text:
    McHugh v. The State.
    1. In a proceeding to reverse a judgment in either a civil or criminal case, the court regards the record asfreeirom error until the contrary clearly appears ; and, except as to matters relating to jurisdiction, or where counsel have overlooked a statute or decision of this court governing the case, tlie court confines itself, ordinarily, to the errors alleged by the party complaining.
    2. A judgment will not be reversed merely because the record shows error, to which exception was taken. The error, to be ground of reversal, must be prejudicial to the rights of the party complaining. And this is the rule in criminal as well as civil casos.
    8. A juror in a capital case who has formed or expressed an opinion as to the guilt or innocence of the prisoner, which he thinks it would require evidence to remove, where the opinion is formed from newspaper reports, and not from reading or hearing the testimony of witnesses, or conversation with them, is not necessarily incompetent under Eev. Stats. § 7278; but if he testify that he believes he would, if selected, vender an impartial verdict upon the evidence, and the court is of the same opinion, he is a lawful juror. Gooper v. State, 16 Ohio St. 238 ; Frazier v. State, 23 Ohio St. 501; Emin v. State, 29 Ohio St. 186 ; Mo-Evgh v. State, 38 Ohio St. 153, approved and followed.

      i A second venire issued under Rev. Stats. §,7268, containing among others, the name oí J. F. IT., was returned served upon him, hut in fact was served on J. C. H., who appearing and informing the court that his name was J. C. H. and not J. F. H., was directed by the court to stand aside, to which order no objection was made. After the names on such venire were called, and thirty-six jurors, independently of the juror named, appeared, counsel for the prisoner challenged the array, under Rev. Stats. § 5175, for such misnomer, which challenge was overruled.' Held, it not appearing that the officer had acted in bad faith, or that the accused had been injured by the mistake in any of his substantial rights, the error, if any was committed, afforded no ground of reversal.
    5. While the court, when requested to charge under Rev. Stats. § 7300, clause 5, is bound to give or refuse the charge, the court is not required to charge in the language of counsel, however sound in law or pertinent to the case the proposition may be, but the judge may select his own language; and where a charge is not given, substantially, it is to be regarded as refused.
    MotioN for leave to file a petition in error to reverse tbe judgment of tbe Court of Common Pleas of Hamilton county.

      O. E. BlacJelurn, G. W. Gerrard and E. P. Dustin, in support of tbe motion.

      J. Lawrence, attorney-general, and M. Outcalt, and P. B Smith, contra.

   Okey, J.

By an indictment found in tbe court of common pleas of Hamilton county, at tbe November term, 1881, "William McHugb was charged with murder in tbe first degree. Testimony offered by tbe state, shows that on tbe morning of July 23, 1881, near tbe intersection of Sixth and Plum streets, Cincinnati, in tbe presence of a large number of persons, in tbe public market, be killed bis wife, Sophie Mc-Hugh, by stabbing her with a large knife and tbe indictment charges the crime. He lias been thrice convicted of murder in tbe first degree, in trials upon this indictment, and as often sentenced to suffer death. Tbe judgments upon tbe first and second trials were reversed by this court, and tbe cause remanded for new trial; and a motion is now made, on behalf of the prisoner, for leave to file a petition in error to reverse the third judgment and sentence.

The ground of reversal of the first judgment was clearly stated in the opinion of Longworth, J. (38 Ohio St. 153), but the report upon the question is quite brief. It is claimed, on behalf of the prisoner, that the same question is presented on this motion. On the second reversal the result announced was published, but there was no report. Por these reasons, and for the further reason that we infer from remarks of counsel that the principle upon which this court proceeds, in the exercise of its jurisdiction in error in criminal cases, is not entirely understood, we deem it proper to state more fully the action of the court on the former hearings.

On the first trial of the prisoner, M. D. Osgood, summoned as a "juror, stated on his voir dire that he had formed and expressed an opinion as to the prisoner’s guilt, and that the opinion was formed by reading accounts of the homicide in the newspapers, and the published account of the examination before the coroner. The prisoner’s counsel challenged the juror for cause, the court overruled the challenge,, and for that error this court reversed the judgment.

By the constitution (art. 1, § 10), “ an impartial jury ” is guaranteed to the accused. “ To secure this right, it is necessary that the body of triers should be composed of men indifferent between the parties, and otherwise capable of discharging their duties as jurors.” Cooper v. State, 16 Ohio St. 328. “The number must be twelve; they must be impartially selected, and must unanimously concur in the guilt of the accused, before a conviction can be had.” Work v. State, 2 Ohio St. 296, 304. “Any act requiring or authorizing such trial by a jury, partial and biased against either party, would be a violation of one of the essential elements of the jury referred to in, and secured by, the constitution.” Stokes v. People, 53 N. Y. 164, 172. And “ what will constitute an abridgment of the right is, of necessity, a judicial question.” Frazier v. State, 23 Ohio St. 501, 552.

Acts providing in some measure what should constitute a partial and what an impartial juror, were passed in 1860 (2 S. & C. 1197), in 1869 (66 Ohio L. 307), and in 1872 (69 Ohio L. 11). The latter act was incorporated into the act of 1877 (74 Ohio L. 345), and carried from, that act into Rev. Stats. § 7278, as follows: “The following shall be good cause of challenge to any person called as a juror on any indictment. . . . 2. That he has formed or expressed an opinion as to the guilt or innocence of the accused ; bub if a juror state that he has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine such juror, on oath, as to the ground of such opinion, and if it appear to have been founded upon reading newspaper statements, communications, comments, or reports, or upon rumor or hearsay, and not upon conversations with witnesses, or reading reports of their testimony, or hearing them testify, and the juror state, on oath, that he feels able, notwithstanding such opinion, to render an impartial verdict npon the law and evidence, the court, if satisfied that he is impartial, and will render such verdict, may, in its discretion, admit him as competent to serve in such case.”

In Frazier v. State, 23 Ohio St. 551, the question presented was precisely the same as in McHugh v. State, 38 Ohio St. 153, that is, whether under such a statutory provision, a juror was incompetent if he had formed and expressed an opinion as to the guilt of the prisoner, where that opinion was formed from newspaper reports, and from reading the testimony delivered at the coroner’s j ury. The court in Frazier's ease was unanimous in holding that by the very terms of the statute the juror was clearly incompetent, and for overruling the prisoner’s challenge to such juror this court properly reversed the judgment. In Erwin v. State, 29 Ohio St. 186, this court unanimously followed and approved that decision, and again unanimously followed and approved it in McHugh v. State, 38 Ohio St. 153.

The duty of regarding every record brought before this court for review, as being wholly free from error until the contrary is clearly shown, is one which we endeavor to faithfully perform ; and, except as to matters relating to jurisdiction, or the practice of the court, or where counsel have overlooked a statute or decision of this court controlling the case, the court confínes itself, ordinarily, to the errors assigned as grounds of reversal. Nor does it necessarily follow that the judgment will be reversed because error has intervened. “ In order to justify the reversal of a judgment on error, the record must affirmatively show, not only that error has intervened, but that it was to the prejudice of the party seeking to take advantage of it.” Scovern v. State, 6 Ohio St. 288, 291. Ordinarily, if a statutory provision or principle of the common law, applicable to the case, is disregarded on the trial of a person charged with crime, where its enforcement would tend to preserve his right to an impartial trial, he is to be regarded as prejudiced in his substantial rights, as he is always to be deemed so prejudiced where he is deprived of a constitutional guaranty designed for the protection of the person — still, if there has been a failure to observe some mere matter of form, where the officer or other person charged with the duty acted in good faith, the court must determine whether the failure to observe such form tended in any way to deprive the accused of a fair trial, and whether, looking to the statutory provisions relating to criminal procedure, it was intended that such failure should necessarily require a reversal of the judgment.

The error committed on the prisoner’s first trial was manifestly prejudicial to him, for it deprived him of a right guaranteed by statute to all persons accused of crime, and it can be readily seen that the enforcement of the provision might operate to his advantage on the trial; and, under such circumstances, we are vested with no discretion to refuse a reversal, whether the error occurs on the first or any subsequent trial. Indeed, it would be far better that William McHugh should go wholly unpunished, than that such statutory provision, or any plain principle of law, should be set at naught on his trial.

An exception was taken on McHugh’s second trial, for which this court, as already stated, was again compelled to reverse the judgment. The counsel of McHugh called as a witness in his behalf Mi\ Lillus, by whom he proposed to prove matter which was clearly competent, but the court would not permit the evidence to be given, and thus committed an error for which a judgment should be reversed. Cowan v. Kinney, 33 Ohio St. 422. While not denying such general rule, counsel for the state contended that the case formed an exception, because on such second trial of McHugh the court excluded such evidence of Lillus upon the ground that he had remained in court, during part of the trial, and heard other witnesses testify, and in so doing had violated an order which the court had made, at the commencement of the trial,'for the separation of witnesses. There was nothing, however, to show that McHugh or his counsel had in any way encouraged the witness to violate the order, or even knew, when he was called, that he had violated it, and the court found as a fact, that the witness did not even know that the order had been made. Dickson v. State, 39 Ohio St. 73, was direct and sufficient authority for holding such action of the court to be clearly erroneous, and hence it was the imperative duty of the court to reverse the judgment. Of what avail is the constitutional provision (Art. 1, § 10), that the accused shall “ have compulsory process to procure the attendance of witnesses in his behalf,” if the testimony of witnesses is to be excluded on such ground ?

It is due to the judge presiding at McHugh’s second trial to say, that the ruling for which we reversed the judgment was doubtless based on remarks of Caldwell, J., in Laughlin v. State, 18 Ohio, 99, as to the discretion of the trial judge, and that Dickson v. State had not been decided at the time of McHugh’s second trial. But the remarks in Laughlin’s case, above referred to, were disapproved, and the rule upon the subject settled to the entire satisfaction of all the judges of this court, in Dickson’s case, and to reverse the second conviction of McHugh was simply to follow that decision.

