6798.
    City of Cincinnati v. Spillard, Assignee.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Hamilton county.

      Ellis G. Einlcead and II. E. Rogers, Corporation Counsel, for plaintiff in error.

      Frank M. Goppock and Mdgar W. Cist, for defendant in error.
   Judgment affirmed.


author: Davis, J.,

text:
    No. 6829.
    Meyer v. Dempsey, Trustee.
    (Decided February 27, 1900.)
    Error to the Circuit Court of Hamilton county.

      Alfred C. Cassattj Jones <6 James and 8. N. Maxwell, for plaintiff in error.

      Gloss & Lubbert, for defendant in error.
   Judgment affirmed, the entire act, including the repealing section, being unconstitutional.

Davis, J.,

dissents on the ground that while 93 O. L., 669, is unconstitutional so far as it confers exclusive jurisdiction on the insolvency court, it is valid as conferring jurisdiction concurrent with the probate and common pleas courts.


text:
    No. 6165.
    Railway Company v. Allen.
    (Decided March 6, 1900.)
    Error to the Circuit Court of Clark county.

      Oscar T. Martin, for plaintiff in error.

      Pringle & Johnson, for defendant in error.
   Judgment affirmed.


text:
    No. 6209.
    Freeman v. Farrington.
    (Decided March 6, 1900.)
    Error to the Circuit Court of Miami county.

      Byrketi & DeWeese, for plaintiff in error.

      A. L. Marshall and M. PL. & W. D. Jones, for defendant in error.
   Judgment affirmed.


text:
    No. 6534.
    Railroad Company v. Casserly.
    (Decided March 6, 1900.)
    Error to'the Circuit Court of Erie county.

      J. PL. Collins, for plaintiff in error.

      S. A. Court and TP. B. Starbird, for defendant in error.
   Judgment affirmed.


text:
    No. 6686.
    Railroad Company v. Stoltz, Admr.
    (Decided March 6, 1900.)
    Error to the Circuit Court of Licking county.

      J. E. Collins and Kihler & Kibler, for plaintiff in error.

      J. A. Flory, for defendant in error.
   Judgment affirmed.


text:
    No. 6708.
    Byers v. Henry.
    (Decided March 6, 1900.)
    Error to the Circuit Court of Trumbull county.

      Arrel, McVey & Robinson, for plaintiff in error.

      R, B. Murray and Thomas McNamara, for defendant in error.
   Judgment affirmed on authority of Van Duzen Gas Co. v. Sehelies, 61 Ohio St., 298.


text:
    No. 5987.
    Walworth v. Pratt et al.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Gilbert & Eills, for plaintiff in error.

      C. A. Ne¡f and Carpenter & Young, for defendants in error.
   Judgment affirmed.


text:
    No. 5991.
    Ware Coffee Company v. Iron Works Company.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Montgomery county.

      Gottschall, Crawford & Lmibert, for plaintiff in error.

      McMahon & McMahon, for defendant in error.
   Judgment affirmed.


text:
    No. 5993.
    Mason et al. v. Tippecanoe Club Company et al.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Gilbert & Hills, for plaintiffs in error.

      8. H. Tolies and Morton W. Cope, for defendants in error.
   Judgment affirmed.


text:
    No. 6098.
    Columbus Sanitary Works Co. v. Munk.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Franklin county.

      Ivor Hughes; 8. C. Jones and Barger & Barger, for plaintiff in error.

      Dyer & Williams, for defendant in error.
   Judgment affirmed.


text:
    No. 6158.
    Huston v. Dennison Water Supply Co.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Tuscarawas county.

      Richards c£ McCullough, for plaintiff in error.

      Healea & Greene, for defendant in error.
   Judgment affirmed.


text:
    No. 6168.
    City of Wooster v. Weaver.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Wayne county.

      R. L. Adair, City Solicitor, and McClure & Bmyser, for plaintiff in error.

      Critchfield rG Gritchfield, for defendant in error.
   Judgment affirmed.


text:
    No. 6178.
    Hauk Brewing Company v. Giseke et al.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Hamilton county.

      Von Seggern & Deioald, for plaintiff in error.

      Corcoran cG Corcoran, for defendants in error.
   Judgment affirmed.


text:
    No. 6189.
    Hanks v. Hanks.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Clifford A. Neff and Charles E. Penneioell, for plaintiff in error.

      Eessenmueller & Bern,is, for defendant in error.
   Judgment affirmed.


text:
    No. 6191.
    Thackara et al. v. Long.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Miami county.

      E. E. Williams; James Knight and W. B. McKinney, for plaintiffs in error.

      Sherman T. McPherson, for defendant in error.
   Judgment affirmed.


text:
    No. 6203.
    Albright, Constable, v. Marshall.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Columbiana county.

      A. G. Smith, for plaintiff in error.

      James G. Moore, for defendant in error.
   Judgment affirmed.


text:
    No. 6214.
    Goldenberger v. Ryan.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Hamilton county.

      Clement Bates, for plaintiff in error.

      Denis F. Cash and Henry M. Caldwell, for defendant in error.
   Judgment affirmed on authority of McAllister v. Hartzell, 60 Ohio St., 69.


text:
    No. 6216.
    Souders et al. v. Dickson.
    (Decided March 13, 1900.)
    Error to the Circuit Court of Muskingum county.

      McHenry & O’Neai, for plaintiffs in error.

      John R. Slonesipher and Simeon M. Winn, for defendaut in error.
   Judgment affirmed.


text:
    No. 6237.
    In the Matter of Charles A. Palmer.
    (Decided March 13, 1900.)
    Error to the Circuit Court of,Fayette county. '

      Charles E. Barrett, for Charles E. Palmer.

      John N. Van Deman, for the state.
   Judgment affirmed.

Williams, J., not sitting.


text:
    No. 6138.
    Railway Company v. Gartland.
    (Decided March 20, 1900.)
    Error to tbe Circuit Court of Summit county.

      Tibbals & Frank, for plaintiff in error.

      E. F. Voris and A. J. Wilhelm, for defendant in error.
   Judgment affirmed.


text:
    No. 6212.
    Petry v. Levering, Assignee.
    (Decided March 20, 1900.)
    Error to tbe Circuit Court of Knox county.

      A. R. Mclntire, for plaintiff in error.

      F. O. Levering and F. V. Owen, for defendant in error.
   Judgment, affirmed.


text:
    No. 6218.
    McLaughlin et al. v. Kitchen et al.
    (Decided March 20, 1900.)
    Error to the Circuit Court of Franklin county.

      Friesner & Siegel and A. I. Yorys, for plaintiffs in error.

      West & West, for defendants in error.
   Judgment affirmed.


text:
    No. 6225.
    Varner et al. v. Varner et al.
    (Decided March 20, 1900.)
    Error to the Circuit Court of Putnam county. .

      Watts & Moore and Bailey & Bailey, for plaintiffs in error.

      Handy, Ogan & Unverferth, for. defendants in error.
   Judgment affirmed.


text:
    No. 6252.
    Brown v. Shumaker & Gharkey.
    (Decided March 20, 1900.)
    Error to the Circuit Court of Stark county.

