text:
    William Waters v. Hugh Lemon and others.
    When plaintiff appellant to Supreme Court recovers no more than was recovered in common pleas, there must be two judgments — one for plaintiff for amount to he recovered, the other for defendant for costs on the appeal.
    This was an action of debt, upon an appeal bond, given in a case where the complainant in chancery appealed from, a decree dissolving an injunction. The court of common pleas of Brown county gave judgment for the amount of the penalty, the plaintiff to have execution for ten dollars and sixty-eight cents, the damages found by the court, and the costs. From this judgment the plaintiff appealed to the Supreme Court, and the case was reserved for decision here. In the case originally appealed, and in which the bond was given, the Supreme Court pronounced no other decree than that the appellant should pay the costs, which amounted to the sum for which the court of common pleas ordered execution to issue. This court decided in the present case as the court of common pleas had decided, so that the appellant did not recover a greater sum here than in the common pleas. The question was as to the judgment to be entered; and the court decided that, under the statute, there must be two judgments, one that the plaintiff recover of the defendant the amount of debt and costs adjudged to him in the common pleas, the other that the defendant recover of the plaintiff the costs upon the appeal, to be taxed in the Supreme Court, and two judgments were entered accordingly.
    Collins and Brush, for the appellees.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    *Jacob Burnet v. The Corporation of Cincinnati.
    Equity may interpose by injunction to stay sale for taxes on city lots, assessed by tbe city council of Cincinnati.
    This ease was adjourned for decision here by the Supreme Court sitting in Hamilton county. It was a bill in chancery for an injunction to enjoin the sale by the marshal of the city of certain real estate, owned and possessed by the complainant, for a city assessment of a tax to improve the streets.
    The bill set out the title and possession of the complainant, and the nature and character of the assessment made by the city council, alleging that it had not been made in accordance with the charter and ordinances, but was illegal”and void, and prayed an injunction to stay the sale until the matters should be heard and adjudged of in equity. The injunction was allowed in the common pleas. The defendants demurred to the bill, which was dismissed pro forma, and brought to the Supreme Court by the -complainant on "appeal.
    Storer, in support of the demurrer:
    "VVe contend, first, that there is no matter of equity set forth in the bill which would authorize a court of chancery to take jurisdiction of the case.
    There certainly is no claim of title set up by the defendants; or any other person, adverse to the complainant’s right, which a-court of chancery can legally settle. -
    It is not necessary that a court of chancery should interfere t'o quiet contradictory titles, nor prevent a multiplication of suits: The complainant’s title is not questioned, neither does the matter in dispute involve any difficulties that could not be decided finally at law.
    The complainant’s possession is not disturbed, nor threatened to be disturbed. No act of trespass has been committed by defendants or their agents, or even threatened; and there is no irremediable injury anticipated to the- premises by the advertisement in the newspaper.