With this statement as to the first and second trials of McHugh, showing that as errors plainly prejudicial to him occurred on each trial, the duty of reversing the judgments was imperative, we will now consider whether any of the alleged errors occurring on the third trial afford sufficient ground for granting leave to file a petition in error. To determine that matter, we have bestowed upon the case the same laborious, painstaking care it would have received if leave to lile a petition in error bad been granted, and the case stood for hearing on such petition ; and I will now state our views with respect to such questions, presented on behalf of the prisoner, as we think are of sufficient importance to be noticed in a report. It is assigned for error—

1. George Le Boiteau, called as a juror, testified that he had formed an opinion as to the guilt of the accused. Being challenged for such cause, he stated the opinion was formed from reading in the newspapers an account of the murder, and not from talking with the witnesses, hearing them testify, or reading their evidence, and that while it would require evidence to remove such opinion, he felt satisfied he could divest himself of it, and render such verdict as the evidence required. The court, being satisfied the juror would render an impartial verdict, overruled the challenge, and the counsel for the prisoner excepted. The court in so holding simply followed the plain provisions of the statute. The only question was whether the statute (Rev. Stats. § 7278), now repealed and re enacted in a changed form (81 Ohio L. 53), was in conflict with the provision of the constitution guaranteeing to every person accused of crime “an impartial jury and that question was settled in the cases already cited : Cooper v. State, Frazier v. State, Erwin v. State, McHugh v. State, holding the act to be valid. Indeed, Cooper v. State and Frazier v. State are direct authorities to sustain the court in overruling such challenge for cause; and, assuming that we have jurisdiction to reverse judgments for errors in impaneling jurors (81 Ohio L. 53), still we are clear that in this respect there was no error.

Looking to the origin and history of the phrase, “ an impartial jury,” we find it had, at the time it was employed in the constitution, no such fixed meaning as to preclude legislation defining, in some measure, what shall constitute such jury. Of course a statute authorizing a trial by jurors wlm have prejudged the case would be invalid, and to permit such a juror, against a prisoner’s objection, to become one of his triers, under any statute upon the subject, would be clearly erroneous ; still, the framers of the constitution were not ignorant of the increasing demand for information on subjects of public interest, and the efforts which would be made to meet' that demand by means of the press, and they could not fail to see that accounts more or less accurate, with respect .to nearly every heinous offense, would find their way to the home of every intelligent person. There was no intention, surely, to exclude from our juries persons of intelligence — persons who read newspapers — and we do not hesitate to say, it was never intended that' an opinion formed from such information should necessarily disqualify a person as a juror; and we hold the mere fact that a juror has a strong impression as to the prisoner’s guilt, resulting from information from almost any source except personal knowledge of the facts, does not necessarily render the juror incompetent, even if he characterizes the impression as an opinion. If the juror has personal knowl-, edge of the material facts of the homicide, or has passed upon them as a juror, it may be that he is necessarily an incompetent juror, and possibly other facts may show him to be necessarily incompetent; but, ordinarily, where the juror testifies that he believes, and the court finds as a fact, that he would, if selected, render an impartial verdict upon the evidence, he is, , unless his competency is limited by statute,' an “ impartial ” juror. Of course, error will be shown, if it be made to appear that the presiding judge has clearly abused his discretion. The difficulty was, at McHugh’s first trial, not as to the constitutional provision guaranteeing an impartial jury, but that under the statute then in force (Rev. Stats. § 7278), Osgood was plainly an incompetent juror, for he had read the evidence given at the coroner’s inquest, and had formed, and at the trial still retained, an opinion, as to the prisoner’s guilt, and it was manifest error, in view of that statute, to permit him to act as such juror against the prisoner’s objection; and hence the reversal. To refuse to reverse would have been equivalent to a repeal of the statute by the court. But by the same statute, Le Boiteau was, as already stated, clearly a competent juror, for his opinion was formed, not from reading testimony, but simply from reading a newspaper account of the homicide, anJ the prisoner’s challenge'of him was, in view .of that statute properly overruled, and bence there was no error in that respect. It may be added that if the statute as it now exists (81 Ohio L. 53) had been in force at the first trial of McHugh, Osgood would have been a competent juror — assuming the act to be constitutional — and the judgment would have been affirmed.

2. Error in overruling the challenge to the array. Before disposing of this alleged error, it is proper to say that our power to review a conviction for an error in overruling such challenge has been questioned. We have no jurisdiction in error cases except as given by statute, and the legislature may enlarge, restrict or deny such jurisdiction, even as to pending ases, as it may deem proper. Lafferty v. Shinn, 38 Ohio St. 46, 48; Knapp v. Thomas, 39 Ohio St. 377, 383. Error lies in criminal cases, but “ in the supreme court, only errors of law occurring at the trial, or appearing in the pleadings or judgment, can be reviewed.” (80 Ohio L. 170.) And the statute further provides, as to challenge to the array, that such challenge shall only be made before the jury is impaneled and sworn.” (Rev. Stats. § 5175.) The argument is that such challenge to the array must be made before the trial begins, and hence an error in overruling such challenge is not an error occurring on the trial, and hence for such error this court cannot reverse. As the question is not wholly free from difficulty and its determination is not essential to a decision of this case? we will regard such objection to our jurisdiction for the purposes of this case, as not well taken, and reserve the question until its determination becomes necessary.

Thirty-six jurors not having been obtained out of the first venire,issuedunder Rev. Stats. § 7267, a second venire was issued under section 7268, in which appeared the name of John F. Hetzler, and the sheriff, unable to find John F. Hetzler, served John C. Hetzler, and returned upon the venire that he had served John F. Hetzler. When that name was called in court, John C. Hetzler stepped forward, but upon explaining that his name was not John F. Hetzler, he was directed to stand aside, and the call proceeded to the end of the second venire. To this no objection was made. After the names on the second venire bad been called, and thirty-six jurors, not including Retzler, had answered to the call and appeared in the box, counsel for the prisoner challenged the array, basing the challenge on Rev. Stats. § 5175, which provides that the array may be challenged, when the jury “ was not selected, drawn or summoned, or when- the officer who executed the venire did not proceed, as prescribed by law, or for the misnomer of a juror or jurors.”

The provision of the statute that misnomer shall be ground of challenge to the array, no doubt applies alike to civil and criminal cases, but it is contained in that portion of the Revised Statutes relating to practice in civil cases. The provision found its way into our legislation in 1873 (70 Ohio L. 171), from which it was carried into the revision of the Civil Code enacted in 1878 (75 Ohio L. 636), and from the act of 1878 it was, as above stated, incorporated into part three of the Revised Statutes, which relates to civil practice and procedure (Rev. Stats. § 5175). Occurring in that part of the statutes, we are required to construe the provision in connection with section 4948, in the same part, which provides that “ the provisions of this part, and all proceedings under it, shall be liberally construed, in order to promote its object and assist the parties in obtaining justice.” And see section 5115. This doubtless would be a sufficient answer to such challenge in a civil ease, where no injury was shown, and I am unable to see why sections 5175 and 4948 should not be construed together in this case. However that may be, when a challenge is made in a criminial case under section 5175, that section should not only be construed in connection with the provisions of the Revised Statutes relating to criminal procedure, but the provisions should be construed as in harmony with each other in respect to the manner in -which objections merely formal should be regarded. Bishop’s Written Laws, § 86 et seq.

Such misnomer as is here alleged was, under the former practice, fátal in an indictment, where it occurred in the name of the injured party. Price v. State, 19 Ohio, 423. But under Rev. Stats. § 7216, such mistake will not avail the prisoner, unless the court before which the trial takes place is of opinion that the mistake is material to the merits of the case, or may be prejudicial to the defendant, or the jury find the person intended to be described in the indictment and the person described in the proof, are not one and the same person. Mead v. State, 26 Ohio St. 505. An indictment cannot be held invalid for a “ defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant on the merits” (Rev. Stats. § 7215). Motion by a defendant for new trial in a criminal case must be based on “ reasons affecting materially his substantial rights” (Rev. Stats. § 7350). And as we have seen, error is not ground of reversal in a criminal case unless it be “ to the prejudice of .the party.” Seovern v. State. Construing the above statutory provisions, and others •upon the subject which might be mentioned, as mjpari materia, we have no hesitancy in saying that a court would not be justified in sustaining a challenge to the array on such merely technical ground, where, as here, it was not rendered reasonable or probable that the prisoner was injured in any respect, in his substantial rights, by reason of the mistake. Much less would this court, in view of the rule stated in Scovern v. State and other cases, be justified in reversing a conviction for a refusal to sustain such challenge. Besides, it is urged by the state that John P. Hetzler never appeared, and that the array within the meaning of the statute, is the first thirty-six who answer, and hence, invoking technicality against technicality (6 Ohio, 21), there was no error. But we need not enter upon that question, for the reasons already stated.

3. Counsel for the prisoner presented to the court certain. papers containing propositions, and asked the court to charge the propositions to be sound law, applicable to the case, and proper for the consideration of the jury. Some of the propo•sitions were, in form, substantially brief arguments in' favor of the prisoner, and the court properly refused them for that reason. Others to which that objection did not apply were not, in terms, given or refused, though substantially correct and pertinent to the case. This, it is insisted, was an error for which the judgment should be reversed, the statute providing : “ When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court, which instructions shall be reduced to writing, if either party request it.” Rev. Stats. § 7300, cl. 5. Undoubtedly the court must comply with the statute. The instructions, if law applicable to the case, must be given when the request is made. To refuse is error. But the’court is not bound to adopt the language of counsel. The judge may select his o'wn language; and where the charge is not substantially given, it must be regarded as refused. We do not think there is any thing in this respect of which the prisoner can justly complain, when we consider all that the court said to the jury.

4. Other errors are alleged, but we do not deem it necessary to make any report with respect to them. We are unanimous in holding that no one of the objections is well taken. The prisoner has been ably prosecuted and ably and zealously defended, and the most careful examination of the whole record leads us to the conclusion that his last trial was in all respects entirely fair.