      James Sterling, for plaintiff in error.

      Welty & Al'baugh, for defendants in error.
   Judgment affirmed.


text:
    No. 6262.
    Stacey Mfg. Co. v. Loomis Gas Machinery Co.
    (Decided March 20, 1900.)
    Error to the Circuit Court of Hamilton county.

      Charles W. Baker, for plaintiff in error.

      Milton Sater, for defendant in error.
   Judgment affirmed.


text:
    No. 6368.
    Stacey Mfg. Co. v. Loomis Gas Machinery Co.
    (Decided March 20, 1900.)
    Error to the Circuit Court of Hamilton county.

      Charles W. Baker, for plaintiff in error.

      Milton Sater, for defendant in error.
   Judgment affirmed.


text:
    No. 6017.
    Ohio State Journal Company v. Irvine.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Franklin county.

      Rankin & Rector, for plaintiff in error.

      Poioell & Minaban, for defendant in error.
   Judgment affirmed.


text:
    No. 6020.
    Leonard, Trustee, v. Savings Bank Co. et al.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Lorain county.

      Johnston & Leonard, for plaintiff in error.

      W. B. Thompson; A.. R. Webber and E. G. Johnson, for defendants in error.
   Judgment affirmed-


text:
    No. 6028.
    Patterson v. Custis et al.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Greene county.

      Snodgrass <& Sohnebly and F. M. Clevenger, for plaintiff in error.

      W. A. Paxson and T. L. Magruder, for defendants in error.
   Judgment affirmed.


text:
    No. 6053.
    Norris v. Oliver.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Ashtabula county.

      A. II, Stilwell, for plaintiff in error.

      Campbell & Simple, for defendant in error.
   Judgment affirmed.


text:
    No. 6240.
    Rex v. Demuth.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Stark county.

      James Sterling, for plaintiff in error.

      Baldwin & Shields, for defendant in error.
   Judgment affirmed.


text:
    No. 6261.
    Amberg v. Kincaid et al.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Hamilton county.

      O. W. Baker, for plaintiff in error.

      Swing, Gushing & Morse, for defendants in error.
   Judgment affirmed.


text:
    No. 6265.
    State v. Morrill.
    (Decided March 27, 1900.)
    Exceptions to decision of common pleas court of Huron county.

      F. S. Monnett, Attorney General, and B. E. West-fall, for plaintiff.

      Stephen M. Young, for defendant.
   Exceptions sustained on authority of Hale v. State. 58 Ohio St., 676, and State ex rel. v. Medical Board, 60 Ohio St. 21.


text:
    No. 6272.
    Speelman et al. v. Speelman et al.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Miami county.

      Jamison & Davis, for plaintiffs in error.

      McMahon é McMahon and Wm. G. Johnston, for defendants in error.
   Judgment affirmed.


text:
    No. 6274.
    Flater v. Gary, Assignee, et al.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Hancock county.

      George H. Phelps, for plaintiff in error.

      J. A. & E. Y. Bope; H. F. Burket; Awline & Goons and Jason Blackford & Byal, for defendants in error.
   Judgment affirmed.


text:
    No. 6287.
    Cline v. Law.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Noble county.

      J. M. McGinnis, for plaintiff in error.

      John L. Lock, for defendant in error.
   Judgment affirmed for reasons given in the opinion of the Circuit Court.


text:
    No. 6292.
    National Bank v. Lawler.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Jackson county.

      O. C. McCormick and T. 8. Hogan, for plaintiff in error.

      E. B. Bingham. and J. M. McGillivray, for defendant in error.
   Judgment affirmed on authority of Root & McBride Bros. v. Davis, 51 Ohio St., 29.


text:
    No. 6826.
    Lander, Treas., v. Bradley et al.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Cuyahoga- county.

      P. E. Kaiser, County Solicitor, and P. L. Taft, Assistant County Solicitor, for plaintiff in error.

      Ingersoll & Ohm, for defendants in error.
   Judgment affirmed.


text:
    No. 6882.
    State v. Winnett.
    (Decided March 27, 1900.)
    Error to the Circuit Court of Stars: county.

      John M. Sheets, Attorney General; Robert E. Day, Prosecuting Attorney; A. Pomerene and O. O. Bow, for plaintiff in error.

      John W. Albaugh, for defendant in error.
   Judgment affirmed.


text:
    No. 6013.
    Cahall v. Cahall et al.
    (Decided April 10, 1900.)
    Error to the Circuit Court of Brown county.

      Moore & Parker, for plaintiff in error.

      E. E. Parker, for defendants in error.
   Judgment affirmed.


text:
    No. 6169.
    Mowery v. Frick et al.
    (Decided April 10, 1900.)
    Error to the Circuit Court of Wayne county.

      Johnson & Taylor, for plaintiff 'in error.

      McClure é S my ser and C. M. Yocum, for defendants in error.
   Judgment affirmed.


text:
    No. 6228.
    Keyser v. Simpson.
    (Decided April 10, 1900.)
    Error to the Circuit Court of Delaware county.

      F. M. Marriott and C. H. Maxwell, for plaintiff in error.

      N. F. Overturf and George W. Carpenter, for defendant in error.
   Judgment affirmed.


text:
    No. 6255.
    First National Bank v. McKinney, Receiver, et al.
    (Decided April 10, 1900.)
    Error to the Circuit Court- of Cuyahoga county.

      Webster & Cook, for plaintiff in error.

      Burke & Ingersolls; Pinney, Hammond & White and W. C. Rogers, for defendants in error.
   Judgment affirmed.


text:
    No. 6293.
    Ruhsam v. Elder et al.
    (Decided April 10, 1900.)
    Error to the Circuit Court of Montgomery county.

      Craighead A Craighead and JSfevin, JSfevin & Kalbfus, for plaintiff in error.

      Sprigg & Fitzgerald and McMahon & McMahon, for defendants in error.
   Judgment affirmed.


text:
    No. 6298.
    Marvin v. Building Loan and Savings Co. et al.
    (Decided April 10, 1900.)
    Error to the Circuit Court of Hancock county.

      E. T. Dunn and J. A. & E¡. V. Bope, for plaintiff in error.

      W. W. Shuler, for defendants in error.
   Judgment affirmed.


text:
    No. 6307.
    Lang v. Cordes.
    (Decided April 10, 1900.)
    Error to the Circuit Court of Hamilton county-

      William K. Maxwell and Maxwell A Ramsey, for plaintiff in error.

      Burch A Johnson, for defendant in error.
   Judgment affirmed.


text:
    No. 6222.
    Heath, Guard., v. Penney, Exrx., et al.
    (Decided April 17, 1900.)
    Error to the Circuit Court of Medina county.

      Lee Elliott and Frank Heath, for plaintiff in error.

      Hilbert & Hills, for defendants in error.
   Judgment affirmed.


text:
    No. 6310.
    Bachelor et al. v. Langdon.
    (Decided April 17, 1900.)
    Error to the Superior Court of Cincinnati.

