author: Brinkerhoff, J.

text:
    William Christmas’s Adm’r et al. v. Hiram Griswold et al.
    A covenant on the part of a debtor to pay the debt out of the first moneys received from a particular fund, but which gives the covenantee no present right in or control over the fund, save through the covenanter, and looks to the future acts of the covenanter to render the fund available, does not operate as an equitable assignment of the fund to the covenantee.
    In Chancery. Reserved in the District Court of Stark county.
    The case is stated in the opinion of the court.

      H. B. Curtis § Scribner, and Alexander Bierce, for complainants.

      II. Griswold, for himself and for the representatives of Mary Eassitt, deceased.
   Brinkerhoff, J.

This is a hill in chancery filed in Stark county, by the personal representatives of "William Christmas, deceased, against the personal representatives and privies of Thomas Eassitt, deceased, and a former executor of Christmas, to obtain an account and final adjustment of matters of difference between the two estates, and those claiming under them. The dealings between Christmas and Eassitt in their lifetime, and the transactions growing out of those dealings since their death, were numerous and extensive. The case is voluminous, and involves a great many minor questions of detail, with the adjustment of which this court ought not to be burdened, and for the disposal of which the district court, through the medium of a master and otherwise, is fully competent. And we understand, from the counsel for the parties respectively, that the case was reserved here, in the district court, mainly to obtain the decision, by this court, of a single question. To this question, therefore, we will confine ourselves; and we will state the facts of the case so far only as is necessary to understand and determine it.

On the 12th day of May, 1835, Thomas Eassitt, of the city of Philadelphia, and William Christmas, of the county of Stark, Ohio, entered into a contract in writing, reciting that they had purchased of the heirs of John H. Brinton, large tracts of land, situate in the counties of Stark, Columbiana and Carroll, in the State of Ohio, at the price of $4.25 per acre. The whole quantity of land so purchased was estimated ,at 6204 acres, and the entire price to be paid therefor was $26,396.

Said contract further recited, that a conveyance for said lands had, on the same day of the execution of said contract, been made to said Eassitt by the heirs of said Brinton, and that it was agreed between said Eassitt and Christmas, that the former should advance and pay the whole amount of the said consideration money; that the legal title should remain in him, but that said Christmas should proceed to make sale of the lands to the best advantage. Erom the proceeds of the sales, said Eassitt was to be reimbursed for the moneys so advanced by him, with legal interest thereon, and the balance was to be equally divided between them, “ share and share alike.”

It was also agreed, that if the said lands should not sell for a sum sufficient to pay first cost and interest, the loss was to be equally borne by the said parties.”

Eassitt'took the legal title to the lands in himself. This was as a security for the advance he had made; but he forthwith, and on the same day, executed to Christmas a power of attorney to sell and convey, in order that the latter might perform his part of the agreement, which imposed upon him the obligation to dispose of the lands.

Christmas then went on and made sales. According to the statement made out by him before his death — a copy of which is made Exhibit No. 4, filed Nov. 10, 1847, with the amended bill — the amount of sales made by him reached $40,499.47, exclusive of interest on the deferred payments. According to the master’s report, there was paid to Christmas during his lifetime, on sales made by him, $13,967.02; and to Griswold, his executor, since his decease, on the same sales, $21,640.93; and there yet remains due on the same contracts the sum of $13,080.79— making, according to the master’s report, a total of $48,-688.74, realized and due upon the contracts made by Christmas in his lifetime.

On the 5th day of September, 1835, Eassitt and Christmas entered into another contract, by which Eassitt sold to Christmas certain lands in Wayne county, Ohio, for the sum of $7,435; and also 100 shares of the Sandy and Beaver Canal stock, of $100 each share, and upon which $15 had then been paid on each share. Eassitt agreed to pay all the subsequent installments, as they became due and were called for by the directors of the Sandy and Beaver Canal Company, until the full amount of $10,000 should be paid, should that sum be required. The contract then proceeds as follows:

“ In consideration of which, the said Christmas agrees to pay the said Fassitt, out of the first money that he may receive for sales of the above lands,” (meaning the said lands then purchased, situate in Wayne county,) “ and out of the first money that he may he entitled to as his share of the profits from the sales of the lands purchased hy said Fassitt and Christmas of Brinton’s heirs, in May, 1835, the above sum of seven thousand four hundred and thirty-five dollars, for the above described tracts of land, and such sum as he may hereafter pay upon the above mentioned canal stock, together with such sum as is already paid by him, and interest at the rate of seven and one-fourth per centum per annum upon such sum as is now paid, or may hereafter be paid upon the canal stock, from the respective dates of the payment of the installments already paid, or which may hereafter be paid. And it is further agreed, that in case the said Christmas should not receive, from the sales of the lands above mentioned, a sum sufficient to pay the amount which may be due the said Fassitt for the purchase of the above property, then the said Christmas agrees to pay the remaining balance that may be due, within seven years from the date of this agreement. The said Fassitt also agrees, that when said Christmas may wish to sell the above mentioned land, to make said Christmas a good and sufficient deed for the same, and also agrees to transfer to said Christmas the said one hundred shares of canal stock, whenever the said Christmas may wish to dispose of it; and, in that event, the said Christmas agrees to pay said Fassitt the money he may receive for sales of said lands or canal stock, or such part thereof as may be the balance remaining due the said Fassitt.”

Fassit died in the spring of 1836, leaving a last will and testament, which was duly admitted to probate. He constituted his wife his residuary devisee and legatee, and all his interest in the Brinton land contract of May 12th, 1835, passed to her, thereunder.

After his decease, his widow, Mary Fassitt, on the 9th day of June, 1836, executed to said Christmas a power of attorney for the sale of the Brinton lands, of the same character with that which had been executed to him by her husband, at the date of the purchase thereof.

Christmas died on the 19th of September, 1836, having made his last will and testament, which was regularly admitted to probate, and a copy of which is made Exhibit No. 1, filed November 10th,1847, with the amended bill. Reason Bell, Hiram Griswold and Isaac Harter were appointed his executors; but Griswold and Harter, only, accepted the trust, Bell declining to act. Letters testamentary were issued to Griswold and Harter on the 15th of October, 1836.

On the 25th of November, 1836, and while said Gris-wold — who chiefly managed the business of the estate of said Christmas — was acting in the capacity of executor, the said Mary Fassitt executed to him a power of attorney, authorizing him to sell and convey the unsold Brinton lands, and execute proper ideeds of conveyance. While acting in the premises, Griswold made sales and collections to a large amount.

In November, 1842, Griswold and Harter resigned their trust as executors of Christmas’s estate, and Arnold Lynch was appointed administrator de bonis non in their stead. This proceeding was instituted by him against the former executors, and Mrs. Fassitt and others, to settle the rights of the estate in the fund arising from the Brinton lands, and also to adjust the other portions of the account with the executors. Since the filing of the hill Mrs. Fassitt has deceased, and her representatives have been made parties. Within a few months past Lynch has also deceased, and Henry B. Curtis has been appointed and qualified as the administrator de bonis non upon the estate of Christmas, and is now acting in that capacity.

That the contract between Christmas and Fassitt in respect to the Brinton lands constituted a partnership between them, is very clear. On the death of Fassitt, the closing up and settlement of the business of that partnership devolved on Christmas, the survivor; and on his death, subsequently, the same duty devolved on Griswold, his executor. Childress v. Emory, 8 Wheat. Rep. 669. And although, after the death of Christmas, Griswold was authorized to act in the double capacity of executor of Christmas and of attorney for the person principally interested in and representing the estate of Fassitt, he must be held to have in fact acted in his rightful character of executor. But, in addition to this, the rights of these estates as ■ against each other and their creditors respectively, were fixed by the death of Christmas; and the receipt, by the representatives of the estate of Eassitt, of moneys which Christmas in his lifetime was entitled to receive, could confer no new rights on Eassitt’s estate as against the estate of Christmas or its creditors. McDonald v. Black, 20 Ohio Rep. 196.

All this is aside from, and but a clearing of the ground for the main question in the case, which is this:

Does the contract between Eassitt and Christmas, of September 5, 1835, operate as an equitable assignment to Eassitt, of any portion of his (Christmas’s) share of the profits of the Brinton lands, either as payment of, or security for, the consideration money provided for under said contract, so as to give to Eassitt, or to his representatives, a specific lien thereon, and, to that extent, a preference over the general creditors of Christmas’s estate ?

The principal and ruling clause of that contract, as bearing upon this point, it will be seen, is this:

“ In consideration of which, the said Christmas agrees to pay the said Eassitt, out of the first money that he may receive for sales of the above lands,” (meaning the said lands then purchased, situate in Wayne county,) “ and out of the first money that he may be entitled to as his share of the profits from the sales of the lands purchased by said Fassitt and Christmas of Brinton’s heirs, in May, 1835, the above sum of seven thousand four hundred and thirty-five dollars,” etc.