Motion overruled.


source: Caselaw Access Project

author: McIlvaine, J.

license: Public Domain

text:
    Roig v. Schults.
    1. A homestead is subject to a judgment or execution lien both before and after the same is demanded and set off to the debtor. MeOomb v. Thompson, ante, 139.
    2. In an action to subject lands, alleged to have been fraudulently transferred, to the payment erf a j udgment, an answer by the j udgment debtor, that he is a resident of Ohio, the head of a family and entitled to hold the premises as a homestead, is no defense.
    3. In such action, when the fraudulent sale is established, and it is further found that the premises are subject to a prior mortgage lien, as against ■which a homestead cannot be demanded, it is not error to decree the sale of the property, and the payment of costs and the mortgage lien from the proceeds.
    4 But a further order in such action, that, after the payment of the mortgage, the proceeds of sale should be applied to the satisfaction of plaintiffs, judgment, to tie exclusion, of the claim of the debtor in lieu of a homestead, is erroneous.
    5. After the sale and the payment of liens against which no right of homestead exists, the question of precedence between other lions and the claim of the debtor in lieu of a homestead must be adjudicated by the court. Section 5440, Rev. Stats.
    MotioN for leave to file a petition in error, to the District Court of Lorain county.
    On October 23,1882, Scbults recovered a judgment against John G. Roig for $057.21 and costs, in.the court of common pleas of Lorain county, and caused execution thereon to be levied on the land in controversy, as the property of the defendant Roig, situated in said Lorain county.
    The legal title to" this land was in Amanda Roig wife of said John G. and the same was subject to a mortgage executed by Roig and wife for $2,000, then owned by one Jennie S. Coates; whereupon Schults, in January 1883, commenced the original action, against Roig and wife and Coates, to subject the land to the satisfaction of his judgment, alleging among other things, that Roig had procured the title to be placed in his wife to defraud his creditors.
    The allegations of fraud were denied by the answer of Roig and wife, and by the separate answer of John G. Roig it was claimed that the land in controversy, was the homestead of his family, and if the court should find the same to be his property, he asked that the same should be set off to him as a homestead under the laws of Ohio.
    By answer and cross petition Jennie S. Coates sot up the lien of her mortgage of February 10, 1882, and prayed for an account and relief.
    The district court of Lorain county, to which the cause had been taken by appeal, found in favor of the plaintiff, as to the fraudulent title of Amanda Roig, and in favor of Jennie S. Coates, as to the validity and priority of her mortgage lien, and as to John G. Roig, that he was a resident of Ohio, the head of a family and occupied the land in controversy,-as his family homestead. Whereupon a decree was entered for the sale of the premises, and that out of the proceeds, there should be paid :
    First. The cost of suit.
    Second. The amount of Coates’ mortgage.
    Third. The plaintiffs’ claim.
    Fourth. The balance, if any, to be paid to Amanda Roig. In addition to the above it was also decreed, “ That nothing in this decree shall be taken or held to deny or prejudice the rights of said defendants, John G. and Amanda Roig, to demand any and all exemptions they or either of them may hereafter be entitled to under the laws of Ohio.”
    It is now alleged for error, that the decree of the court was not justified by the facts found.

      E. G. c& IF. II. Johnson, for the motion.

      Johnson & Leonard, contra.
   McIlvaine, J.

We have held at the present term in McComb v. Thompson, ante, 139, that the homestead of a debtor is subject to a judgment or execution lien before, as well as after, the same has been set off on demand of the person entitled to hold the same exempt from sale! It therefore follows, that the demand for a homestead, as set up in the answer of Roig, was no defence to the cause of action alleged in the petition below. The plaintiff below, upon proof of the facts alleged in his petition, was entitled to a judgment establishing his lien on the premises, whether a sale, as against the claim of a homestead could be enforced or not.

In the case presented to the court below, as appears by the record, the existence of a mortgage lien in favor of Coates, against which the right of a homestead exemption could not be asserted, was admitted. To satisfy such mortgage lien, the decree for the sale of the premises was correct; as was also the order of the court directing the payment of costs and of the mortgage lien out of the proceeds. Until the costs and the mortgage lien were fully satisfied no question, as to precedence between the plaintiff’s judgment and the right of defendant’s exemption in lieu of a homestead, could arise. The right of a homestead proper, was, of course, terminated by a sale of the property. We think, therefore, the court below erred in ordering the payment of plaintiff’s claim after the payment of the mortgage, without waiting to ascertain whether an exemption in lieu of a homestead having precedence over plaintiff’s judgment, did not then exist. See Cooper v. Cooper, 24 Ohio St. 488, and also Lee v. McConville, 31 Ohio St. 447.

The fraudulent placing of the title to the. land in controversy in his wife, by the judgment debtor, did not, as against the judgment creditor, bar the right of the debtor to demand a homestead or an exemption in lien of a homestead. See Sears v. Hanks, 14 Ohio St. 298, and Tracy v. Cover, 28 Ohio St. 61.

The motion will therefore be granted and the judgment of the district court modified as above indicated.


author: Okey, J.

text:
    Bloomingdale v. Stein.
    A. executed to B. a promissory note and warrant of attorney, upon which judgment was rendered, and an execution having been issued on the judgment, the sheriff levied the same on A.’s goods. The note was . without consideration and A. was insolvent when it was executed. In doing and procuring to be done these various acts, both A. and B. concurred, and their object was to defraud A.’s creditors : Held, that the acts were within the statute, which provides that “all transfers, conveyances or assignments made with intent to hinder, delay or . defraud creditors, shall be declared void at the suit of any creditor.” 75 Ohio L. 038, § 10 ; Kev. Stats. § 6344.
    ERROR to the District Court of Franklin county.

      J. H. Bowman and O. W. Aldrich, for Bloomingdale; W. J. Gilmore and It. P. Woodruff, for Loeb and Frank Bros. & Co.; and L. English and C. E. Burr, for S. Stein & Co.
   Okey, J.

Adolph, William B. and Henry M. Landaner, partners as A. Landauer & Sons, dealers in ready made clothing at Columbus, Ohio, executed to Mark Bloomingdale, on December 5, 1878, a note for $8,000, due at one day, together with a warrant of attorney authorizing a judgment to be confessed thereon. On December 17, 1878, judgment was rendered in the court of common pleas of Franklin county, on the note and warrant, in favor of Bloomingdale, for $3,005.80, and costs, on which judgment he caused an execution to issue on December 18, 1878, directed to the sheriff of Franklin county, which execution the sheriff, on the same day, at ten o’clock in the forenoon, levied on all the goods and chattels of the defendants in execution subject to levy. And this was the first levy upon the property.

S. Stein & Co. had a valid account against A. Landauer & Sons, amounting to $1,492.02, for goods sold in August, Sep tember and October, 1878. On January 14,1879, while the property so levied on still remained in the hands of the sheriff, said S. Stein & Co. commenced an action in the court of common pleas of Franklin county, against Landauer & Sons and others, under the act of 1878 (75 Ohio L. 938, § 10), charging that the note, warrant of attorney, judgment and levy were within-that section, which provides that “ all transfers, conveyances, or assignments made with intent to hinder, delay or defraud creditors, shall be declared void at the suit of any creditor.” The object of the suit was to secure the appointment of a trustee and the subjection of such property so levied on, to the payment of debts, in accordance with that section. The plaintiffs gave notice of their suit, as required by the section, but no creditor gave bond,- or deposited money, as also-therein required.

The district court, to which the cause was taken by. appeal, found, among other things, that the note, warrant of'attorney, judgment, execution and levy, in favor of Bloomingdale, were fraudulent; that the Landauers were not indebted to him; that the object of the Landauers, -who were insolvent, was to cheat and defraud their creditors, in which object Bloomingdale concurred, and the acts named, and each of them, was done in furtherance of that purpose; that the acts named •brought the case within the above mentioned section; that the sheriff having sold the goods, by consent of all parties in interest, and having in his hands $7,817.74, the same should be distributed as follows : first, in payment of the costs, including a fee to the counsel of S. Stein & Oo. ; secondly, the claim of S. Stein & Co. in full; thirdly, to the remaining creditors pro rata, the balance, after paying the claim of S. Stein & Co., being insufficient to pay the other creditors in full.

A petition in error has been filed in this court by Bloomingdale to reverse the judgment, and certain creditors hereinafter mentioned, have filed cross-petitions in error, with the same object in view. The questions thus presented we will now consider. 1. It is said, the evidence did not warrant the finding that the note and warrant given to Bloomingdale were without consideration, and that the object in the various steps, resulting in the seizure of the goods by the sheriff, was to defraud the creditors of A. Landauer & Son. But on careful examination of the testimony, we feel that we would not be warranted in disturbing the findings, in view of the rule stated in McGatrick v. Wason, 4 Ohio St. 566; 35 Ohio St. 7; 37 Ohio St. 260.

2. It is objected that S. Stein & Co. were not judgment creditors. But in Combs v. Watson, 32 Ohio St. 228, the rule was settled that it was not necessary that the claim of a creditor should be reduced to judgment, in order to maintain such action. The same question was fully discussed, in the courts below and in this court, and decided the same way, in the Shonfeld case, which was finally reported, on other questions, sub nom. Hellebush v. Richter, 37 Ohio St. 222.

3. It is insisted that the acts, beginning with the execution of the note and warrant of attorney, and culminating in the seizure of the property on execution in favor of Bloomingdale, were not a transfer, conveyance or assignment of the property, within the meaning of the above mentioned section 10, even if the purpose was to defraud creditors, and hence that S. Stein & Oo. could not maintain such suit, even if the second objection, above stated, is not well taken. And this question is the only one which called for a report of the case.