      Howard Douglass and George W. Harding, for ■plaintiffs in error.

      Swing, Gushing & Morse, for defendant in error.
   Judgment affirmed.


text:
    No. 6318.
    Sherk v. Pioneer Savings and Loan Co.
    (Decided April 17, 1900.)
    TUrror to the Circuit Court of Hancock county.

      Jason Blackford & Byal and J. G. Bitler, for plaintiff in error.
    TF. F. Duncan, for defendant in error.
   •Judgment affirmed.


text:
    No. 6322.
    Heck et al. v. Findlay Window Glass Co. et al.
    (Decided April 17, 1900.)
    Error to the Circuit Court of Hancock county.

      Barber & Fuller; George H. Phelps and IF. IF. Chapman, for plaintiffs in error.

      Ross & Kinder and Marion G. Foster, City Solicitor, for defendants in error.
   Judgment affirmed.


text:
    No. 6376.
    Village of Union City v. Wyrick.
    (Decided April 17, 1900.)
    Error to the Circuit Court of Hancock county..

      Allread & Teegarden and IF. IF. Fowler, for plaintiff in error.

      Trainor & E off man, for defendant in error.
   Judgment affirmed.

Burket, J., not participating.


text:
    No. 6524.
    Hanshue v. Garrett.
    (Decided April 17, 1900.)
    Error to the Circuit, Court of Richland county.

      Gummings & McBride and Brucker & Cummins, for' plaintiff; in error.

      8. G. Parker; George Moorhouse and Bamuel Marriott, for defendant in error.
   Judgment affirmed.


text:
    No. 6850.
    Zeltner v. State.
    (Decided April 17, 1900.)
    Error to the Circuit Court of Wood county.

      E. T. Dunn; F. A. Baldwin and TP. B. Ramsey, for plaintiff in error.

      Elmer G. McClelland and James 0. Troup, for defendant in error.
   Judgment affirmed.


text:
    No. 6867.
    Railroad Company v. Hesse, Admrx.
    (Decided April 17, 1900.)
    Error to the Circuit Court of Perry county.

      John Ferguson and H. D. Cochran, for plaintiff in error.

      Herbert Butler and Donahue, Spencer & Donahue, for defendant in error.
   Judgment affirmed.


text:
    No. 6323.
    Winslow et al. v. Burke et al.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Goulder & Holding and Henry C. Ranney, for plaintiffs in error.

      Kline, Carr, Tolies <& Goff, and Williamson, Cushing & Clarice, for defendants in error. '
   Judgment affirmed.


text:
    No. 6332.
    Village of New Straitsville v. McGrath.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Perry county.

      John Ferguson and Thomas B. Williams, for plaintiff in error.

      Donahue, Spencer & Donahue, for defendant in error.
   Judgment affirmed.


text:
    No. 6342.
    Daggett v. Laws & Co.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Hamilton county.

      Robert S. Fulton, for plaintiff in error.

      Maxwell & Ramsey, for defendant in error.
   On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said Circuit Court be, and the same is hereby reversed for the reason that on view of the conversation appearing in the record as to the employment being for a year or by the year, the question is whether the employment was for a year or not should have been submitted to the jury under proper instructions from the court. And proceeding to render such judgment as the Circuit Court should have rendered, it is ordered and adjudged that the judgment of the court of common pleas be, and the same is rendered and a new trial granted, and this cause is remanded to the court of common pleas of Hamilton county for a new trial and such further proceedings as are authorized by law. It is further ordered and adjudged that the plaintiff in error recover from the defendant in error his costs in this court and in the circuit court.

Judgment reversed.


text:
    No. 6347.
    Tucker v. Haag.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Richland county.

      Jember, Jenner & Weldon, for plaintiff in error.

      Douglass <& Mengert, for defendant in error.
   Judgment affirmed.


text:
    No. 6353.
    Slack et al. v. Zanesville.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Muskingum county.

      Ij. E. Dodd and F. S. Gates, for plaintiffs in error.

      Charles G. Griffiths, City Solicitor, and Munson & 'Griffiths, for defendants in error.
   Judgment affirmed.


text:
    No. 6680.
    In re Frank E. Dellenbaugh ex parte.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      John G}. White; Alex. Hadden; A. T. Hills; E. J. "Blandin and William B. Sanders, .prosecuting committee.

      W. W. Boynton; T. H. Hogsett; O. E. Penneioell and Burke & Ingersoils, for petitioner.
   Judgment affirmed.

Davis, J., dissents.


text:
    No. 6026.
    Wires v. Craig et al.
    (Decided May 1, 1900.)
    Error to the Circuit Court of Guernsey county.

      J. B. Ferguson, for plaintiff in error.

      John F. Stookdale, for defendants in error.
   Judgment affirmed.


text:
    No. 6341.
    Jackson et al. v. Bayman et al.
    (Decided May 1, 1900.)
    Error to the Circuit Court of Darke county.

      S. V. Hartman, for plaintiffs in error.

      Allread & Teegarden-, for defendants in error.
   Judgment reversed..

Shauck, C. J., and Minshall, J., dissent.


text:
    No. 6352.
    Roth v. Trustees of Firemen's Pension Fund.
    (Decided May 1, 1900.)
    Error to the Superior Court of Cincinnati.

      Ream & Ream, for plaintiff in error.

      ETlis G. Rinkead and John V. Campbell, for defendant in error.
   Judgment affirmed on the authority of Karb v. State ex rel., 54 Ohio St., 383.


text:
    No. 6369.
    Campbell, Trustee, v. Miner et al.
    (Decided May 1, 1900.)

      C. W. Baker, for plaintiff in error.

      R. B. Bowler; Earlan Cleveland and C. E. Schell, for defendants in error.
   Judgment affirmed on the authority of Monger v. Jeffries, 62 Ohio St., 149.


text:
    No. 6384.
    Wright, Exr., v. Wright.
    (Decided May 1, 1900.)
    Error to the Circuit Court of Fairfield county.

      Ewing '& Ewing and George E. Martin, for plaintiff in error.

      J. S. Sites and A. I. Vorys, for defendants in error.
   Judgment affirmed.


text:
    No. 6398.
    Bowman et al. v. Dukes.
    (Decided May 1, 1900.)
    Error to the Circuit Court of Hancock county.

      'George H. Phelps, for plaintiffs in error.

      Beecher W. Waltermire, for defendant in error.
   Judgment affirmed.


text:
    No. 6403.
    Shaw v. James, Trustee, et al.
    (Decided May 1. 1900.)
    Error to the Circuit Court of Allen county.

      Prophet é Eastman, for plaintiff in error.

      Ridenour & Halfhill, for defendants in error.
   Judgment affirmed.


text:
    No. 6410.
    Cincinnati Savings Society v. Rademacher Admr.
    (Decided May 1, 1900.)
    Error to the Circuit Court of Hamilton county.