The rule on this subject is thus stated in Hare & Wallace’s Notes to Leading Cases in Equity, vol. 2, pt. 2, p. 233: “ It is necessary, moreover, in order to constitute an assignment, either in law or equity, that there should be such an actual or constructive appropriation of the subject-matter assigned, as to confer a complete and present right on the assignee, even when the circumstances do not admit of its immediate exercise. A covenant on the part of the debtor, to apply a particular fund in payment of the debt as soon as he receives it, will not operate as an assignment, for it does not give the covenantee a right to the funds, save through the covenantor, and looks to a future act on his part as the means of rendering it effectual.” This rule seems to he well sustained and settled by the cases cited in its support, and is, it seems to us, decisive of the conclusion, that this contract cannot operate as an equitable assignment, and creates no lien in favor of Eassitt’s estate upon Christmas’s share of the proceeds of the Brinton lands.

There is another matter to which our attention is called. It appears that Griswold, in rendering his final account as executor of Christmas, made a mistake in an item of some $7,000 against himself; and he claims that, in the final decree in this case, the mistake should be corrected. The mistake is evident; and, as counsel for the parties respectively, do not disagree about it, it will readily be corrected by the district court.

Interlocutory decree in accordance with the foregoing opinion, and cause remanded to district court for further proceedings.

Swan, C. J., and Scott, Sutliee and Peck, JJ., concurred.


source: Caselaw Access Project

author: Sutliff, J.

license: Public Domain

text:
    John Weaver, and others, Trustees of Paris Township, Union County, v. Samuel A. Cherry and others.
    Where township trustees are authorized by one section of a statute, to purchase land for a cemetery, and to assess a certain per centum upon the taxable property of the township to pay for the land purchased; and another section provides that before such assessment shall be made, it shall be necessary to submit the question to the voters of the township at an election for that purpose duly called — Held:
    1st. That the statutory provision requiring such preliminary vote is not in contravention of the 26th section of the 2d article of the constitution of the state.

      2d. That by a reasonable construction of the two sections of the statute, an election, and vote in favor of the tax, are preliminary requisites indispensable to authorize the trustees to proceed under the statute to purchase a cemetery, and to direct township orders to be issued in payment thereof.
    3d. Where, in such a case, the land has been purchased, deed delivered, and township orders issued in payment, upon application of the trustees, the contract of purchase should be rescinded, the land reconveyed, and the orders surrendered up to be canceled.
    Civil Action. Reserved in Union county.
    In the year 1855, the trustees of Paris township, purchased of Samuel A. Cherry, ten acres of land for a township cemetery, and received a conveyance of the land; and to pay for the same, caused township orders to be issued. The authority under which the trustees made the purchase and issued the orders, is contained in the act of April 29, 1854 (Swan’s Rev. Stat. 1007), and the 30th section of the act of March 14, 1853 (lb. 997), of the 29th section of which, the former act is amendatory.
    The act of April 29, 1854 (or section 29), provides:
    “ That it shall be lawful for the trustees of any township, in any county in this state, to purchase, and protect or improve a cemetery or burying ground, not exceeding ten acres of land, for the use of such township ; and for the purpose of paying for and improving and protecting such grounds, they are hereby authorized to levy and assess upon the taxable property of such township, such a per centum as will raise any sum not exceeding one thousand dollars in any one year, until the whole amount of the purchase money, with the interest due thereon, shall have been paid,” etc.
    The said 30th section provides:
    “ That before any assessment shall be made, as provided for in the foregoing section, it shall be necessary to submit the question to the voters of such township, at some regular election therein, for which purpose it shall be the duty of the township clerk, when thereunto requested by the trustees of the township, or any six voters of the township, to give notice, at least twenty days before such election, by posting up in three public places in such township, notice specifying the amount of tax which it is proposed to assess under such vote, and the object to which the same is to be applied ; and if a majority of the voters, at any such election, shall deposit ballots having written or printed thereon, ‘tax for burying ground,’ the trustees shall immediately notify the auditor of the county, who shall enter the same on the tax duplicate against the taxable property of said township, which shall be collected by the county treasurer, and paid over to the treasurer of the township, iu the same manner as other taxes belonging to said township, to be paid out on the order of the trustees, for the purpose or purposes specified in the foregoing section of this act, and for no other purpose or object, unless, after paying all the expenses incurred, there should be a surplus ; then, and in that case, the surplus may be transferred to the township fund.”
    The plaintiffs, by their petition, state that the purchase of the land by the trustees was made without any vote having been taken as required by the preceding section of the statute; and, on that ground, seek to cancel the contract of purchase, and also the township orders issued to pay for the land.
    The defendants demur to the petition.

      Lawrence and Goats, for defendants.

      Doughty and Robinson, for plaintiffs.
   Sutliff, J.

The only authority possessed by the trustees to negotiate a purchase of a cemetery, and issue orders binding upon the township, is derived from the foregoing statute.

The 29th section, taken by itself, would seem to have invested them with all the authority which they have assumed to exercise, by their purchase, and issuing of township orders. And, doubtless, the trustees regarded that section as containing the only provisions of the statute conferring upon them power to act in the premises, and to which they ought to have reference in making the purchase. Indeed, it is claimed by their counsel, that the object of the statute was to give the trustees of a township absolute and unconditional power to make the purchase in their own discretion, and that section 30 has only respect to the levying a tax for the payment thereof.

It is true, section 30 only requires that a vote of the township shall be duly taken before any assessment shall be made, for the purpose of the purchase and improvement of such cemetery or burying ground; but we think a reasonable construction of the two sections, requires the provisions of section 30 to be regarded as preliminary to the exercise of the powers conferred by the 29th section. It is a familiar rule of construction, applicable to all statutes, that each of their provisions should, if practicable, be so construed as to give reasonable effect to all their provisions. Ut res magis valeat, quam pereat.

Upon looking at the provisions of section 29, it is seen that it not only empowers the trustees to make a purchase and improvements, but also provides the means, by authorizing them to levy and assess a tax for such objects. But section 30 provides, expressly, that such means shall only be used upon permission to that effect being first given by the township, to be expressed by a majority vote, at an election previously held, upon notice duly given. Nor can it make any difference that the provisions of section 30 are in a distinct and subsequent section from those of section 29. The provisions of section 30 are entitled to the same respect in qualifying those of section 29 that they would, be entitled to if they preceded them, or were all incorporated in one section.

But if such transposition were made of the provision for an election and vote, contained in section 30, there would be no difference of opinion, I apprehend, as to the fact of the election and vote being conditions precedent 'to the exercise, by the trustees, of the powers conferred by section 29. By giving full effect to the provisions of both sections, then, as required by a reasonable rule of construction, the provisions of the statute under which the trustees acted, and the authority given to them by the sections taken together, amount only to this, that the trustees should have power to raise a sufficient amount of money, by tax to be levied upon the property of the township for the purpose, to purchase and improve a cemetery or burying ground for the township, provided, that upon an election first held for that purpose, a majority of the voters should vote in favor of levying such tax.

But it is objected to the sufficiency of the petition, that section 30, in requiring a vote, is in conflict with section 26, of article 2, of the constitution of the state, providing that no act, except such as relates to public schools, shall be passed to take effect upon the approval of any other authority than the general assembly, except as otherwise provided in the constitution. It does not, however, appear that the provision of section 30 is, either in its letter or spirit, within that provision of the constitution. The provision of the statute is not that the act shall take effect upon authority of the township. The vote of the township is rather to be regarded as a condition precedent, or a request to the trustees to proceed under the provisions of the statute, already made operative as a law by the general assembly. It differs in effect nothing from what it would be, if the law had contained any other condition precedent, upon which, by its provisions, the authority of the trustees depended. If the law contained a provision, instead of the one expressed by section 30, that the trustees should not proceed to levy any tax, or make any purchase, under said statute, until the population of the township should amount to'a specified number, or until requested by a certain number of tax payers, it certainly could not properly be said that the law thereby took effect upon the authority of the township, or upon any other authority than that of the general assembly.

It is, therefore, evident that the contract of purchase, and the resolution for the issuing of township orders, on the part of the trustees, have not been in accordance with the provisions of the statute. And their authority being derivable solely from the statute, the trustees would only be clothed with authority when their acts were strictly within its provisions. The condition precedent to their being invested with the authority under which they acted, not having been performed, it is evident that the trustees had ¿o more acquired such authority, by virtue of the statute, than they would have done if the statute had provided that after a specified day the trustees should have such authority, and they had assumed to exercise the authority previous to the time so specified by the statute. Neither the purchase of the land nor the issuing of the orders was, therefore, authorized by the statute, at the time the purchase was made and the orders were issued, and they are not, therefore, obligatory upon the township.

It is urged, however, that even if the contract of purchase, so made by the trustees, and the township orders so issued, be unauthorized by the statute, still the petition should be dismissed, upon the ground that the application for relief is premature and unnecessary. It is said that the facts set forth in the petition, if sufficient to entitle the township to'any relief, could be made available in defense whenever suit shall be instituted upon the contract or orders. We do not think this obj ection to the petition well founded in law or reason. It is not a cause for demurrer, nor is it a reasonable objection, if the plaintiffs have a good cause for relief, that they are too prompt, rather than remiss, in the application for relief.

We think the petition shows a state of facts sufficient to constitute a good cause for relief. The demurrer must, therefore, be overruled, and the case remanded for further proceedings.

