author: Price, J.

text:
    The W. L. Adamson Company et al. v. Izor.

      Section 5446, Revised Statutes, construed — Bond given to claimant of attached property, takes place of latter — Measure of damages to claimant — Interest of claimant with six per cent. ■ from delivery.

    An undertaking given to a claimant of attached property, under the provisions of Section 5446, Revised Statutes, takes the place of the property to the extent of the interest therein which the claimant may establish in his suit on the undertaking, and the value of said interest with interest thereon from the date of the delivery of the undertaking to the claimant, is the measure of his damages.
    (No. 10000
    Decided February 26, 1907.)
    Error to the Circuit Court of Montgomery County.
    The W. L. Adamson Company having an overdue claim against J. E. Izor, brought suit against him in the court of common pleas of Montgomery county to recover its amount with interest, and by filing the necessary affidavit and giving the statutory bond, procured a writ of attachment to be levied on a stock of groceries, provisions, meat, etc., and grocery fixtures, also two horses, -two sets of harness and two wagons, situate in the city of Dayton, as the property of the debtor, J. E. Izor.
    After the sheriff seized said property by virtue of the writ of attachment, the same was claimed by one Jacob H. Izor, and asserting his ownership thereof, he demanded of the sheriff that he cause proceedings to be had to try -and have determined the right.to said property in accordance with Sections 5444 and 5445, Revised Statutes. Such proceedings were had before a justice of the peace and a jury as provided for in said sections, and the trial resulted in a verdict for the claimant, Jacob H. Izor, as to all the property, in which the valúe of the attached property was fixed at $930. The justice rendered the judgment .authorized by the statute.
    Within three days thereafter the attaching creditor, The W. L. Adamson Company, tendered to the sheriff an undertaking in double the amoúnt of the value of the property as assessed by the jury, with sureties approved by the sheriff, and payable to the claimant, conditioned as required by Section 5446, Revised Statutes. After the approval of the undertaking the sheriff delivered the same to the claimant, Jacob H. Izor, and proceeded to sell the property at the request and on the demand of the attachment creditor, who is now the plaintiff in error, and having sold sufficient of said property to satisfy the demand of said creditor, the claimant was notified to take possession of the unsold portions, which he refused to do, but brought suit on said undertaking to recover his damages sustained by reason of the detention and sale of said property.. The plaintiffs in error, as principal and sureties on the undertaking, were made defendants, and filed their answer to the amended petition, in which the foregoing -proceedings are admitted, but' they further say “that shortly after said sale,- to-wit, about January 11, 1902, the plaintiff and all other parties claiming any interest in the property which had been attached were notified that the claim of said The W. L. Adamson Company had been satisfied, and that it claimed no further' interest in the unsold residue of the property which had been attached, and that both it and said sheriff surrendered all further right to the possession thereof.” They then deny “that said company thereafter, either through itself or said sheriff, kept, retained or held possession of said property, or any part thereof, or that said company in any way converted or derived any benefit from any portion of the property attached except the portion of the same sold under said writ, of attachment as stated.’.’ By an amendment to the answer, the defendants allege that the said claimant, Jacob H. Izor, paid no consideration for the property, or if any was paid it was inadequate, and that the transfer to him by J. E. Izor was made with intent to defraud creditors of their just demands, and was and is fraudulent and void. They next charged that J. E. and Jacob H. Izor conspired to obtain from the attaching creditor goods on credit, and then defraud it out of the price and consideration thereof.
    The new matter was denied by reply.
    The casé was tried to a jury, and the defendants, now plaintiffs in error, offered evidence to prove the value of the unsold portions of the attached property, and that the claimant, Jacob H. Izor, had been notified that he might resume possession thereof.
    The following are some of the questions pro pounded by the defendants:
    Question to deputy sheriff: “Did you sel’ any more than necessary to satisfy the judgment and pay the costs?” Quéstion: “You may state whether or not the portion of the stock which was sold to satisfy the judgment and pay costs was or was not a large or considerable portion of the stock.” Question: “You may state whether or not after selling enough of the stock to pay the judgment and costs there was not left all the fixtures which had been located in the store.” Question: “You may state whether or not at the conclusion of the sale, there was still enough fixtures and stock left undisposed of to enable a grocer to start grocery business with — go on with liis business.” Objections to these and other similar questions were sustained, and exceptions taken.
    The defendants requested the court to charge: “If you should find the plaintiff otherwise entitled to recover, his recovery, so far as relates to an actual conversion of the property levied on is concerned, must be limited to the reasonable value of the property actually sold under the order of attachment, with interest from the day of sale.” * * * Also to charge: “It is alleged in the amended answer, without denial, that immediately after the sale, to-wit, on January 11, 1902, the plaintiff was notified to take possession of the place of business and to resume possession of the unsold residue of the attached property. If you find from the evidence that he refused or failed to do this, and that such residue of property was thereby, for any reason injured, destroyed or otherwise lost to him, or that by reason of such refusal damages resulted to him in any way, he can not recover against the defendants in this action for the value of the property of which he refused to resume possession, or for any of the damages so occasioned.”
    These and other requests similar in substance and purpose were refused and defendants excepted.
    They excepted to the general charge.
    The jury found for the plaintiff — the claimant— and assessed his damages for the value of the entire property attached with interest. The motion for new trial was overruled and judgment rendered on the verdict, which was affirmed by the circuit-court. The case is here on error.

      Messrs. Young & Young, for plaintiffs in error.
    The stipulation in the bond readily shows that The W. L. Adamson Company, in making it, had no intention of paying any greater damages than' had actually been sustained. This is apparent from the wording of the bond. The clauses binding The W. L. Adamson Company read:
    “Now, therefore, if the said The W. L. Adamson. Company shall pay to said Jacob H. Izor all damages sustained by reason of the detention or sale of the property so attached, then these presents shall be void; otherwise to be and remain in full force and effe'ct.
    “The undersigned hereby agree to pay to said claimant all damages so sustained, and said company, pursuant to the provisions of Section 5446, demands that said sheriff shall proceed to sell the property so attached, as if no trial of the right thereto had taken place.”
    In this case all the property was not sold, but the court refused to allow testimony-to this effect. These two clauses in the bond combined are capable of only one interpretation; namely, that the Adámson Company would pay such, damages as were incurred by reason of the sale of the grocery stock, and ‘ only such damages as were actually shown and proved. In this case there was - no final detention of all the property, neither was there any sale of .all of it; therefore there should be no recovery for the detention and sale of all the property in question. Alexander et al. v. Jacoby et al., 23 Ohio St., 364.
    A defendant in attachment can not recover in an action on the attachment bond unless he shows not only that the attachment was wrongful, but that he has sustained sonie damage; the mere fact that the plaintiff in the attachment did not recover is not sufficient. And such damages must be the natural and proximate consequence of the act of suing out the attachment. Shinn on Attachment.
    Our contention is that the Adamson Company acquired no title to the property not sold. If the suit were against it alone for conversion, it might, perhaps, be claimed that the judgment in damages for tort operated to give the company a title, but this does not affect the question as to the measure of damages in a suit on the bond.
    Even though the claim were one for conversion generally, under the decisions in Ohio no title would have passed to the Adamson Company until the rendition of the judgment in the suit for trespass. Acheson v. Miller, 2 Ohio St., 203. See “conversion” as interpreted by Bouvier’s Law Dictionary.
    In this case there has been no unlawful taking of' property. What has been done is simply that which has been authorizd by statute, aiid it has been held that “a rightful interference with the chattel of another can not constitute a conversion.” Barrett v. City of Mobile, 129 Ala., 179.

      Mr. Dan H. Pfoutg, and Mr. Charles H. Kum-Icr, for defendant in error.
    • The bond being in the nature of a replevin bond, and being so considered, there was no-error in assuming that the bond took the place of the property had the court so held. Jennings v. Johnson et al., 17 Ohio, 154; Williams v. West, 2 Ohio St., 83; Smith v. McGregor, 10 Ohio St., 461.
    The plaintiffs in error in this case claim that they were liable only for damages amounting to the value of the property actually sold by them. See Section 3677, Vol. 7, Lawson on Rights, Remedies and Practice, where this doctrine is laid down. Higgins v. Whitney, 24 Wend., 379; Woolley v. Carter et al., 7 N. J. L., 85; Kelly v. McDonald, 39 Ark., 387.
    We therefore maintain that the plaintiffs in error were guilty of conversion of the property of the defendant in error the moment the bond was given. The word conversion is defined to be “any distinct act of domination wrongfully exercised over another’s property in denial of his right or inconsistent with it.” Cooley on Torts, • second edition, pages 523, 525. The conversion may arise from the wrongfully taking and illegal assumption of ownership and illegal use or misuse or a wrongful detention. Glaze v. McMillan, 7 Port., 279; St. John v. O’Donnell, 7 Port., 466.
    As before stated, defendant in error had a right to bring the suit against the Adamson Company for the conversion the moment the bond was given, for we claim at that time there was a conversion on the part of the Adamson Company, or he could sue upon the bond executed to him; and our further claim is that the measure of damages would be the same, to-wit, the value of the property at the time of the conversion, with interest.
    The right of action is complete when a conversion is shown and no tender of the property after conversion or by an agreement of the owner without consideration to receive it will defeat the action or mitigate the damages.
   Price, J.

The theory of the plaintiffs in error is made manifest in the questions propounded at the trial and in the instructions requested, which appear in the statement of the case. It is, that after the 'trial of the right of property seized on attachment in which the jury found for. the claimant, the attachment creditor could give the undertaking specified in Section 5446, Revised Statutes, and have enough of the personal property sold to satisfy his demand and costs of the case, and the value of the portion so sold, with interest, is the limit of his liability on the undertaking. This theory did .not prevail in the lower courts, for the rejection of the testimony offered on the trial and the refusal to charge as requested, as well as the general charge, recognized a different construction of the statute and the undertaking executed thereunder. The trial court charged the jury as follows: “This bond was given for the protection of the sheriff on carrying into effect the process which The W. L. Adamson Company caused to be issued in its suit against Jonah E. Izor, and when given, took the place of the property which in the proceedings before the magistrate was declared to be in the plaintiff.

