source: Caselaw Access Project

author: Bowen, J.

license: Public Domain

text:
    Nahum Ward v. The Marietta and Newport Turnpike and Bridge Company
    Where an incorporated company has, by its charter, authority to construct a road between given points, and to appropriate land to the width of sixty feet over which to locate the same, and, when finished, to charge and collect tolls from travelers who pass over it: Held—
    1. That after the company has made such an appropriation of land for the purpose of its road, and freeholders have, .in accordance with the provisions of the charter, ascertained and determined the owner’s damage, it may, within the sixty feet of ground used for the road, build a toll-house and dig a well for the accommodation of the toll-gatherer.
    .2. Whether the freeholders, in assessing damages to the land-owner, formed erroneous conclusions as to the extent of his injury, by failing to estimate the detriment which a toll-house and well might occasion, can not, in the absence of any showing in the record, of the basis of their award, be considered by this court.
    >5. If the freeholders appointed to determine the question of damages between the claimant and the company, fail to consider all of the items which may produce benefit or loss, or commit any mistake in rendering their award, whereby the owner of the land may be prejudiced, relief is not attainable for such failure or mistake, by action of trespass against the company.
    This is a petition in error to reverse the judgment of the district •court of Washington county.
    The plaintiff sued in trespass for an injury to his land. The -defendant plead not guilty, and gave notice of special matter in bar. The action was commenced in 1846.
    The defense set up in the notice and relied upon at the trial, was that the company had been authorized, by an act of the legislature, to construct a graded road from the corporation line of Marietta to -a point opposite the foot of Middle Island, at Newport, in the 16] county of Washington, *and, also, to erect bridges over Duck creek and Little Muskingum river; and that authority was given to said company to locate such road between said points, and to open the same not exceeding sixty feet wide, and to place toll-bridges over Duck creek and Little Muskingum river. The notice further sets forth that the defendant, acting under its charter, located its road across the plaintiff’s land, and, for that purpose, appropriated sixty feet in width of the same, and that the question -of damages had been referred to three freeholders, who, before the commencement of this suit, had ascertained and determined the plaintiff’s damage, as provided for in the charter of the company.
    At the April term of the district court the cause was submitted to the judges, and a judgment given for defendant.
    A bill of exceptions was tendered by the plaintiff, and allowed by the court. From this it appears that the defendant, after constructing its road and bridges, built a toll-house and dug a well within the sixty feet appropriated for the road. The house was erected near the bridge over Duck creek, and was used by the toll-gatherer and his family as a residence, and as a shop, where he sometimes worked at shoes. The well was near the building, and was used to furnish the family of the toll-gatherer with water.

      C. B. Goddard, for plaintiff.

      Wm. S. Nye, for defendant.
   Bowen, J.

The defendant, by its charter, is authorized to construct and employ a road and bridges for purposes of private gain, and has power conferred on it to “perform every act necessary to construct them.” This authority and power emanated from the legislature, and are sanctioned by the constitution in force at' the time of the enactment. *The principal question involved in [17 the case is, whether the defendant can, in the exercise of its right to locate its road over private property, do anything more than to make a road-bed and bridges over which travelers may pass? We think that something more than this is implied, if not expressed, in the grant of its franchise. It is authorized, in terms, “to erect gates at both of the bridges over Duck creek and Little Muskingum, and demand and receive from persons passing either of said bridges, tolls,” etc. Section 11 of the charter, Local Laws, vol. 36, p. 167. incident to the power to demand and receive tolls, is the authority to appoint agents; to provide tenements in which to shelter them from the weather; and to furnish and prepare for them such facilities for transacting that peculiar business of the company, at the place where it is required to be done, as may .be requisite and proper. This right of occupying the sixty feet in width of the land of others, was conferred for that among other purposes. The construction of a toll-house and the digging of a well to furnish water to those who, from necessity, must occupy it, is within the plain intendment of the charter. Any other structure, within the ■.sixty feet, and essential to the carrying out of the object sought by the corporators, and consonant with their charter, may, as an unavoidable and legitimate incident of the powers given them, be, at the option of defendant, placed within its road limits.

But it is urged by counsel for plaintiff, that although this rule may, in the main, be sanctioned by authority, yet the plaintiff, before he was required to yield the possession of his land for a toll-house and well, was entitled to remuneration in damages, for such use of it; that the freeholders who determined his damages did not take into the account anything for the obstruction occasioned 18] by the *toll-house; that their judgment was based on the injury which would be likely to result to plaintiff from the location .and construction of the road and bridges alone.

There is nothing in the record which discloses the principies or the items on which the freeholders made uj) their award. The application of plaintiff to the county commissioners for the appoint-' ment of viewers, sets forth that the defendant “ had run its road through his land in a manner that was very injurious to his interests.” The order of appointment made by the commissioners, directed the'freeholders to assess damages to plaintiff for the running of defendant’s road through his land. These freeholders, whose services were thus procured by plaintiff, decided that his premises were rendered more valuable by the location of the road, and •consequently they refused to report for him any compensation in money. Whether this was a faithful proceeding and a just conclusion of the freeholders, in their estimate of the plaintiff’s damages, ■or whether they omitted to consider all of the detriment which might accrue to him by reason of the premises., we have no means of knowing, and if we possessed such knowledge, we could not, in this proceeding, be controlled by it. If the plaintiff was injured by the erroneous conclusions of the freeholders, he should, in an•other form, have relieved himself from the consequences of their mistakes. The defendant lawfully acquired a right to enter upon and occupy the sixty feot of plaintiff’s ground 'for its road and bridges. It acquired, as incidental thereto, and inseparable therefrom, the further right of improving the land for all of the purposes embraced within the object of its incorporation. While the ■defendant, therefore, does not, in the use and management of its road, go beyond its prescribed boundaries of sixty feet, but con-19] fines itself within *these limits, and its operations and doings to wbat shall be strictly consistent with its creation, it will not be liable nor held to answer as a trespasser.

The judgment of the district court is affirmed.

Bartley, C. J., Swan, and Brinkerhoef, and Scott, J.J., concurred.


text:
    Jane Barrington, Administratrix de bonis non of R. R. Barrington, and others, v. Adam C. Alexander and others.
    "Where an administrator offers for sale at public auction the land of his intestate, for the purpose of raising money to pay the debts of the estate, and the same is struck off, at two-thirds of its appraisement, to G. and K., with the understanding on their parts that they are buying it for the benefit of the widow and children of the decedent, and on the day of such sale, and before confirmation, thereof by the court, the administrator executes a deed to one of the buyers, who is pecuniarily irresponsible, without authority from the other, and without assigning any reason for such act, and neglects to complete tbe contract of sale, by requiring the payment of one-third of the purchase money, and the making and delivering to him of notes and security for the other two-thirds in nine and eighteen months, according to the conditions of the sale, but after retaining the deed for six months, finally makes an agreement with the grantee named in it, by which the latter transfers to him the land, on condition that he take the place of G. and K. in reference to the sale, and pay the price by them bid for the land: Held—

    1. That the acquisition of property by the administrator, under such circumstances, creates suspicions that unfairness may have been practiced by him in the accomplishment of that purpose, is contrary to the policy of the law, is a violation of the trust reposed in him as a fiduciary, and may, for that reason, on the application of the cesiui que trusts, be set aside.
    2. But whether the administrator made use of artifice, or employed collusion to secure the property to himself, does not necessarily affect the determination of the case. To guard against the uncertainty and hazard of attempting to prove unfairness in him, the rule in such cases will permit the cestui que trusts to come into court, at their option, and, without showing actual • fraud or injury, insist, as of course, upon having the property resold.