The commissioners to revise the statutes found the following to be the principal statutes relating to fraudulent conveyances and conveyances in trust. S. & C. 606, 712; S. & S. 397. They thought best, however, not to codify those provisions, but leave to the courts the question whether the earlier provisions had been modified by the subsequent statutes, and if so the extent of such modification ; and hence, little more was done than to transfer the sections from the places they then occupied in the statutes into appropriate places in Rev. Stats. §§ 4195, 4196, 6343, 6344. With the provisions in that form, the legislature adopted the revision, after changing section 6344, so as to embrace fraudulent purchases in the name of another ; and, aside from such change, the provisions should undoubtedly be construed as before revision.

Combs v. Watson, 32 Ohio St. 228, and Shorten v. Woodrow, 34 Ohio St. 645, are in apparent conflict upon the question whether fraudulent purchases in the name of another were within the provision here under consideration. That they were not was decided in the latter case, and that decision is supported by some cases where the question arose in actions at law, and the court adhered to the mere letter of the statute. In the former case the question, though directly presented by the record, is not discussed, but as a decision supporting the view that such a case is in effect provided for, it is not only entirely in harmony with the decisions of courts of equity, but is even supported by many cases at law. Taylor v. Heriot, 4 Des. Eq. 227, 234; Whittlesey v. McMahon, 10 Conn. 138; Botsford v. Beers, 11 Conn. 370; Doyle v. Sleeper, 1 Dana, 531; Alston v. Rowles, 13 Fla. 117; Kimmel v. McRight, 2 Barr, 38; Miller v. Wilson, 15 Ohio, 108; Bump Fraud, Con. (2 ed.) 518; Wait’s Fraud. Con. §§ 57, 243; 1 Am. Lead. Cas. (5th ed.) 50. Doubtless because of this conflict, the legislature changed section 6344, as already stated, so as to be in this respect in harmony with the view constantly adopted in courts of equity, though, of course, this case is governed by the statute as it existed in 1878. We have no hesitancy, however, in saying that we would not be warranted, in this case, in placing any strict construction upon this remedial statutory provision. , On the contrary, where a debtor, having the title and possession of property, passes the possession and apparent ownership to another, with the intent upon the part of both to defraud the creditors of such debtor, the transaction is within the provision we are considering, and it is wholly immaterial what device is resorted to for the purpose of consummating the fraud. The law regards the thing which the debtor has done, rather than the means by which he accomplished it; for if he has placed his property in the hands of another to defraud his, the debtor’s creditors, the creditor is equally injured whether the transfer was effected by a formal instrument of writing, by means of a fraudulent execution, or by some other device; and equity, in either case,looking through the form to the substance of the transaction, will not hesitate to grant relief, in accordance with the evident object and purpose of the statute. Booth v. Bunce, 33 N. Y. 139; Bump Fraud. Con. (2 ed.) 250. And this view is greatly strengthened by the fact that the statute affords protection to all creditors, and tends to discourage preferences, on the just principle that “ equity delights in equality.”

4. Bloomingdale’s judgment was, as already stated, rendered on December 17, 1878, and his levy was made December 18, 1878, at 10 o’clock A. M. On the last named day Loeb obtained by confession of the Landauers, two judgments against them, one for $345.69, and the other for $1,566.25 On the same day, Frank Bros. & Co. obtained by confession o the Landauers, a judgment against them for $667.75. The judgments of Loeb and Frank Bros. & Co. were for bona fide debts, which had remained unpaid for several months. On the afternoon of December 18, 1878, the sheriff levied executions issued on those judgments upon the same property which he held on the execution of Bloomingdale, levied at ten o’clock in the morning of the same day.

If S. Stein & Oo. had not commenced their action, Loeb and Frank Bros. & Co. might have treated the Bloomingdale levy as a nullity and obtained satisfaction of their judgments by a sale of the property on their executions. Clark v. Hubbard, 8 Ohio, 382; Westerman v. Westerman, 25 Ohio St. 500. But when S. Stein & Co. commenced their suit, and the court acquired jurisdiction of the subject matter and the parties, it was no longer possible for Loeb and Frank Eros. & Co. to proceed legally witli their execution. On the contrary, while the sheriff is not ordinarily to be regarded as agent of either party to an execution (Cooley on Torts, .129), the acts of the Landauers and Bloomingdale, culminating in the seizure of the goods on December 18,1878, at 10 o’clock A. M. on execution, operated, on the election of a creditor to prosecute such suit, as a transfer of the goods to defraud creditors, at that hour, within the section under consideration (Conrad v. Pancost, 11 Ohio St. 885; and see Jamison v. McNally, 21 Ohio St. 295); and hence, the subsequent levies of Loeb and Frank Bros. & Co. became and were properly held to be mere nullities. The fact that Loeb and Frank Bros. & Co. were not originally parties to the suit is of no importance. They filed answers and cross-petitions. The district court also properly held that the money in the hands of the sheriff should be applied, first, to the payment of costs, including counsel fees; secondly, to the payment of the claim of Stein & Co., with interest; and lastly, that the balance should be distributed to the remaining creditors pro raia.

Judgment affirmed.


author: Owen, J.

text:
    Dilcher v. State.
    1. Section 6804, Kevised Statutes, providing that, “Whoever aids, ahets, or procures another to commit any offense, may he prosecuted and punished as if he were the principal offender,” was not intended to introduce into our criminal practice any new rule of evidence.
    2. On the trial of one indicted for subornation of perjury, the statements of the principal offender, made in the absence of the prisoner, that the latter had been attempting to hire or had hired him to commit the perjury, are inadmissible, although they tend to prove the principal’s guilt of the perjury charged, and are made immediately prior to the commission of the perjury.

      3. In such case, however, statements oí the principal, in the absence of the prisoner, immediately prior to the perjury, tending to show the former’s disbelief in the facts falsely sworn to, are admissible to show the state of his mind and belief concerning the subject of his testimony.
    ERROR to the Court of Common Pleas of Athens county.
    At the May term of the court of common pleas of Athens county A. D. 1882, William Dilcher, the plaintiff in error, was indicted for procuring, persuading and suborning James M. Stewart, to commit perjury. He was tried and convicted. The judgment of conviction was reversed by this court and the cause remanded for a new trial. Dilcher v. State, 39 Ohio St. 130. He was again convicted, and to reverse the judgment of conviction the present proceeding is prosecuted.
    Upon the last trial there was evidence tending to prove the following facts: That the testimony of Stewart upon which the charge of perjury was predicated, was given in the form of a deposition taken in the office of one Drown in Athens county, on the 5th day of February 1881, before a notary public, to be used on the trial of an action pending in Meigs county, in which Mary Martin, as plaintiff, was claiming against Henry Dilcher, defendant, to be the widow of John Martin (known also as Colonel Martin), and was claiming and seeking to recover dower out of lands of such defendant; that the evidence relied upon to establish the death of Colonel Martin, was his absence for more than seven years without tidings of him ; that1 Stewart had testified that he had seen and conversed with Colonel Martin in Montana territory in September 1880, and upon this statement the perjury was predicated; that the prisoner had entered into a conspiracy with one Bowers to hire Stewart to commit the perjury charged ; that the prisoner had procured and suborned Stewart to commit it; that Stewart had been convicted upon his own confession of the perjury charged.
    Upon the trial, Charles IT. Grosvenor, an attorney who was assisting in the prosecution of the prisoner, took the stand as a witness for the state, and over the objection of the prisoner was permitted to testify as follows: “ I have no recollection of seeing James M. Stewart before the Saturday on which the depositions were taken. I first saw him from eleven to half-past eleven o’clock in the forenoon at Brown’s office. Henry T. Brown, Stewart, Dilcher (the prisoner) and myself were there. I called Stewart into the back office and shut the door. Dilcher was not in the back office. I said to Stewart I was afraid he was going to get into trouble; that I wanted to give him some information ; that I was afraid he was being made a victim. I said this case had been continued on a statement that Colonel Martin was at Lincoln, Nebraska ; that we had letters showing that no such man was there. I said to him : If you swear to that you will swear to what is not true. He said he knew nothing about Martin ; that he was not going to swear to it; that he might have made a good arrangement, but Avas not going to have his deposition taken. He said: They have been fooling around me for some time, and at last they have a good arrangement made, but I am not going to have my deposition taken noAV. I said: I have a dispatch from Mr. Vorhes ; Dilcher was trying to raise two hundred dollars on his check, and that is the reason I said what I did to you.”
    The prisoner by his counsel moved the court to withdraw the foregoing testimony from the jury, Avhieh the court refused to do and the prisoner excepted.
    To this action of the court error is assigned, and for that, with other alleged errors, this proceeding is prosecuted to reverse the judgment below.

      E. A Guthrie, with whom Avere De Steiguer c& Jewett, for plaintiff in error.

      G. Ii. Grosvenor, and Emmett Thonvplcms, for defendant in error.
   Owen, J.

Did the court below err in admitting, or refusing to withdraw from the jury, the testimony of Gros-.venor %

The plaintiff in error maintains that the declarations of Stewart, in his absence, are but hearsay, and are inadmissible to establish, as against him, any fact material to the issue.

The state maintains' on the other hand, that as she was bound to prove Stewart’s guilt of the perjury, any evidence which would directly tend to establish this fact upon his separate trial, was admissible against the prisoner. It is further contended by the state, that as the giving of his deposition by Stewart was one of the substantive facts to be shown, what he did in preparation for, and leading to, this fact, was competent to be given in evidence, and that the interview between Grosvenor and Stewart was so immediately connected with the giving of his deposition, and so far characterized his conduct, as to become part of the res gestee.

There are some statements embraced in this interview which were admissible as tending to prove the state of Stewart's belief concerning the matters testified to by him, and which furnished the predicate of the perjury charged. It was necessary to prove that Stewart’s testimony, that he had seen Colonel Martin in Montana, was false to his knowledge.

Grosvenor said to him: If you swear to that, you will swear to what is not true.” His answer was that he knew nothing about Martin; that he was not going to swear to it.