“If you find for the plaintiff, therefore, he will not be limited in his recovery to the amount of the property sold by the sheriff, although notified that the claim of The W. L. Adamson Company was satisfied without the sale of all the property, and although the said The W. L. Adamson Company and the sheriff offered to surrender said residue. • * * *”

This rule of liability is the very opposite of the one contained in the special instructions requested by the plaintiffs in error. Which is the correct rule ? —seems to be the only important question raised in the record. A brief consideration of the statutes relating to the subject will furnish an answer to the question. After the stock of groceries, provisions, fixtures, horses, wagons, harness, etc., had been taken in attachment by said company, the defendant in error made claim that he owned all of said property, and demanded of the sheriff that he cause proceedings to be had to try the right of the claimant to the same. The course of procedure in such case is pointed out in Section 5444, Revised Statutes, and it was pursued by the sheriff, so that the creditor, who had due notice of the time and place of trial, and the claimant, met before the magistrate and jury where the right of property was contested. The claimant won as to all the attached property, for such was the verdict of the jury. Section 5445, Revised Statutes, authorizes the magistrate, in case of such verdict, to “render judgment upon such finding for the claimant, that he recover his costs against the plaintiff in execution, or other party for whose benefit the execution issued, and also that he have restitution of the goods and chattels, or any part thereof, according to the finding of the jury. * * * A judgment for the claimant, unless an undertaking be executed as provided in the next section, shall be a justification of the officer in returning ‘no goods’ to the writ of execution-by virtue of which the levy was made, as to such part of the goods and chattels as were found to belong to the claimant, and the same fees, ¿tc.”

The attaching creditor, plaintiff in error, yvas not content with the verdict and judgment rendered in favor of the claimant, did not intend that the attached property should be restored to him, and as the proceeding was not conclusive, he resorted to the next section (5446) for the purpose of bringing the property — not part — but all of the attached property to sale. So within three days next after the verdict and judgment, the creditor,- The W. L. Adamson Company, executed the undertaking provided for in that section. It was in double the value of the property as fixed by the jury in- the magistrate’s court and'conditioned that “if the said The W. L. Adamson Company shall pay to said Jacob H. Izor all damages sustained by reason of the detention or sale of the property so attached, then these presents shall be void; otherwise to be and remain in full force and effect.” This bond with approved sureties was taken, and as directed by the statute, it was delivered to the claimant who is defendant in error. It is worthy of note that the sheriff is not required to file this undertaking in his office or the office of the clerk, but it must be delivered to the claimant.

Then what follows ? The officer proceeds “to sell the property as if no trial of the right there to had taken place, and shall not be liable to the claimant therefore.” This means that the officer is directed to resume possession of the goods and chattels and sell them as property of the attachment debtor, J. E. Izor. The bond in-double the value of the property having been delivered to the claimant, Jacob H. Izor, the latter yielded full possession and control to the officer who was holding the process for plaintiff in error in the attachment proceeding. The creditor still insisted that the goods and chattels belonged to his debtor, notwithstanding the verdict and judgment in the magistrate's court where the right of property had been tried, and to carry this claim over such verdict and judgment, the undertaking under consideration was executed and delivered to the claimant. It is not conditioned for the restoration of any part of the property to the claimant, but that he, the creditor, will pay all damages sustained by reason of the detention or sale of the property. By reason of these proceedings there came to pass a complete conversion of the attached goods and chattels.

Oftentimes personal property attached is in whole or in part of a perishable nature, and such may have been true in the attachment proceeding' referred to herein, and it is the policy of the law that the jus disponendi should at all times reside somewhere and not be suspended for an indefinite period. After delivery of the undertaking in whom was the jus disponendi? Surely not in the claimant, Jacob H. Izor, for that is what he had just lost by reason of the undertaking. It would seem that the attaching creditor assumed that right inasmuch as he directed the officer to take full and absolute control of all the attached goods and chattels and sell them as the property of J. E. Izor; and the goods that were sold were sold as his goods, the purchaser taking title as of the goods of J. E. Izor. What right has the creditor, when he has caused the sale of enough of the goods of J. E. Izor to satisfy his cause of action and costs, to treat the unsold residue as the property of Jacob H. Izor, the claimant, and notify him to resume possession of the same and go on with the grocery business? It is exercising a high hand, when the attachment creditor can seize all the goods as belonging to his debtor, and when his claim is satisfied throw the unsold portions to the real owner as so much refuse; and yet that is the attitude of the plaintiff in error in defending against recovery in this case on the undertaking. The creditor exercised his legal privilege and right to ignore the finding and judgment in the case where the right of property was tried, gave the undertaking, and by course of conduct, said to the officer as well as to the claimant, the goods and chattels attached belong to the debtor, J. E. Izor, notwithstanding the result in the magistrate’s court, and you will proceed with the sale as if no such trial of right of property had taken place, for such is your statutory duty. The sale proceeded until enough was sold to pay the claim, and then the creditor says, perhaps the unsold residue of property may belong to the successful claimant, and so far as I am concerned he may take it back. This would be a most arbitrary partition of the property, and would, if legally recognized, give the cream of the goods to the auction block an,d the odds and ends to the claimant.

The exercise of such a right would bring about very unjust consequences, and is not permissible under a proper construction of the statute and the undertaking. The course pursued by the creditor compelled the claimant to rely on and resort'to the undertaking for his redress, and here again the creditor contests the claimant’s title to any part of the property, but asked the trial court to charge the jury that in case the claimant made out his title to the whole, he could recover only for the value of the goods actually sold with interest on that value, because he, the creditor, had offered to return the unsold residue to the claimant. Such doctrine is not the law of this case, and the trial court correctly so held. The condition of the bond is to pay to the claimant “all damages sustained by reason of the detention or sale of the property so attached," and the condition is not met by payment for such parts of the goqds and chattels as were sold by the' officer. The detention was of the entire stock seized and the true owner was not required to hunt up or down for the remnants unsold.

The undertaking took the place of the property, is the concrete statement of the law to be applied to the facts of the case, and the sureties on the instrument are held to secure the performance by the principal of the obligations which he has assumed.

It is hardly necessary to say that the provisions of the sections of the statute referred to, while a part of» the statute relating to executions, exemptions, etc., are construed to apply also to proceedings in attachment, the trial of the right of property, execution of undertaking, etc., as in cases of executions.

We find no error, and the judgment of the circuit court is affirmed.

Judgment affirmed.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.


source: Caselaw Access Project

author: Shauck, C. J.

license: Public Domain

text:
    Graham v. Simon, Admr.

      Actions on domestic judgment — Statute of limitations is twenty-one years.

    An action upon a judgment of a court of this state may be brought at any time within twenty-one years. Tyler’s Executors v. Winslow, is Ohio St., 364, followed; Doyle v. West, 60 Ohio St., 438, distinguished.
    (No. 10047
    Decided February 26, 1907.)
    Error to the Circuit Court of Gallia County.
    The question upon which the case is thought worthy of report arises upon the following statement:
    On the 1st of December, 1903, the defendant in error filed a petition in the Court of Common Pleas of Gallia County, alleging the plaintiff’s appointment and qualification as administrator de bonis non of Charles Simon, deceased, and further alleging as ground for recovery a judgment which his predecessor in representation had recovered against Graham on the 8th day of September, 1887, in the Court of Common Pleas of Gallia County, which judgment remained wholly unpaid. Contemporaneously with the petition he filed an affidavit for attachment on the ground of the non-residence of the defendant. No execution had ever been issued upon said judgment nor had any proceeding been taken to revive it. Answering said petition, Graham pleaded, among other things, that said cause of action, if any, is barred by the statute of limitations. In the court of common pleas there was a judgment for the plaintiff, and it was affirmed by the circuit court.

      Mr. Willard, B. Stier and Mr. Robert M. Switzer, for plaintiff in error.
    The action was barred by the statute of limitations.
    The legislature intended to provide a limitation for “every cause of action.”
    Sections 4976, 4979, 4980, 4985 and 5380, Revised Statutes.
    A limitation is therefore provided by the foregoing sections, for “every cause of action,” without an exception, but as judgments at law are not specifically mentioned in terms, the query is, Which section applies to actions upon judgments?
    The Legislature has prescribed an easy method for a litigant to keep his judgment alive and binding forever, and a subsisting lien against the property of the debtor, by the issuing of an execution thereon every five years. If the action becomes dormant, and no execution is issued, he has the further right by Section 5367 to revive it, and the limitation fixed by Section 5368 for revivor is twenty-one years. If a party dies it may be revived in the name of his successor in trust or legal representatives. (Sec. 5154-) If a personal representative of a deceased person be removed, or die, it may likewise be revived in the name of the heirs or successors in trust, and the limitation fixed for such revivor is one year, unless by consent. (Secs. 5148-5157.)
    We believe that these sections of the statute are not intended to be cumulative, but are designed to be exclusive, fixing the method of procedure when a litigant is careless and allows his judgment to become dormant. Smalley v. Bowling, 64 Kan., 818.
    By a line of old decisions in this state it has been held that a “judgment” is never barred, because it is not specifically specified as an action to be limited. That an action could always be maintained upon a judgment, although an execution would be set aside if issued. Those decisions, however, were controlled by the condition of the statutes existing at that time; but as time progressed and those sections of the statutes were changed, different limitations were placed upon the same action, so that now the former decisions could have no controlling force.
    We claim the decision in Tyler’s Exrs. v. Winslow, 15 Ohio St., 364, is not applicable to our present statutes, and has been overruled in Doyle v. West, 60 Ohio St., 438.
    At the time the Tyler case was decided, Section 5367 did not contain a provision limiting “debts of record,” as causes of action to be revived only within twenty-one years, but it did when Doyle v. West was decided by this court. Section 4985 at that time had a limitation of four years, while at the time Doyle v. West was decided it was ten years.
    The Tyler case was a suit upon a judgment, while Doyle v. West was an action upon a “debt of record.”
    Four points were settled by this court in the Doyle-West case, and which overrule the same points decided adversely in the Tyler case.
    1. That the “rendition of a judgment” is the “accruing of a cause of action.”
    2. That the legislature intended to provide a limitation for “all actions” without exception.
    3. That Section 4985, providing that all other actions not specifically mentioned should be barred in “four” years, controlled the minds of the court in the Tyler case. That it is without application to our present "ten” years’ statute. ■
    4. That ten years is long enough for a debt of record, and should be for a judgment.

