author: Sutliff, J.

text:
    The Central Ohio Railroad Company v. Adam Holler.
    Before the code of civil procedure took effect, the final order of the court of common pleas, in proceedings for the appropriation of a right of way by a railroad company, under the act of February 11, 1848, regulating railroad companies, was subject to revision by the district court, on certiorari.
    An assessment of damages in the “sum of $150, with a wagon-way and stop-for cattle,” as the damages sustained by the owner of the land taken, is not in conformity with the provisions of said act, nor with the provisions of the constitution of this state, requiring compensation to be made to the-owner for the property so appropriated to public use.
    An order of the court of common pleas, confirming such assessment of damages, was in that respect erroneous, and was rightfully reversed by the district court, on certiorari. And a mandate from such court, on such reversal, authorized the court of common pleas to vacate its order of con,-* firmation.
    Petition in error to reverse tbe judgment of the court of common pleas of Licking county.
    Eeserved in the district court.
    In May, 1854, the Central Ohio Eailroad Company, pursuant to-the act of February 11,1848, “ regulating railroad companies,” and to the act amendatory thereof, passed March 20, 1850, filed in the office of the clerk of the court of common pleas *of Licking county, an instrument for the appropriation of a right of way for its railroad, through the lands of Adam Holler.
    At the May term, 1851, said court appointed appraisers to assess damages which Holler might sustain by the appropriation.

      On the 17th of May, 1851, the appraisers returned to the clerk of the court an award of “ one hundred and fifty dollars, with a wagon-way and stop for cattle,” as Holler’s damages.
    At the August term, 1852, the court finding that no exceptions had been filed to the report of the appraisers, and that the amount of damages assessed by them had been paid to the clerk of the court, for the benefit of Holler, made an order confirming the appropriation, and establishing the company in the rights acquired under it; and directed the clerk to record the proceedings, which was done.
    In May, 1853, at the instance of Holler, ^ transcript of the proceedings in the court of common pleas was taken to the district court on certiorari; and that court, at the June term, 1854, reversed the proceedings of the common pleas, and directed a mandate to be sent down.
    At the October term, 1854, of the common pleas, the cause coming on to be heard on the mandate of the district court, on Holler’s motion, the common pleas set aside the proceedings and award of damages, for irregularity; and directed a transcript of the case to be certified to the probate court of the county, to be proceeded in according to law, and that the company pay the costs.
    To this judgment of the common pleas the company excepted.
    The statute, under which the original appropriation was made (46 Ohio L. 40), is, so far as it pertains to the present case, as follows:
    “If the corporation shall not agree with the owner of the land, Or with his guardian, if the owner is incapable of contracting, touching the damages sustained by such appropriation, such corporation shall deliver to such owner or guardian, a copy of such instrument of appropriation. . . . Upon the filing of such act of apjiropriation and delivery of such copy, or making of such publication, the court of common pleas, or other court of record of the county where, the land lies, or any judge thereof in vacation, upon application of ^either party, shall appoint by warrant three disinterested freeholders of such county, to appraise the damages which the owner of the land may sustain by such appropriation, Such appraisers shall be duly sworn ; they shall consider the benefit as well as injury which such owner shall sustain by such railroad; and shall, forthwith, return their assessment of damages to the clerk of said court, setting forth the value of the property taken, or damage done to the property, the amount of benefit conferred, and the difference between the value of, or damage done to the property taken, ■which they assess to such owner, or owners, separately, to be by him filed and recorded; and .thereupon such corporation shall pay to the clerk the amount thus assessed, or secure tho-payment to the satisfaction of such court, or of the judge issuing the warrant. And on making payment or tender 1 hereof to said clerk, or on giving such security as may be required, it shall bo lawful for such corporation to hold the interests in such lands or materials thus appropriated, and the privilege of using any materials on said roadway, within fifty feet on each side of the center of such roadway, for the uses aforesaid. The costs of such award shall be paid by such company ; and, on motion by any party interested, and showing said proceedings, the court may order payment thereof, and enforce such payment' by execution. The award of said arbitrators may be reviewed by the court of common pleas, or other court in which proceedings may be had, on written exceptions filed by either party in the clerk’s office, within ten days after the filing of such award; and the court shall take such order therein as right and justice may require, by ordering a new appraisement on good cause shown: Provided, that notwithstanding such appeal, said company may take possession of the property described as aforesaid, and subsequent proceedings on the appeal shall only affect the amount of compensation to be allowed.”
    It is assigned for error, in substance:
    1. That the court of common pleas had no jurisdiction in the case after the expiration of ten days after the filing of the award.
    2. That no motion to set aside the appraisement and award having been made, and no exceptions thereto having been taken for more than two years after the filing of the award, and the ten days having expired, the court erred in setting the same aside.

      Stanbery, Kebler & Wright, for plaintiff in error.

      Charles Follett, for defendant in error.
   Sutliff, J.

The principal question presented for our consideration upon the petition in error relates to the jurisdiction of the court of common pleas in this case. It is insisted by counsel for plaintiff in error that the statute having provided a particular «manner in which the defendant' in error could have had the award of the arbitrators reviewed by the court of common pleas, and the defendant not having availed himself of that provision to take the case before that court for review, he is precluded from bringing the case before the common pleas in any other manner.

The correctness of this position, we apprehend, depends upon the terras of the act authorizing the district court to revise and vacate the first order made by the court of common' pleas in the case confirming the award.

Upon examining the statutes in force upon the subject in May, 1853, at the time the writ of certiorari was issued by the district •court, it will be seen that the proceeding in certiorari was applicable to the final order made by the court of common pleas. And it is not pretended that there is any express provision contained in the statute under consideration excluding the jurisdiction of the district court in the case.

If the district court then had jurisdiction to issue a writ of certiorari in the case, and to thereby obtain supervisory power over the final order of the common pleas, that jurisdiction and power carried with it the authority to dictate to the common pleas an amendment, reversal, or vacation of the order so revised.

Indeed, it is difficult to perceive how the jurisdiction, denied to the common pleas by counsel for plaintiff in error, to make an order, in obedience to the mandate from the district court setting ■aside the proceedings under the award, could depend upon the- case having been appealed to that court from the award of the arbitrators.

Suppose the defendant had availed himself of the provisions of the statute, and, within the ten days, filed his exceptions to the award of the arbitrators? In that case the proceedings would only have been reviewed by the court of common pleas, and that court would still have had to make a final order in the case; and it might have been the same order in substance which it did make ■simply approving and confirming the award and appropriation.

But obviously, in that case, the final order so made by the court of common pleas, might have been revised by the district court *upon certiorari. And if reversed for error, a mandate from the district court to vacate such order, would, as in all similar cases, be sufficient authority for the common pleas to set aside and vacate the order which had been so adjudged erroneous by the district court.

If those views be correct, it is evident that the common picas not only had jurisdiction and authority to set aside or vacate the.final order so before made by that court upon the award of the arbitrators, but in fact had no other alternative but to comply with the mandate received from the district court.

If any error- intervened in setting aside the award of the arbitrators, the district court, and not the court of common pleas, is chargeable with that error.

But we do not perceive any error in the action of the district court, in setting aside, under the proceeding of certiorari, the final order made by the court of common pleas upon the award of the arbitrators.

We have already observed that the district court, at the time of issuing the writ of certiorari, had undoubted jurisdiction to revise the action of the common pleas in the matter.

When the .case came before the district court, it was the dujy of that court to examine the record of the proceedings of the arbitrators, and the action of the common pleas thereon, and, if found in conformity with law, to affirm the same ; but if found irregular, and not in conformity with the statute regulating such proceedings, to vacate and reverse the order and judgment of the common pleas.

The constitution of 1802, under which the statute governing these proceedings was enacted, like the constitution of 1851, provided that the compensation to be made to the owners of private property taken and made subservient to public use, should be in money. But it was the practice under the former constitution, and such is the provision of the statute under consideration, to make the actual damage sustained by the owner the measure of his compensation.

The statute provides that the appraisers “ shall consider the benefit as well as injury which such owner shall sustain by reason. *of such railroad, and shall forthwith return their assessment of damages to the clerk of said court, setting forth the value of the property taken, or damage done to the property; the amount of benefit conferred, and the difference between the value of, or damage done to the property taken, which they assess to such owner or owners separately; to bo by him filed and recorded,”..... “ and on motion by any party interested and showing said proceedings, the court may order payment thereof.”

This statute, as well as the constitution under which it was enacted, evidently required the damage to be assessed and paid in money; but the appraisers in this ease assess the damage or compensation to bo paid by the plaintiff to defendant to be “$150, with a wagon-way and stop for cattle,” as the damages sustained by Holler.

Neither the constitution, the statute, nor the order of court, authorized the compensation duo the owner of property, under such circumstances, to be assessed or paid by constructing for him wagon roads and cattle passes, or otherwise than in money, without his agreement to accept the same as such compensation. The report of the appraisers being, therefore, irregular and unauthorized by the statute, the court of common pleas had no authority under the statute to confirm their report; and the district court, for that cause, very properly set aside and vacated the order made by the common pleas upon the report.

And the district court having so reversed the proceedings of* the court of common pleas, and sent down its mandate to that court, the court of common pleas rightfully, in accordance with the mandate, set aside the erroneous order so before made upon the award.

The proceedings and judgment of the court of common pleas are affirmed.