      *3. The fiduciary relation of an administrator to the land of his intestate [190 is not terminated when it is struck off and declared sold at public auction, but continues until the title of the vendee becomes perfect, by the payment of the purchase money and the delivery of the proper deed of conveyance, whereby the title passes from the heirs of the estate, unincumbered by any charge in favor of the administrator or the estate arising out of the sale.
    4. When an administrator has enjoyed the use and occupation of real estate under a title derived from a sale made by himself, and for that reason void as to the heirs of the estate'he represents, an account of improvements made, and of rents received by or chargeable to such administrator, will be ordered to be taken, and out of the proceeds of the sale, any balance which may be found due to him will be first paid, and the residue retained ¡by the administratrix for the use of the estate.
    In chancery. Reserved in Mianii county.
    Adam C. Alexander was appointed administrator of R. R. Barrington in 1844. In 1846 he obtained an order to sell the house and lot of his intestate'to pay debts, representing in his petition that the personal property was insufficient for that purpose. The widow and heirs of Barrington were made defendants in the proceeding, but several of the latter were then, and still are, minors. An order was obtained to sell the premises for one-third of the purchase money in hand, one-third in nine, and one-third in eighteen months. On the 12th of October, 1846, the property was struck elf, at public vendue, to R. B. Gordon and J. W. Kyte, two sons-in-law of the deceased, for $967 — that being two-thirds of its appraised value. On the same day, and before confirmation of sale, Alexander made a deed of the premises to J. W. Kyte without exacting the first payment'or taking security for the deferred payments, although Kyte was irresponsible. On the 7th of April, 1847, no part of the purchase money having been paid, Kyté deeded the property back to the administrator. Alexander never delivered 191] to Kyte the deed made to him, but retained it in his possession until the above arrangement of the 7th of April. There are allegations in the bill that there was personal property enough to pay all debts, and that the object of the sale was to enable the administrator to get for himself the house and lot on speculation, and that he turned the widow and family out of possession as soon as he got the title. These and kindred allegations are denied by the answer. In December, 1851, Jane Barrington, one of the complainants, and the widow of R. R. Barrington, was appointed administratrix de •bonis non of her deceased husband; Alexander having, before that time, resigned the trust.
    This bill is filed by the widow and heirs of Barrington to set aside the sale of the premises made by Alexander, and to have the ■same re-sold.
    Gordon testifies that it was the understanding between him and Kyte that a claim against the estate in favor of Thomas Barrington, a son of the deceased, was to be received as payment on the house and lot, and the widow and minor children were tohave the benefits •of the property, and that they bid it in with the intention of having it for them; and afterward it was ascertained that the claim would not bo received. He does not know why the deed was made by Alexander to Kyte alone. Neither of them ever paid anything toward the land.
    Kyte gave two depositions in the case. On the 14th of July, 1853, his first deposition was taken by defendants. In this he states that he and Gordon found that they could not pay for the lot •and Gordon requested him to make a deed to Alexander, saying that he would assign his interest to Kyte, which has not been done. He also states that the understanding was that he and Gordon should bid off the lot, and if the heirs, wanted it, and paid back their money, they were to have it, and that he and Gordon understood that the widow was to remain in the house.
    *On the 22d of December, 1855, his second deposition was [192 taken at the instance of the complainants. On his cross-examination he was asked by the defendants’ counsel the following question:
    “Was not the sale by you to Alexander an after arrangement, made by the family of Mrs. Barrington, at her house in Piqua, yourself, Gordon, Mrs. Barrington, and other members of the family being present, and consenting and advising thereto?”
    To which he gave as answer that “ the sale was made under these ■circumstances, precisely: It was a family arrangement, made for .the benefit of the estate, and for the convenience of the widow and family. The family afterward, on full consultation, thought best, .as the property was much out of repair, to sell to Alexander.”

      George B. Holt and Hunter & McKinney, for complainants.

      I. H. Hart, for defendants.

      George B. Holt, for complainants,
    cited Lew. on Tr. 295; Ib. 288; Campbell v. Walker, 5 Ves. 681; Ex parte Lacy, 6 Ves. 626; Mason v. Royal, 12 Ves. 354; Lessee of Lazarus v. Bryson, 3 Binn. 54; Lessee of Moody v. Vandyke, 4 Binn. 43; Green v. Winters, 1 Johns. Ch. 26, 36; Howell v. Baker, 4 Johns. Ch.; Woodhouse v. Meredith, 1 Jac. & Walk. 204; 10 Ves. 381; Brackenridge v. Holland, Blackf. 377; Robinson v. Pelt, 3 P. Wms. 251, note A; Welsh et al v. Perkins et al., 8 Ohio, 52; Armstrong v. Houston’s Heirs, Ib. 552; Minchell v. Dunlap, 10 Ohio, 120; Glass v. Greathouse, 20 Ohio, 516.
   Bowen, J.

From what is shown by the pleadings and evidence in this case, there can be but little doubt that it was intended by Gordon 198] and Kyte, the two sons-in-law of Mrs. YBarrington, to obtain the family homestead for her and the minor children. That seems-to have been a leading object in effecting a sale through the administrator. The latter, though desirous of favoring a measure apparently proper and just, may nevertheless have had sufficient reason other than that to seek the order of sale. The actual condition of' the estate which he represented does not very clearly appear, either-as to the amount of debts due from it, or as to the assets in his-hands with which he could pay liabilities. A son of the deceased held a claim against his father’s estate, which it was understood' would be received by the administrator in part payment of the house and lot; and the sale accordingly took place, and the property was struck off to Gordon and Kyte. But when it was ascertained that this claim would not be taken by the administrator as part payment of the consideration money, Gordon declined to take the conveyance and make payment therefor, and Kyte was not able, pecuniarily, to-comply with the conditions of sale. The expedient, therefore, of substituting the administrator himself as purchaser, was, by his consent, adopted, and Gordon and Kyte released from their bid. Whether a design to acquire the property by this indirect method secretly actuated the administrator, we are. not prepared to decide. It is due to him to say, that the testimony.of the witnesses tends-very strongly to negative such design on his part. The rejection, however, by him, of Thomas Barrington’s claim as a payment upon the lot, naturally if not necessarily changed and defeated the plan of obtaining it for the widow and children. Gordon and Kyte did not want it for their own purposes. This the administrator most likely knew was the case, and if he wished to buy it himself, that act of rejection of the account would place him in a situation to-194] accomplish his purpose. When in this connection we *recur to the facts that the administrator, on the day of the sale to Gordon and Kyte, and before the court had passed upon his proceedings,. executed a’deed to Kyte, omitting the name of his co-purchaser; that no purchase money was exacted by him, nor offered by the vendees; that no notes to complete the terms of the sale were made -out and given to him; that the deed to Kyte was never delivered to him, and no request, for several months, made of him to accept it .and complete the contract of purchase; and then, upon a suggestion from the purchasers that they would prefer to have him take the lot off their hands, his ready compliance with such suggestion, and the acceptance of a deed from Kyte alone to himself, we are not without some ground of apprehension that Alexander may have been governed, or at least influenced, by interested motives in making the .sale of the real estate. He might have excluded all unfavorable inferences against himself by again offering the property for sale, after the failure of Gordon and Kyte to pay for it. The effort of Kyte, in his deposition, to make it appear that Alexander, in taking the contract to himself, was induced so to do by the consent of the widow and family, does not remove from his acts all apprehensions of unfaithfulness. There still hangs over his proceedings a mystery, incompatible with an open, fair, and straight forward course. The inquiring mind still demands a more satisfactory explanation of the course he pursued. That point is raised by Kyte late in the progress of the case. He had been examined by the defendant nearly two years and a half before, without alluding to any similar .arrangement to that afterward mentioned by him. Gordon made no mention of anything of the kind; nor does Alexander, in his answer, claim that any such arrangement was made. Kyte stands .alone in his pretended recollection of it. He'is, probably, mistaken as to what occurred. At *any rate, his statement, if true, [195 makes no case against the infant children of Barrington, who were incompetent to consent thereto; nor against the widow and other members of the family, because nothing definite was settled at that family meeting except that Kyte communicated the fact that ho •■could not raise the money to pay his proportion, when Gordon replied to him that they had better get Alexander to take the lot ■off their hands; and Kyte assented to it. The first deposition of Kyte, procured by the defendant, shows this to have been all that transpired at the time; and it is undoubtedly the same meeting mentioned by him in his second deposition. The claim of the administrator is not, by this evidence, strengthened in any important particular.

But whether there was, on the part of the administrator, any actual collusion or artifice employed to secure the property to him-1 self, need not essentially affect the determination 'of this case. He held a fiduciary relation to the estate of his intestate. The real estate belonging to it could by him be subjected to the payment of liabilities against the decedent in a particular manner, and upon well-defined conditions. For any other purpose he had no authority or power to divest the title to it. To guard the exercise of this-right from abuse, and to secure prudence and unbiased judgment-on the part of the administrator in the execution of this high trust, the policy of the law wisely prohibits him from deriving any gains from or interest in the land sold. He must sell to the highest bidder that ho can obtain, without becoming himself interested in such bidding. If the purchaser, to whom the land is struck off, fail to-comply with the terms of his purchase, the property should again be offered for sale. To permit the administrator to substitute-himself for a delinquent purchaser, would enable him to defeat all 196] genuine ^competition by receiving the bids of an irresponsible man, and afterward turn it to his own account by voluntarily-assuming the place of such bidder, and thus acquire any advantage which the ownership of the property may confer. This would be too dangerous a rule to govern administrators or any other class of trustees in the execution of powers over the trust property committed to their care. The fiduciary character of the administrator toward the land of the estate does not terminate as soon as ho makes a sale of it. He must obtain and hold securities for the payment of the purchase money. He may be required, in case of default of payment by the vendee, to inforce his securities against the land itself, and be compelled again to expose it to sale. This the statute provides for by authorizing credits to be given to purchasers at such sales of real estate, and mortgages to-be taken by the administrator on the same land sold. Until the title of the vendee to land sold him by an administrator has become-perfect by the payment of the consideration money, and the execution and delivery to him of a proper deed of conveyance, whereby the title passes from the heirs of the estate, unincumbered by any 'charge in favor of the administrator arising therefrom or pertaining thereto, and vests in the vendee, it can not with propriety be said that the administrator is absolved from his fiduciary office and duty over it. For all of the purposes above mentioned they must continue in full force, as well after the land is bid off at a public sale by a purchaser, as before. This principle, the correctness of which seems to us undeniable, is fatal to the right of Alexander to retain the property in controversy, although the sale to Gordon and Kyte may have been made bona fide.

This doctrine, so reasonable and just in its application to administrators, guardians, and all others clothed with the office, or in the performance of the duties of trustee, is well *settled by au- [197 thority. 1 Story’s Eq. Jurisp., secs. 321, 322, and cases cited by the author.