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

This case was decided before Peck, J., came on to the bench, but the decision was announced afterward.


author: Peck, J.

text:
    The Cleveland, Columbus and Cincinnati Railroad Company v. Jacob Terry.
    1. In an action against a railroad company to recover damages caused to third persons by the train while in motion, no recovery can be had unless the employees were, at the time, guilty of negligence or want of due care; nor if the party injured was also guilty of negligence, contributing directly to the injury.
    2. The degree of care required in such cases of the employees, and also of the party injured, is merely ordinary care and prudence, the perils to be encountered, and all other circumstances under which the injury was inflicted and received, being considered.
    3. Where the party injured is an adult of ordinary mental capacity, but partially deaf, her infirmity not being known to the servants of the company, will not increase their responsibilities as to care; nor will it excuse her from the full measure of care which prudent persons, partially deaf, but conscious of their infirmity, would ordinarily observe under similar circumstances.
    4. Such deafness, though unknown to the servants of the company, is a circumstance so connected with the infliction and receipt of the injury, that it could not, in the progress of the trial, be rightfully excluded from the jury; but the court should see that such circumstance is not improperly used by the party giving it in evidence.
    5. Where a series of instructions are asked, they are to be construed together; and where it is apparent, from the whole series and the responses of the court thereto, that general terms employed in some of the instructions asked were used and understood in a limited or restricted sense, they will, on error, be so regarded.
    6. Where evidence of such deafness and evidence that the party injured, at the time of crossing the track, was prevented from observing the proximity of the train, by reason of a veil drawn and retained over her face, has been submitted to the jury, it is the right of the defendant to require the court to charge the jury, that neither such deafness nor voluntary obscuration of vision, will excuse the party injured from the observance of such ordinary care, “by the more cautious exercise of her remainiug facultiesand the court, on being requested so to charge, cannot, without comment, refer the whole matter to the jury.
    7. The right of the court, under the code, to direct the jury to find a special verdict, is purely discretionary, and their refusal to do so cannot be assigned as error.
    In Error to tbe District Court of Delaware county.
    Tbe Cleveland, Columbus and Cincinnati railroad track intersects a public highway in the village of Ashley, in the-county of Delaware.
    On the 28th day of December, 1854, the express train, on the railroad track, going north, was approaching this point of intersection, at the same time the wife of Jacob Terry, going east along the highway, was approaching the same point of intersection; and before she got across the railroad track, she' was struck by the engine of the advancing train and badly hurt.
    Terry brought an action against the company to recover damages for the loss of his wife’s services, and for the expense he had been and would be subjected to, in doctoring and taking care of her, consequent upon being struck as stated; and alleges that she was thus struck and injured without her fault, and through the carelessness of thé agents of the company who were in charge of the engine and train.
    The answer of the company denies the negligence imputed to its agents, and insists that the injury to Mrs. Terry was tbe result of her own want of care, etc.
    In June, 1857, the case was tried in the district court; and resulting in a verdict for Terry, the company moved for a new trial, which was overruled. and judgment entered on the verdict.
    To reverse this judgment the present petition in error is prosecuted.
    It appears, from the bill of exceptions, that on the trial before the jury in the district court, the plaintiff, to maintain the issue on his part, offered evidence tending to show that, at the time of the accident, his wife was partially deaf, whereby she was prevented from hearing the approach of the train by which the injury in question was produced, as readily as persons in general could, in like circumstances, hear the same. To the introduction of which testimony the defendant objected, unless the plaintiff proposed to show, also, that a knowledge of such deafness was, at the time, brought home to the defendant; which objection the court overruled and admitted the testimony. The plaintiff introduced testimony tending to show, also, that at the time of such injury, it being in the month of December and a drizzling rain, with wind, falling at the time, his wife was covered with a hood, and had over her face a veil, which was doubled, whereby she was prevented from seeing with distinctness. And the defendant introduced testimony tending to show, among other things, that the plaintiff’s wife was in fact aware of the approach of train, before she stepped on to the track at the time of the injury, and that she was induced to step on to said track, because she was deceived by said hood and veil as to the distance the train was off at the time.
    And thereupon, the evidence being closed, the defendant, among other things, asked the court to charge the jury—
    “ 5th. That if they should find that the wife of the plaintiff was in fact deaf in any degree, this circumstance could not enhance the responsibilities of the defendant as to the care it should exercise, unless a knowledge of the fact was brought home to it; but on the other hand, that circumstance would throw upon her the necessity of a more cautious exercise of the faculties she was possessed of.
    “ 6th. That if the wife of the plaintiff' had so muffled up her face as to prevent her from seeing with accuracy, at the time she was crossing the track of the defendant, that fact would throw no additional responsibilities, as to care, upon the defendant, but would increase her own.”
    And the court having, in answer to other instructions asked, charged the jury that the defendant was not liable in this action, unless they should find from the testimony, first, that the defendant was guilty of negligence, and second, that that negligence was the sole cause of the injury, further charged the jury, that if Mrs. Terry was guilty of any carelessness at the time, which contributed, in any material degree, to the injury, the plaintiff could not recover. That if she omitted to do any thing at the time which she might have done, in the exercise of reasonable and ordinary care, under the circumstances, which would have prevented the injury, then the plaintiff could not recover. That if the jury should be satisfied from the testimony, that (when) the wife of the plaintiff stepped upon the track of the defendant, at the time of the injury complained of, she was aware of the approach of the train by which the injury was produced; and if they should find that that train was within such a distance as to render it dangerous for her to cross, and that, by the reasonable exercise of her faculties, and by ordinary care at the time, she could have been made aware of the danger, her passing upon the track, under such circumstances, was such an act of carelessness in the premises as would prevent the plaintiff' from recovering for the injury thus sustained, unless the injury was wantonly inflicted by the defendant.
    In reply to the 5th instruction asked, the court charged the jury, “ that if they should find that the wife of the plaintiff was in fact deaf in any degree, this circumstance could not enhance the responsibilities of the defendant as to the care it should exercise, unless a knowledge of the fact was brought home to it; ” but the court refused to charge the jury, “ that the circumstance of her deafness would throw upon her the necessity of a more cautious exercise of the faculties she was possessed of,” and left that matter to the jury as a question of fact, under all the circumstances of the case, and the charges aforesaid before given.
    And in reply to the 6th instruction asked, the court charged the jury, “ that if the wife of the plaintiff’ had so muffled up her face as to prevent her from seeing with accuracy at the time she was crossing the track of the defendant, that fact would throw no additional responsibilities as to care upon the defendant;” but the court refused to charge the jury, “ that the fact that she was so muffled up would increase her own responsibilities as to care,” and left that matter as a question of fact for the jury, under all the circumstances of the case, and the charges before given.
    The defendant also requested the court to instruct the jury to find specially, in their verdict, whether the carelessness of the wife of the plaintiff, at the time of the injury, contributed, in any material degree, to the production of that injury, and whether her conduct, under the circumstances, was such as was consistent with reasonable care and prudence. But the court declined so to instruct the jury.
    The defendant excepted to the admission of the evidence of the deafness of Mrs. Terry and to said refusals of the court to charge the jury as requested, and to the charge given in lieu thereof.
    The plaintiff in error insists that the district court erred—
    1st. In admitting the evidence tending to prove the partial deafness of Mrs. Terry, without requiring Terry to show that the agents of the company, in charge of the train, knew of such deafness.
    2d. In refusing to charge the jury that such deafness, if it existed, would throw upon her the necessity of a more cautious exercise of the faculties'she was possessed of; and in leaving that matter to the jury as a question of fact.
    3d. In refusing to charge the jury that, if Mrs. Terry had so muffled up her face as to prevent her from seeing with accuracy at the time she was crossing the railroad track, that fact would increase her own responsibilities as to care; and in leaving that matter to the jury as a question of fact.
    4th. In refusing to instruct the jury to find a special verdict as requested.