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

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


source: Caselaw Access Project

author: Scott, J.

license: Public Domain

text:
    *George Henshaw v. Jackson M. Noble and others.
    Where, in an action brought to recover for an injury to personal property, a count in trespass quare clausum fregit, is joined in the declaration with several counts in case, for negligence, the court, looking to the provisions of the act of March 12, 1844, “to regulate the practice of the judicial courts,” will not arrest the judgment on account of an alleged misjoinder of causes of action.
    Where such action is brought against several defendants, and there is evidence tending to show th£t some of them were principals and employers, and others were agents and employes, it is error to instruct the jury that proof of negligence will entitle the plaintiff to recover under the counts in case, against all concerned, whether, as between themselves, they were principals and agents or not.
    Motion for new trial and in arrest of judgment.
    Reserved in the district court of Hamilton county.

      Thomas J. Strait, for plaintiff.

      Mills & Hoadly, for defendant Noble.
   Scott, J.

This action was originally brought in the former Superior Court of Cincinnati, and was in form an action of trespass on the case. Upon appeal from the judgment of that court, the plaintiff obtained leave from the district court to add to his declaration a count in trespass, quare clausum fregit, and upon trial in that court a verdict was rendered against all the defendants. A motion for a new trial was made by the defendant Noble, and notice given of a motion in arrest of judgment, in case the motion for a new trial should be overruled. By direction of the court these motions wore argued together, and reserved for decision here. A bill of exceptions is embodied in the record, containing the evidence in the case and the charge of the court; and these, together with the pleadings, present the grounds upon which the pending motions rest.

From the testimony, it appears that previous to the 16th of May, 1849, the plaintiff occupied as a furniture ware and sales *room the ground floor and cellar of a three-story brick building, on the east side of Sycamore street, about twenty-five feet north of Third street, in Cincinnati. The plaintiff held under one Hall, who occupied the remainder of the building, and was the tenant of one Franks, who owned the fee. Franks was also the owner of the lot south to Third street, which he had leased to Curtis and Brown for ten years, they agreeing to erect on the premises a five-story brick building, and being allowed the privilege of using the south wall of the house occupied by plaintiff for the insertion of joists and girders, but not in such a manner as to injure the wall. Curtis and Brown had contracted with King and Noble, carpenters and builders, to furnish the material and erect the building for a specified sum, and they (Curtis and Brown) had also employed Seneca Palmer as architect and superintendent. Higdon Vras employed by King and Noble to excavate the cellar, and the street under the adjoining sidewalk. All this excavation was, by the plan, required to be fourteen feet deep, while the plaintiff’s cellar was but seven or eight feet deep. At the depth of the plaintiff’s cellar wall the earth was a gravel quicksand, and while the excavation was going on and the area wall being laid, under the superintendence of the architect, the building in which the plaintiff’s premises were situated gave way, at the southwest corner, and fell on the evening of the said 16th of May, after the workmen had quit labor.

The plaintiff’s wareroom and cellar were full of furniture, which, by the falling of the house, was broken and damaged. To recover for tho injury thus done to tho furniture, plaintiff brought this action jointly against Curtis and Brown, the proprietors, King and Noble, their contractors, Palmer, their architect and superintendent, and Higdon, who was employed to excavate the cellar. Ourti3 and King died before tho trial in the district court, and the verdict is against all the survivors. The declaration contains four counts: Tho first three, in case, for excavating the cellar and street so near to the plaintiff’s premises, and in so careless and negligent a manner, as to disturb the foundation and walls of his warehouse, and cause the same to fall, by means whereof his furniture and other personal property were destroyed. *The fourth count, added by leave of the district court, is in trespass, quare clausum fregit, and adding a destruction of the furniture by way of aggravation.

Tho main grounds upon which the defendant, Noble, rests his pending motions, are, first the alleged misjoinder in the declaration of the count in trespass with the counts in case; and the refusal of the court to instruct the jury that the plaintiff can not recover upon the last count of his declaration, because that is a count for trespass to real estate which can not be included in an action on the case under the statute; ” and, secondly, tho misdirection of tho jury by the court in regard to the circumstances under which the defendants would, or would not, be jointly liable.

As to the first point presented, there can be no doubt that, at common law, a misjoinder of causes of action may be taken advantage of by motion in arrest of judgment. 1 Chit. Pl. 236. And so it was held in Nimocks v. Inks, 17 Ohio, 596.

Is there, then, such a misjoinder in the declaration before us? The general rule on this subject, which Mr. Ohitty states as the result of the authorities, is, “ That when the same plea may be pleaded, and the same judgment given on all the counts of the declaration, or whenever the counts are of the same nature, and the same judgment is to be given on them all, though the pleas be different, as in the case of debt upon bond and on simple contract, they may be joined.” To this he adds: “ Perhaps the nature of the causes of action is the best test or criterion by which to decide as to the joinder of counts.” He also says that case and trover may bo joined, but that case and trespass can not; for which the principal reason seems to be, that the judgments are different, that in trespass being, in strictness, quod capiatur; and that in case, quod sit in misericordia. This reason, under our practice, savors more of technicality than of substance. •

The gravamen of the complaint in this case, the substantial injury for which the plaintiff seeks redress, is the same in all the counts of the declaration; it is tho destruction of the plaintiff’s furniture and personal property, for which he seeks to recover damages. It is true, that the form of action, after which tho first three counts are framed, charges this injury to have resulted ^consequentially from the wrongful negligence of the defendants, while the last count states it as the direct and immediate result of a forcible and unlawful entry upon and interference with the plaintiff’s possesion of the realty. All of the counts allege that the plaintiff’s house was thrown down, and his furniture destroyed by the defendants’ wrong; and we think the different character ascribed to that wrong, by the count in trespass, and those in case, is rendered unimportant by the act of March 12, 1844, “ to regulate the practice of the judicial courts.” 42 Ohio Laws, 72. It provides:

“That where, by the wrongful act of any person, an injury is produced either to the person, personal property, or rights of another, or his servant, child, or wife, for which an action of trespass may be brought, an action of trespass on the case may be brought to recover damages for such injury ; whether it was willful, or accompanied by force or not, and whether such injury was a direct and immediate consequence from such wrongful act, or whether it was consequential or indirect.”

The object of this section clearly is, so far to abolish the distinction between trespass and case, as to allow a recovery upon counts in case, though the proof may show trespass to have been the proper remedy. In commenting upon this statute in the case of Nimocks v. Inks, before referred to, Judge Hitchcock says: “ Under the statute, if an action of trespass on the case should be brought, when the proper remedy would be trespass, I suppose the action might be sustained.” If, then, proof of a forcible trespass may be offered under a declaration in case, the insertion of a count in trespass in such a declaration can not be regarded as a misjoinder. It can not be a fatal mistake to make the allegata and probata agree, or to apprise the defendant of the true character of the injury complained of. But if we are mistaken in this, there is a still further difficulty. The second section of the same act of March 12, 1844, provides “that no new trial shall be granted, or judgments arrested, or writ of error allowed after trial or judgment, on account of any objection to tbe form of action in which the plaintiff may have declared, or on account of any technical objection to the declaration, or *other part of the proceedings, in case the facts are substantially alleged, which the party was bound to prove on the trial, in order to entitle him to a recovery.”

The allegation of a misjoinder presents an objection to the declaration which is so far technical in its character as to render us unwilling, looking to the prohibition of this section, to grant a new trial, or arrest the judgment upon that account.

Let us then examine the question as to the misdirection of the court in relation to the liability of the several defendants.

Prom the bill of exceptions, it appears that the court instructed the jury “ that the last count of the declaration was a count for trespass to the plaintiff’s possession of the real estate described in it, under which the plaintiff, if he proved a trespass to have been committed, could recover not only for the injury to his possession, but also, by way of aggravation of damages, could show and recover for any injury to personal property which was the result of, or consequent upon, such trespass, by the falling of the house; that a trespass was an entry upon another’s possession unlawfully, and with force; that a mere digging in the street in front of Henshaw’s store, or in the sidewalk, would not be such a trespass as would entitle the plaintiff to recover; but if by digging in the street, the foundations of the house, or any structure permanently connected with them, were removed or disturbed, it might constitute a trespass; that all parties engaged in a trespass are principals, and they and whoever procure or advise it, are liable in trespass therefor.”

As to the plaintiff’s right to recover under the first three counts of the declaration, the court charged thus : “ The plaintiff can not recover upon the other counts of the declaration without proof of negligence. Though there may bo cases where an agent is responsible only to his principal for his nonfeasances, this is not the case, however, where the parties are guilty of negligence; for if there was negligence, it was a positive wrong, for which all concerned/ who were guilty of such negligence, would be responsible, whether as between themselves they were principals and agents or not. For in cases of positive wrongs which *are not mere nonfeasances, all are principals as to the party injured.”

The defendant, Noble, asked the court to instruct the jury that “ an action on the case for negligence can not be maintained by a third party against an agent, where the negligence consists in the omission of a duty imposed.”

The court refused this charge as asked, but instructed the jury in lieu of it, that “ this was true abstractly, but where there was negligence or improper conduct in the doing of an act, and injury thereby was done to another, that an action could be sustained against the agent.”

We understand the law in regard to the liability of the principal and the agent, to third persons, for torts occurring in the course of the agency to be this: The principal is always liable to third persons for the misfeasances, negligences, and omissions of duty of his agent, in all cases within the scope of his agency. The agent is also personally liable to third persons for his own misfeasances and positive wrongs. But he is not, in general, liable to third persons for his own nonfeasances or omissions of duty in the course of his employment. His liability in these latter cases is solely to his principal, there being no privity between him and such third persons ; the privity exists only between him and his principal. And hence the general maxim, as to all such negligences and omissions of duty, is, in cases of private agency, respondeat superior. Story on Agency, sec. 308, et seq. Many instances are given in the books in illustration of this rule, which it can hardly be necessary to cite.