      Mr. Hollis C. Johnston; Mr. T. E. Bradbury and Mr. E. D. Davis, for defendants .in error.
    We think the decision in the case of Tyler’s Executors v. Winslow, 15 Ohio St., 364, is conclusive of this case, until it be overruled by this court. It will be noted that the question in Doyle v. West, 60 Ohio St., 438, arose over a “debt of record,” and not upon a dormant judgment, and this fact is especially noted in the opinion in the latter case.
    Counsel for plaintiff in error are therefore entirely wrong when they say that the Doyle case is decisive of the matter in their favor. The fact of the matter is that it is decisive against them, because in the body of the opinion it is said: ■
    “There is no disposition to overrule this case; but if persuaded that it was not rightly decided, there is more reason for confining its application to cases identical with it in facts.”
    The case at bar is identical with the case of Tyler’s Executors, and under the language of the Doyle case, it must be considered conclusive, and that there is no statute of limitations against a judgment, other than the time requisite at common law to raise a presumption of payment, which is twenty-one years.
   Shauck, C. J.

That the judgment whose reversal is sought in this, proceeding is in' accordance with that pronounced by this court in Tyler’s Executors v. Winslow, 15 Ohio St., 364, is entirely clear. In that case two propositions were established: That although a judgment of a court of this state is a good ground of action, its rendition is not the accruing of a cause of action within the meaning of the act of February 18, 1831; and that, therefore, said act of limitation does not apply to an action founded upon a judgment of a court of. this state. By that decision the question involved was put to a rest which appears to have remained undisturbed until the announcement of Doyle v. West, 60 Ohio St., 438. The able counsel who presented the latter case to this court did not understand that they were disturbing the general repose of that question, nor did they in any wise challenge the soundness of the former decision. The case which they presented was broadly distinguished by the fact that it was an action not founded upon a judgment.- It was an action to recover the portion of a debt which remained unpaid after the foreclosure of a mortgage by which it was secured and after the application of the proceeds of the sale of the mortgaged premises. In the suit to foreclose no personal judgment had been sought in the petition, nor was ány rendéred, nor was there even an award of execution for the satisfaction of any balance which might remain unpaid after applying the proceeds of sale. The action was, therefore, for the recovery of a balance of the amount which the court had found to be the indebtedness secured by the mortgage, the finding having been made as the predicate of the decree of foreclosure to subject the mortgaged property, and not affording to the creditor any executory remedy against the general property of the debtor. That finding, though lacking essential characteristics of a judgment, was held to,be a debt evidenced by record and a proper foundation for an action, but subject to a limitation of ten years or fifteen years, the case not requiring a more precise conclusion upon that question. Our judgment in the case was placed upon the nature of the finding and its deficiencies in the characteristics of a judgment. This clearly appears from the syllabus, whose function in these reports is well known.

It is true that in the course of the opinion in the later case some doubts were expressed as to the correctness of the conclusion reached in Tyler’s Executors v. Winslow, but they do not appear to have been shared by the concurring members of the court, nor did they enter into the decision. It is also true that in that opinion encouragement is given to the proposition urged by counsel for the plaintiff in error in the present case: that differences between the present statute limiting'actions and that considered in Tyler’s Executors v. Winslow are material to the question before us. No difference of that character appears. The statutes afford equal foundation for the proposition there affirmed and distinctly stated that the rendition of a judgment is not the accrual of a cause of action. That proposition being accepted, the ultimate conclusion reached by this court in that case and by the courts below in the present case is inevitable. We perceive no such defect in the reasoning by which that proposition was supported as would justify us in disturbing a conclusion in which the legislature has acquiesced for more than forty years. At most, adherence to that conclusion imputes to the legislature only the intention that an action to recover upon a judgment may be brought at any time within twenty-one years, which is the limitation expressly imposed by Section 5368 of the Revised Statutes upon an action to revive a judgment.

Judgment affirmed.

Price, Crew, Summers, Spear and Davis, JJ., concur.


author: By the Court:

text:
    McCormick, Administrator, v. The Sells Company.

      Sections 6583 <ffld 6584, Revised Statutes — Justices’ Civil Code— Regulates appeals from justices’ courts — Section 6408, Revised Statutes — Applies when party is in fiduciary capacity and gives no bond — Such party must given written notice of intention to appeal — Oral notices entered on docket, etc., is insutficient.

    Sections 6583 and 6584;, Revised Statutes,' et seq., Justices’ Civil Code, regulate appeals generally in civil cases from the courts of justices of the peace to the court of common pleas, but Section 6408, Revised Statutes, applies when a person who is a party in a fiduciary capacity appeals without giving an appeal bond, and in such cases the party appealing must give a separate written notice to the court of his intention to appeal within the time limited for giving bond. Oral notice to the justice and an entry of notice of appeal by him on his docket Or in the transcript is not sufficient.
    (No. 10084
    Decided February 26, 1907.)
    Error to the Circuit Court of Franklin County.
    In 1905 the defendant in error, a corporation, sued the plaintiff in error, as administrator, on an account, before a justice of the peace. Judgment was rendered for the plaintiff, and the defendant gave oral notice of its intention to appeal, to the justice, who endorsed upon the bill of particulars “Notice of appeal,” and in the transcript of the proceedings before him, filed in the court of common pleas, immediately after the entry of judgment, appears this notation, “Notice of appeal.” No appeal bond was given. In the court of common pleas the appeal was dismissed on the ground that this was not‘a good statutory notice of appeal. The circuit court affirmed and error is prosecuted in this court.

      Mr. Henry M. Butler and Mr. Seth L. McMillan, for plaintiff in error,
    cited and commented upon the following authorities:

      Thomas, Admx., v. Moore, etc;, 52 Ohio St., 200; Scovern v. State, 6 Ohio St., 288; Whittaker’s Ohio Code of Evidence, 512; Collins, Exr., v. Millen et al:, 57 Ohio St., 289; Lessee of Haines v. Lindsey, 4 Ohio, 88; C. H. & D. Ry. Co. v. Bailey, 70 Ohio St., 88; Irwin et al. v. Bank of Bellefontaine, 6 Ohio St., 81; Kenton et al. v. Board of Education, 70 Ohio St., 172; Charles v. Fawley et al., 71 Ohio St., 50; Hirsh v. Kilsheimer, 12 C. C., 291; Miller et al. v. Albright, 12 C. C., 534; In re Estate of Sidwell, 67 Ohio St., 464; Doyle v. Doyle, Ir., et al., 57 Ohio St., 330; Layer, Gdn., v. Schaber, Admr., 57 Ohio St., 234; Coates v. Chillicothe, etc., Bank, et al., 23 Ohio St., 415; Scofield v. L. T. & M. S. Ry. Co., 43 Ohio St., 571; Seeley v. Thomas, Auditor, 31 Ohio St., 301; Brundige v. Village of Ashley et al., 62 Ohio St., 528; Henry v. Trustees, 48 Ohio St., 671; Rhodes v. Weldy, 46 Ohio St., 234; Rose, Sheriff, v. Willet, 54 Ohio St., 150; Robinson v. Orr et al., 16 Ohio St., 285 ; Lewis’ Sutherland Statutory Construction, Sections 368 and 370; Medical College of Ohio v. Zeigler et al., 17 Ohio St., 53; State for the use of, etc., v. Blake et al., 2 Ohio St., 147; C. W. & Z. R. R. Co. v. Commissioners, 1 Ohio St., 77; Miller v. State, 3 Ohio St., 475; Pim v. Nicholson, 6 Ohio St., 177; Harris v. State, 57 Ohio St., 92; Columbus Street Ry. Co. v. Pace, 68 Ohio St., 200; Teaff v. Ross et al., 1 Ohio, 469; Coe v. C. P. & I. R. R. Co., 10 Ohio, 384; Conger et al. v. Barker’s Admr. et al., 11 Ohio, 1; Burgunder et al. v. Weil et al., 60 Ohio St., 234; Gilpin et al. v. Williams et al., 25 Ohio St., 283; Toledo Commercial Co. v. Glen Mfg. Co., 55 Ohio St., 217; United States v. Wilson, 58 Fed. Rep., 768; Rutherford & Co. v. C. & P. R. R. Co., 35 Ohio St., 559; Lane v. State, 39 Ohio St., 312; Myers v. Seaberger, 45 Ohio St., 234; Shultz v. Village of Cambridge, 38 Ohio St., 659; Goodall v. Gerke Brewing Company, 56 Ohio St., 257; State v. Johnson, 64 Ohio St., 270; Aultman, Miller & Co. v. Assignees of J. F. Seiberling Co. et al., 31 Ohio St., 201; Steamboat Messenger v. Pressler, 13 Ohio St., 255; Brigel v. Starbuck, 34 Ohio St., 280; McCormick v. Alexander, 2 Ohio 65; Trustees v. White et al., 48 Ohio St., 581; Sawyer v. State, ex rel., 45 Ohio St., 343; Rolling et al. v. Lorain, 13 Low, D., 87; Story on Contracts, Section 776; C. S. & H. R. R. Co. v. I. B. & W. Ry. Co., 44 Ohio St., 287; Mintier et al. v. Mintier, 28 Ohio St., 307; Stone v. Elliot, 11 Ohio St., 252; Bulkley v. Stephens et al., 29 Ohio St., 620; Cobble et al. v. Farmers’ Bank, 63 Ohio St., 528; Norris v. State, 25 Ohio St., 217; Johnson v. Johnson, Exr., 31 Ohio St., 131; Greenhow et al. v James, Exr., 80 Va., 636; State, ex rel., v. Wright, Treas., 17 Ohio 33; City of Cincinnati et al. v. Guckenberger, 60 Ohio St., 353; A Mad World, by Masters; Humphreys, Exr., et al. v. State et al., 70 Ohio St., 68; Bahmann v. Stoner, 59 Ohio St., 497; Hallanan v. Crow, 15 Ohio St., 178; Courtright v. Staggers, 15 Ohio St., 511; Cohoon et al. v. Kincon, 46 Ohio St., 590; Bancroft & Co. v. Talbott et al., 29 Ohio St., 538; Steamboat Ohio v. Stunt, 10 Ohio St., 583; Jones v. Wilson Carr & Co., 16 Ohio St., 420; Debolt, Treas. v. Ohio Life Ins. & Trust Co., 1 Ohio St., 563; Hollmeyer v. McKinney, 15 C. D., 704; Bernard et al. v. Schwartz, 22 C. C., 149; 1 Kent’s Commentaries, 464; Sutherland on Statutory Construction (1st Ed.), Sections 308 and 311; Jewett v. Valley Ry. Co., 34 Ohio St., 501; Rogers v. Goodzvin, 2 Mass., 476; State ex rel. v. Cook, 20 Ohio St., 232; Prentice v. Pickers gill, 6 Wallace, 511; Chesnut v. Shane’s Lessee, 16 Ohio, 599; Citizens’ Savings Bank v. Ide, 20 C. C., 665; Campbell, Admx., v. Campbell, 3 C. C., 449; Dutoit v. Doyle et al., 16 Ohio St., 400; Murphy’s Admr. v. Northern Transportation Co., Harding v. Trustees of New Haven Tp., 3 Ohio, 15 Ohio St., 536; Austin v. Hayden, 6 Ohio, 388; 227; McGarvey v. Puckett, 27 Ohio St., 669; Scioto Valley Ry. Co. v. Cronin, 38 Ohio St., 122; Broom’s Legal Maxims, 147; Root & McBridge Bros. v. Davis et al., 51 Ohio St., 29; Sections 549, 4948, 4956, 4982, 5228, 5353, 5363, 6407, 6408, and 6594, Revised Statutes.