In Davoue v. Fanning, 2 Johns. Ch. 252, it was held that if a trustee, or person acting for others, sells the trust estate, and becomes himself interested in the purchase, the cestui que trusts are entitled, as of course, to have the purchase set aside,- and the property re-exposed to sale, under the direction of the court. And it makes no difference in the application of the rule that the sale was at public auction, bona fide, and for a fair price.

The case before the chancellor who announced this rule was a bill to set aside the sale of land, made by an executor to raise money to pay legacies, he pretending that the personal property was not sufficient to pay debts-and legacies. One of the legatees and the wife of the executor procured a third party to bid off the land within a limited price, for her benefit, and' in order to secure the estate to herself and children, independent of the husband. The chancellor thought that the fact that the executor was exercising the general powers of his trust for the benefit of his wife, was peculiarly calculated to touch and awaken the suggestions of self-interest. After examining the subject, and the cases relating to it, with what Judge Story calls “most exemplary diligence,” Chancellor Kent arrives at this conclusion, which he lays down as the.true rule to be observed, that, “ However innocent the purchase may be in the given case, it is poisonous in its consequences. The cestui que trust is not bound to prove, nor is the court bound to judge, that the trustee has made a bargain advantageous to himself. The fact may be so, and yet the party not have it in his power, distinctly and clearly, to show it. There may be fraud, and the party not able to prove it. It is to guard against this uncertainty and hazard of abuse, and to remove the trustee from temptation, that the rule does *and will permit the cestui que trust [198 to come, at his own option, and without showing actual injury, and insist upon having the experiment of another sale. This is a remedy which goes deep, and touches the very root of the evil.”

The cases of Welsh v. Perkins, 8 Ohio, 52; Armstrong v. Houston’s Heirs, Id. 552; Menchill v. Dunlap, 10 Ohio, 120; Glass v. Greathouse, 20 Ohio, 516; and Rodgers v. Rodgers, Hopk. Ch. 515, sustain very fully the same doctrine. In Armstrong v. Houston, 8 Ohio, it was held that an appraiser at an administrator’s sale, after the appraisement had been approved by the court, and he had no further connection with the case, was incapacitated to purchase; and the sale, for that reason was set aside. This case now under consideration presents," in our opinion, much stronger grounds for relief than existed in that.

An a'ccount between Barrington’s estate and Alexander, as to moneys received and disbursed by the latter as administrator, and also of improvements by him made on the lot, and of rents properly chargeable to him for the use and occupation of the same, may be taken; the property may again be appraised and sold, and out of the proceeds of the sale, Alexander to. be first paid the balance, if any, that may be found due to him, and the residue to be retained by the administratrix, for the use of the estate.

Decree accordingly.

Bartley, C. J., and Brinkerhoff and Scott, JJ., concurred.

Swan, J., dissented.


author: Bartley, C. J.

text:
    John Hobbs v. Margaret Beckwith.
    "Writ of certiorari to the district court of Knox county.
    The facts of the case are as follows :
    On the 9th of August, 1852, Margaret Beckwith, the defendant in certiorari, made a complaint in bastardy against John Hobbs, the plaintiff in certiorari, before a justice of the peace of Knox county. Proceedings were regularly had under said complaint, and at the November term, 1852, of Knox common pleas, a trial of said case was had, in which the jury failed to agree. The case was subsequently continued until the August term, 1853, at which Dime plaintiff in certiorari, on leave, withdrew his plea of “not guilty,” and filed a motion to dismiss the proceedings, assigning as cause therefor:
    1. That the complaint of the said Margaret is not within the statute.
    2. That the said Margaret having made complaint, in accordance with the provisions of the statute, against G-. *W. Stahl, as [-253 the father of her bastard, she is estopped from making complaint igainst John Hobbs, as the father of the same child.

      In support of this motion, counsel for plaintiff in certiorari gave In evidence the complaint made by the said Margaret Beckwith "before Justice Cochran, on the 7th day of August, 1852, charging •George W. Stahl to be the father of her child, and also sundry •depositions.
    To resist this motion the said Margaret gave in evidence her .•affidavit, made on the 9th of August, 1852, before Justice Cotton, charging said Hobbs as being the father of said child, the examination thereunder, and also sundry depositions.
    It was also admitted, on the hearing of the motion, that the affidavit against Stahl was left in possession of the attorney for .the defendant in certiorari, immediately upion its being made, to ■enable him to settle said complaint, if practicable, and continued in his possession, and no proceedings of any kind were ever had •upon said accusation against said Stahl.
    The motion to dismiss was overruled; whereupon, plaintiff in ■certiorari excepted to the ruling and judgment of the court, and removed the case, upon certiorari, to the district court of Knox ■county, and at the May term, 1855, of said court, the case was again heard, and the judgment of the common pleas affirmed. The plaintiff now brings the case into this court, a certiorari having been allowed by one of the judges thereof during vacation.

      Samuel Israel, for plaintiff in certiorari.

      Curtis & Scribner, for defendant.
   Bartley, C. J.

The writ of certiorari being abolished by the •264] ^code of civil procedure, a final judgment or order in proceedings under the act for the maintenance and support of Ilegitímate ■children, must be reviewed on petition in error, instead of certiorari.

The provision of the code excepting from its operation proceedings under the bastardy act, has reference to proceedings under ■that act strictly, and not to proceedings to review them on error.

An order in the progress of a suit, and before judgment, to bo final and lay the foundation for petition in error, must be such as •determines the action and prevents a judgment.

Dismissed at the cost of plaintiff in certiorari.

Swan, Brinkerhoee, Bowen, and Scott, JJ., concurred. ’


author: Scott, J.

text:
    John Kelley v. The State of Ohio.
    "The act of the general assembly of April 9, 1856, “ to restore to the court of common pleas the jurisdiction of minor offenses in certain counties of the state,” being general in its nature, and yet limited in express terms to a part of the counties of the state, is in conflict with the 26th section of the second article of the constitution, which requires that “ all laws of a general nature shall have a uniform operation throughout the state."

    270] *The 9th section of said act, which excepts from its operation certain counties therein named, and limits the operation of the entire act to the jurisdiction of the common pleas in certain counties only, to wit, those not excepted from its operation, is so' essentially connected with the subject-matter and manifest legislative intent of the entire act that it can not be .separated and rejected as void, leaving the balance of the act to stand with .a uniform operation, in conformity with the constitution.
    'This is a proceeding under a writ of error to the court of common pleas of Muskingum county, allowed by a judge of the Supreme -Court, and- made returnable to the district court of said county, and reserved for decision here.
    At the May term, 1856, of the Muskingum common pleas, the plaintiff in error was indicted for an assault and battery.
    During the term he came into the common pleas and moved the court to quash the indictment, for the reason (among others) that the court had no jurisdiction of the alleged offense.
    The court overruled the motion.
    Whereupon the plaintiff in error withdrew the plea of guilty, •which he had before entered to the indictment, and refused to contend with the state.
    The court, upon the testimony of witnesses, found the plaintiff in error guilty, as charged in the indictment, and rendered judgment .against him for five dollars fine and costs.
    To reverse this judgment this writ is prosecuted.
    The plaintiff claims that the court erred in overruling his motion to quash the indictment, and in compelling him to answer the same, and in other respects.
    The common pleas entertained jurisdiction in this case, by virtue ■of the act of the general assembly entitled “ an act to restore to the court of common pleas the jurisdiction *of minor offenses in [271 certain counties in this state,” passed April 9, 1856. 53 Ohio L. 107.
    The plaintiff in error insists that this act of the general assembly is in conflict with the 26th section of article 2 of the constitution of the state, which declares “ that all laws of a general nature •shall have a uniform operation throughout the state.”
    The question presented for decision is as to whether such conflict exists or not.

      N. A. Guille, for plaintiff in error.

      The Attorney-General, for the state.
   Scott, J.

The constitution contains in general terms the express and significant provision that all laws of a general nature shall have a uniform operation throughout the state.” Const., art. 2, see. 26.

The 4th article provides, in the 3d section, that courts of common pleas shall be held in every county,” and in the 4th section that the jurisdiction of the courts of common pleas and of the-judges thereof shall be fixed by law.”

Section 8 prescribes the extent of the jurisdiction of the probate-court in the following language: “ The probate court shall have-jurisdiction in probate and testamentary matters,” etc., etc., “ and such other jurisdiction in any county or counties as may be provided by law.”

We have then in the constitution, first, a general, unqualified, and positive prohibition or limitation of legislative power, forbidding-the giving of a partial operation to any law of a general nature— dr in its own affirmative terms, requiring that a uniform operation throughout the state shall be given to all laws of a general nature. Without undertaking to discriminate nicely or- define with pre272] cisión, *it may be said that the character of a law as general or local depends on the character of its subject-matter. If that be-of a general nature, existing throughout the state, in every county, a subject-matter in which all the citizens have a common interest— if it be a court organized under the constitution and laws, within and for every county of the state, and possessing a legitimate jurisdiction over every citizen, then the laws which relate to and regulate it are laws of a general nature, and by virtue of the prohibition referred to, must have a uniform operation throughout the state.' But the courts of common pleas in Ohio are an organization of a general nature, for the organic law of the state provides for their existence in every county; they are an important agency in the administration of justice throughout the state, and are by law clothed with a jurisdiction over every citizen. The laws then which relate to and regulate their organization and jurisdiction are laws of a general nature, and are imperatively required to have a uniform operation throughout the state. They can not be withdrawn from the operation of the plain constitutional prohibition, unless by an exemption contained in the same instrument. And that exemption to be effectual should be as explicit as the prohibition itself.