These statements reflected upon the state of his belief— the condition of his mind — upon the very subject of the alleged perjury immediately prior to its commission. So far as his declaration tended directly to show the then present state of his belief concerning the subject of the perjury charged, it was, upon a very familiar principle, admissible in proof of his guilt. 'It related to a then existing substantive fact which the state was bound to prove and was not merely hearsay. 1 Greenleaf Ev. § 108; Queen v. Pym, 1 Cox’s Crim. Cases, 339.

But among the declarations objected to are some which did not tend either to show the state of Stewart’s belief; to be in preparation for, or lead up to, the act of perjury; nor did they accompany or characterize any act which directly pointed to his guilt. Grosvenor reports him as saying: “that he might have made a good arrangement. . they have been fooling around me for some time, and at last they have a good arrangement made.” Yiewed in the light of the context these statements must have been understood by the jury as involving the prisoner (with Bowers) in some transaction of the past, looking to the hiring and suborning of Stewart to commit the perjury charged. They were at best but narrations of supposed transactions of the past, and if they were admissible at all against the prisoner, it must have been upon the ground contended for by the state, that as they involved confessions or admissions by Stewart pointing to his subornation by the prisoner, they tended to establish Stewart’s guilt and lienee were admissible against the prisoner. In support of this view, the state cites us to Revised Statutes, section 6804, which provides that: “ Whoever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he were the principal offender.” The claim is, that any evidence which would be competent to prove Stewart’s guilt, if he were upon his separate trial, is admissible against the prisoner.

The purpose of section 6804 was to hold an accessory before the fact equally guilty with the principal offender, and not to introduce into our erirpinal practice a new rule of evidence.

To permit the principal offender, by his mere private declarations or confessions, made in the absence of the accused, without the sanction of an oath, without opportunity to cross-examine him, without opportunity for the jury to observe his manner or deportment, or to judge of his motives, his means of knowledge, or his relation to the accused, whether hostile or friendly, to bind the latter (when such declarations or confessions do not tend to establish or characterize any substantive act or fact in issue) would seem, at first view at least, to require the support of strong authority.

We ai’e not without the light of adjudication to aid us in this inquiry. In the case of The Queen v. Read, 1 Cox’s Crim. Law Cases, 65, the prisoner was on his separate trial for procuring one Simpson feloniously to destroy a vessel belonging to one Page. The prosecution offered in evidence the statements of Simpson made in the absence of the prisoner. Objections were made which were sustained ; Maulé, J'., remarking : “I have no objections to admit anything that Simpson did, but I cannot receive evidence of what he said. When two persons are tried together, what one of them has said is evidence, because he is on trial, but it is evidence only against him. If Simpson were jointly indicted with the prisoner, I could not of course reject his conversations, but they clearly would not be admissible as against tho latter.”

The case of Queen v. Pym, cited above, furnishes a strong illustration of the principle involved in this discussion, and of the distinctions above pointed out. The prisoner was on trial as an accessory to murder committed by one Hawkey. The prosecution offered to prove that Hawkey, while talking of the deceased to a friend, on the day of the murder, but before its commission, said (in the absence of the prisoner): “I will shoot him as-1 would a partridge.”

Erle, J., received the statement, remarking that he admitted that the confession of a principal is no evidence against the accessory, adding: “But this statement is an act indicating malice aforethought in Hawkey, and that is a fact which the jury have to ascertain. The intention of a person can only be inferred from external manifestations, and words are some of the most usual and the best evidence of intention. It is not a declaration after the act done narrating the past, but it shows the mind of the party.” See Reg. v. Hansill, 3 Cox Crim. Cas. 597. In Rex v. Turner, 1 Moody’s Cr. Cas. 347, it was held that: On an indictment against an accessory, a confession by the principal is not admissible in evidence to prove the guilt of the principal.” In Ogden v. State, 12 Wis. 532, it was held that: “ To sustain an indictment against a person charged as an accessory before the fact to the commission of the felony, it is necessary for the state to establish the guilt of the principal felon, as well as that the defendant was an accessory ; and confessions of the principal that he committed the crime, are not admissible as evidence of his guilt, upon the trial of the accessory ; such confessions being, as- to the latter, only hearsay.” It was held in Sharpe v. State, 29 Ohio St. 263, that: “ On the trial of a person indicted under the 36th section of the crimes act (S. & S. 266) for procuring another to commit an offense, it is not competent to prove the declarations of the principal offender, made after the completion of. the offense, for the purpose of showing the guilt of the procurer.”

Greenleaf, in his work on evidence, vol. 1, § 232, concludes a discussion of this question with this proposition: “ In fine, the declarations of a conspirator or accomplice are receivable against his fellows only when they are either in themselves acts, or accompany and explain acts, for which the others are responsible; but not when they are in the nature of narratives, descriptions, or subsequent confessions.”

The principles declared above are supported by the following authorites: Fouts v. State, 7 Ohio St. 471; Rufer v. State, 25 Ohio St. 472-476; State v. Newton, 4 Harrington (Del.) 567; Patton v. State, 6 Ohio St. 468; Priest v. State, 10 Neb. 393; Gove v. State, 58 Ala. 391; State v. Thibeau, 30 Vt. 100. The case of State v. Rand, 33 N. H. 216, relied upon by the state, is not in conflict with these cases.

The statements of Stewart, so far as they justify the inference that the prisoner had been proposing or making some “ good arrangement ” with him concerning his testifying, were at best but the narration of something in the past, and are not within any of the exceptions to the rule which excludes mere hearsay testimony.

The concluding observation of Grosvenor to Stewart: I had a dispatch from Mr. Yohres ; Dilcher was trying to raise two hundred dollars on his check, and that is the reason I said what I did to you,” was not responded to by Stewart; it was not an accusation against Stewart; it was nothing that called for a response from him ; it was at best something Grosvenor had heard; it affected Dilcher alone, and that to his prejudice, and was too palpably inadmissible to justify serious discussion. These statements, being not only inadmissible, but plainly prejudicial to the prisoner,'should have been excluded, and in permitting them to go to the jury there was error, for which the judgment will be reversed.

We find no other errors in the record to the prejudice of the plaintiff in error.

Judgment reversed.


text:
    Smith v. Harrison.
    1. The lessee of a perpetual leasehold estate is liable, upon an express covenant to pay rent to the lessor, his heirs and assigns during the term, in an action by the assignee of the reversion for accruing rents, whether . such rents accrue before or after an assignment by the lessee of all his interest in the leasehold estate.
    3. Such covenant for rent runs with the land, and an assignee of the reversion may, under our code, sue thereon in his own name.
    3.- The receipt of rents from the assignees of the leasehold estate does not absolve such lessee from liability on his express covenant.
    ERROR to the Superior Court of Cincinnati.
    On December 1, 1846, one John Mears, being the owner in fee simple of certain real estate in the city of Cincinnati, by deed duly.executed, leased the same to Winthrop E. Smith, his heirs and assigns, for the full term of ninety-nine years, thereafter renewable forever.
    In said deed of lease, Smith, for himself, his heirs and assigns, covenanted with said Mears, his heirs and assigns, to pay an annual rent for the premises demised, of $1,200 per year, during the term, payable in monthly installments of one hundred dollars each, on the first day of each and every month during the term. Under this deed, Smith entered into the possession of the premises, and payed rent until July 1, 1863, at which time lié sold and transferred to one Alven Austin, his heirs and assigns forever, said leasehold estate and all his interest therein- — said Austin expressly assuming the payment of all future rents under the lease from Mears, entered into the possession of the premises and paid all accruing rents during his .lifetime. Subsequently, about the year 1875, by sundry proceedings and conveyances, one Lorin N. Smith became the owner in possession of said leasehold estate, pacing rent therefor.
    In the year 1871, by a proceeding in partition between the heirs of John Mears, Mary A. Harrison became the owner of the fee simple estate in said premises, and has, from time to time, collected rents as they matured from said Alven Austin, and his heirs, and from said Lorin N. Smith, owners of said leasehold estate. - . ;
    The installment of rent maturing on -the first of March, 1880, being due and unpaid, payment thereof was demanded by Mary A. Harrison of Winthrop B. Smith, who refused to pay the same; whereupon, the original action was brought, to recover one hundred dollars, the rent due March 1, 1880, with interest from that date, in the superior court of Cincinnati:
    On the trial, judgment was rendered in favor of the plaint* iff, Mary 'A. Harrison, and against Winthrop B. Smith* defendant, for the amount claimed.
    To reverse this judgment, this proceeding in-error is prosecuted.