A mere nonfeasance, or neglect to perform a duty, however wrongful such negligence may be, can not constitute a technical trespass, which is a positive, act of misfeasance accompanied with force. For such acts of misfeasance, all the agents, and those under whose authority they act, are jointly and severally liable. If, therefore, the injury for which the plaintiff sues in this case was occasioned by the digging in the street, or upon the adjacent premises leased to Curtis and Brown, we apprehend trespass would not be the proper remedy. Curtis and Brown might lawfully dig a cellar upon their own premises, and they might lawfully *dig in the street, by the license of the proper authority. Neither of these acts is a direct forcible invasion of the plaintiff’s premises. Their wrongful character arises solely from the careless and negligent manner in which they were performed ; from a want of such precautionary measures as the law demanded under the circumstances, in order to prevent consequential injury to the plaintiff’s property. For this want of care and consequential injury, the remedy is by action on the case, and tbe liability of the defendants* must be determined by the rules governing cases of negligence, an & not by those applicable to trespass.

On this subject we think the portions which we have copied! from the charge of the court were calculated to mislead the jury. They convey the idea that negligence is always to be regarded as a misfeasance, as a positive wrong, which will subject the agent equally with his principal to liability.

The jury might also reasonably infer from the instructions given, that if the fall of a house was occasioned consequentially by the digging in the street, then such digging might be regarded as a trespass, and the parties engaged in it would all be liable accordingly.

It is probable that the judge who gave the instructions to the jury did. not intend to be so understood, for he properly said that a trespass is “ an entry upon another’s possession unlawfully and with forcebut it is not easy to reconcile what follows with this definition of a trespass.

It was admitted to be true abstractly that “ an action on the case for negligence can not be maintained by a third party against an agent, where the negligence consists in the omission of a duty imposed.” But this was qualified by adding that “where there was-negligence in the doing of an act, and injury thereby was done to-another, an action could be sustained against the agent.” Now, if negligence be the want of proper care and diligence, the qualification would seem to nullify the abstract rule.

Although the jury may have been satisfied, from the evidence in the case, that the plaintiff’s injury was occasioned by the digging in the street, and arose from the want of proper care in the making *of an excavation lawful in itself, and though they may have found that Noble and Higdon were agents working for and under the direction of Curtis and Brown, or their superintendent Palmer, yet under the charge of the court, as we understand its language, they may have supposed that the law held such agents liable equally with their principals. ¥e can not say, therefore, that Noble was not prejudiced by the instructions given.

New trial awarded.

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


author: Brinkerhopp, J.

text:
    Joseph Evans v. Abigail D. Iles.
    Where a service by publication is attempted to be made upon the defendant resident in the county in which the action is brought, under the mistaken belief that he is a non-resident of the state, and such defendant thereupon files a motion to strike the case from the docket for want of service, and, pending such motion undecided, also files a demurrer to the petition, it is error to order the case to be stricken from the docket, although the demurrer may have been previously withdrawn by leave of the court.
    A party defendant pleading to the action thereby, by implication of law, enters his appearance in the action, and is estopped from denying the service of process.
    An order of a court of common pleas, that a case be stricken from its docket for want of service, and for the payment of costs, is not a final judgment from which an appeal lies to the district court, but is a final order, for error, in which a petition in error is the proper remedy.
    It is competent for a court of error to reverse a judgment void for want of jurisdiction in the court rendering the same, although the plaintiff in error may have voluntarily resorted to such last-mentioned court.
    In erroi* to the district court of Licking county.

      Smythe & Sprague, for plaintiff in error.

      Case & Brumback, for defendant in error.
   Brinkerhopp, J.

The record in this case presents the following facts:

*September 30, 1853, Evans, the plaintiff in error, filed in the common pleas of Licking county, his petition against Mrs. Iles, the defendant in error, contesting the will of her late husband. Annexed to the petition is an affidavit of the plaintiff, alleging, on belief, that the defendant is a non-resident of the state, and that process can not be served on her.

December 1, 1853, notice to defendant as a non-resident is inserted in a newspaper published in said county, and is published for six weeks.

April 10,1854, and during the April term of said common pleas, due proof of notice by publication is made and filed.

April 13, 1854, defendant files in said court a motion in writing to strike the petition and proof of publication from the files, on the ground that she was not, and had not been, a non-resident of the state, but that on the contrary she was, and had all along been, a resident of Licking county. In this motion she specially protests that she appears in court only to make the motion and point out its want of jurisdiction.

April 20, 1854, and during the pendency undecided of this motion, the defendant files a demurrer to the petition.

April 28,1854, the plaintiff urging that she shall elect between her motion and demurrer, defendant files a motion in writing, asking leave to withdraw her demurrer, which leave was granted by the court, and the demurrer was accordingly withdrawn.

At the October term, 1854, the common pleas, on hearing the testimony in support of the defendant’s original motion, order the proof of service by publication to be set aside and stricken from the files. And afterward, at the same term, it appearing that the plaintiff had failed to cause due service by summons to be made on the defendant, the court ordered the case to be stricken from the docket, and that the plaintiff pay his own costs. And 'thereupon the plaintiff gave notice of appeal; and the court fixed the amount of the bond for appeal, which was duly given; and the papers were removed to the district court as on appeal.

At the June term of the district court of Licking county, 1855, *the defendant moved to dismiss-the appeal, on the ground that there was no final judgment in the court of common pleas from which an appeal to the district court could be had. This motion the district court overruled, and, on hearing of the defendant’s original motion made in the common pleas, and the decision of which was appealed from, also order the proof of service by publication to be stricken from the files, and the petition to be dismissed for want of proper service, and that the plaintiff pay the costs.

To reverse these orders of the district court, this petition in error is prosecuted in this court.

It is clear to us that the district court erred in overruling the motion of the defendant in error to quash the appeal. An appeal lies only from a final judgment and certain specified judgments of nonsuit. Here, we think, was no judgment in the common pleas, b.ut only an order; and certainly there was no final judgment. A final judgment is defined in the code (sec. 370) to be a “final determination of the rights of the parties in an action.” It is true the statute regulating appeals is prior in date to the code; but we accept that of the code as being an accurate common-law definition of a final judgment. An order dismissing a case for defect or irregularity of process, or in the service of process, and in no way founded on, or passing upon, the allegations of the parties in their pleadings, can not be considered a final judgment.

It is true, the plaintiff in error is not entitled to complain of the order of the court overruling the motion to quash the appeal, for that motion was made by the defendant in error, and was decided in favor of the plaintiff in error. Nevertheless, the facts appear on the record; they show that the district court had no jurisdiction in the premises; and its orders are, therefore, void. And being void, for want of jurisdiction in the court which made them, it is competent for us, on error, to reverse them, although the plaintiff in error voluntarily resorted to such court (Capron v. Van Noordan, 2 Cranch, 126); and we think it best, in order to put an end to controversy, to do so.

What we have ali’eady said would be sufficient to dispose of the-*ease, as it stands before us; -but as the main question intended to be presented by this petition in error, is of practical interest to the profession, we have thought it might not be improper to express an opinion upon it.

We are of opinion, then, that the court of common pleas first, and the district court afterward (supposing the latter to have had the question properly before it), erred in the determination of the motion to strike the case from the docket. Looking alone to the testimony, as to whether the defendant was or was not a resident of Licking county, we presume -those courts correctly found that she was, and had all along been, such resident, and might, therefore have been served with process otherwise than by publication. But we think those courts were precluded from dismissing the case for want of service, by what appeared upon the journals of the common pleas. The defendant had pleaded to the action by filing a demurrer to the petition; and, unless she could impeach the authority by which this was done, she was estopped from denying the service of process. She had pleaded to the action, and had thus, by implication of law, entered her appearance in it. 1 Ld. Raymond, 21. Nor do we think the case is, in this respect, altered by her subsequent withdrawal of the demurrer. As a demurrer, it ceased to be of any consequence in the case; but as a fact, the evidence of which was indelibly fixed on the journal of the court, and constituting of itself an appearance in the case, it was as significant and as operative after the demurrer was withdrawn as it was ■before. The court of common pleas, looking to its own journal, ■ought to have overruled the motion to strike the case from the docket; and, had a motion for that purpose been made, it ought to have ordered the costs of the service by publication to be paid by the plaintiff.

When the court of common pleas struck the case from the docket, the counsel for the plaintiff mistook their remedy. They resorted ■to an appeal, to which they were not entitled, instead of to a petition in error, to which, under sec. 512 of the code, they evidently were entitled. And the proceedings in the district court being coram non judioe, leaving the orders of the common *pleas in full force, they might still resort to petition in error, if it were not barred by lapse of time under the statute.

Judgment of the district court reversed.