It must be found in express terms, or, at least, arise by implication fair and necessary. But it is not claimed that the constitution contains any provision which in express terms excepts laws prescribing the jurisdiction of the courts of common pleas from the requirement of a uniform operation.

As to the extent of this jurisdiction, its only provision is “ the jurisdiction of the courts of common pleas and of the judges thereof shall be fixed by law.” Certainly there is no exemption from the rule in this language; on the contrary, the jurisdiction is spoken of as one and ^therefore uniform as to be “ fixed ;” and [27S therefore not varying with every county line. But it is enough to say that the language does not, even remotely, imply any exception from the general rule.

But it is claimed that this exception is to be found in the 8th section above referred to. Let us briefly examine it. That it does contain an exception to the rule is quite apparent; for after giving to the probate court jurisdiction over certain specified matters, it proceeds to confer upon it “such other jurisdiction in any county or counties as may be provided by law.” A jurisdiction may then be given to the probate court in one county which is not conferred in another; but this express exception relates only the extent of the jurisdiction of the probate court. The whole object of the section is to define the limits of its jurisdiction; it treats of nothing else, and does not once name the courts of common pleas. Nor does it follow as a necessary conclusion that because the jurisdiction of the probate court may be more extensive in one county than in another, the jurisdiction of the courts of common pleas must also differ in extent. The latter may be uniform and the former not. The probate court may, in some counties, possess a jurisdiction concurrent with the common pleas, which is denied to it in others.

In the case before us, the plaintiff in error was indicted in the court of common pleas of Muskingum county for an assault and battery. The court claimed to take jurisdiction of the case by virtue of the act of April 9, 1856, entitled “ An act to restore to the court of common pleas the jurisdiction of minor offenses in certain (counties in this state.” The first section reads thus: “Beiteni acted,” etc., “that the court of common pleas, in addition to the criminal jurisdiction it now has, shall have original jurisdiction of all crimes, offenses, and misdemeanors, the cognizance* of [274 which is now vested in the probate court.” Then follow several sections prescribing the mode of originating and conducting the prosecutions for such offenses, the disposition of the fines collected thereunder, etc. Section 8 repeals the laws conferring the jurisdiction of such offenses on the probate court. The 9th and last section enacts that “ the provisions of this act shall not apply to the counties of Jackson, Vinton,” etc., naming thirty counties of the state; Muskingum not being one of the thirty; and then adds, “and the repeal herein of chapter four of an act defining the jurisdiction and regulating the practice of probate courts, passed March 14, 1853, shall not apply to the counties named in this section, but the jurisdiction of the probate court, in said counties, shall remain the same as if this act were not passed.” The title of the act, and the explicit language of the 9th section, leave no room for doubt as to the effect and operation intended to be given to this act. A jurisdiction which it denies to the court of common pleas in thirty counties in the state, it expressly gives to the same ■court in the remaining counties of the state. It contemplates no other object. A partial operation, confined to “ certain counties,” thus attempted to be given to a law general in its nature; and a .a majority of the court think that this act is therefore in direct •conflict with the constitutional.provision on that subject.

But it has been suggested that the ninth section, which limits the •operation of the act, may be pronounced unconstitutional and void, .and that the operation of the rest of the act may thus be made uniform thoughout the state.

It is undoubtedly true that a part of an act may be unconstitutional and void, while another part may be constitutional and valid. 275] An act conferring upon the probate ^courts a jurisdiction exclusive in some counties, and in others concurrent with the common pleas, might be valid, so far as it would give jurisdiction to •the probate court, and void in so far as it would attempt to confer •on the court of common pleas a jurisdiction in some counties, which -was denied to it in others.

Bub the act under consideration is of a different character. It ■contains nothing but a grant of jurisdiction-'to the court of common ■pleas in “ certain counties,” and such other provisions as are merely incidental to this main purpose. The legislative intent to limit its ■operation in all parts to certain counties, is shown by language so ■explicit as to leave no room for any possible doubt. It matters not an what part of the act that intention is expressed, whether in immediate connection with the jurisdiction conferred, or in a subsequent section; if it be clear, it must prevail, and can only be changed by the law-making power, no part of which is vested in this court. If that intention, clearly expressed as to every part of the act, be in- conflict with the constitution, the whole act is necessarily void.

Judgment reversed.

Bartley, C. J., and Bowen, J., concurred.

Swan and Brinkerhoee, JJ., dissented; holding that the first and eighth sections of article four of the constitution give the general assembly authority expressly to clothe courts inferior to the Supreme Court with different jurisdiction in different counties.


author: ^ Scott, J.

text:
    Samuel S. Moore v. David Robison, survivor of Jesse Mitchell.
    Where a court has jurisdiction of the subject-matter of an action, and the form of action in which suit is brought, and the parties are before the court by proper process, its judgment in the case, though erroneous, is not void; the jurisdiction is not ousted by the erroneous exercise of the power which it confers.
    Therefore, where a justice of the peace, under the statute of 1831, defining the powers and duties of justices of the peace in civil cases, in a proceeding by scire facias against the bail for stay of execution, renders judgment ^against him without having previously issued execution against the [303 judgment debtor, such judgment is not void, but binds the parties until reversed by proceedings instituted for that direct purpose.
    Petition in error to reverse tbe judgment of tbe district court of Wayne county.

      The facts are sufficiently stated in the opinion of the court.

      Jeffries & Parsons, and William Given, for plaintiff in error:
    The judgment of Justice Swartz against the plaintiff in error was absolutely void, because he had no jurisdiction of the person of the plaintiff, nor of the subject-matter of the action.
    Before proceedings can be instituted against the bail for stay of execution, execution must have been issued and returned in accordance with the statute; the consideration of the bail bond is not broken until then. 1 Peters U. S. 340; 11 Johns. 175; 19 Ib. 39; 4 Ohio (Ham.), 398; 2 Ib. 392; 4 Blackf. 161, 169, 417, 476; 8 Ib. 396; 5 Ib. 213; 7 Ib. 199; 4; Porter (Ind.), 126; 1 Johns. 20, 228; 23 Pick. 110; 5 Porter (Ind.), 157.

      Iracas Mattery and John McSweeney, for defendant in error :
    The judgment rendered by Justice Swartz may be irregular but is not void, and is therefore of binding force so long as it remains unreversed and unsatisfied. Berry v. Greenfield, Wright, 348; Goodrich v. Jenkins, Ib. 349; Weyer v. Zane, 3 Ohio, 306; Adams v. Jeffries, 12 Ib. 272; Douglass v. Massie, 16 Ib. 271; Reynolds v. Stanbery et al., 20 Ib. 344.
   ^ Scott, J.

In 1839, Mitchell and Robison, of whom the defendant in error is the survivor, recovered a judgment' against one Peppard, before Nicholas Smith, a justice of the peace of Franklin township in Wayne county, upon which Moore, the. plaintiff in error, became docket bail for stay of execution.

On a certified transcript of this judgment, Mitchell and Robison, in March, 1848, instituted proceedings by scire facias against Moore, before James Swartz, then a justice of the peace of the township. Due service .of the writ was made upon Moore, and he failing to appear, judgment was rendered against him by default for the amount of the original, judgment against Peppard with interest and costs, although the transcript from the docket of Justice Smith did not show that any execution had ever issued against Peppard, the original judgment debtor.

In July, 1854, the present defendant in error brought suit on this ' latter judgment against Moore before another justice of the peace of the same township, from whose judgment in the premises an appeal was taken to the court of common pleas.

The plaintiff in error, who was defendant in that court, in answer to the petition, set up as a ground of defense in substance, that no execution had ever been issued on the judgment against Peppard, and that the judgment rendered against the plaintiff in error, by Justice Swartz, which constituted the plaintiff’s cause of action, was therefore wholly void. The defense was demurred to, and the court sustained the demurrer, and rendered judgment for the defendant in error.

The district court, upon petition in error, affirmed this judgment, and the question now presented is, was this judgment of affirmance erroneous ?

If the facts relied upon by the defendant in the court below, *as a ground of defense to the plaintiff’s action, show that [305 the judgment of Justice Swartz, upon which suit was brought, was wholly void, then they constitute a good defense, otherwise not. To render judgment against a defendant before a right of action has accrued to the plaintiff, is certainly error, for which the judgment might well bo reversed. But if rendered by a court having j urisdiction of the subject-matter of the action and the person of the defendant, it can not be treated as a nullity. Until vacated by appeal, or reversed by a court having the proper appellate jurisdiction, in a proceeding for that direct purpose, it binds the parties, and can not be collaterally questioned. This is clear upon principle, and well settled by authority. Weyer v. Zane, 3 Ohio, 306; Adams’ Lessee v. Jeffries, 12 Ohio, 272; Douglass v. Massie, 16 Ohio, 272; Aubrey v. Almy, 4 Ohio St. 525; Wright, 348, 349.