      Critchfield, and Jones ‡ Carper, for plaintiff in error:
    The court below erred in admitting the evidence of Mrs. Terry’s partial deafness, because the only object there could have been for offering it was to excuse her from the exercise of the same amount of care which the law requires of persons in general, to avoid such collisions — to excuse her for conduct which, unless thus excused, would have shown a want of ordinary care on her part, to avoid the injury complained of. The fact that she was partially deaf, could not properly and legally have that effect. Evidence of it, then, was irrelevant, and tended to mislead the jury; and it was error to admit it. 1 Greenlf. Ev., p. 70, sec. 52; Wheloch v. Hardy, 4 Litt. Rep. 274; Fisher v. Shaw, 7 S. & R. Rep. 161; Lee v. Tapscott, 2 Wash. Va. Rep. 281.
    The court erred in refusing to instruct the jury as requested by the plaintiff in error, in regard to the effect of Mrs. Terry’s deafness and obscured vision, upon the question of the degree of care she was required to exercise. Had the jury been instructed as requested, upon these points, it would not have been requiring of Mrs. Terry more than ordinary care to keep from being., hurt, hut merely such an extra vigilance to inform herself of her danger, and to guard against it, as would make up for her defective hearing and vision, so as to thereby make the care she would have exercised amount to ordinary care.
    If she was defective in her hearing, it was incumbent upon her to be more cautious in looking. If the hood and veil obstructed her vision, so that it was more difficult for her to see the train, or to judge of its position, to compensate for this, it was necessary for her to exercise the more care in approaching the track, etc. This was the legal effect of Mrs. Terry’s partial deafness and obscured vision, when, in such a case as this, the question is, whether the party injured took the proper care to guard against the injury complained of.
    Before a recovery can be had, in such a case, the condition precedent must have been complied with — the due amount of care must have been taken by the injured party.
    So inflexible is this rule of law, and of such general application, that even children of such tender age as to be incapable of taking any care of themselves, and even lunatics, are said to be subject to its requirements. That is to say, tbe want of care on the part of the parents or guardians of the child or lunatic, will furnish, it is said, the same answer to an action by the child or lunatic, as would a want of care on the part of the plaintiff, in an action by an adult or sane person. Hartfield v. Roper, 21 Wend. 615; Willitts v. The Buffalo & Rochester R. R. Co., 14 Barb. 585.
    The court below erred in leaving it for the jury to determine what effect the partial deafness and obscured vision of Mrs. Terry would have upon the question of her negligence. This was submitting to the jury a matter of law, for what amounts to ordinary care is a question of law. Runyan v. Cent. R. R. Co., 1 Dutcher 558; Moore v. Cent. R. R. Co., 1 Zabr. 285; Herring v. The W. & R. R. R. Co., 10 Ired. (Law) 407; Avera v. Sexton, 13 Ired. (Law) 247; Spencer v. The U. & S. R. R. Co., 5 Barb. 337; Haring v. The N. Y. & E. R. R. Co., 13 Barb. 9; Sheffield Herrender v. The R. & S. R. R. Co., 21 Barb. 339; Foot Reynolds v. Wiswell, 14 Johns. 304; Manhattan Bank v. Lydig, 4 Johns. 377; Timmons v. The Central Ohio R. R. Co., 6 Ohio St. Rep. 105; Barber v. The M. R. & L. E. R. R. Co., 5 Ohio St. Rep. 567; Mitchell v. Williams, 11 M. & W. 216.
    The defendant below was entitled to special instructions upon the effect of the facts of deafness and obscured vision; and the court erred in submitting these matters to the jury as questions of fact, “under all the circumstances of the case, and the charges before given.” There was nothing in “ the charges before given ” that could take the place of these specific instructions requested and refused. Avera v. Sexton, 13 Ired. (Law) 247; Jones v. The State, 20 Ohio Rep. 46.

      F. T. Backus, also, for plaintiff in error.

      Reid if’ Eaton, and Powell $ Van Eeman, for defendant in error.

      Reid insisted—
    1. That in determining whether Mrs. Terry was guilty of negligence, misbehavior, or of the want of proper care and caution, it is proper to take into consideration her age and condition, etc., etc. Brige v. Gardner, 19 Conn. Rep. 507; Dynch v. Nurdin, 1 Adol. & Ellis 35; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. Rep. 160; Chaplin v. Hawes et al., 3 Carr. & Payne 554.
    2. That it was not competent for the railroad company, on the trial of this case in the district court, to select two of the facts (Mrs. Terry’s partial deafness and obscured vision) which the plaintiff claimed to have proved, and require a charge to the jury on these two supposed facts. Beers v. Housatonic R. R. Co., 19 Conn. 566; W. M. Ins. Co. v. M. & M. Ins. Co., 5 Ohio St. Rep. 450.
    3. That as the requests made to the district court did not contain all the necessary elements to make them legal propositions, so that the court could adopt and charge them as law, they were properly refused. Inglebright v. Hammond, 19 Ohio Rep. 336, 346; Bradley v. B. & M. R. R. Co., 2 Cush. 539; Morse et al. v. B. & B. R. R. Co., 27 Verm. 54.
    4. That the instructions requested were properly refused, because they were too vague and indefinite, and calculated to mislead and confuse the jury. W. M. Ins. Co. v. M. & M. Ins. Co., 5 Ohio St. Rep. 450.
    5. That neither of the supposed facts — Mrs. Terry’s .partial deafness and obscured vision — if proven in the case, was per se negligence, in law, but both were facts properly left to the jury under the charge of .the court as given.
    6. That a person of defective faculties can go to other sources or means of vigilance to avoid injuries, than to such person’s senses or faculties, alone.
    7. That the two supposed facts, so selected by counsel for plaintiff in error, being disputed and not admitted facts, were properly and necessarily left to the jury.
    8. That there is no error in the record, because no part of the evidence is given to enable this court to determine upon the points raised. Code, sec. 292; W. M. Ins. Co. v. M.

      & M. Ins. Co., 5 Ohio St. Rep. 450; Scovern v. The State, 6 Ohio St. Rep. 294.

      Powell ft Van Deman insisted—
    That ordinary care and reasonable care are convertible terms; or, in other words, that the ordinary 'care which the law requires of the plaintiff in cases of this kind, is that reasonable care that the plaintiff, under the circumstances, is reasonably capable of observing. And it is for the jury to take into consideration all the surrounding circumstances, in ascertaining whether, the plaintiff has taken that care, in the case, which the law requires. Beers v. Housatonic R. R. Co., 19 Conn. Rep. 566; Lynch v. Nurdin, (1 Adol. & Ellis 38,) 41 Eng. Com. Law Rep. 422, 425; Kerwhacher v. C. C. & C. R. R. Co., 3 Ohio St. Rep. 190; Chaplin v. Hawes, 3 Carr. & Payne 554; Ang. on Com. Car., sec. 555, 563, n. 2; Gilligan v. N. Y. & Harlem R. R. Co., 1 Smith N. Y. Com. Pl. Rep. 456.
    That the subject matter of the charges refused, was couched in terms too broad, and it was no error to refuse them. They required of the plaintiff’s wife the exercise of more than ordinary caution, without regard to her partial deafness — required the court to go beyond any case yet reported.
    That the court did not err in admitting to the jury the circumstance of the deafness of Mrs. Terry. It was important for the jury to have that circumstance before them, in settling the point whether or not she was, as the defendant endeavored to prove, aware of the approach of the train. The fact of her deafness was not irrelevant.
    ' That the court did not err in leaving to the jury the circumstance of Mrs. Terry’s deafness, as a fact, subject to the previous charge of the court, which was such as to induce the jury to believe that they must find that Mrs. Terry did observe ordinary caution, or the plaintiff could not recover. This was not submitting to the jury the law of the case. Until the facts are established, by the finding of the jury, or the admission of the parties, the question of negligence is a mixed question of law and fact, to be found by the jury, subject to the direction of the court, and if not rightly settled by the jury, subject to revision by the court, upon motion for a new trial. Mad River & Lake Erie R. R. Co. v. Barber, 5 Ohio St. Rep. 567; Ang. on Com. Car., sec 51, also sec. 27, and the authorities there cited; Beauchamp v. Powley, 1 M. & Rob. 38; Storee v. Gower, 6 Shep. Rep. 174; Tracy v. Wood, 3 Mason’s Rep. 132; 2 Steph. N. P. 1015; Beers v. Housatonic R. R. Co., 10 Conn. Rep. 566; Morse et al. v. B. &; B. R. R. Co., 27 Verm. Rep. 54, is directly in point; Barber v. Essex, Ib. 70; 28 Verm. Rep. 183.
   Peck, J.

The first question which arises upon the record is, whether, under the issues joined between the parties, the court below erred in admitting testimony of the partial deafness of Mrs. Terry, the plaintiff not proposing to show that the defendant knew of her deafness at the time the injury was inflicted. It is clear, we think, that without such knowledge on the part of defendant, the unfortunate condition of Mrs. Terry would not impose upon the defendant or its agents, any increased degree of care; and such seems to have been the matured opinion of the court below; for in its charge to the jury, the court expressly say, that such deafness could not enhance the responsibilities of the defendant, unless a knowledge of the fact should be brought home to it. The answer of the company denies the negligence imputed to its agents, and insists that the injury to Mrs. Terry was the result of her own want of care, etc. And it is quite probable that when the testimony was offered, it may have been supposed that, without such knowledge, Mrs. Terry’s condition reflected upon the degree of care to be exercised by the defendant below or its agents; but if the evidence was competent and admissible on any other ground, though not for that purpose, the failure of the plaintiff to disclose the true ground, would not have authorized its rejection.

The issues before the jury involved the question of the exercise of ordinary care and prudence, on the part of Mrs. Terry, and also of the railroad officers. The solution of these questions depends upon ■ the .-peculiar facts and circumstances of each case, the state and condition of the parties,'the manner in which, and the circumstances under which, the injury was received or inflicted; in short, all the circumstances surrounding the transaction, which in any way reflect upon either the degree of care or the manner in which, in the particular case, it should have been exercised. The circumstances are all relevant, and may be given to the jury. The effect which they should have upon the jury, is another and very different question. They form, so to speak, a part of the res gesta of the transaction; they are the circumstances under which it occurred, and indicate the agencies which caused it, and should not, therefore, be excluded; but the coux*t -trying the cause, should, so far as practicable, see that undue weight is not attached to them by the jury.

There was not, then, in our judgment, any error in the admission of the testimony, in regard to the deafness of Mrs. Terry.