      W. Austin Goodman, for plaintiff in error.

      Clement Bates, for defendant in error.
   Judgment affirmed.


text:
    No. 5422.
    Hunter, Admrx., v. Railway Company.
    (Decided May 1, 1900.)
    Error to the Circuit Court of Lucas county.

      Hurd, Brumbach & Thatcher and Orville S. Brumbach, for plaintiff in error.

      E. D. Potter and Thomas Emery, for defendant in error.
   Judgment affirmed.


text:
    No. 6601.
    Ott, Admrx., v. Railway Company.
    (Decided May 1, 1900.)
    Error to the Circuit Court of Lucas county.

      James & Beverstoch and Hurd, Brumbach & Thatcher, for plaintiff in error.

      E. D. Potter, for defendant in error.
   Judgment affirmed for reasons stated in opinion of the circuit court, 10 Circ. Dec., 85.


text:
    No. 6859.
    Smelker, Admrx., v. Meeker, Treas.
    (Decided May 1, 1900.)
    Error to the Circuit Court of Darke county.

      Allread & Teegarden and D. P. Irvin, for plaintiff in error.

      Anderson & Botoman, for defendant in error.
   Judgment affirmed.


text:
    No. 6066.
    Rathbone et al. v. Brosius.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Seneca county.

      Meek, Dudroio & Worst; Florence Gronise; W. 8. Wagner and John K. Rohn, for plaintiffs in error.

      George F). Seney, George E. Schrobh and Milton Saylor, for defendant in error.
   Judgment affirmed.


text:
    No. 6062.
    Lehman v. Townsend et al.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Stark county.

      Thayer, Webber & Turner and H. L. Peeke, for plaintiff in error.

      W. H. Smith, for defendants in error.
   Judgment affirmed.


text:
    No. 6351.
    Buchanan et al. v. Thompson Mfg. Co. et al.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Hamilton county.

      Gobb <& Howard, for plaintiffs in error.

      Foraker, Outcalt, Granger & Prior, for defendants in error.
   Judgment affirmed.


text:
    No. 6421.
    Findlay v. O’Harrow, Admr.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Hancock county.

      Marion G. Foster, City Solicitor; W. F. Duncan and G. W. Boss, for plaintiff in error.

      John Poe; F. T. Dunn and George F. Pendleton, for defendant in error.
   Judgment affirmed.


text:
    No. 6425.
    Railroad Company v. McGavin.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Mahoning county.

      Mine & Clarke, for plaintiff in error.

      Moore & McNamara, for defendant in error.
   Judgment affirmed.


text:
    No. 6430.
    McDonald et al. v. Pieratt et al.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Preble county.

      Millikin, Bhotts cG Millikin; J. A cG C. B. Gilmore and Bobert Miller, for plaintiffs in error.

      Bisinger & Bisinger and W. A. Neal, for defendants in error.
   Judgment affirmed


text:
    No. 6431.
    McDonald et al. v. Kopp et al.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Preble county.

      Millikin, Shotts é Millikin; J. A. & C. B. Gilmore and Robert Miller for plaintiffs in error.
    . Risinger & Risinger and IF. A. Neal, for defendants in error.
   Judgment affirmed.


text:
    No. 6434.
    Healea, Assignee, v. People's Building and Loan Co.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Tuscarawas county.

      Neely é Patrick, for plaintiff in error.

      D. A. Hollingsworth and J. P. Greene, for defendant in error.
   Judgment affirmed.


text:
    No. 6436.
    Davison, Treas., v. Spitler.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Darke county.

      Elliott & Ghenoweth and A. O. Robeson, for plaintiff in error.
   Judgment vacated and cause remanded to the circuit court with direction to consider bill of . exceptions.


text:
    No. 6442.
    Murphy v. Village of Paulding et al.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Paulding county.

      Seiclers, Beiders & Waters, for plaintiff in error.

      Snook & Wilcox, for defendants in error.
   Judgment reversed and judgment for plaintiff in error on authority of Birdseye et al. v. Village of Clyde et al., 61 Ohio St., 27.


text:
    No. 6443.
    Harper et al. v. Village of Paulding et al.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Paulding county.

      Beiders, Beiders & Waters, for plaintiffs in error.

      Snook & Wilcox, for defendants in error.
   Judgment reversed and judgment for plaintiffs in error on authority of Birdseye et al. v. Village of Clyde et al., 61 Ohio St., 27.


text:
    No. 6462.
    Reinoehl, Admr., v. Walter, Admr.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Stark county.

      D. F. Reinoehl, for plaintiff in error.

      William McMillen, for defendant in error.
   Judgment affirmed.


text:
    No. 6481.
    Bennignus v. Biggert et al.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Franklin county.

      George D. Jones and O. T. Clark, for plaintiff in error.
   Judgment reversed and judgment for plaintiff in error.


text:
    No. 6648.
    Village of Norwood et al v. Arnold.
    (Decided May 8, 1900.)
    Error to the Circuit Court of- Hamilton county.

      William R. Collins, for plaintiffs in error.

      Oliver B. Jones, for defendant in error.
   Judgment affirmed on authority of Railway Co. v. Cincinnati, 62 Ohio St., 465, and Norwood v. Baker, 172 U. S., 269.


author: Davis, J.

text:
    Crowe v. Riley.

      Lease is assignable, when — Covenant in lease with restriction as to sale of liquor on premises runs with land — Breach by sub-tenant of assignee- worhs breach as between assignee and original lessor — Record of sale of property, competent evidence, when.

    1. A lease to a person and his heirs, executors and administrators, and containing no restriction against assignment thereof, is assignable.
    2. A covenant in a lease that if liquor shall be sold on the demised premises, the business shall be conducted strictly according to law, is a covenant running with the land; and a breach of this covenant by a sub-tenant of an assignee of the lease, is as between the assignee and the original lessor, a breach by the assignee.

      3. Upon the trial of an action by the lessor against the assignee, for a breach of such covenant, in which the plaintiff alleged a breach of such covenant by the assignee, through his subtenant, and that in an action founded thereon, for the sale of the demised premises to satisfy a judgment for the sale of liquors contrary to law, the assignee being a party thereto, and being served with summons, and not answering therein, the said premises were so sold, the record of the action in. which such sale was made is competent evidence.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Trumbull county.
    In the court of common pleas the jury was instructed to render a verdict for the defendant which was done, and this, with tbe refusal of the court to admit record evidence offered by the plaintiff, was alleged as error in the circuit court. The circuit court reversed the judgment of the common pleas for those errors. The facts are sufficiently stated in the opinion.

      E. B. Taylor; T. E. Gillmer and W. E. Smiley, for plaintiff in error.
    The judgment against Walsh was a lien on Walsh’s real estate if he had any, but not on Riley’s. Bellinger v. Griffith et al., 23 Ohio St., 619. But by statute the premises on which the class of wrongs under consideration is done, are liable to be subjected to any judgment recovered on account of the wrong, and this action of Whittaker v. Riley et al., was brought solely to fix this liability, and incidentally to adjust the priority of liens.
    This liability does not depend upon the knowledge ' of the owner of the premises that intoxicating liquors are sold by the lessee in violation of law, or upon the owner’s knowledge that such liquors are sold. Mullen v. Peck et al., 49 Ohio St., 447.