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


author: J. R. Swan, J.

text:
    Henry Debolt v. The Trustees of Cincinnati Township.
    An officer whose fees are regulated by statute can charge fees for those services only to which compensation is by law affixed.
    The office of township treasurer having been abolished in Cincinnati, and the county treasurer of Hamilton county being required to hold all moneys in his hands belonging to the township of Cincinnati, subject to the orders of the trustees of the township, the county treasurer can not charge the fees allowed by law to the township treasurers for the receipt and disbursement of township funds, in the .absence of any law allowing him to do so.
    Petition in error to reverse tbe judgment of the district court of Hamilton county.
    Debolt’s term, as treasurer of Hamilton county, expired in 1852. When he came to a settlement with the trustees of Cincinnati township, he held township funds amounting to $11,687.65. On the 9th of June, 1852, he paid them $4,129.67 of this sum, for which they gave a receipt, as a payment on account. The balance, $7,557.98, was retained by him as fees, “ for receiving, safe-keeping, and- paying over ” moneys belonging to the township, during his term of office. To test his right to these fees, an amicable suit was brought against him, in the court of common pleas of Hamilton county, by the trustees; and judgment was rendered against Debolt, and he appealed.
    The district court likewise rendered judgment against him ; and to reverse that judgment, he now prosecutes this petition in error.
    The act of March 5, 1831, fixes the compensation of township ^treasurers. The 23d section provides “ that each township treasurer shall be allowed, and may retain, three per centum of all moneys paid into the township treasury, for receiving, safe-keeping, and paying over the same to the order of the trustees.”
    The act of February 25, 1834, “ to amend the several acts regulating the township of Cincinnati,” provides, in section 3, “ that-from and after the taking effect of this act, the offices of township treasurer, overseer of the poor, and fence-viewers, for the township of Cincinnati, shall be and they are hereby abolished; and the treasurer of Hamilton county shall hold all moneys which are or may be in his hands, belonging to the township of Cincinnati, subject to the orders of the trustees of said township, any law, usage, or custom to the contrary notwithstanding: Provided, that nothing in this act shall be so construed as to change or vary the application of the funds of said township from the object designated by law.”
    Under the last-mentioned act, the treasurer of the county has retained the funds of the township in the county treasury, receiving from the county auditor an order therefor, and disbursed the same on the orders of the trustees of the township. For the purpose of keeping the fund and drafts upon it separate from the county funds, and orders on the county treasury, the treasurer of the county has required the trustees to draw upon him, as treasurer of the township, and has kept separate accounts of said funds in separate books.. The office of township treasurer, however, being abolished, he performed these duties by virtue of his office of county treasurer, under the above-mentioned law.
    The treasurer of the county claims that he is entitled to the fee» prescribed for treasurers of townships.

      Pugh, for plaintiff in error.

      James & Jackson, for defendants in error.
   J. R. Swan, J.

The fees of the county treasurer are limited and prescribed by law. No officer, whose compensation is regulated *by fees, can charge for a particular service, unless the law specifically gives him fees for that service. The law- under consideration, abolished the office of township treasurer, and devolved most of the duties of the township treasurer upon the county treasurer ; but gave no fees therefor.

Fees are not allowed upon an implication; but if they were, the implication in this case is, that the legislature, if they intended to give the fees of a township treasurer to the county treasurer, would have said so.

Judgment below affirmed.

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


text:
    Irad Kelley v. Joshua Maxwell.
    A party having demurred to the first count of the declaration, and pleaded the general issue to the other counts, and afterward, by leave of the court, having withdrawn the demurrer for amendment, and filed a second demurrer to the declaration generally, and no objection having been taken by adverse counsel to the irregularity, the court, on hearing, might properly regard the demurrer as a demurrer to the first count only.
    A clause in a chattel mortgage upon a steamboat, executed by K. & R. to M., reciting that M. had the same day sold the boat to K. & R., and taken fourteen promissory notes of $250 each, executed by K., payable at different days thereafter to M., and fourteen promissory notes of the same time and amount, executed by R., and that K. & R. had agreed to execute said mortgage for the security of said twenty-eight notes, and also to effect an insurance on said boat for the amount due M. for his further security upon said notes, and that said K. & R. promise to pay said sum of $7,000, as above, does not change the liabilities of K. & R.,.as expressed by said promissory notes.
    The object and effect of the mortgage were merely to secure the performance of the undertaking of K. & R., as expressed by said notes, without changing the terms of their undertaking.

      This is a petition in error to reverse the judgment of'the district court of Cuyahoga county.
    *The original proceeding was an action of debt, commenced by Maxwell, December 18, 1851, in the Superior Court of Cleveland, against Kelley, impleaded with Alfred W. Bossman (as to whom the sheriff returned “ not found ”), upon the covenants contained in a certain chattel mortgage, executed April 24, Í850, by Bossman and Kelley, to Maxwell, on the steamboat called “ The Great "Western,” of Buffalo.
    The declaration contains a special count upon the covenants, and also the common counts.
    Kelley filed a general demurrer to the first count of the declaration, and pleaded the general issue to the common counts.
    At the February term, 1852, Kelley obtained leave to withdraw his demurrer, and the cause was' continued.
    On the 16th of February, 1852, Kelley filed a demurrer, having craved oyer and set out the chattel mortgage; but the demurrer, by inadvertence, seems to have been to the declaration generally, instead of to the first count merely.
    The instrument of which oyer was craved is in the ordinary form of a chattel mortgage, containing a copy of the certificate of enrollment of the steamboat, and other descriptions unnecessary to be here given.
    11 Whereas, the said Joshua Maxwell has this day, by bill of sale cf this date, sold and conveyed to the said Alfred W. Bossman and Irad Kelley the above-named steamboat and property, and as a condition of the sale was that the said Bossman and Kelley should execute and deliver their mortgage as a security for the said sum of seven thousand dollars, being part of the purchase money for the same, and which said sum is to be paid as hereinafter particularly mentioned and set forth, according to the tenor of twenty-eight promissory notes hereinafter described; and should effect and assign to said Maxwell the policy of insurance hereinafter mentioned as a further security ; now the condition of these presents is "expressly this, that if the said Bossman and Kelley shall well and truly pay, or cause to be paid to the said Joshua Maxwell, the said sum of seven thousand dollars with interest thereon from the date hereof, according to the terms and conditions of twenty-eight promissory notes, each bearing date the 24th day of April, 1850, each in the sum of $250, and each payable with interest at the office of said Maxwell at Buffalo — fourteen of which said notes are made and signed by the said Alfred W. Bossman to the order of said Maxwell, and are due and payable as follows, to wit: one *note on the first day of June, 1850; one July, 1850; one August, 1850; one September, 1850; one October, 1850; one November, 1850; one May, 1851; one June, 1851; one July, 1851; ■one August, 1851; one September, 1851; one October, 1851; one November, 1851; one December, 1851; and the fourteen other of which notes are made and signed by the said Kelley, to the order •of the said Maxwell, and are due and payable the same as the above notes signed by the said Rossman above mentioned; and further shall effect, or cause to be effected, a policy or policies of insurance in some good and solvent insurance company or companies in the sum of seven thousand dollars, and shall keep and maintain said policies of insurance effectual to the amount at any time remaining due of the said purchase money as aforesaid, and shall assign the policy or policies to the said Maxwell, as a further security for the payment of said money, then this bill of sale to be void, and ■of no effect; and the said Rossman and Kelley covenant, promise, and ■agree to pay the said sum of seven thousand dollars as above, subject, however, to the following conditions: but if the default be made in the above conditions of these presents or any part thereof, the said Maxwell is hereby authorized to take possession of the said steamboat and property, at any time, and to sell the same or so much thereof as may be necessary to satisfy the above condition, and fully indemnify and pay the said Maxwell, and to pay all reasonable expenses, after giving thirty days’ public notice of such sale, in a public daily newspaper published in Buffalo city; and to retain the same out of the proceeds of such sale; the surplus, if any", to be retuimed to, and to belong to said Rossman and Kelley. And it is understood and agreed that the stipulations aforesaid are to apply to, and to bind the heirs, executors, and administrators of the respective parties. In virtue whereof the said Rossman and Kelley have hereunto set their hands and seals the 24th day of April, 1850.
    (Signed,) . “ Irad Kellet, [seal.]
    “ A. W. Rossman, [seal.]
    At the November term, 1852, of the Superior Court, the case was submitted to the court. ■ The following is the language of the record: “At this term came the parties to the suit, and being at issue, submit this cause to the court;” and.judgrnent was thereupon rendered in favor of Maxwell against Kelley for $2,941.39 and costs.
    From this judgment Kelley appealed to the district court. At the October term, 1855, of the district court, the following journal entry was made: “At this term, and on the 12th day of October, 1855, this cause having been submitted to the court, the court do find that Irad Kelley, the defendant served with process in this cause, and the said Alfred W. Rossman do jointly owe the plaintff in manner and form as is alleged in the plaintiff’s *declaration, the sum of $2,500, being the principal sum due on the promissory notes in said declaration mentioned; and that the plaintiff hath sustained damages by reason of the detention in the sum of $955.10,” and for which debt and damage, with costs, the court entered judgment against Kelley in favor of Maxwell. Kelley seeks to reverse this judgment.