Our inquiries are then directed to a single point, the jurisdiction of Justice Swartz in the premises.

Had he jurisdiction of the subject-matter of the action? The matter in controversy between the parties was the liability of the defendant as bail for stay of execution upon the judgment which the plaintiff had recovered against Peppard.

If the law give the justice power to hear and determine such controversy, then it gave him jurisdiction of the subject-matter, and this jurisdiction would not be ousted by the erroneous exercise of the power which it conferred; and such power we think was clearly conferred by statutes then in force. See Swan’s Statutes of 1841, pp. 516, 517, sections 69-71, etc., where the remedy in such case by scire facias is plainly given.

The sixty-ninth section of the act referred to reads thus: “ And 306]' when bail has been given for the stay of execution *as aforesaid, and the period of stay has expired, execution shall in the first instance be awarded against the goods and chattels of the party against whom judgment was rendered ; and if goods and chattels of the party can not be found sufficient to satisfy the execution, and that fact be returned by the constable, the justice shall, unless otherwise directed by the party for whom execution issued, or his agent, proceed by writ of scire facias against the bail.”

Now, it is not denied that the justice would have had jurisdiction of the subject-matter if the liability of the defendant had been previously fixed by the issuing and return of an execution against Peppard. But the jurisdiction of the court does not depend on the merits of the case.. The power judicially to hear the proofs and allegations of the parties must exist in order to ascertain and determine their rights. Were it otherwise, the whole proceeding would be coram non'judice and void, unless the facts of the case wore such as to require judgment to be rendered for the plaintiff.

That jurisdiction of the person of the defendant was obtained by due service of proper process, is shown by the record, and we believe is not questioned. ,

The justice who rendered the judgment upon which suit was brought in the court below having therefore had jurisdiction of the parties and the subject-matter of the action, his judgment, however erroneous, is not void.

Judgment affirmed.

Bartley, O. J., and Swan, Brinkerhoee, and Bowen, JJ., concurred.


text:
    *Peter Raudebaugh and wife v. Michael Shelley and others.
    It.is not essential to the due execution of a will that the witnesses thereto should attest the instrument at the same time, or in the presence of each other.
    Where an attesting witness to a will did not see the testator subscribe his name to the instrument, the acknowledgment of the fact by the testator in the hearing of the witness, which is requisite, is not required to be made in any particular words or any specified manner; but if, by signs, motions, con duet, or attending circumstances, the attesting witness is given to understand, by the testator, that he had already subscribed the paper as his will, it is a sufficient acknowledgment.
    The mode of proceeding to contest the validity of a will by bill in chancery, and the special or fictitious issue prescribed in the statute relating to wills, have not been abrogated by the provision in the statute regulating the jurisdiction of the probate court, passed since the enactment of the code, authorizing a proceeding to contest a will by petition to the court of common pleas, even though the latter remedy may be conducted in conformity with the provisions of the code.
    “Where, in a proceeding to contest the validity of a will on the application of the plaintiff, or without objection by him, the special issue is made up in the mode prescribed by the statute relating to wills, giving the affirmative-to the defendant, that party will be entitled to the opening and closing argument to the jury, on the well-settled rule of practice that the party having the affirmative of an issue is entitled to open and close the argument as well as the evidence.
    Petition in error to reverse the judgment of the district court of Wayne county.
    The original proceeding was a petition filed by the plaintiffs-against, the defendants in the court of common pleas of Wayne county, in March, 1854, to contest the validity of the last will and testament of Jacob Shelley, deceased, on the alleged ground of the ineompoteney of the testator, and undue influence exercised over-him by the defendant, ^Michael Shelley, the principal de- [808-visee under the will. The petition contained a prayer that an issue at law be made up to try the validity of the pretended will, and that the same-should be declared void, etc., and was duly verified by affidavit. At the September term of the court, 1854, an order-was made directing an issue at law to be made up between the-parties, to try the validity of the will, and directing that the defendant should file a declaration affirming the paper writing in question, to be the last will and testament of said Jacob Shelley, deceased; and that the plaintiffs should plead to said declaration, that the said paper writing was not the last will and testament of said Jacob Shelley, deceased. In compliance with this order, the-formal issue was made up by the declaration of the defendants, and. the plea of the plaintiffs. Subsequently and after a verdict and decree against the validity of the will, the cause was appealed to-the district court, where, at the June term thereof, 1855, the court ordered the cause to be tried on the issue made up in the common. pleas, and the case was accordingly tried and a verdict rendered in favor of the validity of the will; whereupon, after overruling a motion for a new trial, the court dismissed the petition at the ■plaintiffs’ costs.
    From the bill of exceptions taken by the plaintiffs it appears •that on the trial of the issue joined between the parties, the party .affirming the validity of the will to maintain the issue on his part, ■offered in evidence to the jury the writing mentioned in the pleadings, purporting to be the last will and testament of the said Jacob .Shelley, and also' offered in evidence the order of probate thereof.
    And the party denying the validity of the will called as a witness Jacob Espick one of the subscribing witnesses, who testified in substance that in the month of March or April A. d. 1851, Mi-:809] chael Shelley, a son of the testator, *and the residuary legatee in the alleged will, caiqe to the house of witness, who lived about a half a mile from where the testator lived, and ■said his father (the testator) wanted him. (the witness) to come and witness some writings. He said his father was sick and he, the son, appeared in a hurry. Witness found the old man in bed partly sitting up. After some' inquiries about his health, and some conversation between the old man and his son Michael, all of which witness did not hear, the old man directed “ Mike ” to get the key. Mike thereupon got .the key from some of the old man’s clothes, and got the paper from the chest and spread it out on the stand before the witness ; which stand stood at the head of the old man’s bed. The paper purported to be signed by the old man and by the other witness Stentz — by the old man on the right side, at the end of the paper, and by the witness Stentz on the left-hand side of the same page. Witness was not more than three feet from the old man, and when the paper was spread out and laid upon the stand he took it up and held it within two feet of the old man ■and asked him if that was the writing he wanted him to witness, and the old man replied it was.
    Witness then asked where he should sign his name, and either the old man or “Mike” answered, “under Stentz.” There was ■nothing further said about the paper by anybody.
    Mike took it up and put it back in the chest. There was nothing •said, at any time, about the nature or contents of the paper, nor was it called a will or anything else but a “ writing.” Witness supposed it was a will, but had no other reason for the supposition than that “Mike ” appeared in a hurry, and the old man was sick. The writing spoken of and produced at the trial was signed by the witness, in the presence of the testator, and at his request, in the manner above stated. The witness ^further said that he [310-did not know whether the old man knew the paper produced by “Mike” was his (the old man’s) will, otherwise than as may be-inferred from the facts above related. The witness further stated that there was nothing said by the old man about the signature, other than what has been hereinbefore stated. He did not in direct or express words declare the signature or the will to be his, nor was anything at all said about the old man’s signature, or about his having executed the writing, except what may be inferred from his act of presenting it to the witness, and requesting him to witness it. It was not subscribed by the testator in the presence of the witness ; and there was no other evidence offered by either party touching the acknowledgment of th.e pap.er or signature by the testator to this witness.
    It also appeared in evidence that the signature of the said Jacob Shelley to the will or writing was genuine, but was not subscribed in the presence of either of the attesting witnesses.
    But there was evidence tending to show that Stentz signed it as-a witness on the morning after it was written and signed by the testator, and several months before it was presented to the witnessEspick; and that at the time it was attested by Stentz, the old man expressly declared the signature to the will to be his, in words-audibly spoken. It also appeared in evidence that the witness Stentz, signed his name -as a witness to the will in the presence of the testator, and at his request.
    The parties having closed their piroofs and arguments, the court charged the jury, among other things, as follows : That in respiect to the acknowledgment to the witness by the testator of the execution of the will, it was not necessary that the pn-oof should show that the testator said in so many ioords that the signatnre was his- or that the ^writing was his will. That the law regarded the [811 substance rather than the manner of the act. • That the jury should consider what was done as well as what whs said. That they might judge from the whole transaction, as it was detailed to them in evidence, whether it was the intention of the old man to admit or make known to the witness that the instrument or writing which he was called to attest was executed by him and was his act; and' whether by what was said and done, he carried out that intention. That in this case, if the testator having duly signed the will in the absence of the witness, subsequently, for the purpose of having it-attested, produced it to the witness Espick with his own signature actually exposed to the view of the witness, and requested him to sign the “ writing ” as a witness, such conduct and request would constitute, under our statute, a sufficient acknowledgment to that witness of- the execution of the will by the testator.
    To which instruction and charge of the court, counsel for the party denying the validity of the will excepted, and the jury having returned a verdict in favor of the plaintiff to the issue, finding that the writing produced was the valid last will and testament of Jacob Shelley, deceased, the other parties to the issue moved the court for a new trial, for the reason that the court erred in matters of law in its said charge to the jury, and because the verdict was not sustained by the evidence; which motion the court overruled. To which rulings and instructions of the court the defendants to said issue excepted.
    It further appears from the bill of exceptions that the parties having closed their proof to the jury, the counsel for the defendants to the issue, who were the plaintiffs in the original petition, moved the court to be allowed to open and close the argument to the jury;, which motion the court overruled, and allowed the counsel for the 812] plaintiffs to the issue- — the party affirming the validity of the will — to open aud close the argument to the jury. To which rulings of the court, the counsel for the party denying the validity •of the will excepted.