Did the court below err in refusing to give the instructions asked by the plaintiff in error, as to the effect of Mrs. Terry’s deafness — -“that that circumstance (if proved) would throw upon her the necessity of a more cautious exercise of the faculties she was possessed of; ” or in refusing to instruct them u that if the wife of the plaintiff (below) had so muffled up her face as-to prevent her from seeing with accuracy, at the time she was cx’ossing the track of the defendant, her responsibilities would be thereby increased?”

Both parties — the railroad company and Mrs. Terry— were bound — the one in running their cars, and the other in crossing the track — to the observance of ordinary care and prudence, in order to prevent an injury to either.

If the party sued acted with ordinary care and prudence, or if both parties were guilty of negligence — that is, a want of ordinary care and prudence — contributing directly to the injury, no recovery can be had. In the first case, the defendant has fulfilled all the obligations which the law imposed upon it; and in the last, both parties are in fault, and the damages could not be apportioned.

The jury, in this case, by their verdict, found the defendant below guilty of culpable negligence in the conduct and management of their train, and this would entitle the plaintiff below to a verdict and judgment, unless Mrs. Terry was also guilty of culpable negligence, contributing to the injury.

What, then, is meant by ordinary care and prudence, the observance of which exonerates a party, in case of accident, and the absence of which, in this class of cases, is termed negligence, and renders a party liable ?

Ordinary care is not defined in the charge copied in the bill of exceptions, but it is well known to mean that degree of care which persons of ordinary care and prudence are accustomed to use and employ, under the same or similar circumstances, in order to conduct the enterprise in which they are engaged to a safe and successful termination, having due regard to the rights of others and the objects to be accomplished.

It is obvious from this definition, that the ordinary care required by the rule, has not only an absolute, but also a relative signification. It is to be such care as prudent persons are accustomed to exercise, under the peculiar circumstances of each case. If called into exercise under circumstances of peculiar peril, a greater amount of care is inquired than where the circumstances are less perilous; because prudent and careful persons, having in view the object to be attained, and the just rights of others, are, in such cases, accustomed to exercise more care than in cases less perilous. The amount of care is indeed increased, but the standard is still the same. It is still nothing more than ordinary care under the circumstances of that particular case. The circumstances, then, are to be regarded in determining whether ordinary care has been exercised.

And in the case at bar, in determining whether Mrs. Terry, in the cases referred to in the 5th and 6th instructions asked, did conduct herself with ordinary care and prudence, in attempting to cross the railroad track at the time of the accident, the question to be solved by the court and jury may be stated thus: Would persons of ordinary prudence and capacity, partially deaf, but conscious of that infirmity, and with her head so muffled as to prevent her seeing with accuracy, attempt to cross the track at the time, and under the circumstances, when she made the attempt ? Her partial deafness, and the fact, if true, that her head was so muffled with a veil as to prevent her seeing with distinctness, are as much part of the circumstances under which the attempt was made, as the time when it was attempted, and the fact that the up’ train was then momentarily expected. They formed a portion of the circumstances, which are to graduate the effort and determine whether ordinary care was exercised by her.

Much unnecessary embarrassment and complication is thrown about the question of the relative duties and responsibilities of the parties receiving and inflicting injuries, by losing sight of this distinction between the amount, and the degree or hind of care to be exercised in each particular case.

Such being the rule, as to the duties and responsibilities of the party injured by an accident, where the other party is in fault, did the court err in refusing to charge the jury, that, under the fifth instruction asked, Mrs. Terry’s partial deafness ■ “ would throw upon her the necessity of a more cautious exercise of the faculties she was possessed of or, under the sixth instruction asked, “ that if Mrs. Terry’s face was so muffled up as to prevent her seeing with accuracy at the time she was crossing the track, that, fact would increase her responsibilities ? ”

The circumstances alluded to in these instructions, were in evidence before the jury, and were claimed as proved by the plaintiff; and, as we have already seen, were circumstances proper for the consideration of the jury, in determining whether due care had been observed by Mrs. Terry.

The instructions, it is true, especially the sixth, claim that, by reason of the facts stated, Mrs. Terry’s responsibilities were increased; but it is obvious from the whole series of instructions asked, especially the 4th and 6th, and the responses of the court, and at the same time giving to the bill of exceptions a reasonable and not hypercritical construction, that it was not claimed by the defendant below, nor understood by the court as claimed by defendant, that anything more than ordinary care, in its legal sense, was in any event required of Mrs. Terry.

The fifth instruction docs not, perhaps, even in terms, assert any increase of responsibility; it being, merely, that a partial paralysis of one sense, requires a more cautious exercise of those which remain, in order to avoid injury; and, therefore, in no sense enlarges the obligation of Mrs. Terry to the exercise of anything more than ordinary care.. It is to be borne in mind that the court below, while they had laid down the rule, that reasonable care to avoid the injury, was required of Mrs. Terry, did not, in any portion of the charge set forth in the bill of exceptions, define what would be reasonable care, nor allude to the fact, that it is relative in its character, and dependent on the particular circumstances. The evidence of partial deafness, and the obscuration of vision through the agency of the double veil, were before the jury, neither of which, under the charge of the court, increased the responsibilities of the plaintiff in error; and it was therefore of much importance for the jury to know it could not, in law, limit or qualify the obligation of Mrs. Terry to exercise ordinary care and prudence to avoid injury, as hereinbefore explained.

It is claimed, however, that the court might rightfully refuse to give the charges asked, because they had too wide a scope, no limit being affixed to the extent of the requirement of “ a more cautious exercise of her (remaining) faculties,” in the fifth, and the “ increase ” of her responsibilities in the sixth; so that the charges asked, reached extraordinary as well as ordinary care, and therefore claimed too much.

We have already had occasion to remark, that the bill of exceptions is to receive a reasonable, and not a hypercritical construction; that the series of instructions asked should be taken together; and it is apparent from the 4th ánd 7th instructions asked and given, that the degree of care contemplated in the series, and understood by the court, was merely ordinary care under the circumstances. And the general terms ■ employed in those instructions should be regarded as limited to the exercise by Mrs. Terry of ordinary care, in its legal sense.

Again, it is claimed that the question, of whether there was negligence on the part of Mrs. Terry, is a question of fact upon which the court cannot be required to express an opinion, and was, therefore, very properly left, without comment, to the jury. •

Upon this question there is some diversity in the authorities. See them collected and commented on in Pierce on Railways 283-4, and Redfield on Railways 333, et seq.

The better rule is, probably, that stated in Trow v. Vermont Central R. R. Co., 24 Verm. Rep. 497: “The question of negligence is a mixed question of law and fact, típón which, if askedj it is the duty of the court specifically to instruct the jury; and where the facts in the case are admitted, or where there is evidence tending to prove the facts, it is (ordinarily) the duty of the court, if requested, to instruct the jury whether the facts admitted or found to be true, constitute (sucb) negligence as will defeat the action.”

It is not perhaps necessary to decide this somewhat vexed question. The court had not defined what, in law, was meant by ordinary care; the facts alluded to wei’e in evidence, and, as we have seen, reflected upon the extent of ordinary care in that case — they were á part of the circumstances under which the injury to Mrs. Terry was inflicted and received; and, in the absence of any instruction, that in determining the question of ordinary care, the jury were to look to all the circumstances surrounding the transaction, it is very clear, we think, that the defendant below might require of the court to instruct the jury as to the effect of those circumstances, if established, upon the question of ordinary care.

There is a class of cases to be found in the books, where persons of unsound mind, or of immature age, and who, from their infancy, or insanity, are incapable of properly estimating the danger and avoiding the injury, have been injured by the negligence of others, in which the courts have arrived at different and inconsistent results. Some holding that no recovery can be had in such cases, if their conduct would have amounted to negligence in an adult of ordinary intelligence and capacity; while a recovery has been permitted in other tribunals, on the same or a similar state of facts. See cases cited in Pierce on Railways 278, et seq. And it is sought to assimilate the disability of Mrs. Terry to those cases which allow a recovery, and claim a right to recover, because she was disabled from hearing the approach of the cars; and not, therefore, chargeable with negligence.

It is a sufficient answer to say, that even if the cases which allow a recovery for negligence for injuries inflicted upon persons of unsound mind or tender years, irrespective of the negligent conduct of such persons, be sound law— and as to which we do not now express any opinion — they can have no just application to the case at bar, where the person injured was of mature age and presumed sanity and capacity. In the case of a person of unsound mind., or of tender years, tbe recovery is allowed because, not being possessed of capacity and intelligence to properly apprehend tbe peril and adopt measures to avoid it, negligence cannot justly be imputed to them; while Mrs. Terry was of mature age, and, for aught that appears in the bill of exceptions, in the full possession of all her mental faculties —competent to truly estimate the peril, and to determine the proper’ means of avoiding the danger. The reason, then, which authorized the exception in the one case, does not arise in the other.

The other error assigned, that the court declined to instruct the jury to find a special verdict, has not been argued, and I presume is, not insisted upon by the counsel for plaintiff in error. It is sufficient to say, that the right of the court to direct a special verdict is discretionary (sec. 276 of code of civil procedure), and the refusal to •do so cannot be assigned as error.

Judgment reversed and cause remanded.

Brinkerhoff, Scott and Sutliff, XT., concurred.