      McGuffey, Morrill <& Strunk, for plaintiff in error:
    The sole question is, whether, after an unconditional assignment by the lessee of a lease for ninety-nine years, renewable forever, such lessee is liable for future rent to the assignee of the reversion, such assignee having collected rent from such assignee of the lessee and recognized him as tenant.
    In Worthington v. Hewes, 19 Ohio St. 66, the negative of this proposition is clearly held, and also the further proposition is stated, in the second division of the syllabus, “ that after an unconditional assignment by the lessee, he is not liable for future rents,” that is to say, he is not liable even to the original lessor. So far as this ease implies that such assignment defeats an action in such case by the original lessor, it is overruled by the cases of Harmony Lodge v. White, 30 Ohio St. 569, and Taylor v. JDeBus, 31 Ohio St. 468.
    But from an examination of the facts in the two last cases, it 'will clearly appear that they have no necessary application to a ease like this, at bar, where the suit is by the assignee of thp reversion. While, on the other hand, the case cited from 19 Ohio St. was a case by the assignee of the reversion, and the decision stands as the law of Ohio, that such assignee cannot recover.
    But further, in the case of Taylor v. JDeBus, 31 Ohio St. 473, it is said, “it may well be doubted whether in an action by the assignee of the reversion against the lessee, after an assignment of all his interest, a recovery could be had upon his express covenants, there being no privity, either of personal contract or of estate between the parties,” the court citing Crawford v. Charpmcm, 17 Ohio, 449; Sutliff v. Atwood, 15 Ohio St. 186.
    In the first named of these cases, it is directly decided that “the grantee of the reversion cannot maintain an action of covenant in his own name against a lessee upon an express covenant contained in the lease for the payment of rent.”
    Again, in the case cited from 15 Ohio St. 192, it was held that the assignee of the reversion in such a case could not maintain an action, for the “privity of contract was wanting and privity of estate alone would not sustain the action of covenant without the aid of the statute of 32 Henry VIII., which has not been adopted in this state.”
    But it is said that the first of these cases turns upon the fact that at common law such action could not be maintained, and that the statute of Henry VIII. had not been recognized in Ohio, and further that it was held in case of Masury v. Southworth, 9 Ohio St. 340, that our code of civil procedure supplies the place of the statute 32 Henry VIII. in this respect. As regards this we submit, 1st. The case cited from 15 Ohio St. does not recognize any such application 'of the code, although decided since that in 9 Ohio St. 2d. Whatever was said in 9 Ohio St. upon this point was entirely unnecessary for the decision of the case, from the fact that the court based its decision upon the ground that the covenant sought to be enforced ran with the land, moreover the action was against the assignee of tire lease, he being then in possession, and therefore between whom and the assignee of the reversion there was actual privity of estate. 3d. In the case at bar there is no privity of estate between the plaintiff and defendant. This exists only between Mrs. Harrison and the party .in possession. Privity of estate depends upon occupancy. Taylor on L. & T. § 436. 4th. Again, there is no privity of contract between the parties hereto. By reference to the petition for a statement of the terms of the conveyance to this defendant in error, it will be seen that the conveyance did not undertake to transfer to her the demise to this plaintiff. It is simply referred to for the purpose of description, without reference to whether or not it was then in force.

      Stover dc Harrison, for defendant in error:
    We submit that, by the express covenant of' the lease, Smith, the lessee, has attorned in advance to any and every assignee of the reversion. His liability is one arising out of express contract, as well as one implied by law from a privity of estate ; and it may not be necessary to go into the question whether his covenant be one the right to take advantage of which runs with the land, or no. Thursby v. Plant, 1 Wms. Saund. 240; Spencer’s Case (Note) 1, Smith Lead. Cases, 30; Id. American Notes, 143; Easter v. L. M. II. Ii. Co., 14 Ohio St. 51; Harmony Lodge v. White, 30 Ohio St. 569-574. If, however, your honors in this case be of opinion that the question of general importance, whether the right of action pass to the assignee of the reversion, can be raised, and the doubt arising from Worthington v. Hewes, and Tcuylor v. He Bus, can be settled, we submit, that the law of Ohio is now, what the law of Great Britain and the majority of the states of the Union has been for many years. This doubt is clearly stated in the language of the court in Taylor v. He Bus, 31 Ohio St. 493. “ It may well be doubted whether, in an action by the assignee of the reversion against the lessee, after an assignment of all his interest, a recovery could be had upon his express covenant, there being no privity either of personal contract or of estate between the parties.”
    For this doubt the learned judge refers to Crawford v. Chcupmm, 17 Ohio, 449, and Suiliff v. Ahwood, 15 Ohio, St. 186. ’

      The law.of Ohio on this subject is substantially embraced in the following cases, which include all cited by counsel for plaintiff in error : Orawford v. Chapman, 17 Ohio St. 49; Masury v. Southworth, 9 Ohio St. 840; Sutliff v. Atwood, 15 Ohio St.186 ; Worthington v. Hewes, 19 Ohio St. 66; Taylor v. De Bus, 30' Ohio St. 468.
   McIlvaine, J.

That Mary A. Harrison, plaintiff below, had succeeded to the estate of reversion in fee, and was entitled to the rent reserved in the lease by Mears, the lessor of Winthrop B. Smith, is not disputed. The contention of Smith is, that, having parted with all his interest as lessee of Mears by transfer and assignment to Austin, from whom and those claiming under him, the lessor aud those claiming under him, had received the rents, that no further liability rests on him as lessee to pay rent, and especially to an assignee of the reversion between whom and himself there exists no privity either of contract or estate.

The covenant of Smith, as lessee, was to pay rent to Mears his lessor, his heirs and assigns during the term. The liability sought to be enforced against him is within the very letter of the covenant. The relation of Mary A. Harrison to the leasehold estate is that of assignee of the reversion, and as such she is entitled to the rent. True, the covenant of Smith to pay rent was not made with her, but being the party in interest, her right to sue for the rent in her own name is secured by section 4993 of Revised Statutes, which provides, “an action must be prosecuted in the name of the real party in interest.” This would secpre her right of action, had she become the assignee of rent past due ; but her right to the rent arises from her ownership of the reversion. The covenant for rent by the lessor came to her by succession to the lessor’s estate. It was a covenant that' passed with the land, and although not made with her, it was made for her benefit. Hence, her right of action on the covenant, under our code, though the statute of 32 Henry Till, be not in force in this State: See Crawford v. Chapman, 17 Ohio, 449; Masury v. Southworth, 9 Ohio St. 340.

A perpetual leasehold estate is not a fee simple, although, by our statutes, it has many incidents of a fee simple estate Taylor v. De Bus, 31 Ohio St. 468. Tire fee simple remains in the lessor, his heirs and assigns. The principal value of which is the right to the rents reserved by the lease. And the right to sue for and recover rents follows the fee simple estate, and the action therefor must be in the name of the owner of .the fee at the time the rent accrues.

As to the fact that the plaintiff below, as well as her predecessors in interest, had received rent from the owners of the leasehold, after the defendant had assigned and transferred all his interest therein, it will be sufficient to refer to Sutliff v. Atwood, 15 Ohio St. 186, where it is said, “ The liability of the lessee arising from his express contract, is so permanently fixed during the whole term, that no act of his own can absolve him from the lessor’s demands in respect to it.” That was an action by the lessor against the lessee; but the principle applies in any case upon the lessee’s covenant, where the plaintiff is entitled to the rent secured by the covenant.

It was also decided in that case, that an assignment by the lessee, with the lessor’s concurrence and his subsequent receipt of rent from the assignee, will be ineffectual to discharge the lessee from his liability. “ The lessor, when there is an express agreement of the lessee, may sue at his election, either the lessee or the assignee, or may pursue his remedy against both, at the same time, though of course with but one satisfaction.” The foundation of the action by the assignee of the reversion against the assignee of the leasehold, is the privity of estate between them. The principle is that the latter shall not enjoy the former’s property without the payment of rent. The action against the lessee is upon his express covenant to pay rent during the term, which, as we have above said, runs with the land and vests in the assignee of the reversion the right to receive the rents accruing during his ownership of the fee.

Judgment affirmed.


text:
    Inwood v. The State.
    A statute, which authorizes a penalty by fine only, upon a summary conviction under a police regulation or of an immoral practice prohibited by law, although imprisonment, as a means of enforcing the payment of the fine is authorized, is not in conflict with either section 5 or 10 of article 1 of the constitution, on the ground that no provision is made for a trial by jury in such cases.
    Error to the District Court of Yan Wert county.
    The case is sufficiently stated in the opinion of the court.
    The cases of Ohio v. Frysinger, error to the district court of Yan Wert county, and Curtis v. State of Ohio, error to district court of Erie county, were argued and decided with the principal case.

      Ban c& Alexander, for In wood.

      J. L. Price and J. R. Shissler, for the state.

      J. L. Bigelow, for Curtis in Curtis v. State.

      F. B. Saddler, for the state.
   McIlvaine, J.

Are those statutes which define and punish by fine, certain immoral practices, and offenses, malaprohibita, in a summary manner and without trial by jury, in conflict with the constitution of the state ? There are scores of such offenses upon the statute book, and many of them 'have remained there unchallenged since the organization of the state government. The validity of all such statutes is within our present decision.

The plaintiff in error, Herbert Inwood, was arrested and fined, under section 3 of the act of February 17, 1831,,“for the prevention of certain immoral practices ” (Swan and Critch-field, 447), which provides, “that if any person or persons shall, at any time, interrupt or molest any religious society, &c., the person or persons so offending shall be fined in any sum not exceeding twenty dollars. And any judge of the court of common pleas, or justice of the peace within the proper county, be and they are hereby empowered, authorized and required to proceed against and punish every person offending against the provisions of this act; and upon view and hearing may, or on information given under oath or affirmation, shall, if need be, issue his warrant to bring the body of the accused before him, and shall inquire into the' truth of the accusation ; and if guilty shall enforce the penalty of this act annexed to the ofíense; and said offender (if the judge or justice should think necessary) may be detained in custody and committed until sentence be performed.” The arrest wTas made under a warrant issued by a judge of the court of common pleas, and upon- the hearing the accused demanded a trial by jury, which was refused on the ground that the offense was not, under the statute, triable by a jury, whereupon the accused was found guilty by the judge, and fined in the sum of fifteen dollars, and ordered to stand committed until the fine be paid. This judgment is now sought to be reversed, on the ground, that the statute under which the fine was imposed, is unconstitutional, for the reason that it did not provide for a jury trial. .

The provisions of the constitution relied on as nullifying the statute are sections 5 and 10 of article 1. The former provides, “The right of trial by jury shall be inviolate.” It is settled beyond further discussion, that this clause in the constitution was not intended to enlarge or modify the right of trial by jury. Its sole purpose was to guaranty the perpetuity of the institution, as it then existed and as it had long existed at-common law. Work v. State, 2 Ohio St. 296.