      G. Stetson, for plaintiff in error :
    The district court erred in overruling Kelley’s demurrer, and rendering-judgment against him.
    The covenant declared on ought not to be construed as a joint covenant by Rossman and Kelley for the payment of the gross sum of seven thousand dollars, but as a covenant by each to pay his share.
    It is a familiar doctrine, and universal in its application, that a whole instrument is to be taken together in order to give construction to one or more of its parts. Marvin v. Stone, 2 Cow. 781; Quackenboss v. Lansing, 6 John. 49; Watchman v. Crook, 5 Gill & Johns. 239; Killiam v. Harshaw, 7 Ired. 497; Wadlington v. Hill, 10 L. & M. 560; Washburn v. Gould, 3 Story, 122; Gray v. Clarke, 11 Vt. 583; Kelly v. Mills, 8 Ham. 325; Patrick v. Grant, 3 Shep. 233.
    And among the points which the courts first consider is, what is the general object and purpose of the parties in making the instrument? Brown v. Slater, 16 Conn. 192; Worral’s Accounts, 5 Watts & Serg. 111; Washburn v. Gould, 3 Story, 122. They will also give such construction to the instrument as will make the whole operative. Randall v. Ches. & Del. Canal Co., 1 Harr. 154.
    When the language of the particular provision would imply a joint liability, yet if it be for acts to be done severally, it will be construed as several, unless it appears from the instrument that the parties bound intended to make themselves sureties for each other. Ludlow v. McCrea, 1 Wend. 222; Ernst v. Barth, 1 Johns. 319; Walker v. Webber, 3 Fairf. 65-67; Haskins v. Lombard, 4 Shep. 140.
    Applying these principles to the case under consideration, we *find that the instrument is a mortgage, not given for the purpose of creating any new obligation, or furnishing evidence of any existing indebtedness, but merely to secure the payment of indebtedness evidenced by other instruments.

      Foote & Newton, for defendant in error:
    I. There was no error in overruling the demurrer to the whole declaration, containing, as it did, the common counts, whether the first count, taken, as it must be, in connection with the deed set forth by the defendant on oyer, is itself sufficient or not.
    II. The covenant declared on is a joint agreement, and nothing else.
    1. It grew out of a joint transaction on the part of Kelley and Rossman with Maxwell.
    2. The language of the agreement is expressive of a joint undertaking and nothing else. 1 Chit. Pl. 47; Platt on Cov. 117.
    3. Unless the agreement be held joint it amounts to nothing. A construction which leads to that result will not be adopted.
    4. If A and B covenant with C to pay to him two debts, one of which is the debt of A and the other the debt of B, A and B are jointly liable to C for both debts, each as surety for the other as to the debt of the other. See Platt on Cov. 123.
    In all the decided cases in which an agreement by two or more persons has been held to be several and not joint, words are to be found in some part of the agreement, indicating a several and not a joint liability. In the case before the court no such words are to be found, and nothing but language appropriate to the expression of a joint obligation.
   Sutliff, J.

No question is shown by the record to have been made by counsel, upon trial in either court, upon the form of the pleadings.

The only question that seems to have been made by counsel, or considered by the court, was the legal effect of the instruments of writing on which the suit was predicated, whether Kelley and Rossman were to be regarded as only severally holden for the payment of the promissory notes by them respectively signed, or whether the covenants contained in the chattel mortgage jointly ^executed by them constituted a joint obligation upon them to pay all the notes on which they were before liable only severally.

It is provided, by section 4 of the act of March 12, 1845. “to. regulate the judicial courts and the practice thereof,” that:

“ In all eases pending in the court of common pleas, or in the Superior Court of Cincinnati, in which a demurrer is overruled, and the case proceeds to the jury, and verdict is rendered against the party that demurred, the opinion of said court on such demurrer may be examined and the final judgment reversed or affirmed by the Supreme Court on a writ of error.” 2 Curwen, 1140.

Regarding the demurrer as having been to the first count only of the declaration, the question presented to us would then be the same upon which the case turned in the district court, that of the legal effect of the instrument of writing.

It is, however, suggested by counsel for defendant in error, that, inasmuch as the demurrer is in fact to the whole declaration, it was necessarily bad, and rightfully overruled. „

If there had been no other reply to the common counts of the declaration, or if the demurrer was legally to be regarded as the reply to the common counts of the declaration, this position, although technical, would be a valid objection to this court considering the legal construction of the instrument of writing. But at the time of filing the last demurrer the common counts of the declaration had been answered by a plea of the general issue, and no leave had been asked or obtained by the demurrant to withdraw his plea; he had only asked and obtained leave to withdraw or perfect his demurrer to the first count.

What was, then, the effect of this irregular pleading — a demurrer not only to the unanswered count, but to the counts on which issue had been already closed by a plea in bar ?

It has been1 held that where the party first demurs to two counts of a declaration, and afterward, and without leave of court, pleads in bar to one of the counts, the dilatory plea — the demurrer— should be considered withdrawn as to the count to which the plea of the general issue had been so pleaded.

This holding is consistent with the rule that the pleading shall *be taken most strongly against the pleader ; that by pleading the general issue he had waived his dilatory plea, and in effect admitted the sufficiency of the count so pleaded to. We think an application of the same principle to this case would prevent the demurrer from applying to the common counts already at issue.' The demurrer would then be, so far as it professed to apply to the common counts, a nullity ; and might well have been regarded by the court, if counsel saw fit to waive the irregularity, as a demurrer only to the first and unanswered count of the declaration. This Court will therefore regard the demurrer, as it seems by consent of counsel to have been treated by-the district court, a demurrer merely to the first count of the declaration.

By virtue of the statute already alluded to, the demurrer, overruled by the district court, presents for our consideration the question : Did the district court err in holding the written instrument set forth on oyer by the demurrant a joint covenant on the part of Rossman and Kelley, to pay Maxwell the §7,000 expressed by the several twenty-eight promissory notes?

The covenants and provisions relied upon by counsel for defendant in error, to establish a joint liability, are all contained in that part of the chattel mortgage called the conditional clause of the instrument. That clause recites the transaction between the parties in substance as 'follows :

“ Whereas said Joshua Maxwell has this day, by bill of sale, sold ” said Rossman and Kelley said steamboat, etc.; and as a condition of the sale was, that said Rossman and Kelley should execute their mortgage as security for said §7,000, part of the purchase money, and which is to be paid “ as hereinafter particularly mentioned and set forth according to the tenor of twenty-eight promissory notes, hereinafter described,” and should effect and assign to said Maxwell the policy of insurance hereinafter mentioned as a further security.

“Now the condition of these presents is expressly this, that if the said Rossman and Kelley shall pay to said Maxwell said $7,000, with interest from date hereof, according to the terms and conditions of twenty-eight promissory notes, each bearing date the 24th day of April, 1850, each in the sum of $250,” etc.; *fourteen of which are made and signed by Rossman, and the other fourteen of like tenor, made and signed by Kelley, and shall effect and assign said policy of insurance, etc., and keep and maintain the insurance good for the amount due, then this bill of sale to be void and of no effect.”

“ And the said Rossman and Kelley covenant, promise, and agree to pay the said sum of $7,000 as above.” Subject, however, to the condition, that if default should be made in the stipulations, or any part thereof, Maxwell might take possession of and sell said boat, etc., to pay the amount so due and unpaid.

From this instrument, it appears: 1. That the execution of a bill of sale of tbe boat from Maxwell to the mortgagors, and their execution of their several promissory notes, fourteen in number, for $3,500, by each, of like tenor, and executed severally, and not jointly, and the mortgage for their security, were all agreed upon, and to be executed at one time; 2. The execution of all the writings were consummated at one time, and in accordance with the previous contract; 3. The parties in this conditional clause of the mortgage profess to recite their bargain, under which Maxwell made his bill of sale, and Rossman and Kelley were to make severally and respectively their promissory notes, and how the same were to be secured — to wit, by their mortgage of the boat, at the same date, and a policy of insurance to be thereafter effected by them, and assigned to Maxwell; 4. The writing, although minute and explicit in stating the agreement and understanding of the parties as to the security to be given by the vendees of the steamboat, makes no mention of any change in the terms of the agreement; but, on the contrary, represents the parties as intending by the writing to confirm and ratify the agreement as stated thereby.

In giving a judicial construction to this conditional clause of the chattel mortgage, we must have respect to all the provisions of the instrument, and, if practicable, give them fulL effect.

It appears certain, in the first place, that for the payment of the $7,0í¡0, Rossman and Kelley, for some reason, wished to undertake severally, and to that end executed severally two sets of notes, twenty-eight in all; each of the vendees executing fourteen of *the notes. The fourteen executed by Kelley were of the same date, the same amount, and payable at the same time with those executed by Rossman. Neither was surety for the other upon the notes. But each of the makers agreed to give a joint mortgage of the boat, and to keep the same insured for the benefit of Maxwell. And Maxwell agreed to accept the same as security for the ultimate payment of the notes. There can be no reasonable doubt that this was the original agreement. We here also see that the instrument makes no mention of any.change of this agreement, so that the parties should become jointly holden upon the notes.

But it may be said, the parties may have agreed to certain alterations in the terms of their bargain, and by the writing, in fact, have bound themselves to become jointly liable for the payment of the notes, without reciting in the writing the fact of their having so agreed to alter their, contract in that respect.

But if such agreement to change the terms of their contract were really made, why did not Rossman and Kelley execute their fourteen joint notes instead of their twenty-eight several notes? If it be said they probably had written and signed the twenty-eight notes before the change was agreed upon from several to joint liability for their ¡payment, it may be replied that, even granting all this, Rossman and Kelley, if they had really consented to become each other’s surety could very readily have respectively subscribed their names as surety to the promissory notes then present and before them. And we think it unreasonable to suppose that Maxwell would not have required them to do so, and that they would not have both subscribed the notes, if they had in fact agreed to become jointly liable for their payment. Indeed, to say nothing of this unusual position, it is doubtful whether the clause in the condition of the mortgage, relied upon by counsel for defendant in error to establish a joint liability and undertaking by Rossman and Kelley for the payment of the notes, even when taken by itself, by any means constitutes a joint undertaking. That clause reads as follows:

“And the said Rossman and Kelley covenant, promise, and agree, to pay the said sum of seven thousand dollars as above.” And *how they have promised and agreed “ above ?” Why, severally. They had respectively executed fourteen notes, and severally agreed to pay the same, as stated above in the same instrument.