      How then does the record of Whittaker v. Riley et al., become competent evidence against Crowe in the suit of Riley against him. If admitted it would furnish proof that Crowe had no lien on said premises, no interest in them; that a judgment existed in favor of Whittaker v. Walsh which was charged upon Mary Riley’s land, and that said land was sold by the sheriff to satisfy the judgment.
    All this, however, was admitted by the answer of plaintiff in error.
    There was then no error in refusing to receive that record, even though it might have been competent for certain limited purposes, had the pleadings presented different issues — that is, had the answer denied the existence of the judgment and so forth.
    It seems to us that under the evidence submitted the plaintiff had no case, and the direction given the jury by the court to return a verdict for the defendant below was entirely correct, and the court’s duty would have been the same had said rejected record been admitted. No evidence was given in support of plaintiff’s averments that Walsh sold intoxicating liquors to Whittaker, lawfully or unlawfully, or that Crowe permitted Walsh to sell in violation of law, or that Crowe knew that Walsh did so, nor in support of any essential allegation of the petition upon which this ease was tried below, if indeed there are essential allegations in it, which we most seriously doubt.
    There is at common law no such privity of estate between owner and tenant as would make the owner liable for a wrong done a third party by the tenant, or for civil obligations assumed by the tenant. The section of the statute, 4364, which is invoked by the plaintiff below is powerless in the premises. It gives no rights and creates no liabilities, beyond its terms and purpose. Aside from the innovations it expressly defines, it made no changes in existing law.
    By that section of the statute real estate may be made subject to the payment of judicially ascertained damages resulting from the unlawful sale of intoxicating liquor, whether such sale is made by owner, or by the first or subsequent lessees. It goes ño further. It makes no change in the law of evidence. In no other respect does it enlarge the effect of a judgment.
    The plaintiff in error, Crowe, was not a party to the judgment or to the action of Whittaker v. Walsh. That judgment is a finality as to Walsh, but not as to Crowe. It may have been obtained by collusion or misapprehension of facts. Crowe is entitled to his day in court, and has the right to contest any allegation of fact that does or may affect him.

      Charles Fillius and J. Y. Coioclery, for defendant in error.
    The plaintiff in order to establish her claim to relief must show that by some act of her tenant, Crowe, she lost her property in the manner stated in her petition. To do this, she must show that Walsh, tenant of Crowe, sold liquor unlawfully to Mrs. Whittaker’s husband, for which a judgment was recovered. It became unnecessary to offer the record of this judgment, for it was admitted. By Crowe’s acts, for his tenant’s act was his act, such consequences followed that not only was Crowe’s estate in said premises sold, but Mrs. Riley’s also. Whatever was sufficient to subject Crowe’s interest in the premises was equally sufficient to divest Mrs. Riley of her estate therein. The record of this proceeding was competent therefore to establish itself as a fact and its legal consequences, and how the premises came to be sold. 3. Cow and Hills Notes, pages 817, 821.

      Crowe was bound by the judgment in the case of Whittaker v. Walsh to the same extent that Mrs. Peck was bound by the judgment of Mrs. Mullens against George Clements. Mullen v. Peck, 49 Ohio St., 447.
    Much more then also should he be concluded as to every fact necessary to be found in order to the validity of the judgment in the case of Whittaker v. Riley et al., for he was a party to it. He it was who sold the liquor, for it was done by his tenant and. therefore the same as is done by himself. Taylor, Landlord and Tenant, Sec. 444, page 345; Canaan v. Greenwoods Turnpike Co., 1 Conn., 7; Coit v. Tracy, 8 Conn., 268; Southern Pac. Ry., Co. v. United States, 168 U. S., 1.
    If it were necessary to do so in order to sustain the* claim of the compentency of this record, appeal might be made to the well established rule that the record: of the judgment in a case where a purchaser of real' estate has been evicted therefrom by the owner of the paramount title, is always competent in a proceeding afterwards instituted by the person evicted: against his grantor upon the covenants of warranty-in the deed.
    So, too, the sureties on the bond of guardians and! administrators are concluded by their settlements and! will not be heard, in the absence of fraud and collusion, to question their correctness or to demand a rehearing of the accounts. Braiden v. Mercer, 44 Ohio St., 339.
    Scott had the right to sell and assign the lease from Mrs. Riley, though the word “assigns” was not used in the lease, there being in the lease no express prohibition against its transfer. Murray v. Harway, 56 N. Y., 3337; Sutliff v. Atwood, 15 Ohio St., 186; Esty v. Baker, 48 Me., 495; Taylor, Landlord & Tenant, Sec. 108; Cockson v. Cock, Croke, J., 125; Verplanck v. Wright, 23 Wend., 506.
    In this case, it is evident, from the manner in which the lease was drawn, its terms and its erasures, that the parties to it intended the lease might he assigned. It is a general principle applicable to all instruments that whatever may be fairly implied from the terms or language of an instrument is, in judgment of law, contained in it. Rogers v. Kneeland, 10 Wend., 219.
    The fact that this lease was assigned by Scott to Crowe in the first instance for the purpose of securing a debt, does not differentiate it from an absolute assignment; for upon default of payment of the debt, it has the same effect, possession being taken, as an absolute assignment. Engles v. McKinley, 5 Cal., 153; 12 Am. & Eng. C., 717 note.
    A lease, which does not run to the lessee and his assigns, may, nevertheless as shown above, be assigned ; and when it is, the assignee of the lessee takes it subject to perform all those covenants contained in it which run with the land. 5 Coke Rep., Vol. 3, page 24; Armstrong v. Wheeler, 9 Con., 88; Patten v. Deshon, 1 Gray 329; Stewart v. R. R. Co., 102 N. Y., 601; Taylor, Landlord & Tenant, Sec. 449; Minshall v. Oaks, 2 H. & N., 793; Masury v. Southworth, 9 Ohio St., 340; Taylor L. & T., Sec. 109; Norman v. Wells, 17 Wend., 149.
    It then becomes necessary to inquire what is a covenant running with the land, in order to ascertain what, if any, covenants in this lease do so run with the land as to bind Crowe the assignee thereof. Taylor, L. & T., Sec. 260; Williams, Real Property, 379; Tiedeman, Real Property, Sec. 190; 19 Am. & Eng. Ency. Law, 988; 2 Washburn, Real Property, 4 Ed., 286, 287; 19 Am. & Eng. Ency. Law, 974.