The question therefore arises: At the time of the adoption of the constitution in 1851, did the right of trial by jury exist in cases like the present in the state of Ohio, either under its own system of jurisprudence, or by the rules of the common law. The constitution of 1802 contained the identical provision now under consideration, and yet, in Markle v. Akron, 14 Ohio, 14, this court held an ordnance to prohibit, under a money penalty, persons not tavern keepers, from selling intoxicating liquors within the corporate limits to be constitutional, notwithstanding the mayor, without the intervention'of a jury, was authorized to try the case and impose the penalty. The case was appealed to the common pleas, where a declaration in debt was filed, and upon recovery, the cause was reviewed, in error, by this court, where the judgment was affirmed. In the opinion it is said: “It appears to have been urged against a recovery in the court below, that the ordinance under which the plaintiff in error was arrested contemplated a criminal prosecution, and that debt was not the proper remedy. It is true, for offenses strictly criminal or infamous, punishment can only be inflicted through the medium of an indictment or presentment of the grand jury. There are however many offenses made so by statute which are but quasi criminal, and, in which the legislature may direct the mode of redress untrammelled by the constitution; such as sabbath breaking, selling spirituous liquors bn Sunday, and the disturbance of religious meetings. Long acquiescence in these enactments go far to show the construction which has been placed by all on the constitution, and that there may be many offenses which, though decidedly immoral and mischievous in their tendencies, are not crimes, but at most are only quasi criminal. Of such jurisdiction may be given to justices of the peace or the mayor of an incorporated town.” Wightman v. State, 10 Ohio, 452, is to the same effect. These cases clearly show, that at common law, the right to demand a trial by jury in such cases does-not exist, and, also, that the common law rule was not changed by the constitutional provision under consideration. The doctrine of the common law, that fines for such minor offenses could be imposed and collected, without the intervention of a jury, and by magistrates who had no jurisdiction in the trial of jury cases, is abundantly established by many cases and text writers. Indeed, the doctrine is nowhere denied. 3 Blackst. Comm. 161; Swan’s Treatise, Ed. of 1871, p. 678; Sedgwick’s, 491, and note; 3 Park. Cr. 544; 1 Curtis C. C. 311; 45 Ill. 218; 31 Conn. 572; 50 N. Y. 274; 6 Lans. 44; 12 Ohio St. 124; 1 Head(Tenn.) 71; 1 Williams (Vt.) 318, 325.

A more difficult question arises on section 10, above referred to. This section reads : “ Except in cases of impeachment, and cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, and in cases of petit larcency and other inferior offenses, no person shall be held to answer for a capital or other infamous crime, unless on presentment or indictment of a grand jury. In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him and to have a copy thereof; to meet the witness face to face and to have compulsory process to procure the attendance of witnesses in his behalf ; and to have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” The question is : "Was the phrase “ in any trial, in any court ” intended to apply to cases like the present, where the penalty is by fine, merely, inflicted on the violator 'of a mere police regulation, only quasi criminal? A class of cases for llie punishment of immoral and pernicious practices by pecuniary penalties, but in which, by the common law, as above shown the accused was never entitled to demand a trial by jury. The provision of the constitution is, that the person accused shall have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. Accused of an offense — to wit; such an offense as woirld, before the adoption of the constitution, have entitled the accused to a jury trial. This provision, in our opinion, was not intended to extend the right of jury trial, but was intended to define the characteristics of the jury.

In Thomas v. Ashland, 12 Ohio St. 124, it was held, that an ordinance of a village which imposed imprisonment as a penalty for an offense, where no provision was made for a trial by jury, was in conflict with section 10 of the 1st article of the constitution above quoted; but the court was careful to exclude from the operation of the rule there laid down, cases where the punishment was by fine only, although imprisonment was authorized as a means of enforcing the payment of the fine. We think the discrimination between imprisonment as part of the penalty, and as a means of enforcing the penalty, is well made. Hence, we find no constitutional objection to the statute under which Inwood was arrested.

Judgment affirmed.


author: Johnson, C. J.

text:
    Cahoon v. Kinen.
    1.' Tenants in common of real estate may contract with eacn other for the exclusive right to the use and occupancy of the same. Those acquiring such right by renting from others are liable to an action for the rent due upon such contract.

      2. The right to maintain such an action grows out of .the contract relations of the parties and not by reason of their relations as tenants in common, or of the provisions of section 5774 of the Revised Statutes.
    3. When several tenants in common unite in renting the property held in common to others, they may join in an action to recover the rent due to them.
    4. Married women, who are tenants in common, owning their shares as separate property, may unite with persons sui juris in renting, to their co-tenants, and may, without joining their husbands unite in an action to recover the rent due.
    5. Unless the husbands have an interest in the rents due from real estate of their wives, they are not necessary parties to an action to recover the same.
    ERROR to the District Court of Hamilton county.
    The plaintiffs here, were plaintiffs below, to wit: Lewis A. Cahoon, Matilda Gr. Williams and Laura R. Challen ; and for their cause of action the plaintiffs say the defendant, prior to January 1, 1881, rented from them certain premises on the southwest corner of Water and Smith streets,.in the city of Cinciniiati, Ohio, and paid rent to the plaintiffs at the rate of $1,000 per annum, payable in installments of $250 per quarter year ; that on April 1,1881, there became and was due from the defendant to the plaintiffs, the sum of $250, the installment of rent due on that date, and although' often demanded, the defendant refused and still does refuse to pay the same, and the same remains due and wholly unpaid, wherefore plaintiffs pray judgment against said defendant, Solomon P. Kinen, for said sum of $250, with interest thereon from April 1, 1881, together with their costs, and such other aud further relief as in law and- equity they may be entitled to.
    A motion to strike out, and to make more definite, was granted, and thereupon the following amended petition was filed.
    “ Plaintiffs say that prior to January 1, 1881, the defendant rented from them certain premises on the southwest corner of Smith and Water Streets, in the city of Cincinnati, Ohio, being about 362 feet on the south side of Water street, extended westwardly, and moving back wider in the rear than in the front about 400 feet to the Ohio river at low water mark, for an indefinite time at the rate of $1,000 per annum in quarterly installments of $250, and that defendant continued to rent said premises down to and including the 31st day of March, and has not paid rent for the quarter beginning January 1st, aud ending March 31, 1881.
    That said sum of $250 was duly demanded, and was the reasonable and usual rental value of said premises and the whole amount of $250 with interest thereon from March 31st, to April 1, 1881, is due and unpaid, wherefore plaintiffs pray, judgment against defendant for $250 with interest thereon from April 1, 1881, for costs and all other relief.”
    The defendant answered:
    “ 1. And now comes the defendant and for answer to the petition of the plaintiffs herein, as amended by order of court, and for his first defense hereto says, he admits that he has paid no rent to the plaintiffs, and denies each and every other allegation therein contained.

      “ 2. Por a second defense, said defendant says, that said Matilda Gr. Williams, and Laura A. Challen are married women, wherefore he prays the judgment of the court that this action be dismissed for defect of parties plaintiffs.
    “ 3. Por a third defense, said defendant says, that Lewis A. Cahoon is the owner of only an undivided one-twelfth part of so much of the premises described in the petition as this defendant occupies, that said Matilda G. Williams and E. Oort Williams, her husband, are owners in the right of said Matilda. G. Williams of only an undivided one-twelfth part of said premises, and that said Laura A. Challen and James K. Challen her husband, in the right of said Laura A. Challen are the owners of only one undivided one-twelfth part of said premises, wherefore he prays that this action be dismissed for misjoinder of parties plaintiffs.
    “ 4. Eor fourth defense, said defendant says,, that the plaintiffs, together with said E. Cort Williams and James K. Challen, being the owners of three undivided one-twelfth parts of said premises as stated in the third defense herein, to which reference is made as part hereof to avoid repetition, the defendant has been and is a tenant in common with them of said premises by leases from the owners of the remaining three-quarters parts of said premises for a term beginning on the first day of January, 1881, and continuing for five years thereafter, therefore the defendant is not liable to said plaintiffs in this action.
    “And having fully answered, he prays to be hence- dismissed with his costs, etc.”
    The plaintiff demurred to the second third and fourth answers, and the defendant moved for judgment on the pleadings.
    The court overruled said demurrers and toot the case under advisement on defendant’s motion, with leave to plaintiff to apply for permission to file an amended petition.
    The case again came on for hearing on motion to file a second amended petition setting up an agreement of defendant with plaintiffs to pay them the said sum of $250 for one quarter’s rent, which was overruled, and the motion for judgment for defendant on the pleadings was granted.
    This judgment was affirmed by the district court.

      D. Thew Wright, for plaintiff in error :
    1. Whatever difficulties may have existed at common law as to whether one tenant in common could sue another for use and occupation it was discovered, in progress of time, that when one man, occupies the premises of another as a tenant, he ought to be made to pay rent. Neither was it very particular, whether there was an express, or any other demise, or any particular terms, if he actually used the property, he ought to pay what it was reasonably worth. Hence, to relieve some of the technical difficulties, the chief use of which is to impede the course of justice, our statue was passed. R. S. 5774, cited in Gonard v. Gonard, 38 Ohio St. 467. By this statute, one tenant may recover of another the share of the rents which that other has received; and the decisions show that this statute covers the case when one occupies tiro whole himself. This statute adopted in many of the states is from 4th and 5th Anne, § 27; Freeman on Cot. § 270. The courts of other states hold that it applies to such a case as this. Freeman on Cotenancy and Partition, §. 276 ; Thompson v. Bostwick, 1 McMullan Eq. 75, and cases cited,note 3d, to section.276, Freeman ; Fdrly y. Friend, 16 Gratt. 47-51; Rxiffner v. Lewis, 7 Leigh, 720 ; Graham v. Pierce, 19 Gratt. 38 ; Hayden v. Merrill, 44 Yt. 348; ¡Shielsv. Stark, 14 Geo. 435 ; Eppes v. Pole, 4 Hen. & M. 171; 1 Chit. Cont. (11 Am. Ed.) 511, note 1.
    2. The record shows that the premises are the “ property ” of the wives ; being so, they are tire “ separate ” property, as there is no distinction now in Ohio, between general and separate property; it is all “ separate.” Rev. St. 3108-3109 ; Glidden v. Taylor, 16 Ohio St. 509, 518; Levi v. Earl, 30 Ohio St. 147; Hershiser V. Florence, 10 Cin. L. Bull. 402.
    3. The plaintiffs were properly joined in the action. Pome-roy Legal Remedies, 259, § 219; Freeman on Cotenancy, § 346; BÍiss Code PI. § 67; Marshall v. Moseley, 21 N. Y. 280; Gruger v. McLaury, 41 N. Y. 223; Loomis v. Brown, 16 Barb. 325 ; Liutledge v. Corbin, 10 Ohio St. 478, 484 ; Alexander v. Jacoby, 23 Ohio St. 358.
    4. Even if the two married women were not proper parties the case should not have been dismissed as to Lewis A. Cahoon. Pomeroy Legal Remedies, § 209 ; Ackley v. Tarbox, 31 N. Y. 564. So our Code, § 5311, provides that judgment may be given for or against one or more plaintiffs. Lampkin v. Chisom, 10 Ohio St. 450 ; Hempy v. Hansom, 33 Ohio St. 316 ; Roby v. Rainsberger, 27 Ohio St. 678 ; Humphries v. Huffman, 33 Ohio St. 399.