      Mr. B. L. Bargar and Mr. William J. Ford, for defendant in error,
    cited and commented upon the following authorities:

      Thomas, Admx. v. Moore, etc., 32 Ohio St., 200; Layer, Gdn. v. Schaber, Admr., 57 Ohio St., 234;
      Humphreys, Exr., et al. v. State et al., 70 Ohio St., 73; Browne, Assignee, v. Wallace, Assignee, et al., 66 Ohio St., 57; Collins, Exr., v. Mitten et al., 57 Ohio St., 289; Dennison et al., Exrs., v. Talmadge et al., 29 Ohio St., 433; Western Union R. R. Co. v. Dickson, 30 Wis., 389; Blum v. Brozvnstone Bros., 50 Cal., 293; Pollock et al.,v: School District et al., 54 Neb., 172; State ex rel. v. Hanousek, 19 C. C., 303; Mumma et al. v. Mumma, 23 Ohio St., 602; Reber v. Columbus Machine Mfg. Co., 12 Ohio St., 175; Sections 213, 5227, 5228, 6408 and 6584, Revised Statutes.
   By the Court:

Section 6584, Revised Statutes, in the Justices’ Code of Civil Procedure, prescribes the mode of appeal from the judgment of a justice of the peace to the court of common pleas, and does not except parties, who are such in a fiduciary capacity and háve given bond in this state, and who appeal in the interest of their trust, from the requirements of notice and bond for appeal. In Section 5228, Revised Statutes, in the chapter relating to civil procedure in the court of common pleas, it is provided that: “A party in any trust capacity, who 'has given bond in this state with sureties according to law, shall not be required to give -bond and security to perfect an appeal,” and in Section 6408, Revised Statutes, in a chapter relating to civil procedure in probate courts, it is provided that: “When the person appealing, from any judgment or order in any court, or before any tribunal, is a party in a fiduciary capacity, in which he has given bond within the state, for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed the appeal, by giving written notice to the court of his intention to appeal within the time limited for giving bond.”

In Thomas, Admr. v. Moore, etc., 52 Ohio St., 200, it is decided that a party in' a fiduciary capacity to a case in the justice’s court, and who has given bond in this state, is not relieved bjr Section 6408 from giving bond for appeal from a justice’s court when the appeal is not in the interest of his trust, and in Browne, Assignee, v. Wallace, Assignee, et al., 66 Ohio St., 57, it is held that to perfect an appeal under 6408, Revised Statutes, a separate written notice to the court of an intention to appeal is necessary, and that a recital of notice in a journal entry is not sufficient. Ip the opinion in Thomas, Admr. v. Moore, supra, it is said that Section 6408, Revised Statutes, is applicable to appeals from justices of the peace and that Section 5228, Revised Statutes, is applicable onfy to appeals from the court of common' pleas to the circuit court; and in the opinion in Layer, Gdn. v. Schaber, Admr., 57 Ohio St., 234, it is said that Sections 5227 and 5228 apply to appeals from the common pleas court to the circuit court, and that Section 6408 applies to appeals from a probate court to the court of common pleas, and to appeals from other courts inferior to the court of conimon pleas. Unless some section other than 6408 applies, and unless these decisions are wrong, the judgments below are correct. Counsel for plaintiff in error contend that the statements referred to are merely obi-ter, that they are-based upon a mistaken view of the statutes, that Section 6408 is limited to appeals from the probate courts to courts of common pleas, that Section 5228 is made applicable to appeals from justices to the court of common pleas by Section 6705, Revised Statutes (Justices’ Civil Code), which provides that the provisions of the code of civil procedure in the court of common pleas, which are in their nature applicable, shall apply to proceedings before justices of the peace where no special provision is made in the title of the Revised Statutes relating to proceedings before justices of the peace and mayors; that such was the contemporaneous view of the statute by a former distinguished member of this court in his celebrated vade me cum for -justices known as Swan’s Treatise, and' that ever since such has been the uniform practice. Whether or not in the absence of Section 6408, Section 5228 would by virtue of Section 6705 apply to appeals from' justices of the peace to the court of common pleas, and, if it did, whether the appeal was properly taken need not be considered, since it is easily susceptible of demonstration that Section 6408 does apply!

• Prior to the adoption of the present Constitution in 1851, probate courts did not exist in this state. In the administration act of 1840, 38 Ohio Laws, 146, S. & C., 563, Sec. CCLXIII, it is provided: “Every executor or administrator who may have given bond in this state, with- sureties, agreeable to law, shall be authorized in all cases of an appeal from one court to another, by him made, to prosecute the same without filing any appeal bond.'” This section remained in force until repealed in 1878, 75 Ohio Laws, 836-963, by an act, “To revisé and consolidate the laws relating to procedure in the probate court,” passed in pursuance of the plan that resulted in the Revised Statutes of 1880. Section 8 of Chapter *7 of the Act of 1878, 75.Ohio Laws, 836-957, provided for appeals as to certain matters from the probate court to the court of common pleas, and Section 9 provided: “But when the person appealing is a party in a fiduciary capacity, in which he has given bond within the state for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed the appeal, by giving, written notice to the court of his intention to appeal within the time limited for giving bond,” and as to the source of the section reference is made to section CCLXIII of the statute of 1840 and to Sections 4 and 6 of an act passed in 1854 (52 Ohio Laws,-103), supplementary to an act relating to practice in the probate court. It may be that Section 9 related solely to appeals from the probate court to the court of common pleas, and was inapplicable to appeals from justices of the peace to the. court of common pleas, but it appears as Section 6408 of the Revised Statutes of 1880, with these words added, “from any judgment or order in any court, or before any tribunal,” and then read as it does now, so that the intention that this provision shall apply to every case for which special provision has not been made is so plain “that he may run that readeth.”

Judgment affirmed.

Shauck, C. J., Price, Crew, Summers, Spear, and Davis, JJ., concur.


author: Davis, J.

text:
    The Bullock Beresford Manufacturing Company v. Hedges.

      Verification of pleading — By agent or attorney of corporation— Requirements of — Sections 5105 and Slop, Revised Statutes.

    1. A verification of a pleading, when made by an agent or attorney of a corporation, must contain a statement that the case is included in one or more of the classes defined in Section 5109, Revised Statutes; but whether the pleading can or can not be verified by an agent or attorney under said section, it may be verified by an officer of the corporation as by a party.-
    2. When in the verification by an agent or attorney, the affiant states that he has personal knowledge of the facts, he may also state in his affidavit ^that he believes the facts stated in the pleading to be true, as provided in Section 5105, Revised Statutes.
    (No. 9760
    Decided March 19, 1907.)
    Error to the Circuit Court of Cuyahoga County.
    The plaintiff in error, which has been plaintiff from the beginning, began its action by filing a petition in the court of common pleas, alleging that the plaintiff is a corporation organized and doing business under the laws of the state of Ohio, with its principal office in the city of Cleveland, and alleging in detail the facts upon which it prays for a judgment against the defendant in the sum of $5,500.00,-with interest. The petition was verified in the form following: (Caption) A. B., being duly sworn, says that he is the attorney of the plaintiff, duly authorized in the' premises; that the statements contained in the foregoing petition are true, as he verily believes. (Signed.) Sworn to before me and signed in my presence this 8th day of October, 1904. C. D., Notary Public.
    The defendant moved the court to strike the petition from the files, for the reason that the verification did not set forth the conditions under which an agent or attorney may verify a pleading, as provided in Section 5109, Revised Statutes. Upon consideration, the court of common pleas sustained the motion and the petition was stricken from the files at the costs of the plaintiff, for which costs judgment was rendered against it. The circuit court affirmed the judgment of the court of common pleas, and this proceeding is prosecuted to reverse the judgments of the circuit court and court of common pleas.
    . Mr. George A. Groot, for plaintiff in error,
    cited and commented upon the following authorities:

      Railway Co. v. Village of St. Bernard, 8 O. D., 389; Griffen et al. v. Brooks, Exr., et al., 2 O. D., 67; page 1181, Curwen’s Statutes, 1854; Sections 106 and 113, Code of Civil Procedure, 1853; page 719, Swan’s Statutes, 1854; Sections 5101, 5102 and 5109, Revised Statutes.