We think that a fair and reasonable interpretation of the undertaking of the parties, deduced from the whole instrument, is, that the undertaking of Rossman and Kelley for the payment of their notes mentioned in the instrument, as understood by all the parties, was several, and not joint; and that the mortgage was neither intended nor understood by the parties as varying the contract already made ; but merely to insure its performance.

We therefore think that the district court erred in overruling the demurrer and holding the plaintiff in error jointly liable fox* the payment of the twenty-eight notes.

And for this cause the judgment of the district. court must be reversed.

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


text:
    John P. Reznor and others v. Hatch & Langdon.
    The discounting of a bill of exchange by the Kentucky Trust Company Bank, at Covington, in the State of Kentucky, and the loan of its notes of f, circulation thereon, with' the understanding that said notes should be paid out in the northern part of the State of Ohio, in the purchase of produce, are not acts which fall within the prohibition, or contravene the policy of the act of February 24, 1848, “ to amend the act supplementary to the act to prevent unauthorized banking, and the circulation of unauthorized bank-paper.”
    In error to the Superior Court of Cincinnati, at general term.
    An action was brought by Hatch & Langdon, in the Superior Court of Cincinnati, upon a bill of exchange for $2,500, drawn by John Gr. Camp, in favor pf C. T. Sherman, upon J. P. Reznor, %nd accepted by him, dated at Sandusky City, September 10, 1854, and payable in New York in ninety days after date. The bill was indorsed in blank by C. T. Sherman, the payee, and H. P. Lang-moor, cashier of the Kentucky Trust Company Bank, to Hatch & Langdon; who, after causing it to be protested at maturity, and giving proper notice of non-payment to charge the parties, brought their action, as indorsees and holders of the bill, against Camp, the drawer, Sherman, the first indorser, and Reznor, the acceptor.
    The cause was tried by the court at special term, without the intervention of a jury, and judgment rendered against all the defendants for the amount of thé bill and interest. Defendants then submitted a motion for a new trial, which was overruled ; and thereupon a bill of exceptions was taken, detailing all the evidence; and the case was brought by petition in error before the same court at general term, where the judgment was affirmed at the October term, 1855. The object of the present proceeding is to reverse this judgment of affirmance.
    The defendants, by their answers in the court below, set up substantially the following matters as a defense to the action:
    That the bill sued upon was discounted at Cincinnati by the Kentucky Trust Company Bank, a foreign corporation, through the intervention of its agent and president, B. F. Sandford, and was paid for in notes of that bank, upon an agreement and understanding that the defendant, Reznor, would endeavor to put the same into circulation in the northern part of Ohio; that this was the chief inducement which led to the discounting of the bill; that said notes-not being issued by any bank of the State of Ohio, were paid out by said bank, within this state, for the purpose of being put in circulation therein, contrary to the act of February 24, 1848, “to amend' the act supplementary to the act to prevent unauthorized banking, and the circulation of unauthorized bank paper,” by reason of which the bill is utterly void; that about a week after the discounting of said bill, and while said notes were still in the possession of Reznor, the Kentucky Trust Company Bank ceased to redeem its notes, and discontinued business; that it thereupon became impossible for *Reznor to put the notes in circulation; that immediately after hearing of the suspension of said bank, he called at the bank and informed the cashier that he still had the-notes on hand, and left a written notice that he would insist upon-paying the bill with said notes at its maturity; that he was then informed that the bill had been transferred to the plaintiffs, whom he thereupon forthwith notified of the facts, and tendered payment, of the bill to them with the notes in his possession, which they refused to accept; and that he is still ready and willing thus to make-payment; also, that said bill was assigned to the plaintiffs by the bank as collateral security for a pre-existing debt of much smaller amount due them from the bank; and that the bill thus discounted, being utterly void by the statute in the hands of the bank, no action can be maintained upon it by the plaintiffs to whom it had been-assigned.
    It appears from the evidence of Benjamin F. Sanford, embodied, in the bill of exceptions, that at the date of this bill of exchange-he was president of the Kentucky Trust Company Bank, an institution doing business at Covington, in the State of Kentucky, and that as such president he was authorized, by a resolution of the-board of directors, to discount bills; that he had five transactions-with the defendant, Reznor; that Reznor usually made his application to him in Cincinnati, and if it looked well he encouraged said Reznor that the bank would do his paper. He knew that Reznor intended to use said notes in buying wool in Ohio; that he saw Reznor in the Savings Bank, or on the street, in Cincinnati, in regard to discounting this particular bill; that he was inclined to-favor the application, the circulation of notes on the former bills-having been good; that he took the bill over to the bank and looked into the accounts and state of the funds of the bank, and passed the bill to the credit of Reznor on the books of the bank; did not recollect distinctly whether he brought the notes over to Cincinnati and handed them to said Reznor or not; that he frequently did bring the notes over to accommodate him.
    Ho also testified that on the 17th of October, 1854, he handed to plaintiffs, to secure the indebtedness of the Trust Company Bank to them, bills and assets to the amount of twenty thousand eight ^hundred and seventy-one dollars; that there was due to the plaintiffs from said bank the sum of seventeen thousand six hundred and fifteen dollars; that said bank suspended on the 18th day of October, 1854; that when he handed the plaintiffs said assets as collateral security he did not anticipate that said bank would be compelled to suspend; that he gave the plaintiffs said security because they, as bankers, had been friendly to the circulation of said bank, and he felt under obligations to them. He also testified that though he was a stockholder, he was not an officer in the Savings Bank, and had no office for the transaction of business in Cincinnati.
    It also appears in proof, that the plaintiffs have collected, on the securities assigned to them by the bank, nine thousand five hundred dollars, leaving still due them from the bank eight or nine thousand dollars; and that they received the bill in question, in good faith, and without knowledge of the defendants’ alleged equities.
    The defendant, Reznor, testified, that he made an arrangement with Sanford for the discounting of this bill, on the 10th October, 1854, about 10 o’clock a. m., at the Savings Bank in Cincinnati; that Mr. Sanford agreed to discount the bill, and to go over the river, to the Kentucky Trust Company Bank, and get the notes of said bank, and hand them to him at the Savings Bank, in the afternoon ; that he, Reznor, then perfected said bill of exchange, by writing his acceptance across its face, and gave it to said Sanford; and that he received the notes from Sanford, in a package, about three o’clock in the afternoon, when the parties casually met each other on Third street. That said bill was discounted at the rate of six per cent.; that it was the agreement that Reznor should take said notes, and circulate them in the northern part of the State of Ohio; and give them a good circulation, so as to prevent them from being returned to' the bank for redemption, as long as possible. That upon examining the package of notes received, he found a deficiency of five hundred dollars; and that he called at the Trust Company Bank, in Covington, next day, in the absence of Sanford, and obtained from the bank officers a correction of the mistake. That he sent said *notes to Ashland, Ohio, to be paid out in the purchase of wool, but that such use of them was prevented by the suspension of the bank; and that he immediately offered to return the notes, first to the bank, and then to the plaintiffs, in discharge of the bill, as stated in his answer. That he dealt with said Sanford, as the president of the Kentucky Trust Company Bank; that he had had four other bills discounted by said Sanford, within a few weeks prior to the discount of said bill of exchange held by plaintiffs; that the negotiations of said discounts were had with said Sanford in Cincinnati, and the money paid to him in said city; and that he understood all these transactions to be with the Kentucky Trust Company Bank; and that the arrangement was, in each case, to give the notes of said bank a good circulation in northern Ohio.
    The statute of February 2é, 1818, referred to in defendants’ answers, provides as follows, in the first and fourth sections :

      “ Seo. 1. That it shall be unlawful for any bank, or incorporated company doing a banking business, or dealing in money as a business, or exchange broker, money broker, or private banker, or other person or .persons who shall receive money on deposit, or buy and sell bills of exchange, or loan money, or exchange one kind of bank-bills or money for another, with a view to profit, to issue, pay out, or give in exchange for other money, so as to go into circulation in this state, any circulating notes or bills, except the notes or bills of the banks of this state, issued according to law.”
    “ Sec. 4. Every note, bond, bill of exchange, draft, check, or other evidence of debt, discounted, bought, or otherwise obtained by any bank, corporation, private company, or individual, described in the first section of this act, and paid for in the whole or in part, in banknotes described in the first section, contrary to the true intent and moaning of this act, shall be held and adjudged null and void ; and no suit or 'action for the recovery thereof shall be sustained by any court in this state; and all contracts, promises, and agreements, founded in whole or in part on the payment, exchange, or putting forth of such bank-notes, contrary to the provisions of this act, shall be held and adjudged null and void.” Swan’s Stat. 112, 113.