Swan, C. X, did not sit in the case.


author: Scott, J.

text:
    Martin Van Buren Richards v. George Skiff et al.
    Where a record of a proceeding in. the court of common pleas, to subject lands of a decedent to the payment of- debts, upon the petition of the administrator, under the statute of 1831, sets out that it was “shown to the court that due notice had been given to the defendants : ” Held—
    That this language imports a finding by the court that the notice which the law required, under the cirumstances, had been regularly given. Evidence will not be received to contradict this finding of the court. Where jurisdiction is shown, or must be presumed, the judgment or order of the court cannot be collaterally impeached.

      Where a subscribing witness to a deed or other instrument of writing resides beyond the reach of the process of the court, the rule seems to be, that his handwriting may be proved.
    Error to the Court of Common Pleas of Lake county. Reseryed by the District Court of said county.
    The original action was brought under the code, to recover possession of real estate. The defendants claimed title to the premises. The case was tried by a jury, in the court of common pleas, and a verdict and judgment rendered for the defendants.
    A bill of exceptions was taken, which shows that the plaintiff Richards proved, upon the trial, that Lemuel M. Richards died seized and in possession of the lands, in 1836; that he was a son and heir of Lemuel M. Richards, and about one year old at the death of .his father.
    The defendants, in support of their title, offered in evidence a copy of the record of proceedings of Elisha Abbott, as administrator of said Lemuel M. Richards, against his widow and heirs, in a petition to sell lands, in the court of common pleas of Cuyahoga county, filed May 22, 1837, in which county the lands in dispute were at that time situated, though now embraced within the limits of Lake county. The plaintiff objected to the admission of the record, on the ground that service of process was not made upon him in the proceeding; that no appearance was made for him, and no guardian ad litem was appointed or answered for him in the case; and that the court had, therefore, no jurisdiction in the premises to make an order of sale. The court overruled the objection, and admitted the record. The defendants, in further support of their title, offered in evidence a deed from an intermediate grantee in their chain of title from the administrator, to which one J. Lapham, who, it was shown, resided in Dayton, Ohio, was a subscribing witness; and offered to prove his handwriting, to which the plaintiff objected; but the objection was overruled and tbe proof received. The deed was then admitted in evidence, the plaintiff still objecting,
    The evidence for the defense being closed, the plaintiff thereupon gave evidence, that at the time the petition mentioned in the record was filed, he was two years of age, and resided at that time and during the pendency of the petition, in Mentor, in the county of Lake (but then in Geauga), and offered witnesses to prove that he was never served with process, in the proceedings mentioned in said record, either personally or by service on his mother. This evidence was objected to, and the objection was sustained by the court; and the evidence was excluded.
    These several rulings of the court were excepted to at the time, and constitute the errors for which the judgment of the court of common pleas is now sought to be reversed.

      Wm. L. Perkins, for plaintiff.

      P. Hitchcock, for defendants.
   Scott, J.

The record, which was admitted by the court, shows that the petition was filed in due form, making the proper parties, at the May term, 1837; whereupon a guardian ad litem, for the infant defendants, was appointed by the court, and publication of notice to defendants ordered to be made for six weeks, in the Herald and Gazette. At October term, 1837, publication of notice was proved, and the notice itself was copied into the record, and is apparently regular. The record of the proceedings, at April term, 1838, reads thus: “ Now comes the petitioner and shows to the court that the facts contained in his petition are true, and that due notice has been given to the defendants, and no objection being made, the prayer of the petition is granted,” etc., proceeding to order an appraisal of the premises. The appraisement was returned to the June term, 1838, approved by the court, and a sale ordered. The cause was then continued, from term to term, until 1847, when a sale was made, reported to the court, approved, and deed ordered to the purchaser; the court finding that the sale had been, in' all respects, legally made.

The objection to the admissibility of the record in evidence, rests solely on the supposed want of jurisdiction of the court, for the reason that the present plaintiff, an infant defendant in the case, was not before the court.

"Whether the court could have acquired jurisdiction in the case, so as to make a valid order of sale, without having the infant defendant before it, we need not inquire, unless the record presents such a ease. It is the record of a court of general common law and chancery jurisdiction ; a court of record, competent to decide on its own jurisdiction ; and if the record were silent as to the service of process, it would, in a collateral proceeding, be presumed to have properly acquired jurisdiction. Moore v. Starks, 1 Ohio St. Rep. 369.

But the record in this case is not silent on the subject of notice or process. It shows affirmatively that notice by publication was ordered at May term, 1837, and proved, at the following October term,, to have been regularly made. For aught that appears, this may have been the proper mode of notifying some of the defendants of the pendency of the petition. They may have been non-residents of the state. The present plaintiff, being a resident of the state, was entitled, by the provisions of the act of March 12, 1831, under which the proceeding was had, to notice by the service of a subpoena. At the April term of the court, 1838, it was shown “ to the court, that due notice had been given to the defendants.” The record does not set out the evidence upon which this fact was found by the court, nor was it necessary that it should do so. The language of the record imports, under the circumstances, a finding by the court that this plaintiff had received notice by the proper service of a subpoena. That notice, which the law required, could alone he “ due notice.” We think fhe record shows the present plaintiff to have been before the court, and that there was no want of jurisdiction, either of the subject matter or the parties. It was, therefore, competent evidence in the case. And the fact of notice having been found by a court of competent jurisdiction to determine the question, and being shown by a record importing absolute verity, the proof offered by the plaintiff in contradiction of it, was properly excluded.

As to the other point made, the subscribing witness was shown not to be within reach of the process of the court. In such case, we understand the rule to be, that his handwriting may be proved. Clark v. Boyd, 2 Ohio Rep. 57.

But, were it otherwise, the judgment must still be affirmed. The plaintiff could only recover upon the strength of his own title. And it being shown that that title was wholly divested by the administrator’s sale, and a regular conveyance pursuant thereto, the defendants were entitled to judgment without proof of title in themselves.

Judgment affirmed.

Swan, C. J., and Brenkerhoee, Sutliee and Peck, JJ., concurred.


text:
    The Little Miami Railroad Company v. William T. Whitacre et al.
    Where the legislature, in the constitutional exercise of the right of eminent domain, authorizes an act, the necessary consequence of which is to injure the property of another, and at the same time prescribes the particular mode in, which the damages shall be ascertained and compensated, giving to the injured party the right to resort to the same, the person or corporation acting under such authority, and within the scope thereof, is not a wrong-doer, nor liable ' to an action for a tort, but must be proceeded against under the statute remedy.
    In Error to the District Court of Warren county.

      The case is stated in the opinion of the court.

      Geo. J. J. F. Smith, and Fox French, for plaintiff in error.

      Thos. F. Thompson, for defendants in error.
   Brinkerhoff, J.

This is a petition in error, seeking to reverse the judgment of the district court of Warren county. On the 3d of September, 1852, the defendants in error, plaintiffs below, then being minors, by their guardian, brought their action of trespass on the case against the plaintiff in error in the common pleas of Warren county.

Several issues of fact were made in the case, which it is not necessary particularly to notice. The case having been appealed to the district court, was there tried, and the plaintiffs below had a verdict for $841. A motion for a new trial having been made, on the ground, among others, that the court erred in its charge to the jury, the same was overruled, and judgment entered on the verdict.

The record discloses substantially the following case:

The plaintiffs below are the owners in fee of a farm of some two hundred acres, situate in Warren county, which they inherited from their father, Moses Whitacre, deceased. During the lifetime of Moses Whitacre, and while he was in possession, the railroad company entered upon, and laid out its railroad across the farm, and partially graded the track. After the death of Moses Whitacre, the company completed the construction of its road across the farm, and has ever since used and occupied the same for the purposes of a railroad. All this has been done without the consent of Moses Whitacre, in his lifetime, or of his heirs since his death; and without any compensation for the right of way appropriated, or damages by reason thereof, being paid or tendered by the company; and without any measures having been instituted at any time, either by the company or by Moses "Whitacre or his heirs, under the provisions of the company’s act of incorporation, legally to ascertain the amount of such compensation or damage.

The provisions of the company’s act of incorporation, (84 O. L. 404), on the subject of compensation for right of way, etc., are as follows:

“Sec. 11, The'corporation is hereby empowered to purchase, receive and hold such real estate as may be necessary and convenient in accomplishing the object for which the corporation is granted; and may, by their agents, engineers and surveyors, enter upon such route, place or places selected, as aforesaid, by the directors, as the line whereon to construct the said railroad; and it shall be lawful for the said corporation to enter upon and take possession of and use all such lands and real estate, as may be indispensable for the construction and maintenance of said railroad, and the accommodations requisite to and appertaining unto them; and may also receive, hold and take all such voluntary grants and donations of land and real estate, as may be made to said corporation, to aid in the construction, maintenance, or accommodation of said road or ways; but all lands or real estate thus entered upon and used by said corporation, and all earth, timber, gravel, and other materials needed by said company, shall be purchased of the owners thereof, at a price to be mutually agreed upon between them; and in case of disagreement of the owner as to the price of any lands or materials so required for said road, or if the owners are under any disability, in law, to contract, or are absent from the county, application may be made, cither by said owners, or by said corporation, to any judge of the court of common pleas within which said lands or materials may lie, specifying the lands or materials, so required, or already appropriated; and thereupon said judge shall issue his warrant, in writing, directed to the sheriff of the county, requiring him to summon an inquest of three freeholders of the county, who shall not be stockholders, nor interested therein, to appear at, or near said land or materials to be valued, on a day named in said warrant, not less than five, nor more than ten days after issuing the same; and if any of the persons do not attend, the said sheriff shall forthwith summon as many as may be necessary to fill said inquest; and the persons so impanneled, shall, on their oaths or affirmations, value the damages which the several owners will sustain by the use or occupation of the lands or materials, or property required by said company, having due regard to the benefit such owners may derive from the location and structure of said road; and said inquest shall reduce their valuation to writing, and such valuation, when paid or tendered to said owners, or deposited in any bank to their credit, or their proper representatives, shall entitle said company to the materials, use and occupation of said lands, for the purpose of said road; and all estate and interest therein, as fully as if it had been conveyed by the owners of the same,” etc.