      McSweny & Jones, and Given & Jeffries, for plaintiffs in error:
    The plaintiffs in error ought to have been allowed to open and close the argument of this case to the jury. 5 Ohio, 258; 16 Ib. 324; 4 Porter (Ind.), 297; 7 Pick. 98, 99; Powell on Dev. 70; 2 Atk. 56; 1 Curt. 637; 4 Mass. 395; 22 Maine, 438-441; 3 P. Wms 93; 8 Conn. 261; 3 Wash. C. C. 582. See notes in 1 Jarman on Wills, 72-75; 13 Ill. 19.
    The testator should have made known to Espick the character of the writing he was called to attest. Jarm. on Wills, 114, 115; 2 Greenl. Ev., sec. 675; White v. British Museum, 6 Bing. 310; 19 Eng. Com. Law, 91; Wright v. Wright, 7 Bing. 457; 20 Eng. Com. Law, 197, 198; Ray v. Walton, 2 A. K. Marsh. 71; 4 Kent’s Com. (5 ed.) 515, 516; Small v. Small, 4 Greenl. 220; 6 Wend. 330; 8 Paige, 491; 3 Phil. Ev. (5 vol. new ed.), Appendix, 450; 3 Mod. 262; 1 Eq. Cas. Ab. 403; Peate v. Ougley, Com. 197; 3 S. Ev 1635; 7 Taunt. 361; 1 Burr. 421; 2 A. K. Marsh. 73; 1 Mass. 258; 1 Rand. 159, 160; 2 Greenl. on Ev., sec. 675; 4 Kent’s Com. 515 516, and note; 1 Greenl., sec. 272; Walk. Am. Law, 353.
    The testator did not sign the writing in the presence of Espick, nor did he acknowledge the signature to the will to be his. The court should have charged this to be necessary. Phil. Ev. (App. to vol. 3, new ed.) 449; 2 Ves. 454, 457; 3 P. Wms. 53; 1 Ves. Jr. 11; 8 Ves. 504; 1 Ves. & Beame, 362; 5 B. Mon. 511; 1 Jarm. on Wills, 116, note 1; Hall v. Hall, 17 Pick. 373; 4 Kent’s *Com. [313 (5 ed.) 515, 516; 1 Met. 349; 4 Greenl. 220; 2 Hay. 232; 2 A. K. Marsh. 74; 7 Ohio, 48; 10 Met. 54; 3 Atk. 161; 1 Will, on Ex. 74-80; 2 Curt. 334; 3 Ib. 547, 607-611, 757, 172, 175, 563, 564; 7 Eng. Com. Law, 133, 509, 517, 578, 574, 462; 14 Eng. Com. Law, 596; 16 Jur. 1144; 13 Ib. 264; 7 Harr. Dig. 3, Suppl. 1647, 33; Eng. Law & Eq. 615, 618, 620; 10 Barb. 608; 16 Ib. 199.
    The witnesses to the will should have subscribed it as such at the same time. 1 Met. 349; 4 Kent (5 ed.), 515, 516; 2 Greenl. on Ev., sec. 676; 33 Eng. Law & Eq. 621; Jarm. on Wills, top page, 115-117; 3 Curb. 79, 243; 1 Greenl. on Ev. (4 ed.), sec. 272; 1 Burr. 421; 11 Barb. 124; 19 Barb. 448; Walk. Am. Law, 353.
    The following authorities were cited also by counsel for plaintiffs in error. 1 Denio, 33; 1 Kernan, 220; 2 Selden, 120; 2 Bradf. Sur. 163, 188; 3 Ib. 322; 10 Paige Ch. 85; 26 Wend. 328; 2 Harris, 86; 1 Greenl. on Ev., see. 472; 1 Barb. 533.

      E. & E. V. Dean, and Connell & Cox, for defendants in error:
    The testator sufficiently acknowledged the signature to the will to be his. 3 Curb. 607, 756, 563, 172; 2 Greenl. on Ev., 562, sec. 675; 6 Bing. 310; 5 Moore & Payne, 316; 1 Crompt. & Mees. 140; 1 Jarm. on Wills, 117, and cases cited; 2 Petersdorf, 1069; 7 Bing. 457; 1 Will, on Ex’rs. 73; 17 Pick. 373; 14 Eng. Law & Eq. 596; 26 Ib. 603.
    It is sufficient if the acknowledgment was made to each witneB's separately. 2 Greenl. on Ev., sec. 676; 4 Kent, 516. It was not necessary that the witnesses should attest the will in the presence of each other. 4 Kent, 516; 1 Ves. Jr. 11; 2 Ib. 454. Nor is it-necessary that the witnesses ^should be acquainted with the [314 contents of the paper they witness. 3 Curb. 607; 3 Moore & Payne, 686.
   Bartley, C. J.

-It is insisted that there is error in the proceedings of the district court upon the following grounds: 1. That the court erred in the instructions given to the jury; 2. In refusing to-grant a new trial on the ground that the evidence touching the execution of the will was insufficient; and, 3. In refusing to the plaintiff the right to open and close the argument of the case to the jury-

Three things were requisite to the due execution of this will:

1. That it should be in writing, and signed at the end thereof by the party making it, or by some other person in his presence, and by his express direction.

2. That it should have been attested and subscribed in the presence of the testator by two or more competent witnesses.

3. That the witnesses should have either seen the testator subscribe the paper, or heard him acknowledge the same.

The bill of exceptions loaves no ground for controversy as to the first requisite, inasmuch as it appeared in evidence that the signature of the testator at the end of the will was his genuine signature; and also that at the time the witness Stentz attested the instrument, the testator in express language declared the signature to the will to be his own. It appears that two competent persons subscribed their names to the paper as witnesses; and this, although done separately and at different times, was done in the presence of the testator. It was not necessary that the witnesses should attest the instrument in the presence of each other. Neither of the wit-315] nesses saw the testator subscribe his *name to the paper; one of them, however, heard him expressly acknowledge the same, but the other did not. And the question is presented whether the will is to be invalidated because the testator having subscribed the will in the absence of the witness, did not in express and direct language say to the witness that he had executed it, or sigped it as his last will and testament. It appears that the witness was called in to attest the paper without being informed expressly that the instrument was a will; and upon the paper being presented to him by the testator, with his (the testator’s) name written at the end of of it, he'subscribed his-name as a witness at the testator’s request.

It was not essential to the attestation that the witness should have been made acquainted with the particular contents of the instrument. Where an attesting witness does not see the testator subscribe his name to the will, the law requires that he should hoar the testator acknowledge the fact of his having subscribed it. This acknowledgment is not required to be made in any particular words, or in any particular manner. If, by signs, motions, conduct, or attending circumstances, the attesting witness was given to understand that the testator had already subscribed the paperas his will, it was a sufficient acknowledgment. And it was competent to show this fact by the circumstances attending the transaction, as well as by the words of the testator. Whether, in this case, the testator did substantially, and in effect, acknowledge, or give this attesting witness to understand, that he had put his signature to the paper as his will, was a question of fact for the jury to pass upon ; and and we do not discover any material error in the instructions of the court to the jury ; and, on the state of the evidence as it appears in the bill of exceptions, we do not think that the court erred in refusing to set aside the *verdict, and grant a new trial on [316 the ground of insufficiency of evidence.

Did the district court err in refusing to allow the plaintiffs the opening and closing argument to the jury ?

It is urged that the provision of the statute relating to wills, which authorized a proceeding to contest the validity of a will by “MU in chancery,” and a special or fictitious issue 11 in such suit in chancery,” giving the affirmative to the defendant, has been repealed. It is true that a subsequent statute relating to the jurisdiction of the probate court has authorized a proceeding to contest the validity of a will “ by petition to the court of common pleas,” but this statute does not provide for the repeal of the provisions of the former statute authorizing a proceeding by bill in chancery and special issue, in relation to the same subject-matter. The maxim, “ leges posteriores priores contrarias abrogant,” does not apply except where the inconsistency or repugnancy is' such that' the two provisions can not stand as cumulative or concurrent rules of action, so that the later statute by its necessary operation abrogates the former. Eepeals, by implication, are not favored, especially under our present constitution; and it is a well-settled rule of construction, applicable to all remedial laws, that where a new remedy or mode of proceeding is authorized, without an express repeal of a former one relating to the same matter, it is to be regarded as merely cumillative, creating a concurrent remedy and not as abrogating the former mode of procedure.