      The cases where the British chancellor has sustained jurisdiction, may be included in the classes already referred to.
    1. There must be an outstanding- adverse right, which several trials at law have proved inadequate to quiet.
    -2. *That the injury doing, or about to be done, can not be-repaired in damages; in other words, that the courts of law can not afford adequate relief for the acts complained of.
    It is not believed that section 9 of the chancery act changes the established rules of equity in the subject now under consideration.
    , 1. Because the claim referred to in that section as being set up must be an existing one, that extends to the exclusive or partial control of the estate; one that it is “in the power of some particular person to regulate as he may think fit; in fine, a claim that is the actual property of the person asserting it.”
    2. Because the section authorizes the court, if they decree for the complainant, to compel the defendant to release his right to-the property.
    3. Because the defendant is at liberty to disclaim; and it can not be contended there can be a disclaimer, unless there is some supposed right to be disclaimed.
    The extent of the incumbrance that could attach upon the property of complainant would be a tax due. No possession could be obtained unless by ejectment, and the legality of all the proceedings would bo open for discussion on such trial.
    If a court of chancery, in the first instance, could take cognizance of the legality of all assessments and levies; if, by an injunction, the hands of the collector, the auditor, or other officers, could be arrested, merely because there was some illegality in the-original tax list, I admit a great deal of trouble might be saved to the courts of law, but a very little revenue would accrue to the state. A deluge of suits would literally overwhelm the chancery docket, and every established principle of equity swept away in. the experiment.
    But there is a plain and adequate remedy at law for the complainant.
    By the act incorporating the city of Cincinnati, a council is. directed to be appointed, who are known by the name of the-president, recorder, and trustees. They have the whole legislative power of the corporation; they are authorized to pass ordinances,, assess taxes, make public improvements, etc. It is contended, then, that their acts can not be reviewed by a court of chaneery. Like all other inferior jurisdictions, their proceedings maybe examined on certiorari, and, if irregular or illegal, they may on that process be reversed.
    In Fitz. H. N. B. 247, it is said a writ of certiorari lies to the commissioners of the sewers, and the same remark is found in 1 Salk. 145, Anonymous; Commissioners of Sewers for Yorkshire, Str. 509.
    In Groenwelt v. Burwell, 1 Salk. 147, certiorari lies on a judgment given by the censors of a college, for'malpractice.
    It lies to “all inferior jurisdictions. Cross v. Smith et al., 1 Salk. 147. So to a jurisdiction created by.a private act of Parliament.” And to remove proceedings before commissioners of bankrupts. Ld. Raym. 580. See also divers other cases cited. 1 Salk. 148, 149.
    In Lawton v. Commissioners of Cambridge, 2 Caine, 181, Spencer, Judge, says, “It is a position beyond contradiction, that this court may award a certiorari, not only to inferior courts, but to persons invested by the legislature, with power to decide on the property or rights of the citizen, even in cases where they are authorized by law finally to hear and determine.
    And again, “the regularity of the proceedings is questioned, and most certainly the court can not waste jurisdiction, to inquire into it, when the freeholder shall apply to them, not to. be disturbed in his freehold but by proceedings conformable to law. 2 Caine, 182.
    The same point is decided in Wildy v. Washburn, 16 Johns. 50.
    In Leroy v. The Mayor, Aldermen, and Commonalty of the City of New York, the question as to the power of the Supreme Court to grant a certiorari, and the persons to whom it could be directed, was fully discussed. The same principle, now contended for by the defendants, was fully recognized, 20 Johns. 438, opinion of the court by Judge Woodworth.
    In the case referred to, the power of the corporation to make the assessment on the property; the manner of the assessment, in fact, a case precisely similar to the present, was considered by the court. And it is not a little singular, too, that the history of the case quoted, establishes the first point *taken by the defendants, that chancery will not take jurisdiction in such matters, as it is found that Kent, Chancellor, refused an injunction in the first instance. Vide same case, 4 Johns. Ch. 352. See also Mooers v. Smedley, 6 Johns. Ch. 30.
    In Rhulman and others v. Respublica in error, 5 Binney, 26, 27, the Supreme Court of Pennsylvania decide that a certiorari is the proper remedy in cases similarly circumstanced.
    T. Worthington and N. Wright, for complainant:
    1. The defendants insist that there is no right shown in the bill, to be relieved in equity.
    It is not necessary so examine, whether the common principles of equity, as recognized in England, would be sufficient to sustain this bill; although, on such examinations, it appears to us, the answer must clearly be in the affirmative; not particularly with reference to cases of application to stay waste trespasses, or repeated ejectment; but with reference to cases to prevent a sale of land, under a claim of authority or right; such as cases to stay sale, under a power in a mortgage, deed oí trust, will, etc. And in such cases, it has never been inquired, whether the title to be made by virtue of the sale will, or will not be indisputable. It sounds ill in the mouth of him, who attempts to sell another’s land, under color of law, to say that his sale will be a nullity. The right to sell, is the subject of inquiry, and the inquiry can be made only by application to chancery to prevent the sale.
    But the jurisdiction is clear, under our statute: “Any person having both the legal title to, and possession of lands, may institute a suit against any other person setting up a claim thereto." 22 Ohio L. 77.
    In this statute, the evil to be remedied, is this: So long as a man remains in possession, the common law gives no remedy against the person who claims his property. That claim may hang over him all his lifetime, clouding his title, and preventing a sale, or other proper enjoyment of his estate, if the claimant choose to lie by, and not bring his ejectment. This may be a ruinous injury to the true owner, and the statute provides the remedy.
    The evil is the same, whether the claimant asserts a legal or equitable right; or a mere power to sell; and these cases * would all be equally provided for, if the words of the statute include them. The words are, “ any person setting up a claim thereto.” It does not require argument to show that a person who claims a right to sell another’s land for his own use, or his own purposes, “ sets up a claim to it.”
    2. The next objection is, that there is remedy at law, by certiorari.