      Mr. W. J. Patterson, for defendant in error,
    cited and commented upon the following authorities :

      Building Assn. v. Hayes et al., 2 N. Y., 193; Meton & Sons, Ltd,, v. Wagon Co., 15 N. Y. Civ. Pro. Rep., 259; Banks v. Manufacturing Co., 108 N. Car., 283; Fitch v. Biglow et al., 5 How. Pr. Rep., 237; State, ex rel., v. Commissioners, 20 Ohio St., 421; Bank v. Hogan, 21 Wis., 317; Bates’ Pleadings, Parties and Forms Under the Code, Vol. 1, 250; Section 105, Code of Civil Procedure, 1853; Section 525, New York Code of Civil Procedure; Sections 5102 and 5109, Revised Statutes.
   Davis, J.

The plaintiff’s petition was stricken from the files for the reason that the verification did not show that the attorney who verified did so in conformity to the provisions of Section 5109, Revised Statutes. The plaintiff claims that this was error; and its contention is that Section 5109 does not apply to an agent or attorney of a corporation.

By Section 5102 it is provided that a pleading must be verified by “the party, his agent or attorney.” By Section 5109 it is provided that a pleading can be verified by “the agent or attorney” only in certain cases therein named. It is not disputed that this is a limitation on Section 5102, so far as the latter section relates to parties other than corporations. Why does it not have the same effect when the party happens to be a corporation? Section 5102 provides that “When a corporation is the party, the verification may be made by an officer thereof, its agent or attorney.” Thus an “officer” of the corporation is made to take the place of “the party” in the preceding clause of the section; and in this view the two sections would seem to stand together as well when a corporation is a party as in any other case.

But to this reasoning the plaintiff objects with the proposition that an “officer” of a corporation is only an agent of the corporation and that “officer thereof, its agent or attorney” means no more than “agent or attorney” in the first clause of the section. Hence, he argues, if Section 5109 applies to the agents or attorneys of corporations there may be cases in which there can be no verification at all, because, on this hypothesis, an officer is only an agent and agents can verify only when they have personal knowledge of the facts, etc. In this way, it is claimed, when a corporation is a party it may be deprived of the right to verify on belief, as provided in Section 5105.

This reasoning is not sound. Assuming for the purposes of the argument that an officer is an agent, it may be regarded as certain that some agent of the corporation would have personal knowledge of the facts alleged; but it does not follow, because an agent must have personal knowledge of the facts alleged before he can be permitted to verify for the party, that he can not state in his affidavit that he believes the facts stated to be true. Section 5105. The agent must have personal knowledge of the facts, as his principal is presumed to have, but he may, as his principal may, make affidavit that he believes the facts stated in the pleading to be true; and this has been the practice under the code from the beginning. See forms under the code of civil procedure in Swan’s Plead. & Prac. (i860), 222; Nash’s Plead. & Prac. (1st Ed., 1856, and 2d Ed., 1859), 98; 1 Bates’ Plead., .Parties & Forms (1881), 250.

It requires, however, only a cursory turning over of the statutes, decisions and text-books relating to corporations, to discover that everywhere and at all times there is drawn a broad line of demarcation between the officers who manage the affairs of a corporation, and its mere agents; and we therefore can not avoid the conclusion that in drafting Section 5102 the legislature used the word “officer” in contradistinction to the -word “agent,” and not tautologically; and that an officer of a corporation may verify a pleading when an agent can or can not do so. The argument of the plaintiff therefore necessarily fails.

It has been suggested that since Section 113 of the code of civil procedure, now Section 5109 of the Revised Statutes, provided that when an agent or attorney verified a pleading he must set forth the reason why it was not verified by the party, and since that provision was left out in the revision of 1880, the omission may have some significance. It does not seem to us that this change in the language of the section should have the slightest effect in the construction of these sections to which we have referred, when taken together. The expressed purpose of the act of March 27, 1875 (72 O. L., 87), was “to revise and consolidate the general statute laws of the state;” and it was specifically provided, “That in performing this duty, the said commissioners shall bring together all the statutes and parts of statutes relating to the same matter, omitting redundant and obsolete enactments, and such as have no influence on existing rights or remedies, making alterations to reconcile contradictions, supply omissions, and amend imperfections in the original acts, so as to reduce the general statutes into as concise and comprehensive a form as is consistent with clear expression of the will of the general assembly, rejecting all equivocal and ambiguous words, and circuitous and tautological phraseology.” It seems, long before that time, to have become the general, if not universal, construction of code section 113, that it was a compliance with the section to show in the affidavit that the case belonged to some one of the classes named in that section, without stating any other reason why “the party” did not verify. Kerns v. Roberts et al., 3 West. Law Month. (1861), 604. It was therefore not merely proper to omit the clause which was omitted, but it was the imperative duty of the commissioners to- do so. That clause was already “redundant and obsolete.” The omission did not change the meaning of the section as it was already interpreted in practice; nor as it should be interpreted with reference to the question now made. Ash v. Ash et al., 9 Ohio St., 384, 387; State, ex rel. Clough v. Commissioners of Shelby County, 36 Ohio St., 326; Allen v. Russell, 39 Ohio St., 336. The agent or attorney must still give the reason why he verifies, by stating in the affidavit that the case is included in one of the classes defined in Section 5109.

From our study of Sections 5102, 5105 and 5109, we deduce the following conclusions. 1. Every pleading of fact must be verified by the party, his agent or attorney. 2. When the party is a corporation it must be verified by an officer thereof, or by its agent or attorney. Officer and agent are not equivalent terms. 3. When a pleading is verified by an agent or attorney, the affiant must in all cases state in the affidavit that the' case is one included in one or more of the classes mentioned in Section 5109. 4. If the case is one in which the facts are within the personal knowledge of the agent dr attorney, he may nevertheless add in his affidavit the statement that he.believes that the facts stated in the pleading are true, as provided in Section 5105.

Affirmed.

Price, Summers and. Spear, JJ., concur.


author: Spear, J.

text:
    Archdeacon, Administrator, v. The Cincinnati Gas & Electric Company et al.

      Amendments to pleadings — May be allowed, though out of rule when — Action for zvrongftil death — Amended answer admits, huhat — Qualification of administrator — Relates back to time of appointment — Validates commencement of action by administrator.

    1. Amendments to pleadings sought to be made out of rule should be allowed only in furtherance of justice.
    2. Where, in a suit by an administrator to recover for wrongful death, the answer in terms admits that the plaintiff is the duly appointed and qualified administrator of the deceased, and the case being reached for trial more than two years after the death, the defendant asks leave to amend the answer by a denial of the due appointment and qualification of the plaintiff as administrator, for the' purpose only of interposing the two years bar of the statute, such leave, not being in furtherance of justice, should be refused.
    3. Where, in such case, the amended answer in terms reaffirms all the allegations of the original answer except that plaintiff was duly qualified as administrator, and then avers only that he was at a subsequent date (more than two years after the death) duly appointed and qualified, the legal effect is to leave in force the admission in the original answer of due appointment at the commencement of the suit.
    4. The general rule that the due qualification of an administrator relates back to the time of his appointment as regards acts done by him in the interim which are for the benefit of the estate, applies to a case of this character. The commencement of the suit by the administrator, therefore, being for the benefit of the estate, was the valid commencement of an action.
    (No. 10020
    Decided March 19, 1907.)
    Error to the Superior Court of Cincinnati.
    On March 28, 1903, the plaintiff, Cornelius Archdeacon, filed his petition in the superior court of Cincinnati against The Cincinnati Gas & Electric Company and The City & Suburban Telegraph Association, averring, among other things, that his intestate, John Archdeacon, met his death January 26, 1903, through the negligence of defendants, and that'he (the plaintiff) was the duly appointed and qualified administrator of said John Archdeacon, deceased. The names of the next of kin were stated. Further pertinent allegations followed and then a prayer for recovery of damages.
    On April .7, 1903, the defendants filed their separate answers, in each of which it is admitted “that plaintiff is the duly appointed and qualified administrator of the estate of John Archdeacon, deceased.” Other material allegations of the petition are denied.
    On March 3, 1905, the cause coming on for trial, the defendants, having obtained leave of ■ court therefor, filed a joint amended answer, in which answer it is averred that “the defendants reaffirm all the defenses and allegations set forth in the separate answers heretofore filed except that plaintiff was duly qualified as administrator of the said John Archdeacon, deceased.” Then follows an allegation “that on the 10th day of March, A. D. 1905, the said Cornelius Archdeacon was duty appointed and qualified by the probate court of Hamilton county, Ohio, as administrator of the estate of John Archdeacon, deceased,” and then an averment “that plaintiff is without legal capacity to maintain this action.”
    Thereupon defendants moved to dismiss the cause, the claim as to the facts being that, although due application by one entitled to administration had been made to the probate court February 5, 1903, for such appointment, and the plaintiff had then signed the bond ordered, yet the sureties not having signed and letters not in fact issued until March io, 1905, defendants were entitled to a dismissal. The motion was for judgment on the pleadings, and the court finding that defendants were entitled to judgment on the statements in the pleadings, sustained the motion, dismissed the cause, and rendered judgment for the defendants that they go hence without day and recover from the plaintiff their costs. This judgment was affirmed by the court in general term and the plaintiff brings error.

      Mr. Edward Colston; Mr. Charles M. Cist; Mr. W. A. Rinckhoff and Mr. D. T. Hackett, for plaintiff in error.
    1. The defendants are estopped to deny the capacity of the plaintiff to maintain the action.
    2. The suit brought by the plaintiff, as administrator, was not a nullity by reason of the defect in title, but was the valid beginning of an action.
    3. The subsequent qualification of the administrator related back so as to cure any- defects and validate the suit previously brought. 11 Am. & Eng. Ency Law, 447; Walker v. Wooster’s Admr., 61 Vt., 403; Davis v. Wakelee, 156 U. S., 680.; Railway Co. v. Bemis, 64 Ohio St., 26; Doolittle v. Lewis, 7 John. Ch., 51; 7 Am. & Eng. Ency. Law, 1st Ed., 193; Railway Co. v. Elyria, 69 Ohio St., 414; Wolf, Admr., v. Railway Co., 55 Ohio St., 517; Stewart v. Railway Co., 168 U. S., 445; Wells v. Stomback, 59 Ia., 377; Buel et al. v. Transfer Co., 45 Mo., 563; Lilly et al. v. Tobbein et al., 103 Mo., 477; Hines v. Rutherford, Exr., 67 Ga., 606; Henry, Admr., v. Roe et al.,

      Exrs., 83 Tex., 446; Smith et al., Exrs., v. Peckham, Exr., 39 Wis., 414; Insurance Co. v. Ludwig, 108 Ill., 514; McDonald v. Nebraska, 101 Fed. Rep., 171; Insurance Co. v. Mueller, 77 Ill., 22; Railroad Co. v. Town of Boswell, 137 Ind., 336; Wood, Admr., v. Circuit Judge, 84 Mich., 521; McLewis v. Fergerson, 59 Ga., 644; Wilson v. Presbyterian Church, 56 Ga., 554; Childers v. Adams, 42 Ga., 352; Miller v. Pollock, 99 Pa. St., 202; Whitaker v. Pope, 2 Woods, 463; Buckland, Admx., v. Green, 133 Mass., 421; McCall et al. v. Lee, 120 Ill., 261; Morford v. Dieffenbacker, 54 Mich., 593; Lottman v. Barnett, 62 Mo., 159; George et al. v. Reed et al., 101 Mass., 3781 Hodges v. Kimball et al., 91 Fed. Rep., 845, Van Doren v. Railroad Co., 93 Fed. Rep., 260; Helman, Admr., v. Railway Co., 58 Ohio St., 400; Mitchell v. Albright, Admx., 20 W. L. B., 101; Slagle v. Entrekin, 44 Ohio St., 637.