      Cor wine, Kayes & Rodgers, for plaintiffs in error,
    insisted that the court below erred, because:

      1. This bill of exchange, by the terms of the above-quoted sections of the statute, was utterly “ null and void ” in its origin. The contract was made at Cincinnati. It was an Ohio transaction, complete and entire.
    *The contract was made to secure a circulation of this paper in Ohio, in direct violation, and in open defiance of our law, and this is a suit to enforce that contract. If such a contract were made in Kentucky, and it was sought to enforce it in Ohio, we do not believe our courts would allow it to be done. It would be a deliberate attempt to perpetrate a fraud upon our people, and to evade our well-settled law. No state is bound to recognize or enforceany contracts which are in fraud, evasion, or contravention of its own laws.
    2. This being null and void in its origin, could not be rendered valid by the circumstance that the defendants in error received it without special notice of the fact. Root v. Goddard, 3 McLean, 103; Wiggins v. Bush, 12 Johns. 310; Bowyer v. Bampter, Strange, 1155; Lawe v. Waller, Doug. 736, 744; Shillito v. Theed, 7 Bing. 405; Bayley v. Taber, 5 Mass. 291; Vallette v. Parker, 6 Wend. 622; Unger v. Boas, 1 Harris, Penn. St. 602; Story on Bills, sec. 189; Morgan v. Tipton, 3 McLean, 346; Chitty on Bills, ch. 3, 115, 116; Lloyd v. Scott, 4 Peters, 228, 229; Lucas v. Waul, 12 Smedes & Marsh. 157; Ackland v. Pearce, 2 Camp. 599.
    3. The defendants in error received the paper as collateral, to secure a pre-existing debt, and are not therefore bona fide holders without notice.

      Tilden, Mairden & Chirwen, for defendants in error:
    1. A pre-existing debt is a good consideration for the transfer of negotiable paper; and such transfer, in good faith, entitles the holder to be protected against a claim founded upon the equities existing between the original parties. Carlisle v. Wishart, 11 Ohio 172.
    2. The transaction is legally unobjectionable, even if considered as having taken place at Cincinnati. The act of February, 24, 1848, being highly penal, will not be extended by construction. It seems to be part of a system of legislation, having for its object the regulation of the business of banks and bankers, established in our own state, and not the prohibition of occasional transactions *by a foreign bank, or by an individual not engaged in the business of banking in this state.
    3. The contract was clearly a Kentucky .contract. This conclusion is fully supported by the authorities. Story on Contracts, •sec. 654; Story on Conflict of Laws, sec. 252; Davis v. Coleman, 11 Ired. 303; Whiston v. The Syndics, 1 Cond. La. 621.
    Considering Covington as the place of the contract, little is left of the case for discussion. There was no evidence whatever that such a contract was prohibited by the laws of Kentucky, and it «an not be necessary to argue that our statute was not operative there. Certainly, if the lender of the money, aware of the provisions of our law, had made a stipulation to circulate Kentucky bank-notes in this state, in violation of our law, a part of the contract of loan, our courts would decline to afford him a remedy to ■enforce the contract. Such a contract would be deemed contrary to our local policy, and this consideration would prevail over that ef comity. But the evidence fails to establish any such agreement ■or stipulation.
   Scott, J.

There can be no doubt, from the evidence in this case, that the party by whom the bill in question was discounted, was the Kentucky Trust Company Bank. This bank is located in Covington, in the State of Kentucky, and whether the contract for the discounting of the bill is to be regarded, in the light of the evidence, as made in Cincinnati, through the agency of the president of the bank, or at the bank in Covington, is, pex*haps, not very clear.

On this point, the statements of the parties to the negotiation are somewhat in conflict; and the record does not show the finding of the court upon this question of fact.

From the evidence of Mr. Sanford, the court may have found Covington to be the place of the contract; that Sanford was merely the medium of communication between Reznor and the bank; that the proposition for the discount of the bill was made to him in Cincinnati, but accepted by the bank in Covington, and that the contract was not closed until the bank signified its «acceptanee of the proposition, by entering the proceeds of the bill to the credit of Reznor upon its books. When this was done the bill was discounted, no matter when, or where, or how the proceeds were received by Reznor.

Believing such a finding to be warranted by the evidence, we should not be disposed to disturb it, even had we the power to make it the subject of review.

We do not think that the questions arising in-this case are affected by the fact that the suit was brought by the indorsees of the bank, and not by the bank itself. Por if, as is claimed by the defense, the bill is made utterly void by statute, it will remain void even in the hands of a bona fide indorsee.

And being voluntarily transferred, as collateral security, merely,, for a pre-existing debt, without any new consideration, the plaintiffs-must hold it subject to any defense or equity existing at the time of the transfer. Roxborough v. Messick et al., 6 Ohio St. 448.

The principal question in the case arises, therefore, as to the validity of the contract between Reznor and the bank, under the-statute before referred to.

Regarding Covington as the place of the contract, its validity must -depend on the laws of Kentucky. Ohio statutes could have, no direct operation there, and it is not claimed that any law of Kentucky prohibited the transaction. Still, the contract will not be enforced in the courts of Ohio, if it clearly contemplated and expressly stipulated for a violation of Ohio policy. We can not be asked, from considerations of comity, to afford redress for the-breach of a contract designed to contravene our own state policy.

It is questionable whether the evidence establishes anything more than a knowledge on the part of the bank, of the use and purpose to which Reznor intended to apply the notes received on the discount of the bill. But assuming that it was stipulated, by the-agreement of the parties, that the notes should be paid out in the northern part of Ohio, in the purchase of wool, would such a stipulation contravene the policy of the act of February 24, 1848 ?

*What is the policy of this act? What was the intention of the legislature in its enactment? What were the evils to be-remedied, and the means provided for their correction ?

The act is highly penal in its character; but its prohibitions and its penalties are all directed against a particular class of persons — that is, against persons or corporations engaged in dealing in money as a business; banks, bankers, brokers, persons who receive money on deposit, or buy and sell bills of exchange, or loan money, or exchange one kind of bank bills for another with a view to-profit — all this class of persons (and no one else) are prohibited from issuing, paying out, or giving in exchange for other money, so as to go into circulation in this state, any circulating notes or bills, except the notes or bills of the banks of this state, issued according to law. The design could not have been entirely to prohibit the circulation of foreign bank bills withimthis state, else the prohibition would have been general.

The act does not propose to affect the demand for, and market price of, the products of the state, by prohibiting the produce dealer from paying for them in foreign bank paper. Nor is there any restriction imposed upon the vendor as to the kind of currency to be received by him in payment.

There is no indication of'an intention to prohibit a manufacturer in Massachusetts from borrowing of banks in his own neighborhood, where he would be best known, their notes of circulation, and using the funds thus obtained, in the purchase of wool, in Ohio. The policy of such a prohibition may have been deemed questionable. But the statute would seem to have been intended, not only negatively to prohibit all persons engaged in dealing in money as a business within this state from becoming agents for the circulation of foreign bank bills, but also, positively to make use of this class of persons as an agency for collecting and returningto foreign banks their notes, which, in the ordinary transactions of business, would enter into the currency of the state; and this latter purpose it seeks to accomplish by prohibiting them from 'reissuing such notes within the state. It might reasonably be supposed that, in the course of business, the greater portion of this species of currency would soon reach the *hands of these capitalists, whose interest would lead them promptly to return it for redemption, or dispose of it elsewhere, if it could not be used in their business operations at home.

A salutary check would thus be interposed against the undue issue and circulation, within the state, of foreign paper; and the domestic currency would be left to be furnished mainly by our own banks, subject to Ohio legislative control.

The terms of the statute furnish no intimation of any further policy which it contemplates. And unless we are mistaken in this, the loan by the Kentucky Trust Company Bank,' of its notes to Reznor, to be paid out in the purchase of wool in northern Ohio, was not in contravention, evasion, or fraud of its spirit or policy.

As the plaintiffs below took the bill in question subject to the equities of the defendants, we do not doubt the right of the latter to have made payment in the circulating notes of the bank. But the record does not show that the tender set up in the answer was maintained; nor that any evidence was offered on the trial tending to show the continued possession of the notes by Reznor.

Judgment affirmed.

Swan, Brinkerhoee, and Sutliee, JJ., concurred.

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


author: Brinkerhoff, J.

text:
    Simeon Jennings v. Cyrus Mendenhall and others.
    When a debtor tenders a bank check in payment of a debt, and the creditor expressly -waives all objection to the medium of payment, and objects only to the amount of the proposed payment, it is a good tender.
    It seems that mere silence on the part of the creditor, as to the medium of payment, is not, in such a case, conclusive evidence of such waiver.
    Error to the district court of Columbiana county.

      *William K. Upham and Joseph J. Brooks, for plaintiff in error.

      James Mason and Joseph E. Vance, for defendants in error.
   Brinkerhoff, J.

This is a petition in error filed here to reverse

the judgment'of the district court of Columbiana county, in an action of debt on a promissory note given by the defendants in error, who were defendants below, to the plaintiff in error, who was plaintiff below. The plea was usury as to a part of the amount appearing to be due upon the face of the note, and a tender as to the residue. On this plea, issue was taken, and was tried by a jury, who found for the defendants. A motion for a new trial was made, heard, and overruled; and the errors alleged.are: 1. That the court erred in overruling the motion for a new trial on the ground that the verdict was against the evidence; and, 2. That the court erred in its charge to the jury on the law of the case.

As to the first error alleged, we have looked into the evidence ■embodied in the bill of exceptions, and we are of opinion that there was sufficient evidence to sustain the verdict. Indeed, this point is not seriously urged in the argument for the plaintiff in ■error.