      Wulsin c& Perkins, for defendant in error :
    1. During coverture the wife has no interest in, or right to the rents and profits. In this case the husband had a freehold during coverture, had the right to possession and to all rents and profits with a contingent estate by the curtesy ; the wife had the remainder, and the two together, in the right of the wife, were owners of the land, llershiser v. Florence, 39 Ohio St. 516; Leggett v. McClelland, 39 Ohio St. 624. Neither Mrs. Challen nor Mrs. Williams had any cause of action at all, — the sole right to the rents being in their husbands. Cla/rk v. Clark, 20 Ohio St. 123.
    2. The general rule is, and always has been, that a married woman may not sue or be sued alone at law. Section 4996 of the Revised Statutes provides that her husband must join with her unless the action concerns her separate estate. This changes the rule as to a next friend — substituting the husband —and as an exception provides the cases where she may sue or be. sued alone. This creates no new liability; no new cause of action for, or against, the married woman; it is merely a rule of procedure. Allison v. Porter, 29 Ohio St. 136.
    Where there is a general rule with an exception, one wishing to bring himself within the exception must plead affirmatively the facts bringing him within it. Hence, if one wishes to sue a married women alone under this section, he must plead affirmatively facts sufficient to show a charge on her separate estate. Jenz v. Gugel, 26 Ohio St. 527 ; Broome v. Taylor, 76 N. T- 564. While it may be said that all property is now separate property, yet the Revised Statutes were enacted long after this act of 1861, and it must be admitted that the legislature meant something when it provided the husband must join except in certain cases. The Revised Statutes, § 3108, provide that a separate estate shall be under the control of the woman ; and by reading § 4996, as it must be read to give' it any meaning, and as undoubtedly it was intended to be read, the words “ separate property,” mean such property, and such only as is under the sole management and control of the woman, separate property within Leggett's Admlr v. McClelland, and not such as is separate property within the decision of Hershiser v. Florence, but not under her control. Hoop v. Plummer, 14 Ohio St. 448. If the husbands be necessary parties they could not amend by joining them. Ciarle, v. Ciarle, 20 Ohio St. 128.
    Moreover, we have alleged by our third defense that husband and wife owned in the right of the wife.
    At common law, this defense is a plea of joint seisin in the right of the wife. PoVyblank v. Hawkins, 1 Dough 329 ; Took v. Glascock, 1 Wins. Saunders, 253, note 4; 1 Wash-burn Real Prop. *276.
    There was a misjoinder of parties. We aver that severally a one-twelfth of the premises is owned by each of three different parties. A misjoinder of parties plaintiff is a ground of demurrer (section 5062); and if it does not appear by the petition may be set up by answer (section 5064); and be used as a demurrer against all the plaintiffs. South Fork, etc. Canal Co. v. Snow, 49 Cal. 155 ; Masters v. Freeman, 17 Ohio St. 323. Proof of several causes of action in favor of several plaintiffs is a failure of proof in a joint action. Bartges v. O'Heil, 13 Ohio St. 72 ; Schaeffer v. Marienthal, 17 Ohio St. 183 ; Lipperd v. Hdwards, 39 Ind. 165 ; Estabrook v. Messer-smith, 18 Wis. 545.
    4. An action for use and occupation will not lie by one tenant in common against his co-tenant. This petition is not on contract but for use and occupation.
    Ordinarily such an action will not lie unless there is a contract express or implied. Cincinnati v. Walls, 1 Ohio St. 222 ; but where land is occupied by a stranger to the title, the law will imply a contract to pay the fair rental value unless such holding is adverse.
    In the case of the occupancy by one tenant in common, no such contract can be implied for he has the right to occupy, and by exercising Ins right he does not render himself liable. Wilcox v. Wilcox, 48 Barb. 329-30 ; Boseboom v.' Boseboom, 15 Hun, 317. The lessee of one tenant in eommom is not liable to the other tenants in an action for use and occupation. In such case the lessee holds as a tenant in common. Badger v. Holmes, 6 Gray, 118. To same effect see Beynolds v. Wil-meth, 45 Iowa, 693 ; Kean v. Connelly, 25 Minn. 222; Peclc, v. Carpenter, 7 Gray, 283 ; Barrell v. Barrell, 25 N. J. Eq. 173; Israel, v. Israel, 30 Md. 120 ; Henderson v. Eason, 17 A. & E. N. S. 701.
   Johnson, C. J.

The action below was a joint action in favor of Lewis A. Oalioon, Matilda G. 'Williams and Laura R. Challen to recover three months’ rent from January 1, 1881, for premises rented from them by defendant at the rate of $1,000 per year payable in quarterly installments.

I. The second answer to which the plaintiff demurred, is that Matilda G. Williams and Laura R. Challen, are married women. This is no defense. Married women may sue in their own name, or jointly with others, where the action concerns their separate property. In such case it is not necessary their husbands . should join. Rev. Stat. §§ 4996, 5005. The fact that they are married women does not prevent them from joining with their co-plaintiff in renting the premises to defendant, nor joining with him in an action upon such contract to recover the rent due. In case of a joint demise, all are proper parties to an action to recover rent due thereon.

II. The third defense is, that Cahoon is the owner of an undivided twelfth part of said premises ; that Matilda G. Williams and E. Cort Williams, her husband, are owners, in right of the wife, of an undivided twelfth, and that Laura R. Challen and James R. Challen her husband, in right of said Laura B. Challen, are the owners of an undivided twelfth. Wherefore he prays judgment.

This, upon demurrer thereto raised the question, whether the husbands are necessary parties to the action. The argument is, that inasmuch as it is averred that the husbands and their wives are owners in righhof the wives, this is equivalent to an averment, that this was the general property of the wives prior to the married woman’s act of 1861, which the demurrer admits, and therefore, the husbands had a joint interest with their wives as plaintiffs. The argument proves two much, for if this was the general estate of the wives acquired "before the act of 1861, then all the rents and profits at common law vested in the husbands subject only to the limitations contained in the act of 1847, so that the averment that the husband and wife are jointly the owners, would give the husbands the sole right to the rents, if the property were the general estate of the wife, prior to the act of 1861.

Under the act of 1861, the general estate of the wife becomes the separate property of the wife, and she may make contracts of writing in her own name. Had defendant sought to aver such a property in the husband as gave a right of action in his favor for these rents, the allegation to that effect should be specific, and not be left as it is, to be inferred from the statement that he and his wife are owners in right of the wife, a legal conclusion that in no event can give a joint action for the rent; for if this was the general property of the wife, prior to the act of 1861, then she was not entitled to these rents jointly with her husband, but he alone should sue for them. If it was acquired since 1861, it was the separate property of the wife, and she alone should sue. The averment that it is the joint property of husband and wife, in her right, is not inconsistent with her right to the rents and profits, in her sole right to rent the same as her separate property.

The fourth defense is the same as the third as to ownership, and an averment that plaintiffs and the two husbands are the owners of three undivided twelfths of the premises, while defendant as a lessee from other tenants in common is the owner of the remaining nine-twelfths thereof, and that he and they are therefore tenants in common. Hence, it is claimed that no right of action exists in favor of plaintiffs against him.

This is founded upon the claim, that one tenant in common cannot sue another for use and occupation.

Without considering this question, or determining the scope and effect of section 5774, of Revised Statutes ; we hold that the case made by the petition, the 4th answer and the demurrer thereto, does not present this question.

This is not a suit for use and occupation growing out of their relations as tenants in common,. The allegation is, “ that prior to January 1, 1881, the. defendants rented from them, <&c. . . at the rate of $1,000 per annum in quarterly installments of $250, and that defendants continued to rent said premises down to and including March 81, 1881.”

The journal entry shows, that counsel for plaintiffs stated to the court that their action was for “use and occupation.”

This was true in a general sense, but not in a legal sense, and did not warrant the court in disregarding the pleadings. These pleadings show that though these parties were tenants in common, yet the relation of landlord and tenant existed.

Whenever this is the case an action in the nature of assump-sit will lie. If there is a contract of renting, between tenants in common that relation exists, and an action on that contract will lie, notwithstanding they are tenants in common.

We understand counsel for defendant in error to admit this proposition. It is abundantly sustained by authority and is decisive of this case.

The demurrer to the fourth defense should, therefore, have been sustained. Freeman on Cotenancy, §§ 268, 269; Kean v. Connelly, 25 Minn. 222; Eppes Ex'r v. Cole, 4 Henn. & Munf. 161; Overton v. Ogle, 13 East, 538; Bond v. Willis, Bushn. (N. C.) 308; Cowper v. Fletcher, 118 E. C. L. 462; Snelgar v. Henston, Cro. Jac. 611; Luther v. Arnold, 8 Rich. 24.

In our construction of the pleadings the provisions of Rev. Stat. § 5774, are not involved.

Judgment reversed.