      Messrs. Outcalt & Foraker and Mr. Smith Hickenlooper, for defendants in error.
    1. There was at no time, nor could there now arise, a cause of action against defendants. The death statute creates a new cause of action in derogation of the common law, and must be strictly construed. Sections 6134, 6134a and 6135, Revised Statutes; Helman, Admr., v. Railway Co., 58 Ohio St., 400; Malott v. Shimer, 6 Am. Neg. Rep., 263; Brown v. Railway Co., 102 Wis., 140; Blake v. Railway Co., 83 E. C. L., 140; Railroad Co. v. Chambers, 73 Ohio St., 26; Railroad Co. v. Fox, Admr., 64 Ohio St., 133; 6 Thomp. on Negligence, Section 6986; Burns, Admr., v. Railway Co., 113 Ind., 171; Hamilton, Admr., v. Jones, Admx., 125 Ind., 176; City of Detroit v. Putnam, 45.Mich., 263; Railway Co. v. Keeley’s Admr., 23 Ind., 133; City of Detroit v. Chaffee, 70 Mich., 80; Stewart, Admr., v. Railway Co., 103 Ind., 44; Kramer v. Market St. Ry. Co., 25 Cal., 435; Nash v. Tousley, 28 Minn., 5; City of Eureka v. Merrifield, 53 Kan., 797.; Jackson v. Railway Co., 87 Mo., 422; Railroad Co. v. Sturgis, 44 Mich, 538; Woodward, Admr., v. Railway Co., 23 Wis., 400; Barker v. Railway Co., 91 Mo., 94; Eustace v. Jaim’s Admr., 38 Cal., 3; Daly v. Stoddard, Trustee, et al., 66 Ga., 145; Railroad Co. v. Johnson, 7.7 Miss., 727; Isaac et al. v. Railway Co., 12 Daly, 310; City of Lexington v. Lewis’s Admx., 10 Bush., 677; Holston v. Coal & Iron Co., 95 Tenn., 523; Whaley v. Catlett, 103 Tenn., 352; Railroad Co. v. Yocum, 34 Ark., 493; Railway Co. v. Hine, Admx., 25 Ohio St., 634; Steel, Admr., v. Kurts et al., 28 Ohio St., 195-
    2. The performance of all conditions is a condition precedent to the creation of the right, the remedy being exclusive. Kahn, Jr., v. Walton et al., 46 Ohio St., 212; Barker v. Railroad Co., 91 Mo., 86; “The Harrisburg,” 119 U. S., 199; Major v. Railway Co., 88 N. W. Rep., 817; Thorpe et al. v. Coal Co., 68 Pac. Rep., 145; Taylor, Admx., v. Iron & Coal Co., 94 North Car. 525; Hanna, Admr., v. Railway Co., 32 Ind., 113; Rugland, Admr., v. Anderson et al., 30 Minn., 386; Lyon’s Admr. v. Railroad Co., 7 Ohio St., 337; Books v. Borough of Danville, 95 Pa. St., 166; Usher v. Railroad Co., 126 Pa. St., 206; Oates v. Railroad Co., 104 Mo., 514; Railroad Co. v. Jones, 34 So. Rep., 246; Hyde v.
      Railway Co., 61 Ia., 441; Killian v. Railway Co., 38 S. E. Rep., 873; Stewart v. Railroad Co., 83 Ala., 493; Weidner et al. v. Rankin et al., 26 Ohio St., 522.
    3. Action must be brought by personal representative within two years, arid where no one is authorized to enforce right there is no cause of action. Lyon’s Admr. v. Railroad Co., 7 Ohio St., 339; Railroad Co. v. Chambers, 73 Ohio St., 21; Ryall v. Kennedy, 40 N. Y. Supp., 347; City of Chicago v. Major, Admr., 18 Ill., 349; Sherman v. Stage Co., 24 Ia., 553; Ex parte Collins, 49 Ala., 69; Fruitt, Admr., v. Anderson, 12 Ill. App., 421; Stratton v. Railway Co., 74 Me., 422; Railway Co. v. Railroad Co., 38 Pa. St., 361; Maia’s Admr. v. Hospital, 97 Va., 307; Patterson, Exrx., v. Patterson, 59 N. Y., 574; Parker v. Enslow, 102 Ill., 272; Angell on Lim., Chap. 7; Douglass v. Forrest, 4 Bing., 686.
    4. Can be no suit until the appointment of an administrator, and if suit by other than statutory plaintiff there is no cause of action to amend. George, Admr., v. Railway Co., 51 Wis., 603; Fitzhenry v. Traction Co., 63 N. J. L., 142; Railroad Co. v. Lacey, 49 Ga., 106; Lower, Admx., v. Segal, 60 N. J. L., 99; Holley v. Young, 68 Me., 216; 1 Greenleaf on Evidence, Section 206; Smith v. Fowler, 12 Lea, 163; Hamilton v. Zimmerman, 5 Sneed, 39; Seay v. Ferguson, Exr., 1 Tenn. Ch., 287; Perry v. Manufacturing Co., 40 Conn., 313; Mock v. Walker, 42 Ala., 668.
    5. No sufficient exception. Allcorn v. Morgan, 77 Ind., 184; Baker v. State, ex rel., 90 Ga., 153; Iron Co. v. Street, 19 Ohio, 300; Railroad Co. v. Washburn, 22 Ohio St., 324; Tern

      pleton v. Kraner et al., 24 Ohio St., 554; Rubber Co. v. Wolf, 1 Handy, 236; Armstrong v. Clark, 17 Ohio, 495; McCarthy et al. v. Neu et al., 91 Ill., 127; Railway Co. v. Hin
    6. As to probate practice, see: Woerner on Administration, here arid there; Dutcher, Admr., v. Dutcher, 88 Hun, 221; Bellinger v. Ford, 21 Barb., 314; Executors v. Cameron, 16 Wend., 302; Philbrick v. Hasen, 3 N. H., 120; 8 Ency. Pl. & Pr., 654; In re Estate of Hamilton, 34 Cal., 464; In re estate of Pingree, 100 Cal., 78.
   Spear, J.

It must be apparent from the foregoing statement that the defense sought to be made by the amended answer, and the motion to dismiss, was based upon a mere technicality. The plaintiff having fully qualified as administrator before the case was reached for trial every right of the defendants upon the merits of the case was fully preserved, and in no possible aspect could the delay in perfecting the bond and receiving the letters of administration prejudice the defense of the defendants upon the real meritorious question involved in the controversy, which was, whether or not the defendants’ negligence was the cause of the death. The amended answer, by which it was attempted to interpose a denial of their former admission, could not be allowed to be filed as of right but only by leave of the court. The spirit, if not the very letter, of the code (section 5114, Revised Statutes) permits amendments, where it is necessary to appeal to the court, only in furtherance of justice. Manifestly, as the omission to fully qualify worked no prejudice to the rights of the defendants on the merits, the filing of the amended answer might properly have been refused, and with due respect to the learned judge who presided at the special term, we are of opinion that leave should have been refused, and that the granting of leave was not in the exercise of a proper discretion.

But the amended answer having been permitted to be .filed, is a part of the record, afid the question now is what judgment should have been rendered on the motion to dismiss. We are of opinion that it' ought to have been overruled. The defendants had stood for nearly two years on a distinct admission in their answer, duly sworn to, “that plaintiff is the duly appointed and qualified administrator of the estate of John Archdeacon, deceased,” and then when, because of the lapse of the two years limitation prescribed by the death statute, it was too late for plaintiff to begin a new action, they attempt to change front, and, although not asking to withdraw the original answer, but leaving that as a part of the record in the case, seek to defeat the plaintiff’s cause of action by an -attempted contradiction of their own.solemn admission. Had this denial of the plaintiff’s qualification been incorporated in the original answer it is • more than probable that attention would have been called to the condition of the proceeding in the probate court and the defective bond then cured. It would seem that, if there be any virtue in the spirit of the doctrine of estoppel, that which prevents one from denying a fact in consequence of .his own previous allegation of a contrary tenor, an allegation calculated to mislead his opponent, this is a proper situation to make application of it. The rule is well stated in 16 Cyc., 680: “If a person, by his conduct, induces another to believe in the existence of a particular state of facts and the other acts thereon to his prejudice, the former is estopped as against the latter, to deny that that state of facts does in truth exist.” The admission in the answer was an assurance to plaintiff that his right to maintain the action would not thereafter be disputed, on which he had a right to act.