As to the second assignment of error, Alfred Hall, who was one of the makers of the note sued on, but who had been discharged by •a certificate of bankruptcy, and was admitted as a witness in the case, testified, among other things, as follows:

“ In June, 1839,1 believe in the fore part of the month, I tendered to said Jennings $600, by check of Mendenhall & Richardson, on the Commercial Bank of Lake Erie. I made the tender in Kellogg’s hotel, in Cleveland, nearly opposite to the bank. Jennings promptly refused on account of the amount. I told him the cheek was good, and urged him to take it, and asked him to step over to the bank with me, and I would draw the amount of said check, .and pay it to him. He said he did not doubt it; he knew Mendenhall, and that the check was good; that if I'would get their cheek for the full amount, he would accept it. I then told him I knew the exact amount I had received *upon the note, and had calculated the interest upon it, and that I knew the amount tendered would more than cover the amount received, and interest on it to that time. He said I had better get their check for the whole amount; that he had indorsed the note to some other person, and could not avoid payment of the full amount of the note. I knew, from the representation of said Hall & Richardson, that the amount cf said check was in bank at the time of tender, and was also assured it was there by James S. Clark.”

Subsequently, this witness testified that he had been mistaken as to the bank on which the check was drawn. That it was the Bank of Cleveland, instead of the Commercial Bank of Lake Erie.

Zalmon Fitch, who had in his possession the books of the Bank of Cleveland, gave evidence tending to prove that at the time the check was tendered, the drawers thereof had funds in the bank sufficient to cover the amount of the check.

Here, then, was testimony in the case tending to prove that the maker of the note sued on, and for whom the defendants in error were sureties, tendered to the plaintiff a check on a bank situate just across the street from where the tender was made; that the drawers had funds in the bank sufficient to meet the check; and that the plaintiff not only did not object to the tender on the ground that it was not made in coin, but expressly declared that the check was good, and that he would receive it if the amount were (Sufficient.

This, with other testimony, being in the case, the court on the subject of the tender, charged the jury as follows :

“ That as a general principle of law, a tender, to be of value, should be made in gold or silver coin, of such description as is legalized by act of Congress. But that the parties might waive such kind of tender; and that a tender of bank-bills, or a bank-check, would be good, if, at the time the same was made, the party to whom the same was made did not object thereto, and said and did that which satisfies the jury, that the party to whom the tender was made, was willing to receive, and offered to and would have taken the same, had it not been for the simple objection *that the amount was less than the sum claimed to be due.”

The court further charged the jury: “ That if they found the tender was made in a bank-check, under the circumstances before mentioned, still the tender was a nullity, if the jury found that, at the time the tender was made, the check, for want of funds or credit of the drawer of the check, in the bank on which the same was drawn, or for other cause, would not have been paid on presentation-.” .

This charge of the court below being excepted to and assigned for error, there is presented the simple question, whether a creditor, to whom a tender of payment is made in a medium other than the constitutional currency, may expressly waive any objection to the quality of the proposed medium of payment, and bind himself to such express waiver ? It seems to us to be clear that the creditor may thus bind himself, at least until he shall have retracted his approval of the medium of payment offered, and notified the debtor that he demands payment in coin. To hold otherwise, would enable the creditor to lull the debtor into a false security, throw him off his guard, prevent his tender of payment in coin, and at last to come in and take advantage of his own wrong.

It has long been settled, both in England and this country, by cases too numerous and familiar to need to be cited, that a tender of payment in current bank-notes, where bank-notes constitute the common currency of the country, is good, unless objected to on account of the medium of payment offered. And elementary writers

have gone so far as to say that “ if a tender is made in a bank-check, which is refused because it is not drawn for so much as the creditor demands, it is a good tender.” Greenl. on Ev., sec. 601. “And that a tender of a check is a sufficient tender, unless objection be made at the time by the creditor, to receiving payment in them.” Story on Contr.,see. 1004. This places bank-checks on an equality with bank-notes, and holds mere silence on the part of the creditor conclusive evidence of a waiver on his part of any objection to the-proposed medium of payment. And there seems to be one English case to ^support this doctrine, that of Jones v. Arthur, 8 Dowl. P. C. 442. But we are not now called on, nor are we inclined to go to that extent. On a somewhat extensive examination of the cases, it seems to us to be the better and more generally-received doctrine, that mere silence is held to be a waiver of objection in the case of current bank-notes, for the reason that they constitute the common currency of the country, and are, by all classes, paid out and received as money; which is a reason that does not fully apply to-bank-checks. All the cases, however, proceed on the principle, that where all objection to the proposed medium of payment is waived, the tender is good, though not made in coin; and the only difference between them is on the question as to what shall be held to be con-conclusive of such waiver. But in the case before us, the jury, under the charge of the court, must have found an express waiver; and in such a case, where there is nothing left to presumption, surely* the creditor must be bound by his own act, and can not be permitted to make a constitutional right- an instrumentality through which to effect a positive wrong.

We can see no error in the charge of the court, and the judgment is therefore affirmed,

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


text:
    The Canal-boat Housatonic v. The Kanawha Salt Company
    The Tth section of the water-craft law, relating to the jurisdiction of justices of the peace, is in foil force, and their jurisdiction thereby limited to one hundred dollars.

      This is a petition in error to reverse the judgment.of the court of common pleas of Boss county. The original action was brought by the defendant in error in October, 1854, before a justice of the peace in Boss county, against the canal-boat Housatonic *by name, under the act of February 26, 1840, relating to common carriers, to recover the sum of $188, with interest from October 13, 1854, as damages for an alleged breach of contract between the parties, for the transportation, by the canal-boat, of 283 barrels of salt from Zanesville, Ohio, to Chillicothe, Ohio. It appears that the boat, shortly after leaving Zanesville on her way to Chillicothe, was sunk in the Muskingum river, and 83 barrels of the salt destroyed.
    As soon as the action was commenced before the magistrate, the Housatonic, by counsel, moved that he dismiss the action for want of jurisdiction. The motion to dismiss was overruled by the justice, and judgment rendered against the boat for $188, and costs. The boat appealed from this judgment to the common pleas of Boss county. Shortly after perfecting the appeal and filing the transcript in the common pleas, and before a petition was filed by defendant in error, the canal-boat filed its motion in the common pleas to dismiss the action for want of original jurisdiction in the justice, and appellate jurisdiction in the common pleas. This motion to dismiss in the common pleas was overruled by that court, and the plaintiff in error excepted. Afterward the defendant in error-filed a petition in the common pleas, and the plaintiff in error filed an answer thereto, setting up in the answer, as one of its defenses, the want of jurisdiction aforesaid. The defense was again overruled on the trial of the case, and judgment rendered by the common pleas against the boat for the full amount of the claim.
    The first six sections of the carrier act prescribe proceedings in, and confer jurisdiction upon, the higher courts of the state. The seventh section enacts, that “justices of the peace, within their townships, shall have jurisdiction under this act, when the amount claimed shall not exceed one hundred dollars, and shall proceed as near as may be, according to the rules prescribed herein for other courts.” This act was passed February 26, 1840. Swan’s Bev. Stat. 185.
    The law relating to the jurisdiction, generally, of justices of the peace, and prescribing the practice, provides, by the first section of the act of 1854 (the section claimed as amending or *repealing the 7th section above quoted), that section 4 of the justices’ code, shall be so amended as to read as follows: “ See. 4. Under the restrictions and -limitations herein provided, justices of the peace shall have exclusive original jurisdiction of any sum not exceeding one hundred dollars, and concurrent jurisdiction with the court of common pleas, in any sum over one hundred dollars, and not exceeding three hundred dollars.” A section (the 5th) follows this, repealing the original fourth section. Swan’s Rev. Stat. 533.
    The overruling the objection to the jurisdiction is assigned for error.

      Clark & Cooke, for plaintiff in error.

      Yaple & Wallace, for defendant in error.
   J. R. Swan, J.

The jurisdiction of a justice of the peace under the water-craft law, is derived from the express provisions of that law, and not from the general law relating to jurisdiction and to common-law actions. The proceedings under the water-craft law are special in their nature, being in rem, and spend all their force upon the property against which the suit is brought.

The repeal of the general law of 1831, relating to the jurisdiction of justices, could not and did not affect the jurisdiction of justices under the water-craft law; and the substitution of another code, in place of that general law, could not, by implication, repeal or modify the seventh section of the water-craft law, inasmuch as there is no conflict or inconsistency in justices being clothed with jurisdiction in cases where an action is brought to recover an indebtedness of three hundred dollars; and limiting their jurisdiction to a different amount in cases of replevin (Swan’s Rev. Stat. 520, sec. 139), trespass (Ib. 501, sec. 4), actions on certain undertakings (Ib. 502, sec. 6), and in suits against water-craft.

In an action to subject a steamboat or canal-boat to sale for debts of one hundred dollars or less, in general, the debts would be paid without a sale; but for debts of three hundred dollars *and less, frequent sales would probably be made; and justices of the peace would be called upon to exercise jurisdiction in the nature of admiralty, and to condemn, and, upon notice in the township, cause to be sold property worth ma.ny thousand dollars. The subject-matter of the proceedings, and the importance of the interests involved, would seem to as urgently require a limitation upon jurisdiction in such cases, as in an action of replevin, involving the ownership of personal property, or an action of trespass, involving an injury to real estate. There is nothing, therefore, in the nature of the subject that would demand, by construction, an implied repeal or amendment of the water-craft law. The justices’ code relates to general jurisdiction and practice.

The water-craft law directs a special proceeding and a peculiar remedy, and itself confers and limits jurisdiction. Without bringing the constitutional provision relating to the repeal of amendatory laws (Const., art. 2, sec. 16), to operate upon the question before us, and upon the construction of which we express no opinion, the settled common-law rules relating to the repeal of statutes by implication, brings us to the conclusion, that the seventh section of the water-craft law is not, by implication, affected or repealed by the amendment of the justices’ code.

Judgment of common pleas reversed.

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