      It is obvious that the use of the word “land” in these definitions arises from the fact that it but follows the use of the same word in the thing defined. That it refers all the while, nevertheless, to the nature, character, extent, limitations and burdens upon the estate that one has in the land, is obvious from the fact that among the more usual covenants which run with the land are those against “waste,” for “quiet enjoyment,” “payment of taxes,” “renewal of lease,” “leaving possession peaceably,” “the kind of business that may be carried on on the premises,” “payment of rent,” etc. Tiedeman on Real Property, Sec. 190.
    A covenant not to do an unlawful thing may be one running with the land. Clement v. Burtis, 121 N. Y., 708.
    In the case last cited, the covenant Avas not to carry on any business which shall or may cause or become a nuisance to other OAvners of land contiguous thereto.
    The books are full of cases where covenants not to do a particular business upon the demised premises, are covenants running with the land. 1 Smith’s Leading Case, 136; Mayor of Coughton v. Patterson, 10 East, 136; Taylor L. & T., Sec. 262; 4 Am. & Eng. Ency. Law, 489 and Note; Barrow v. Richards, 8 Paige’s Ch., 351, 353; Post v. Weil, 115 N. Y., 361, Hall v. Sreom, L. R., 37 Ch. D., 74.
    A covenant by a grantee not to sell liquor on the premises extends to his assignee, though not named. In re Snyder’s License, Am. Digest 1894, pg. 1082; 11 Am. & Eng. Ency. Law, 653.
    Thus it appears that Covenant runs with the land when it concerns the estate; when it relates to its preservation; when it enters into the consideration for which the lease was made; when its violation might, as in this case, disinherit the reversioner.

      All of the covenants in the lease are such as ordinarily and usually run with the land and are therefore binding, as appears from the above authorities, upon the assignee of the lease, Crowe. He, himself, violated every one of these several covenants, the performance of every one of which was intended to secure the preservation of the estate and necessary to its preservation. The lease did not expressly prohibit the use of the premises for the sale of intoxicating liquors. The assignee, Crowe, had the right to use the premises for any lawful purpose and Mrs. Riley was powerless to prevent him from so using them, and among these lawful uses was that of their use for the sale of intoxicating liquors thereon. Goodall v. Gerke Brewing Co., 56 Ohio St., 257. Weitzel v. Slavin et al., 7 C. D., 155.
    Again, the particular use to which Crowe put these premises by which they were sold and lost as stated* was waste. There is a particular covenant against waste in this lease; but if it should be said that the words used in the lease do not amount to an express covenant against waste, then we contend that every lease, if there is no express covenant in it against waste, contains such a covenant by implication. U. S. v. Bostwick, 94 U. S. 53.
    And “There is no difference between express and implied covenants with respect to their running with the land.” Taylor, L. & T., 26.1, page 201; Rapalge Law Diet. Title, “Waste.”
    Again it has been further defined to be “the disherison of the remainderman or reversioner.” Livingstone v. Reynolds, 26 Wend., 122.
    Disherison is defined to be “Disinheriting and depriving or putting out of an inheritance.” Burrill's Law Diet. Wade v. Malloy, 16 Hun., 229; Taylor, L. & T., Sec. 444, page 345; Cook v. Transportation Co., 1 Denio, 104.
   Davis, J.

The defendant in error made a lease for certain premises to one Scott “and his heirs, executors and administrators.” The lease contained no restriction against assignment thereof, and it was, therefore, assignable. The lessee assigned the lease to the plaintiff in error as security for a debt, with a condition that if the debt should not be paid in six months the assignment should become absolute. The debt was. not so paid and the plaintiff in error took possession of the premises under the assignment, and thereby became the tenant of the defendant in error, and as such paid to her the rent for the leased premises. The plaintiff in error sublet to one Walsh the premises described in the lease, which lease had been assigned to the plaintiff, with a condition that no liquor should be sold on the premises in violation of law. There being no privity of estate or of contract between Walsh and the original lessor, the defendant in error, the latter could maintain no action against him upon the covenants in the original lease. Her right of action, if any, was solely against the assignee, that is, the plaintiff in error. Taylor, Landlord and Tenant (8th ed.), Section 16.

The lease contained a covenant as follows: “That if liquor shall be sold therein the business shall he conducted strictly according to law, and all taxes paid.” This stipulation is an essential condition of the original contract, and the burden of it was consequently imposed upon the assignee with the estate which he acquired by the assignment of the lease. In other words, it is a covenant running with the land. Therefore, when Walsh, the subtenant of the plaintiff in error, violated this covenant, it was a violation by the plaintiff in error, as between him and the original lessor; and the latter had a good cause of action against the plaintiff in error.

On the trial of this case in the court of common pleas, every essential fact charged in the amended petition was admitted by the defendant, except the allegations that Walsh sold intoxicating liquors in violation of law to Whittaker, and “all allegations in relation to such sale in said amended petition contained” were expressly denied. It was, in substance, alleged in the amended petition that while Walsh was in possession of the demised premises, as the tenant of the plaintiff in error, he sold liquors to Whittaker in violation of law; that Whittaker’s wife obtained a judgment therefor, and afterwards brought an action in the court of common pleas, against the defendant in error as the owner of the premises where the liquors were sold, the plaintiff in error as the assignee of the lease, and certain lienholders, alleging said judgment and praying for the sale of said premises to satisfy the same; and that the same were accordingly sold under order of the court in that case. These állegations were put in issue; for they were all “allegations in relation to such sale,” and as such were denied by the answer. On the issue thus made there could be no better, nor more conclusive, evidence, than the record which was offered by the defendant in error, and which showed, among other things, that the plaintiff in error had been served with summons and had appeared in the action by an answer which was withdrawn by leave of the court, and that the case had been submitted to the court, the plaintiff in error being in default for answer. The common pleas court committed an error in rejecting this evidence, which would have completed the proof of the plaintiff’s case, and therefore erred in giving judgment for the defendant when it ouglit to have rendered judgment for the plaintiff.

It may be added that the plaintiff in error could not defend himself in this action by alleging a want of that knowledge which he was bound to have by the conditions of his title; Mullen v. Peck et al., 49 Ohio St., 447, 459; nor by alleging knowledge, by the defendant in error, of Walsh’s violation of the law. As we have said, there was no privity between Walsh and the defendant in error. She had no authority over him, could not control his acts and could only look to the plaintiff in error for indemnity. The judgment of the circuit court is

Affirmed.


author: Speak, J.

text:
    Bates v. The State.

      Motion to wrrdst judgment — By defendant convicted of felony— Record, showing motion sustained, cannot he amended, when —Criminal law — Court practice.

    In a criminal case, where the defendant, convicted of a felony, has duly filed a motion in arrest of judgment, which the record shows was sustained by the court, it is not competent for the court, on motion of the state at the next term, to order the record of the previous term amended and made to show that the motion in arrest was not sustained, but was overruled by the court. And the making of such order is error.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    It appears by the record that at the April term, 1898, of the common pleas of Cuyahoga, the plaintiff in error, Harry Bates, was tried on an indictment charging him with a felony, and found guilty by the jury. Motion for a new trial was overruled and sentence to tlie penitentiary imposed. Thereupon, on July 2,1898, being a day of the said April term, a motion in arrest of judgment was duly filed by defendant,, which, with the cause, was continued until the next, term. On September 6, following, being a day of the.July term, the motion in arrest was heard and. granted. On November 4, following, being a day of the September term, a motion was filed by the-prosecuting attorney, to correct the record and make-it show that, instead of the motion in arrest having-been granted, the same was overruled by the court,, and that the court did grant to the defendant a right: to a rehearing of his motion for a new trial; and that, subsequently, at the same July term, said motion fora new trial was reheard and granted. This motion of the prosecuting attorney to correct the record wras heard at a later day of the September term and sustained, and the record ordered amended accordingly, to which defendant duly excepted. On error to the circuit court the ruling of the common pleas was af--firmed.