But let us look at the legal effect of the attempted denial. Having sought to escape liability by what we have found to be a mere technicality the defendants ought not to be heard to complain if a strict rule is applied in giving construction to the allegations of their amended answer. With regard to the status of the plaintiff its averment is that “the defendants reaffirm all the defenses and allegations set forth in the separate answers heretofore filed, except that plaintiff was duly qualified as administrator of the estate of John Archdeacon, deceased,” thus leaving to stand, and in effect repeating, the admission that the plaintiff had been duly appointed as administrator, and averring only, as new matter, that he had not been duly qualified, meaning in law that the only change from the former answer was that there was some defect of some character or other in the qualification of the plaintiff, but none whatever in his due appointment. In some jurisdictions the practice in the'probate court is to make an order appointing an administrator, and follow that by an order that a bond be given, and this seems to be contemplated by the statute (section 6006), the language being: “Every administrator shall, before entering on the execution of his trust, give bond,” etc. The statement found later in the amended answer that the plaintiff was on March 10, 1905, duly appointed and qualified, is not so far antagonistic to the earlier paragraph as to destroy or abrogate it, while the statement with which the answer closes to the effect “that plaintiff is without legal capacity to maintain this action” is a mere legal conclusion, proper in a demurrer where the petition discloses the weakness, and not improper in an answer if accompanied with pertinent allegations of fact, but of no force in this amended answer except as a concession that, in the comprehension of the pleader, there was an action pending. It is to be borne in mind, also, that objections to the legal capacity of a plaintiff to sue must be distinctly pleaded (section 5063), or the same are waived. Hoop v. Plummer, 14 Ohio St., 448. A general denial is not sufficient. Surely in the face of an admission of due appointment, and upon these pleadings taken together, it is not reasonable to ask that a defendant have judgment because of a mere denial of the plaintiff’s qualification, in the light of the liberal provisions of our code which permit amendments, even after judgment, in furtherance of justice. This condition of the record should, in our opinion, have been held sufficient ground for the overruling of the motion to dismiss.

It being thus shown by the pleadings that plaintiff was duly appointed, what follows? We think it does not follow that the failure to fully qualify within the two years defeated the action. The qualification, when made, following a general rule that the appointment relates back, related back at least to the time of the filing of the petition, and that was not a void performance, being an act done during the interim which act was for the benefit of the estate. It could not be otherwise, for it was an attempt to enforce a claim which was the only-asset of the estate. This rule .is sustained by a large number of authorities, and seems to be quite generally recognized. It appears, also, to be just and equitable. We think it idle to urge that the rule can not apply in this case because the proceeds of any judgment obtained would go to next of kin only and not in the usual course of administration. There is no valid reason for sustaining the rule in one case and disregarding it in the other. There are. many authorities, also, to the effect that had the petition needed amendment to make it good, leave to amend, even after the two years, should have been given. The courts, in numberless cases, hold that amendments may be allowed, and even new parties made, in order to prevent a failure by the running of the limitation of the statute. In other words, the proceeding was not a nullity. It was, on the other hand, a cause pending in which, by the liberal principles of our code, the party plaintiff, though lame in one particular, might be allowed to cure that defect and proceed to a determination of the merits.

It is urged that no sufficient exception was preserved by plaintiff, and it is true that the record does not disclose any special exception to the leave given defendants to file the amended answer. But there appears adequate and proper exception to the action of the trial court in sustaining the motion to dismiss.

Much discussion was had in argument respecting the proper construction of the sections of the Revised Statutes, 6134 and 5, which authorize actions of this character, The view' we take of the record'makes any discussion of the statute unnecessary. Nor do we find it necessary to multiply authorities. The' curious reader will find plenty of them in the citations given by the learned counsel which appear in the reporter’s notes.

It is urged that no reply was filed to the amended answer. In our judgment none was needed.

The judgment will be reversed and the cause remanded. '

Reversed.

Shauck, C. J., Price, Crew, Summers and Davis, JJ., concur.


author: Summers, J.

text:
    Railroad Company v. The Village of Roseville.

      Establishment of street by common la%v dedication — Must be shown land-owner intended donation of same — Railroad company permits use of way over tracks for forty years — Not proof of dedication to public, when — Acceptance by city not proven by use, when — Requirements for title by prescription — Presumption as to permissive use.

    1. To show the establishment of a street by a common law dedica-’ tion, it is essential to prove clearly that the owner of the land intended to donate it for that use, and to prove also an acceptance.
    2. An intention by a railroad company to dedicate a street is not clearly shown by proof that a way over its tracks and unen- ° closed lands had been used for about forty years by the public, when during the entire time the way was maintained by the company, and was used by its patrons, and the use by the public was merely permissive.
    3. An acceptance, by a city or village, of the dedication of a street cannot be shown by proof of user by the public, but it is essential that acts of acceptance by its proper officials be shown.
    4. Title by prescription to a public street can be shown only by adverse user by the public, under a claim of right, and uninterrupted for twenty-one years.
    5. When a railroad company maintains a way or street over its tracks and unenclosed land for about forty years, for the use of its patrons, and incidentally it is used also by the public, the presumption is that the user was permissive.
    (Case No. 9919
    Decided March 19, 1907.)
    Error to the Circuit Court of Muskingum County,
    In 1904 the Village of Roseville, of Muskingum and Perry counties, by resolution of its ' council, ordered the railroad company within fifteen days to plank the crossing of its railroad over Armstrong street and to grade and gravel said street across the railroad compány’s property from .said railroad crossing to Perry street and declared its intention to make the improvement in the event the railroad company failed to do so within thirty days. The railroad company brought suit to enjoin. The village answered, averring that the premises in controversy had become a public street by dedication and also by prescription, and by cross-petition prayed for an injunction to prevent the railroad company from interfering with the use of the street. The common pleas court found for the plaintiff. On appeal the circuit court found for the village and granted the prayer of the cross-petition.

      Mr. F. A. Durban, for plaintiff in error,
    cited and commented upon the following authorities:

      Pavey v. Pavey, 30 Ohio St., 600; Bank v. Closson, 29 Ohio St., 78; Lembeck v. Nye, 47 Ohio St., 336; Lessee of Village of Fulton v. Mehrenfeld, 8 Ohio St., 440; Wisby v. Bonte et al., 19 Ohio St., 238; City of Toledo v. Converse et al., 21 C. C., 239; Penquite v. Lawrence, Supervisor, etc., 11 Ohio St., 274; Cherry v. Howe et al., 17 C. C., 246; Longworth v. City of Cincinnati, 48 Ohio St., 637; Boeres v. Strader, 1 Cin. Sup. Ct. Rep., 57; Millikin v. Village of Bowling Green, 9 C. C., 493; Railroad Co. v. City of Elyria, 14 C. C., 48; Bridge Co. v. Bachman, Admr., 66 N. Y., 261; Reese v. City of Chicago, 38 Ill., 322; Irzvin v. Dixion, 9 Howard, 10; Lewis v. City of Portland, 42 Am. St., 772; Shell-house et al. v. State, 11 N. ,E. Rep., 484; Hunter v. Emerson et al., 53 Atl. Rep., 1070; Langan et al. v. Whalen et al., 93 N. W. Rep., 393; Dovaston v. Payne, 2 Smith’s Leading Cases, Hare and Wallace’s Notes, 155; Kyle v. Town of Logan, 87 Ill., 64; Town of Brushy Mound v. McClintock, Jr., 150 Ill., 129; Moffett v. Commissioners, 28 N. E. Rep., 975; Owens et al. v. Crosset, 105 Ill., 354; Railroad Co. v. Parker, 5 Atl. Rep., 641; Tucker et al. v. Conrad, 2 N. E. Rep., 803; Commissioners v. Ricker, 44 N. W. Rep., 955; Gregory v. City of Ann Arbor, 86 N. W. Rep., 1013; Whittington v. Flint, 51 Am. Rep., 579; Encyclopedia of Law, Vol. 9, p. 29; Robinson et al. v. Fife et al., 3 Ohio St., 551; Pry et al. v. Mankedick, 34 Atl. Rep., 46; Wash-burn on Easements and Servitude, star page 86, 91 and 96; Kilburn et al. v. Adams, 7 Metc., 33;
      Lane v. Kennedy et al., 13 Ohio St., 42; Herrick et al. v. City of Cleveland, 7 C. C., 470; McClelland v. Miller, 28 Ohio St., 488; Young v. Spangler, 2 C. C., 549; Pavey v. Vance et al., 56 Ohio St., 162; Ward v. Cochran, 150 U. S., 597; Dietrick v. Noel, 42 Ohio St., 18; Falter et al. v. Packard et al., 76 N. E. Rep., 495;. Elliott on Roads, p. 140, 174; McKay v. Town of Reading, 68 N. E. Rep., 43; Schwallback v. Railway Co., 34 N. W. Rep., 128; Rose v. City of Farmington, 63 N. E. Rep., 631; Kirk v. Smith, 9 Wheat., 241; Ricard v. Williams et al., 7 Wheat., 59; Railway Co. et al. v. Munsell, 61 N. E. Rep., 374; Cameron v. Railway Co., 61 N. W. Rep., 814; Hull et al. v. Stevens, 9 Metc., 418; Bobo v. Richmond, 25 Ohio St., 115; Butler v. Bertrand, 56 N. W. Rep., 342; Trustees v. Kirk, 84 N. Y., 220 ; Milling Co. v. Railroad Co., 101 N. W. Rep., 574; Smith v. Railroad Co., 142 Mass., 21; Railroad Co. v. Conlon, 53 L. R. A., 781; Gansevoort v. Parker, 3 Johnson’s Cases, 124; Downend v. Kansas City, 156 Mo., 60; Section 5067, Revised Statutes.