It bas been supposed by some that the special issue prescribed in the former mode of proceeding to contest a will, caused some unnecessary inconvenience and confusion by the reversal of the order ■of the parties, and also some undue advantage in regard to the actual 317] or real point in ^controversy, by giving the defendant in suit the affirmative, and that, therefore, the object of the provision in the late statute was to give a mode of proceeding in the contest of wills, which might be conducted in conformity to the code of civil procedure. And this conclusion is supposed to be strengthened from the consideration that the codeis entitled to a liberal construction; with an especial view to produce uniformity in the mode of procedure in all civil cases; but the 604th section of the code expressly provides that until the legislature shall otherwise provide, the provisions of the code shall not apply to sundry remedies named, including the proceedings to set aside a will. It is very true that this must be understood as affecting the operation of the code only as to its providing the sole or exclusive remedy, inasmuch as the same sections provides as to these excepted matters — “ but such proceedings may be prosecuted under the code whenever applicable." Now, although the act relating to the jurisdiction of the probate court was passed a few days .after the enactment of the code, and was required to take effect on the same day on which the code took effect, even if the proceeding .to contest the validity of a will, by petition to the court of common pleas under the probate act, may be conducted in conformity with •the mode of procedure prescribed by the code, it does not follow that the former remedy by bill in chancery and the special issue under it was repealed. If a new remedy and new mode of proceeding to contest a will was, therefore, authorized, even after the enactment of the express saving clause in the code, it does not follow that the former remedy and mode of proceeding, not expressly repealed by the probato act, were abrogated and not left to stand in full force as a concurrent remedy.

Besides this, the order for the special issue in the common pleas 318] was made at the instance of the plaintiffs themselves, *and they voluntarily plead to the declaration filed by the defendants; and the record further shows that the order of the district court that the special issue made up in the common pleas be re-tried before a jury, was on the motion of both parties. The plaintiffs, therefore, ■even if they could have objected at the proper time, did, in fact, waive all objection to the mode of proceeding, and it was not until after the evidence was closed on both sides that the application was made to the court to allow them the affirmative in the argument to the jury. The issue, as made and presented in the case at that ■stage of it, gave the defendants the affirmative; and it is well settled in practice that the party holding the affirmative of an issue, is entitled to open and close the argument as well as the evidence.

Judgment of the district court affirmed.

Swan, Brinkerhore, Bowen, and Scott, JJ., concurred.


text:
    *Richard House v. Andrew Elliott.
    The officer taking a deposition must certify that the witness was first duly sworn, but the certificate of that fact may-be made by the officer, either at the end or at the commencement of the deposition,
    'Section 290 of the code permits a bill of exceptions to be taken to any decision of the court upon a matter of law, and to become part of the record; but there is no provision made, nor authority given in the statute, for excepting to the opinion of the court on a motion for a new trial, predicated on the ground that the verdict is against the weight of evidence. The ruling of the court below, on such a motion, will not be reviewed on petition in error, nor will the facts on which the verdict was rendered be examined by this court, in order to determine whether the verdict was sustained by the proof.
    'The act of March 12, 1845, “ to regulate the judicial courts and the practice thereof,” which conferred a right to except to the opinion of the court in any case of a motion for a new trial, made on the ground that the verdict was supposed to be against the evidence, and by that means to remove the case, bjr writ of error, to the Supreme Court, was repealed by section 606 of the code, and no law conferring that right has been since enacted.
    In error to the district court of Morrow county.
    Suit was brought on a due-bill given by defendant to plaintiff for ■$170.78, dated September 29, 1851.
    A trial was had in the court of common pleas, by a jury, and a verdict was found for plaintiff for $93.30, on which judgment was rendered. The plaintiff appealed to the district court.
    At the May term, 1855, of the district court, the cause was again •submitted to a jury, when the defendant offered in evidence the deposition of one Samuel Weaver, to the reading of which the plaintiff excepted, “ for the reason that the certificate of the officer taking the same did not show that the witness was first sworn to testify, etc., as required by the statute.”
    *The court overruled the exception, and permitted the deposition to be read, to which ruling the plaintiff excepted.
    A verdict was found for the plaintiff for $61.00, when he moved ,for a new trial, on the ground that the verdict was not supported by, but was against the evidence in the case; which motion the court overruled, and gave judgment on the verdict. The plaintiff tendered his bill of exceptions to this last ruling of the court, which was sealed and made a part of the record. All of the evidence which went to the jury is set forth in this bill of exceptions.

      The object of this proceeding is to reverse the judgment of the district court.

      B. Burns, for plaintiff in error.

      Dalrymple & Olds, for defendant in error.
   Bowen, J.

Two questions are presented for our consideration in. this case. 1. Did the district court err in permitting the deposition of Weaver to be read?

Section 351 of the code provides that the officer taking the deposition shall annex thereto a certificate showing, among other things, “that the witness was first sworn to testify the truth, the whole-truth, and nothing but the truth.”

The deposition was taken in the State of Indiana, before a notary public, who, at the close of it, certifies that the witness was by him sworn to testify, etc., omitting the word first. This is a compliance with the form prescribed in Swan's Statutes of 1841, page 324, but does not meet the requirement of the code. There must be a certificate annexed to the deposition, by the officer, that the witness was first sworn. But the annexation of such certificate need not, necessarily, be at the bottom of the deposition. The officer may attach it to any part of the instrument, ^taking care to make [499 it plainly his own certificate of the fact that the witness was first sworn. At the head of the deposition now in question, the officer-commences as follows: “Samuel Weaver, of lawful age, being by me first duly sworn, as hereunto certified, deposes as follows, to wit; ”■ and then, after writing down his testimony, adds at the bottom of it a certificate as before stated, together with his signature and seal of office. This, we think, complies with the language of the code,, and rendered the admission of the evidence proper.

2. Was there any error committed by the court in refusing to grant a new trial ? An answer to this question involves the inquiry whether the ruling of the court upon such a motion, alleging as the only ground of making it, that the verdict is contrary to the evidence, is the subject of exception, and can, by such means, be reviewed by proceedings in error ?

A bill of exceptions is given by the code to any decision of the court upon a matter of law. Statutes, 660, sec. 290. It is not intended, however, to draw the whole controversy into examination again, but only the points to which it is taken; and the party ex•cepting must lay his finger on those points which might arise either in admitting or denying evidence, or matter of law arising from a fact not denied, in which either party is overruled ■ by the court. 5 Johns. 467.

The case on which we are now required to decide affords a striking illustration of the utility of this doctrine. There have been two jury trials in two different judicial tribunals. The facts have been detailed in both instances. The plaintiff and defendant have, each time, been witnesses for themselves, and have given to the jury their respective explanations and statements. Two verdicts have been found for the plaintiff, much less in amount, it is true, 500] than the sum ^claimed by him. And now, after the failure of two juries, who have listened patiently to the proofs and arguments of the parties, to satisfy the plaintiff by their verdict, and after the court has, on those two occasions, pronounced the law of the case to the jurors in such a manner as to avoid complaints, this court is asked to examine the evidence, weigh the relative credibility of the witnesses, and determine on the existence of facts, to the total subversion of one of the most salutary maxims of the law : that to questions of fact the jury are to respond — to questions of law, the judges. 8 Ohio, 508.

There is no law requiring this at our hands. A motion for a new trial may be addressed to the court which tries the cause, and a review of the evidence given to the jury, and of its bearings upon the rights of the parties, may thus be invoked. But an erroneous decision upon it, is a determination only of facts, not of the lap of the case, and no exception to the ruling can be taken, so as to place it upon the record. A judgment rendered, or final order made by a court of inferior'jurisdiction, may be reversed, vacated, or modified, by this court, for errors appearing upon the record. Sec. 514, of the ■Code. But there is no authority given to place upon the record, for examination, the ruling of such court upon the facts of the case in •disposing of a motion for new trial.

Such a proceeding, we think, was unknown in this state until the passage of the “ act to regulhte the judicial courts and the practice thereof,” on the 12th of March, 1845. By this act the right of appeal from the common pleas to the Supreme Court of actions at law was abolished. 43 Ohio L. 80. And in order to secure, with greater •certainty, the allowance of new trials, whenever it might seem proper that they should be had, a provision was inserted giving express leave to except to the opinion of the court *on a motion [501 for a new trial, based on the insufficiency of the evidence to support the verdict. That law was repealed by section 606 of the •code, and no similar provision has been enacted in its place. There 'is, therefore, no power in this court to review the decisions of other ooui’ts on mere questions of fact, in civil cases, determined by a jury, or by the court itself on submission of a cause to it for trial by the parties.

The judgment of the district court is affirmed.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.


author: *Scott, J.

text:
    Joshua Myres and Joseph Ingersoll v. Elijah Parker.
    In a suit on a bond purporting to have been executed for the appeal of a cause from the court of common pleas to the Supreme Court, within and for a particular county of this state, and conditioned for the payment of the “ amount of the condemnation in said Supreme Court and costs,” in case a decree shall be entered in favor of the “ appellee,” such bond can not be construed as a bond for an appeal to the district court of such county; nor, as against the surety therein, can its condition be at all varied from, or extended beyond its plain terms.
    On such a bond, executed in 1852, when appeals no longer lay from the common pleas to the Supreme Court, and the district court had taken the place of the former Supreme Court in the several counties of the state, no action can be maintained.
    Petition in error to reverse a judgment of the district court of Lorain county.
    The facts appear in the opinion of the court.