      Francis J. Wing and John F. Clark, for plaintiff in. error.

      T. L. Strimple, prosecuting attorney, for defendant, in error.
   Speak, J.

The question presented is whether or not, in a case of felony, the court has power to act upon and allow a motion to correct the record as to substance at a term subsequent to that at which the record is made. That there is such power in civil cases is matter of common knowledge. But it does not rest upon the discretion of the court, as does the power of the court over its own orders and judgments during the term,but is governed by settled principles to Avhich the action of the court must conform, AAdiich are defined by sections 5334 to 5365 of the Revised Statutes.

The power of a court to correct or amend its record in matter of substance after term seems to rest entirely upon statute. It did not exist at the common law, nor is it a power inherent in the court, the general rule being, as quaintly stated by Lord Coke, that “during the terme wherein any judicial act’ is done, the record remaineth in the brest of the judges of the court, and in their remembrance, and therefore the roll is alterable during that terme, as the judges shall direct; but when the terme is past, then the record is in the roll, and admitteth no alteration, averment, or proofe to the contrarie.” Wray v. Lifter, 2 Strang., 1110; Ellison v. Ellison, T. Raym., 39; Coke on Litt., 260 a; Cameron v. McRoberts, 3 Wheat., U. S., 591; Bank v. Moss, 6 How., U. S., 31; Basset v. United States, 9 Wall, U. S., 38; Brush v. Robbins, 3 McLean, 486; Commonwealth v. Mayloy, 57 Pa. St., 291; Bishop Crim. Pro., section 1298. The rule above stated is recognized in early Ohio cases. It is held in Botkin v. Comrs., 1 Ohio, 375, that “a final judgment is not amendable at a subsequent term, except in matter of form.” See, also, McVickar v. Ludlow, 2 Ohio, 246; Critchfield. v. Porter, 3 Ohio, 519, 524; Landon v. Reid, 10 Ohio, 202, 204; Lee v. The State, 32 Ohio St., 113. And obtains in other states. Harpending v. Wylie, 14 Bush.,380; Aetna L. I. Co. v. McCormick, 20 Wis., 265. The rule is specially applied to criminal cases in Commonwealth v. Maytoy, supra; State v. Phelan, 9 Baxter (Tenn.), 241; State v. Alphin, 81 N. C., 566; McCarthy v. The State, 56 Miss., 294.

Criminal procedure in this state is regulated by Title 2, of the penal statutes, sections 7106 to 7367, inclusive. They are codifications of parts of the criminal code adopted in 1866, by an act entitled “An Act to establish a code of criminal procedure.” No power is given the court by any of these sections to correct its record after the term, and it would follow that, inasmuch as the power does not exist at common law, and is not a power inherent in the court, it does not exist at all in Ohio, at least as to substantial changes, unless the sections relating to procedure in civil cases, heretofore-cited, apply to criminal cases.

It is our belief that those sections do not so apply. Their provisions formed part of the original code of civil procedure, and the portions of the old code reproduced in our present Revised Statutes, being Title 1 thereof, are, by their terms, applicable only to civil actions. The act establishing the code is entitled “An Act to establish a code of civil procedure.” The third section (now section 4971) provides that “there shall be hereafter but one form of action, which shall be called a civil action. ’ ’ The subsequent sections are consistent with the purpose expressed in the title and are inconsistent with an intent to apply their provisions to criminal procedure. It is possible that interpolations may have been made here and there, by amendments which imply a purpose to include all actions within the terms of the amendment, but no such purpose is expressed generally, nor has there been any change in the text relating to the vacating or modification of judgments or orders after term from which any such purpose can be inferred. It is possible, also, that methods of procedure during trial, directed in the civil code, have been applied by analogy to criminal trials where no provision had been made in the criminal code, but that practice cannot affect the present question.

In many respects the rigidity of the rules regulating criminal trials has been relaxed by statute, but we think it has not been in this regard. The order requiring the record to be corrected so as to show that the motion in arrest was overruled instead of sustained, as appears of record, was in matter of substance. It affected a substantial right of the defendant, and was greatly prejudicial to him, inasmuch as it deprived him of the advantage given by section 7355, Revised Statutes, viz.: to be placed in the same position he was in before the indictment was found. We think the court was without power, at the September term, to make the order.

It follows that the judgments of both courts will be reversed and the cause remanded to the court of common pleas with direction to proceed as provided in the section above cited.

Reversed.


author: Burket, J.

text:
    Collins v. Parker et al.

      Justice of peace — Jurisdiction of — Justice in default of payment funds in official capacity — Uot within jurisdiction of another justice — Action lies with common pleas court.

    "Where a justice of the peace has refused or neglected to pay oyer money collected in his official capacity, in a sum not exceeding one hundred dollars, another justice of the peace oí the same county has no jurisdiction of an action on his official bond against such defaulting justice and the sureties on such bond, for the recovery of such money. The court of common plea? of the proper county has original jurisdiction of such action.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Lucas county.
    John Parker was a duly elected and qualified justice of the peace in Lucas county, and he collected thirty-five dollars on a judgment which had been rendered on his docket, and refused and neglected, upon proper demand, to pay the money over to the party entitled thereto, Joseph P. Collins. Thereupon Mr. Collins brought action against said John Parker and the two sureties on his official bond, before another justice of the peace in the same county, for the recovery of the money, and attached a copy of the bond to his bill of particulars. A motion was made to dismiss the action for the reason that the justice of the peace did not have jurisdiction of the subject matter of the action. The motion was overruled and exceptions taken, and thereupon judgment was rendered against the three defendants for the amount claimed with interest and costs.
    The defendants before the justice of the peace filed liheir petition in error in the court of common pleas, seeking to reverse the judgment so rendered against them. The common pleas affirmed the judgment. Upon a petition in error the circuit court reversed the judgment of the common pleas, and remanded the case to that court with instructions to reverse the judgment of the justice of the peace, and dismiss the action for the reason that he had no jurisdiction of the subject matter. Thereupon Mr. Collins filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and for an affirmance of the judgment of the common pleas.

      Longwell & Ramsey, for plaintiff in error.

      Frank M. Sala and B. F. Reno, for defendants, in error.
   Burket, J.

The parts of the statutes applicable to the question of jurisdiction of the justice of the peace in this case are as follows:

Section 5S5. “Under the restrictions and limitations herein provided, justices of the peace shall have exclusive original jurisdiction of any sum not exceeding one hundred dollars.”
Section 583. “Justices of the peace within and coextensive with their respective counties shall have jurisdiction and authority. * * *
“9. To proceed against constables failing to make return, making false return, or failing to pay over money collected on execution issued by such justice. * * *
“12. To try actions against other justices of the peace for refusing or neglecting to pay over .moneys collected in their official capacity, where the amount claimed does not exceed one hundred dollars; but nothing in this clause shall be held to deny or impair any remedy provided by law in such case by suit on the official bond of such justice of the peace, or by amercement or otherwise, for such neglect or failure to pay over money collected as aforesaid.”