      Mr. Frank H. Southard, for defendant in error,
    cited and commented upon the following authorities:

      Lessee of Village of Fulton v. Mehrenfeld, 8 Ohio St., 440; Penquite v. Lawrence, Supervisor, etc., 11 Ohio St., 274; 9 Am. & Eng. Ency. Law, 22, 43; Bank v. Closson, 29 Ohio St., 78; Pavey v. Pavey, 30 Ohio St., 600; Insurance Co. v. Carnahan, 63 Ohio St., 258; Curtis v. Angier, 4 Gray, 547; Phillips on Code Pleading, Sections 261 to 266; Nelson v. Brodhack, 44 Mo., 596; Bell et al., v. Brown et al., 22 Cal., 671; Willson v. Cleaveland, 30 Cal., 192; Buhne v. Corbett et al., 43 Cal., 264; Conway v. Wharton, 13 Minn., 158; Westlake v. City of Youngstown, 62 Ohio St., 255; Le Clerq v. Trustees of Gallipolis, 7 Ohio, 220; Gest v. Kenner, Admx., 7 Ohio St., 75; Bank v. Bank et al., 62 Ohio St., 449; Deutsch v. Chemical Co., 11 O. D., 499; Winslow et al. v. Fuhrman, 25 Ohio St., 649; Flays et al. v. Park Co. et al., 13 O. D., 67; Wisby v. Bonte, 19 Ohio St., 238; Reed v. Harlan, 3 West. L. M., 632; Nail & Iron Co. v. Furnace Co., 46 Ohio St., 544; Sullivan v City of Columbus, 12 O. D., 652; Daiber et al. v. Scott, 3 C. C., 313; Barclay v. Howell’s Lessee, 6 Peters, 498; Quinn v. Anderson et al., 70 Cal., 454; Benham et al. v. Potter et al., 52 Conn., 248; Grube v. Nichols, 36 Ill., 92; Flack et al. v. Village of Green Island, 122 N. Y., 107; Dick et al. v. City of Toledo, 11 C. C., 349; City of Steubenville v. King, 23 Ohio St., 610; Owens et al. v. Crossett, 105 Ill., 354; Verona Borough v. Railroad Co., 152 Pa. St., 368; Road Co. v. Abraham et al., 5 Ore., 318; Ross v. Thompson, 78 Ind., 90; Coburn v. County, 75 Fed. Rep., 520; Hacker v. Monroe & Son, 61 Ill. App., 422; City of Indianapolis v. Kingsbury, 51 Am. Rep., 749; McKenna v. City of Boston, 131 Mass., 143; Winslow v. City of Cincinnati, 9 O. D., 90; Boyce et al. v. City of Cincinnati, 17 W. L. B., 166; Gordon v. City of Taunton, 126 Mass., 349; Smith v. City of Se dalia, 152 Mo., 283; State v. Railroad Co., 45 Ia., 139; Shultz v. Commissioners, 20 Ind., 178; Dowling v. Hennings, 83 Am. Dec., 545; Nicholls v. Went-

      worth, 100 N. Y., 455; 22 Am. & Eng. Ency. Law, 1184, 1185 and 1193; Nail & Iron Co. v. Furnace Co., 46 Ohio St., 547; Lembeck v. Nye, 47 Ohio St., 336; City of Chicago v. Railway Co., 152 Ill., 561; Madden v. Railway Co., 21 C. C., 73; Pavey v. Vance et al., 56 Ohio St., 162; 15 Am. & Eng. Ency. Law, 351; Washburn on Easements, star page, 70, 97; Gay et al. v. Railroad Co., 6 N. E. Rep., 236; Turner v. Railroad Co., 14 N. E. Rep., 627; Railroad Co. v. Frost, 16 N. E. Rep., 733; Sherwood v. Burr, 4 Am. Dec., 211; Warren v. Town of Jacksonville, 15 Ill., 236; O’Brien et al. v. Goodrich, 177 Mass., 32; Ward v. Warren et al., 82 N. Y., 265; Section 5067, Revised Statutes.
   Summers, J.

The record is quite voluminous, and while, owing to the lapse of time, the memory of some of the witnesses- is indistinct, yet the following facts appear. • In 1854 a railroad company, a predecessor ' in title of the plaintiff in error, acquired for right of way a strip of ground, one hundred feet in width, west of the then village and west of and nearly parallel with the Athens and Zanesville road, now called Perry street in said village. Near the north end of this right' of way the road crossed over the right' of way to the west, and in 1855 the railroad company, in constructing its road, made a deep cut at the point whefe the road crossed the right of way, and, a little- south of the cut, it constructed a crossing at grade over its tracks, so that travelers on the road 'could cross its tracks and then pass north along its right of way until they again reached the road, and the road and crossing were so used for about a year, until the railroad company built a bridge, ov'er * the cut, which was then used by travelers on the public road. In the deed for the right of way it was provided that the railroad company should construct for the grantor “a crossing place over said railroad track at same place where the elevation of the road is .at the same grade as the adjoining land.” Whether the grantor made use of this crossing does not appear, but it does appear that the railroad company constructed its track and a side-track on this right of way and, east of its track and just north of the crossing, built a station and planked the crossing over the tracks and erected a railroad crossing sign, and that the crossing was used by the public. In November, 1864, land adjoining this right of way on the west was laid out into town lots. It was called Armstrong’s Addition, and several streets in the addition were platted down to the right of way, and one of them, named Armstrong street, joined the right of way at the crossing. In December, 1864, the railroad company purchased a small triangular piece of land, lying between its right of way and Perry street. After Armstrong’s addition was laid out some potteries were built there and also some residences and a church. The railroad company laid additional tracks from time to time and planked them, and this crossing was used by persons transacting business at the station and as a way to and from Armstrong’s addition and they also crossed over the triangular strip between the crossing and Perry street. In 1890 the station burned down and the railroad company built a new station, on the west side of its tracks and just south of the crossing, and the crossing was used as a way to and from the new station and continued to be used as' before. There is no evidence that the village council ever took any action respecting this crossing or so-called street. One witness testifies that at one time a ■ village street lamp was erected bn the line of Armstrong street, a little bit down on the railroad property, but that it was soon after moved back about on the line of the railroad property, and another witness testifies that when he was street commissioner he did a little work on this so-called street, but it does not appear that the railroad • company ever had any knowledge of it. This use of the crossing continued until 1901, when the railroad company moved its station to the east of the tracks and north of the location of its first station, and then tore up the planking and destroyed the crossing.

It is well settled that in order to deprive the owner of his property by a common law dedication it must clearly appear not only that he intended to and did give it to the public but also that the gift was accepted. That the railroad company intended to dedicate this so-called street or a way over its tracks and ground to the public does not clearly appear. Originally the crossing was constructed in performance of the engagement in the deed or to accommodate the traffic intercepted by the cut through the road, or for both purposes, and, after the bridge had been constructed, it is just as probable that the crossing was maintained solely for the accommodation of the patrons of the road as for the public. No estoppel, so far as- the village is concerned, arises from the laying out of the Armstrong addition. The addition was not then in the village and the railroad company did not then own the triangular piece of land between the right of way and the road, and the fact that Armstrong street was laid’ out adjoining the crossing is not significant, for two streets parallel to Armstrong street were comprised in the addition, and on the plat of the addition neither of the streets is delineated as extending beyond its boundaries. .

Furthermore, an acceptance on the part of the village, is not shown. .It is said that the late cases rule that an acceptance may be implied* from public user, upon the assumption that the inhabitants are the principal and the corporate officials merely its agents, and that the principal may himself do what he might have done through the intervention of an agent. Elliott on Roads, and Streets (2d Edition), Sec. 150.

A somewhat. similar suggestion was made in the time of King James I. The usurpation of the court of high commission being checked, much to the disappointment of the king, by prohibition from the court of common pleas, it was suggested that the king in his own person should judge whatever cases he pleased, free from all risk of prohibition or appeal.' The reasoning, as given by Lord Campbell, was as follows: “The 'judges are but the delegates of your Majesty, and administer the law in your name. What may be done by the agent may be done by the principal; therefore, your Majesty may take what causes he may be pleased to determine from the determination of the judges, and determine them yourself.” But the king was advised 'by Coke, C. J., all the judges concurring, that the king in his own person could not adjudge any cases either civil or criminal. Prohibitions Del Roy, 12 Coke’s R., 63.

In this state, however, local subdivisions, such as counties and towns, are themselves merely agencies of the state, possessing only delegated powers and the prescribed mode or manner of exercising them is the measure of the power. They can act only by their officers, and the duty to care for the roáds and streets and the liability for damages for neglecting to perform the duty can not be imposed upon them by proof of' user by the public but only by an acceptance by the authorities whose duty it would be to care for the .road or the street if it should be established.

But, roads and streets. may' be established by prescription (Elliott on Roads and Streets, 2d Ed., Sec. 169), and if the foundation of the right is as stated by Chief Justice Shaw, in Reed v. The Inhabitants of Northfield, 13 Pick., 94, neither an intention to dedicate nor an acceptance of the dedication is an element. Pie says: “We think it clear upon principle,'that public easements, as well as others, may be shown by long and uninterrupted use and enjoyment, upon the conclusive legal presumption from such enjoyment, that they were, at some anterior period, laid out and established by competent authority.” Does the evidence tend to prove a right by prescription? In City of Topeka v. Cowee, 48 Kan., 345, it is held that “user, to create a title by prescription to a public street, must be under a claim of right by the public, adverse to the right of the owner, and continued without substantial interruption or change for a period equal to the statutory . limitation in respect to actions for the recovery of real estate.” This is the well established rule. Elliott, Sec. 175. In Pavey v. Vance et al., 56 Ohio St., 162, it is ruled that “where one uses a way over the land of another without permission as a way incident to his own land and continues to’ do so with the knowledge of the owner, such use is, of itself adverse, and evidence of a claim of right. And where the owner of the servient estate claims that the use was permissive, he has the burthen of showing it.” However, it is pointed out by Minchell, J., in the opinion, that a claim of right is not' consistent with a case where the possession is taken or held under a license or permission of the real owner.

This crossing was constructed for the accommodation of the grantor of the right of way, or of travelers on the public road whose passage had been interrupted by the excavation, or for both, and its use by them was by the implied invitation of the railroad company; subsequently it was to its interest to maintain it for the accommodation of its patrons and no other reason for its maintaining it is apparent and a presumption that the use was adverse does not arise from the fact that incidentally to this use, by those having implied invitation, it was used also by the. public. Root v. The Commonwealth, 98 Pa. St., 170; Boeres v. Strader, 1 Cincinnati Superior Court’ Reporter, 57, in which leave to file a petition in error in this court was refused. Kilburn v. Adams, 7 Metc., 33; Smith v. N. Y. & N. E. R. R. Co., 142 Mass., 21; Irwin v. Dixion, 9 How., 10.

The judgment is reversed, the injunction is dissolved, the cross-petition is dismissed and the cause is remanded to the circuit court with instructions to grant the prayer of the plaintiff’s petition upon the undisputed facts.

Judgment reversed.

Shauck, C. J., Price, Crew, Spear and Davis, JJ., concur. .