On the trial of the case in the district court, the court charged the jury,

“ That although the plaintiffs would not he entitled to recover for any act or injury committed upon the premises in question during the lifetime of the said Moses Whitacre ; yet under the declaration and pleadings in this cause, if the jury believe from the evidence in the case, that the original entry and taking possession of the land, and the constructing of the embankments aforesaid, and the making of the excavations, grading, etc., by the defendants, were done in the lifetime of Moses Whitacre, and without his license and consent, the plaintiffs, as heirs, were entitled to recover damages in this action, under the declaration for the mere continuance by the defendant in the occupancy and possession of that part of the premises used and occupied by its road, and the obstruction and annoyance to the plaintiffs in their use of the remainder of their farm.”

This charge of the court was excepted to, and is now assigned for error.

By a reference back to the section of tbe company’s charter above quoted, it will be seen that the act of incorporation directs a particular mode of procedure, by which either the company or the. owner of land may obtain a valuation and assessment of the amount of compensation and damages to which the owner of land is entitled on account of its appropriation by the company to its use; and this provision of the act of incorporation, and the charge of the court below complained of, raises the question, whether the mode of proceeding provided by the statute, is exclusive of common law remedies, or cumulative only ?

The rulé on this subject is thus stated in Pierce on Am. R. Law 224: “Where the legislature, in the constitutional exercise of the right of eminent domain, authorizes an act, the necessary consequence of which is to injure the property of another, and, at the same time, prescribes the particular mode in which the damages shall be ascertained and compensated, giving to the injured party the right to put the same in motion, the person or corporation acting under such authority, and within the scope thereof, is not a wrong-doer, nor liable to an action for a tort, but must be proceeded against under the statute remedy.” This rule is recognized by Avery, J., in Akron v. McComb, 18 Ohio Rep. 232-3, and is sustained by the general current of adjudicated cases.

We think, therefore, that the court below did err in its charge to the jury, for which reason the judgment must be reversed.

There are other assignments ■ of error in the case; but as our holding upon the point above determined seems to go to the foundation of the action, it is unnecessary to pass upon them.

Judgment reversed and cause remanded.

Scott, Sutlipp, and Peck, JJ., concurred.

Swan, C. J., did not sit in this case.


author: J. R. Swan, C. J.

text:
    James D. Coolidge and wife v. Mary E. Parris.
    1. In an action against husband and wife for an assault and battery committed by her, she cannot control the management of the defense, or a compromise of the action, against the wishes of her husband; and if he confess judgment for himself and wife, the court will not interfere at her instance, on the ground that she did not consent, or that she objects to the compromise.
    2. Section 29 of the code, which provides that if the husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also, is not applicable to actions lilte this, in which the trial and judgment must be joint, and no right of the wife separate from the husband can be passed upon, or recognized in the final order of judgment or the court.
    In Error to the District Court of Lake county.
    Mary E. Parris sued Coolidge and wife, in the court of common pleas, for an assault and battery committed by the wife, and recovered a judgment against them for $3100, and they appealed the case to the district court. Before trial in the district court, the husband, with the advice of the attorneys he had employed to conduct the defense for himself and wife, and with the advice of the judge who presided at the trial in the common pleas, settled the case for $2,500. The wife, by counsel, objected to the validity of this settlement, and the entry of judgment thereon, as against her, insisting ‘that the same was made without her knowledge or consent.
    Some testimony was offered that she had, in fact, given her assent to the settlement, but the district court found that the evidence failed to show this, but decided that the husband had the right, as husband, to bind the wife by the settlement, without her assent, and that the same did bind her; and that, in the absence of fraud or unfairness in making the settlement, it precluded her from making any further defense; and thereupon judgment was entered against both husband and wife for the $2,500; and to the entering of judgment against her, the wife, by counsel, excepted. During the term at which the judgment was entered, the husband expressed himself satisfied with the settlement, and desired it to stand.
    Coolidge and wife now seek to reverse the judgment of the district court, and assign for error the holding of the court as to the effect of the settlement against the wife.

      Backus § Noble, for plaintiffs in error. No argument for them has come to the hands of the Reporter.

      R. F. Ranney, for defendant in error.
    1. The husband had full power to settle for both himself and wife. 1 Bla. Com. 442; Benjamin and wife v. Bartlett, 3 Missouri Rep. 86; Evans v. Mylert, 19 Penn. St. Rep. 402; McCullough v. Wilson, 21 Penn. St. Rep. 436; King v. McCampbell, 6 Blackf. Rep. 435; Ferguson v. Smith, 2 Johns. Ch. Rep. 139; Leavitt v. Cruger, 1 Paige 422; 2 Bac. Abr. 64; Watson on Arb. 43; 9 L. L. 22.
    This chain of authority most abundantly establishes the position, that the husband and wife are, in law, one person, and that the husband is the controlling head of that unity; that, in virtue of the marital power, he has the undoubted right to settle, before litigation, all claims against, himsA.l-f and wife, or to refer them to arbitration; that when sued, process need only be served upon him, and that whether process is served or not, he has the right to constitute an attorney to appear for, and confess a judgment against, both himself and wife. There is but one limit to this right, and that occurs when the sole object of the suit is to appropriate her separate property, and he is a mere nominal party. It will be seen that these principles have been constantly applied in cases in every way more doubtful than the present; indeed, in cases where the result of the judgment was to appropriate her real estate to the payment of the husband’s debt. While, in cases like this, the liability rests upon the husband, the judgment is against him, and his property is taken to satisfy it. He alone can constitute the attorney to defend; and who shall direct that attorney in conducting the business, if not him? His interest in the result certainly cannot be less than hers. If she, under the dictation of ill-advised intermeddlers, is entitled to reverse the order of nature and of law, and take from him the power, he must submit to whatever she directs; for they cannot be separated. Endless confusion would result. If she desires to challenge a juror, and he not, or to object to evidence and he not, her will must prevail; or if she desires ruinous litigation, instead of a judicious and honest compromise, he must follow her to the end of the chapter. Tied to her apron strings, he must follow her as submissively as her poodle dog. I cannot think that either law or sense requires this to be done. It seems to me that the law has very wisely invested him with the right, as the head of the family, to settle as well as to litigate, to make peace rather than continue the war; and that this right cannot be restricted or controlled, unless a case is made which shows that he is exercising the power in bad faith, or in prejudice to the interests of the wife.
    The 29th section of the code has been referred to as having some bearing upon this subject. I think this a clear mistake. To give application to that section, the husband and wife must have separate rights — “her right” and “his right” being in controversy. It properly applies in all cases where property, real or personal, in which each has a separate interest, is the object of the action, and cannot, with any reason, be extended further, and least of all, to the joint and inseparable liability for her torts. The husband did not neglect to defend, nor did she apply to defend for him. He defended as long as there was any use in it, and then terminated the litigation by his agreement. He stood by it to the end, and ended it by the exercise of his marital right, as he desired.
    2. But should the judgment be reversed as to her, it ought not to be as to him. Preble County Bank v. Russell, 1 Ohio St. Rep. 316; Wells v. Martin, 1 Ohio St. Rep. 388; Tabler v. Wiseman, 2 Ohio St. Rep. 208; Lessee of Merritt v. Horne, 5 Ohio St. Rep. 318; 1 Chit. Pl. 105; Hasbrouck v. Weaver, 10 Johns. Rep. 247.
   J. R. Swan, C. J.

The husband and wife are deemed, in many respects, one person in law. When sued jointly, and for a cause of action •which cannot be maintained except by showing a joint liability, and in which they must jointly plead, and one’ joint judgment must be rendered against them, there is necessarily a unity which cannot be severed. In such case, if any separate control over the action can be recognized in the wife, it can only be done by making the rights and power of the husband subservient to her. If the wife may control-the conduct of the action or defense in one way, and the husband may also control the action or defense in another and different way, it must bo done by permitting them to plead separately, and to sever in the trial. This would do, if the cause of action were such that separate and different judgments could be rendered against them. But in an action like the one before us, the judgment must be single and joint; and whatever might be the result of a separate defense, made by the wife, contrary to the wishes of the husband, he would be ultimately liable, jointly with her, for the costs, expenses and judgment against her. After all, it is a question, whether the wife shall control the husband, or the husband shall control the wife, where, there is a unity of interest, and they differ. We are not yet prepared to depart from the old rule, which makes the husband the head of the wife. And such is the common law. Hence when sued jointly, service of process, at common law, was sufficient on the husband alone; and he could appear and confess judgment for both. Evans v. Mylert, 19 Penn. St. Rep. 402; Benjamin and wife v. Bartlett, 8 Missouri Rep. 86.