Sec. 591. “Justices shall not have cognizance of any action:

1. To recover damages for an assault, or assault, and battery; or,
2. In an action for malicious prosecution; or,
3. In actions against justices of the peace or other officers, for misconduct in office, except in the cases provided for in this chapter.”

While the proceeding against constables for failing to make return, making false return, or failing to pay over money collected on execution issued by such justice, and actions against other justices of the peace for refusing or neglecting to pay over money collected in their official capacity, are not designated in these-statutes as “misconduct in office,” they are the only cases to which the exception in part three of section 591 can apply, and therefore they must be held and regarded as the “misconduct in office” covered by the exception, and as to which a justice of the peace has jurisdiction. Other misconduct in office is withdrawn from the jurisdiction of the justice of the peace.

It is altogether clear that before the addition of subdivision 12, to section 583, 70 O. L., 79, a justice of the peace had no jurisdiction against another justice for refusing or neglecting to pay over money collected in his official capacity. This is conceded by counsel for plaintiff in error, in the brief filed in this case.

The jurisdiction of justices of the peace was by subdivision 12 of section 583, extended only to actions, against other justices of the peace for refusing or neglecting to pay over money collected in their official capacity, and to no other hind of action, and to no other kind of misconduct in office. While the amendment to the statute extended the jurisdiction, it at the same time, limited that extension. The jurisdiction conferred is not general to all forms of action growing out of failing or neglecting to pay over money collected in his official capacity, but is special and confined to the words of the statute, that is to try actions against other justices of the peace, not against other justices and their bondsmen; to try actions against other justices for refusing or neglecting to pay over money collected in their official capacity, not to enforce the obligation of an official bond against them and their sureties, nor to collect money by amercement, which they have refused or neglected to pay over. The only action which this amendment authorizes is an action against the justice of the peace individually for the money which he has collected in his official capacity and refused or neglected to pay over.

The action before the justice of the peace in the. case at bar was not of that character. It was an action against the justice and his two bondsmen jointly on his official bond, and was not within the letter or scope of the statute. It was not within the “misconduct in office” covered by the exception in subdivision three of section 591, and was therefore included within the “misconduct in office” of which a justice of the peace by the terms of that section has no jurisdiction.

Where a justice of the peace has collected money in his official capacity, not exceeding one hundred dollars, and refused or neglected to pay it over, the party entitled thereto may bring his action against such justice individually before another justice of the peace; or he may proceed by amercement against such justice .individually in the probate court; or he may bring an action against such justice and his bondsmen on his official bond in the court of common pleas, and there may perhaps be other remedies, but not the remedy of bringing an action on the official bond against him and his sureties before another justice of the peace.

The jurisdiction of a justice of the peace in actions on the official bond of another justice of the peace being taken away by said section 591, and not restored by section 583, even though the amount is less than one hundred dollars, it follows that jurisdiction is conferred in such cases upon the court of common pleas by section 456, Revised Statutes, which provides: “The court of common pleas shall have original jurisdiction in all civil cases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace.” In actions on official bonds for less than one hundred dollars it is not the sum but the matter in dispute that exceeds the exclusive original jurisdiction of justices of the peace; just as in actions for assault, assault and battery, malicious prosecution, libel or slander, for sums not exceeding one hundred dollars, it is no.t the sum but the matter in dispute, that exceeds the exclusive original jurisdiction of justices of the peace. In all cases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace, the jurisdiction devolves upon the court of common pleas, or some other court. Ford v. Parker, 4 Ohio St., 576.

It is therefore clear that the justice of the peace had no jurisdiction of the subject matter in the case at bar, and that the circuit court was right in reversing the judgment.

The same conclusion is reached by another course of reasoning.

The “misconduct in office” embraced in the exception in subdivision three of section 591, and for which actions may be prosecuted before a justice of the peace, are those cases provided'for in the 9 th and 12th subdivisions of section 583, viz.: proceedings against a constable for “failing to make return, making false return, or failing to pay over money collected on execution issued by such justice,” and “actions against other justices of the peace for refusing or neglecting to pay over moneys collected in their official capacity.” For the above named misconduct in office a justice of the peace has jurisdiction to afford a remedy by action against such officer. If such remedy may consist, in any one of such cases, of an action upon the official bond of such officer, the same remedy may be invoked in all such cases; and if an action on the official bond of such officer is not within the jurisdiction of a justice of the peace, as a remedy for such misconduct in office, in any one of said cases, then he has jurisdiction in none of said cases. The remedy by action upon the official bond for such misconduct in office must be applicable to all or none of the above named cásea. They must all stand or fall together.

This court has decided in Hornbuckle v. State, 37 Ohio St., 361, that a justice of the peace has no jurisdiction of an action on the official bond of a constable, as a remedy for misconduct in office, when such misconduct consists of making a false return. Having no jurisdiction in an action on an official bond, when the misconduct consists of making a false return, it follows that he has no jurisdiction in such action when the misconduct consists of failing to make return, or failing to pay over money collected on execution, or for refusing or neglecting to pay over money collected in his official capacity by a justice of the peace.

But it is urged that the words in .the 9th subdivision of section 583, “To proceed against constables,” etc., does not mean to proceed by action, as is the case in subdivision 12 against justices of the peace, and that the proceeding against a constable under said subdivision 9, is in the nature of a proceeding against the constable alone for amercement. We do not concur in the whole of this view. The proceeding against the constable is against him alone, not by or in the nature of amercement, but by action for the recovery of damages and a penalty of ten per cent, thereon. There is no statute authorizing a justice of the peace to amerce a constable. Section 6473, Revised Statutes, provides that, “Actions before justices of the peace are commenced by summons, or by the appearance and agreement of the parties without summons.” Section 6526 provides that, “In all cases before a justice, .the plaintiff, his agent or attorney, shall file with such justice a bill of the particulars of his demand.” To recover the damages and penalty against a constable under section 6698, Revised Statutes, a bill of particulars must be filed and a summons issued, and the proceeding thus commenced will be an “action” as designated iii said section 6473, and in case an appeal should be taken to the court of common pleas, it would in that event be a civil action as provided in section 4971, Revised Statutes. “There shall be but one form of action, which shall be known as a civil action.” The word “proceed” in said subdivision 9, and the word “action,” in subdivision 12, are in legal effect one and the same thing, an action before a justice of the peace.

The justice of the peace did not have jurisdiction of •the case by virtue of section 585, because the jurisdiction conferred by that section is restricted and limited by section 591, and the exception in the last named section does not include an action upon an official bond, and does not bring such action within the exclusive original jurisdiction of a justice of the peace.

Judgment affirmed.