      S. Burke and J. Myres, for plaintiffs in error.

      H. D. Clark, for defendant in error.
   *Scott, J.

The defendant in error, Elijah Parker, at the [502 February term, a. d. 1852, of the court of common pleas of Lorain county, upon the hearing of a bill'in chancery filed by him against Joshua Myres (one of the plaintiffs in error) and others, obtained a decree in his favqr; from which the respondents gave notice of their intention to appeal; and, within the proper time for perfecting such appeal, filed in the clerk’s office the following as an appeal bond in the case:

“Know all men by these presents, that we, Joshua Myres and Joseph Ingersoll. are firmly bound unto Elijah Parker in the penal sum of two hundred dollars, to the payment of which well and truly to be made, we do hereby bind ourselves, our heirs, executors, and administrators, sealed with our seals, and dated this 20th day of March, a. d 1852.
“The condition of the above obligation is such that, whereas, the1 said Joshua Myres has taken an appeal from a certain decree in chancery rendreed against him in favor of the said Elijah Parker, in the court of common pleas, within and for the county of Lorain, in the State of Ohio, at the February term thereof, A. d. 1852, for the sum of dollars, and dollars costs, to the Supreme Court within and for the county aforesaid. Now, if the said Joshua Myres shall pay the full amount of the condemnation in said Supreme Court, and costs, in case a decree shall be entered therein in favor of the appellee, then this obligation shall be void, otherwise in. full force and virtue in law.
“Joshua Myres. • [seal.]
“Approved. Joseph Ingersoll. [seal.]”

At the September term, 1853, of the district court of Lorain 503] county, the case was heard as upon appeal, and a ^decree rendered against the respondents, enjoining them, etc., according to the prayer of the bill, and awarding to the complainant his costs, taxed at $70.15 ; for the collection of which an execution was subsequently issued against respondents and returned “ nulla bona.” Thereupon the defendant in error commenced an action on the bond above recited, setting up these facts, and seeking to charge Ingersoll, the surety in the bond, with the amount of said costs, recovered as aforesaid by the decree of the district court. Parker, the plaintiff below, recovered a judgment; and on appeal to the district court, Ingersoll demurred generally to the petition as not showing a cause of action ; but the district court overruled the demurrer and again rendered judgment for the plaintiff below, which judgment of the district court is now sought to be reversed.

There can be no doubt that, in executing the bond sued upon, the obligors intended to perfect an appeal of the chancery suit therein referred to, to the district court of Lorain county, but instead of effecting- this intention, the bond recites an appeal of the case to the Supreme Court of Lorain county, and its condition of defeasance is that “ the said Joshua Myres shall pay the full amount of the condemnation in said Supreme Court, and costs, in case a decree shall be entered therein in favor of the appellee.”

The petition shows no breach of this condition. It does not allege that there has been any condemnation of the appellant, or any decree entered in favor of the appellee, in the “ Supreme Court within and for the county of Lorain.” At-the date of the bond there was no such court. It had been superseded by the district court. Nor does the petition allego a mistake or clerical error in the bond. It would, perhaps, have been useless to set up such mistake. For the petition seeks to make Ingersoll liable as a surety — to make him answer for the default of Myres. No ^principle is better [504 settled than that a surety has a right to stand upon the very terms of bis contract; and a promise to answer for the default of another is, by the statute of frauds, nugatory, unless it be in writing. Ingorsoll, then, must be found liable, if at all, by the very words of the written contract of guaranty. “Where there is no uncertainty upon the face of the instrument,” say the Supreme Court of the State of New York, “ The liability of a guarantor or surety can not be extended by implication or otherwise. The case must be brought strictly'within the terms of the guaranty, or the guarantor will not be liable. The cases speak a uniform language upon that subject.” Evans v. Bradly, 17 Wend. 422. In 17 Ohio, 565 (The State v. Medary et al.), it is said, “the bond speaks for itself, and the law is that it shall so speak, and that the liability of sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond; and if the words will not make them liable, nothing can. There is no construction, no equity against sureties. If the bond can not have effect according to its exact words, the law does not authorize the court to give it effect in some other way, in order that it may prevail.” To the same effect is the case of McGovney v. The State of Ohio, 20 Ohio, 93, where it was held that an executor’s bond, describing the testator as James L. Findley, can not, by parol evidence, be made applicable to the estate of Joseph L. Findley.

But it is unnecessary to multiply authorities upon this point. In the case under review, the petition shows no breach of the condi■tion of the bond sued upon; and tbe demurrer should therefore have been sustained.

The judgment of the district court is reversed.

Bartley, C. J., and Swan, Brinkerhoee, and Bowen, JJ., concurred.


author: Brinkerhoff, J.

text:
    *Lessee of Highbee Vanzant and others v. The Heirs of Samuel H. Davies.
    Lessee of Hannel v. Smith, 15 Ohio, 134, followed and approved.
    Where a father buys land, pays for it, and causes it to be conveyed to his child, the law,,in absence of proof to the contrary, presumes it to be a gift or advancement.
    Where such conveyance is caused to be made with intent to defraud creditors of the father, no trust results in favor of any one, except creditors, and subsequent bona fide purchasers without notice of the prior conveyance.

      The absence of all' concealment of the .prior conveyance, and the fact that it was duly recorded, is constructive notice to subsequent purchasers.
    Ejectment. Reserved in the district court of Hamilton county, on a motion for a new trial.
    The facts sufficiently appear in the opinion of the court.

      Edward Woodruff, for plaintiffs,
    cited 15 Ohio, 134; 16 Ohio, 519, 532; 10 Ohio, 152; 1 Ohio St. 1; 3 Ohio St. 377; 2 Story’s Eq. Jurisp., sec. 1202; 1 Ib. 371.

      Charles P. James, for defendants,
    cited 3 Burr. 1901; Cowp. 143; 6 Munf. 38.
   Brinkerhoff, J.

This is an action of ejectment originally brought in

the late Superior Court of Cincinnati, and appealed from thence to the district court of Hamilton county, where a verdict was had for plaintiffs. On the trial, a bill of exceptions was taken, embodying the charge of the court to the jury, and all the evidence in the case; 63] and, after verdict, a motion was made by the defendants *for a new trial, which motion was reserved for decision here.

The leading facts in the case are these:

On the 19th day of November, 1824, Joel Vanzant bought the premises in question; paid for them with his own money; and caused a deed of conveyance to be executed by the vendors directly to John Vanzant, his infant son, then only about three years old. This deed, the father, Joel, immediately caused to be duly recorded. Joel Yanzant continued to occupy the premises with his family, and made considerable improvements thereon, until the 20th day of June, 1829, when he, Joel, executed what purports to be a conveyance in fee simple of the same premises to Samuel W. Davies. Subsequently, in 1843, and while the premises were in the possession of Samuel W. Davies, they became forfeited to the state for non-payment of taxes; and were sold, and a deed was made by the county auditor, td Samuel H. Davies, the son and heir of Samuel W. Davies ; and the tax title thus created was vested in Samuel H Davies, whose heirs are now the defendants in this suit. The heirs of John Vanzant are the plaintiffs.

The grounds on which the defendants move for a new trial are:

1. That the court erred in its charge to the jury respecting the effect of the auditor’s deed to Samuel H. Davies.

The facts disclosed in the bill of exceptions on this point, raise no questions at all differing from those involved in the Case of Lessee of Hannel v. Smith, 15 Ohio, 134, and the charge of the court below, was in strict accordance with the holding of the court in that case; and as we are not disposed to question the authority of that decision, it is unnecessary further to notice- this part of the case.

2. That the verdict was against the evidence and the law of the •case, and should have been for the defendants

*In the argument of counsel for defendants, in support of the [54 motion, it is assumed, that on the voluntary conveyance of the premises in question to the infant son, John, the premise^ having been paid for'by the father, Joel, a resulting trust aróse in favor of Joel; Joel being the cestui que trust, and John holding, as trustee, a mere naked legal title, without having, even in law, the right of pos•session, which is usually the accompaniment of the legal title; and hence, it is urged, tlie plaintiffs, being heirs of the trustee of the naked legal title, without the right of possession, can not recover in ejectment against the defendants, who are heirs of the assignee •of the cestui que trust.

We apprehend the presumption on which this argument proceeds can not be supported. Where a father buys land, pays for it, and causes the same to be conveyed to a child, it is, prima facie, a gift, or advancement. It will be so presumed in the absence of evidence to the contrary. Creed et al. v. The Lancaster Bank, 1 Ohio St.; Story’s Eq. Jurisp., sec. 1202. And in this case there is no evidence to the contrary, except this : there is some evidence, though not entirely satisfactory or conclusive, that Joel Vanzant caused the premises in dispute to be conveyed to his infant son, with intent thereby to defraud creditors, whom, as is said, he left behind him in New Jersey, whence he had a few years previously emigrated.

Now let it be conceded that he absconded from New Jersey to escape his creditors there, and that he caused the conveyance to be made to his infant son for the fraudulent purpose alleged, yet no trust results in his favor, or in favor of any one, except his creditors, or subsequent bona fide purchasers of the premises, without notice of the prior conveyance. Story’s Eq. Jurisp., sec. 371. And here, there was full constructive notice, at least, of the prior conveyance, from the absence, so far as appears, of all concealment 55] *'of its existence, and the fact that it was placed on record as soon as made.

We are of opinion, therefore, that the finding of the jury was in all respects right.

Motion overruled,, and judgment on the verdict.

Bartley, O. J., and Swan, Bowen and Scott, JJ., concurred.