Whether, when the husband alone confesses judgment, or the like, against himself and wife, the separate property of the wife can be taken in execution, is another question.

It is insisted that the 29th section of the code is applicable to the present case.

It provides: “ If a husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also.”

The right of the wife mentioned in the code, is undoubtedly a right involved in the controversy, and its provisions are applicable to' equity cases in which the separate rights of the wife are by decrees recognized and passed upon as distinct from the rights of the husband. Her inchoate right of dower in premises mortgaged by her and husband; her interests and rights in her separate property, and in property which came to the husband by her, are recognized and frequently passed upon by decree; and, under the code, she may, in such cases, defend her own right.

But when the action, as in the case now before us, involves no separate right of the wife, and in which no order or judgment can be rendered except a joint one, affecting both jointly, the provision of the code cannot be applied. Her right in this action, and the right of her husband, are inseparable; and if they separated in the defense the court could not, as has been before said, proceed to judgment except jointly against both.

We are of the opinion that there is no error in the proceedings or judgment of the court below.

Judgment affirmed.

Brinkerhoee, Scott, Sutliee and Peck, JJ., concurred.


text:
    Ex Parte Simeon Bushnell. Ex Parte Charles Langston et al.
    A motion to quash an indictment upon arraignment thereon, addresses itself to the sound discretion of the court, and is never granted except in very clear cases, but the defendant is loft to raise the question in a more formal way:by demurrer or motion in arrest of judgment.
    The refusal to grant a motion to quash, cannot be regarded as a final decision of the question raised thereby, when the point is one which, if well taken, would be available on demurrer or in arrest of judgment.
    Where a court of general jurisdiction, and legally competent to determine its own jurisdiction, has acquired jurisdiction, de facto, over person or subject matter, it is a rule, founded upon comity between judicial tribunals, that no other court will interfere with, or seek to arrest the action of the court in which, and while, the case is still pending and undetermined.
    According to this rule, it is legally incompetent for this court to withdraw, by writ of habeas corpus, persons in the custody of the district court of the United States, charged with the violation of an act of congress, while the proceedings against them are pending and undetermined, and discharge them on the ground that the act of congress, upon which the indictment was based, is unconstitutional and void.
    Where, on the preliminary application for a writ of habeas corpus, it appears to the court, from the showing of the applicants, that, should the writ be issued and they be withdrawn from the custody claimed by them to be illegal, the court granting the writ would, after hearing, remand them to the custody from which they would thus be withdrawn, the application for the writ will be refused.
    Applications for the allowance of the writ of habeas corpus.

      Spalding, for the applicants.

      JBelden and Swayne, contra.
   Peck, J.

It appears from the petitions filed in these cases, that all of the relators who ask for the allowance of the writ of habeas corpus are now in the custody of the United States marshal for the northern district of the State of Ohio; that they are thus in his custody, under and by virtue of a mittimus regularly issued by the district court of the United States for the northern district of Ohio, on indictments preferred against them in said district court, for an alleged violation of the law of the congress of the United States, respecting fugitives from service, passed September 18,1850. That the relators are charged in said indictments with the rescue and the aiding and abetting the rescue of a fugitive from service; and that the proceedings under said indictments are still pending and undetermined before said district court.

The separate application of Simeon Bushnell, indeed, shows that he has been tried upon said indictment, and found guilty, and is now in custody, awaiting the final judgment and sentence of the court. That on being arraigned upon said indictment, before said district court, he, by his counsel, moved the court to quash the same for various reasons, one of which was, that the law of 1850, upon which it was based, is unconstitutional and void; which motion the district court refused to grant.

A motion to quash addresses itself to the sound discretion of the court, and is never granted except in very clear cases; but the defendant is left to raise the question in a more formal way, by demurrer or motion in arrest of judgment. The refusal to grant cannot be regarded as a final decision of the question raised by the motion, when the point is one which, if well taken, would be available on demurrer or in arrest of judgment. Indeed, such motion should never be granted if the question is in any degree doubtful; but should be reserved for hearing on motion to arrest the judgment. No judgment or sentence having been pronounced, and the question of jurisdiction being still an open one before that court, we do not think the case of Simeon Bushnell, as to the question of jurisdiction, distinguishable in principle from that of the other relators.

Is it, then, legally competent for this court to withdraw the relators from the district court, in the custody of which they now are, charged with the violation of an act of congress, while the proceedings against them are still pending and undetermined, and discharge them on the ground that the act of congress, upon which the indictments are based, is unconstitutional and void ?

The district court now has possession of the case, and the parties to it, and has the legal power and capacity to hear and determine for itself, the question of its own jurisdiction and right to act in the premises. The legal presumption in such cases always is, that a court thus assuming to act, will determine the question of its own jurisdiction correctly, until it has acted finally upon it.

Hence it is a rule founded upon the comity which does, and, for the prevention of unpleasant collision, should always subsist between judicial tribunals, that where a court of general jurisdiction, and legally competent to determine its own jurisdiction, has acquired prior jurisdiction, de facto, over person or subject matter, no other court will interfere with, or seek to arrest its action, while the case is still pending and undetermined. This rule is sustained and supported by all the analogies of the law. See Smith v. Iver, 9 Wheat. Rep. 532; Hagan v. Lucas, 10 Pet. Rep. 400; Taylor v. Carryl, 20 How. Rep. 594; United States v. Morris, 2 Am. L. R. 351; Ex parte Robinson, 6 McLean 363; Keating v. Spink, 3 Ohio St. Rep. 105; Hurd on Habeas Corpus 199, et seq.

It is right in principle and preventive of unpleasant collision between different tribunals. If another tribunal were thus to interfere with our action, and withdraw from our custody a prisoner upon trial before us, and set him at large, we should resist such attempt to the uttermost. And shall we not extend to other tribunals the same comity and the same confidence that we claim for ourselves ?

In the recent cases in the State of Wisconsin, and which have attracted so much attention and remark, this point was expressly decided, and that, too, by the same court which determined the fugitive slave law to be unconstitutional. Ex parte Booth, 3 Wis. Rep. 145.

The history of that case is as follows:

Booth had been arrested on warrants granted by a United States commissioner, for aiding in the escape of a fugitive slave from service, contrary to the law of 1850. One of the judges of the supreme court of Wisconsin, upon habeas corpus, discharged Booth from the custody of the marshal, on the ground that the law of 1850, as to fugitive slaves, was unconstitutional, among other things, in authorizing commissioners so to act and issue warrants, and that a warrant issued by such officer was illegal and void; and a majority of the supreme court of that state, on certiorari, affirmed the judgment.

Booth was subsequently indicted in the district court of the United States for the State of Wisconsin, for the same offense, and arrested by the marshal on a warrant issued thereon. Booth thereupon applied to the same supreme court, then in session, for a writ of habeas corpus, to be delivered from the custody of the marshal; but the writ was unanimously refused, on the ground that it appeared from the application, that he was under arrest upon indictment of a court having jurisdiction of alleged offenses against the United States, and that the case was still pending and undetermined. That court decided that they had no legal right to interfere in his behalf while the prosecution was pending, even though the law of congress, under which he was indicted, was unconstitutional and void; recognizing, in its fullest extent, the principle and practice of judicial comity to which I have adverted. They concede the privilege and right of the district court to determine first and for itself, the question of its own jurisdiction ; and in reply to the claim that the law was unconstitutional and void, and that, therefore, the district court could not have any jurisdiction, very aptly remark, that that fact, if true, amounts, after all, to a question of jurisdiction, which they, in the first instance, must decide for themselves. Subsequently, the prosecution having terminated by a conviction and sentence of imprisonment, the same court allowed a writ of habeas corpus, and discharged Booth for alleged defects in the indictment, which did not bring the counts upon which he was convicted within the purview of the act of congress of September 18,1850.

We refer to these cases in Wisconsin with no design of expressing our assent or dissent to the decisions under the first and last writs of habeas corpus; but merely to show that a court which had judicially decided the law to be unconstitutional, still held that, in a case like that under consideration, they had no legal right or authority to interfere.

On the whole, we are unanimously' of the opinion that the relators, upon their own showing, admitting the law in question to be unconstitutional and void, could not be discharged by us, if the writ had been issued, and they were now before us for deliverance. It would be an idle and expensive ceremony to award the writ to bring the parties here, and, for the time, intercept proceedings in said district court, when our next duty would be to remand them into the custody of the officer who now holds them.

The application for writs of habeas corpus, in behalf of the relators, is, for the reasons stated, refused.

This view of the case renders an examination of the other propositions mooted in the argument, as to the constitutionality of the act of congress, adverted to, and the right of the state tribunals to interfere with the final action of the district courts in that behalf, altogether unnecessary.

Swan, C. J., and Brinkerhoff, Scott and Sutliff, JJ., concurred.