    To this we reply, that the order of the city council, for levying a tax, is a legislative act, and of course not subject to revision in a judicial tribunal.
    The provision of the amendment to the charter of the city, under which the council acted, is this:
    “ The city council shall be authorized to lay and collect a tax from the real estate of any square or section of the city, on the petition of not less than two-thirds of the owners thereof, for the improvement of the streets, lanes, and alleys, bounding or within the same, and for no other purpose whatsoever.” 17 Ohio L. 179, sec. 15.
    This clause authorizes the city council to order a tax, to be levied when a certain state of facts shall occur. Such an order would be a legislative act. A judicial act is a decision on the law as it stands, pronouncing what the law is; a legislative act is theintroduetion of a new rule of action. In the present case, no adjudication on the clause in the charter and the requisite petition, could result in the levying of a tax. It might be judicially decided that the petition was sufficient, and that a tax might legally be raised, but this would be nugatory until the tax was ordered by the city council. The order is entirely discretionary with the council, when once the state of fact arises which gives them authority to pass it; and it bears the same relation to the charter as a statute of the state does to a clause of the constitution, in pursuance of which it is enacted. Though the constitution should give the legislature special power to levy a tax in a special case, it would not be pretended that such tax could actually be raised without a statute on the subject. Most corporations are vested with some legislative powers, and they act within this sphere on similar principles.
    If this be a legislative act, it is clear a judicial tribunal can not review it.
    *They may inquire into it collaterally, and decide whether it be within the power given, or consistent with paramount laws; but to examine it on certiorari, with a view to reverse or affirm it, would be a wild anomaly.

      The cases referred to by defendants’ counsel all recognize this distinction. They are cases in which special powers are given to particular persons, to hear, examine, and decide; they are all cases of judicial acts, and so treated by the courts that received them on certiorari.

    In Lawton v. The Commissioners of Highways, 2 Caine, 182 (a case where the common pleas had express jurisdiction to review ■on appeal), the court rest their jurisdiction to grant a certiorari, on the ground that the commissioners “ were vested with power to decide on the rights .and property of the citizen.” The court say: “In cases, too, depending wholly on the discretion of persons authorized to do an act, the court hath refused to interfere; ” because its interference would be nugatory, the commissioners having a discretion “ to lay out, or refuse to lay out the road applied for.
    In Kinderhook v. Claw, 15 Johns. 538, in assigning the reason for sustaining the certiorari, the court say, “the duty imposed on the judges was strictly judicial.’'
    In Wildy v. Washburn, 16 Johns. 50, the court say, that they had before decided that the matter they are called to review, “ was strictly a judicial act.”
    Ruhlman v. Respublica, 5 Bin. 26, was a case of fining a road commissioner, by a justice of the peace, for a breach of duty, as much a judicial act as a sentence on an indictment, the question was, whether error or certiorari was the proper remedy.
    The case of Leroy v. The City of New York, 20 Johns. 430, affords a good illustration of the distinction we take. A statute of the state had provided for opening and making Canal street, and appointing commissioners to assess the expense upon the different owners of property, according to the benefit received. The certiorari was to inquire into the justice of this assessment. The principles on which the assessment was to be made, were contained in the statute. It was to be “just and equitable,” “in proportion to the advantage each should be deemed to acquire.” This assessment, therefore, was as much a judicial act, as a decree in ^chancery for a contribution on the same subject matter. The court say, “the power (on certiorari) will be exercised .when the duty to be performed, and the manner of executing it, is clearly pointed out by law,” distinctly excluding any legislation, or discretionary acts.

      In this case the statute of New York made all the necessary ■legislative provisions in detail, leaving for the corporation only such as were ministerial and judicial.
    .There is another answer to this objection of the defendants. The case made in the bill is, that a certain committee in the city council reported that the street should be graded, etc., at the expense of the city, which report was accepted, and the same ordered to be done. This, we contend, is no order levying a tax, and yet the marshal has proceeded to sell our property by virtue •of that order. We contend his proceedings are without any authority whatever, by color merely of law, and we have a right to prevent his proceedings because he acts without power from the council. A certiorari would merely revise the orders as they stand, but not reach the question whether there is or is not an order in existence to justify the proceedings of the marshal.
    It is argued that if chancery will interfere in this case, they must in every case of an illegal assessment of a tax. This does not follow. The argument would apply with exactly the same force to all the cases of certiorari which are cited. The books all •make a distinction between general legislative provisions, affecting the state generally and connected with its public revenues, and .the usual operations of government and those special local operations in which the corporation, or other party complained of, stands before a court of justice in the character óf a private individual. The state, acting by its agent in its general operations,, is hardly amenable to its judicial tribunals; and although the judicial acts of those agents might, in a proper case, be reviewed on certiorari, it would be difficult to find a case arising out of those operations which would afford any resemblance to the mixed proceedings of our municipal corporation.
    King v. King, 2 D. & E. 234, was a certiorari to remove all the proceedings of the assessment of the land tax by the *commissioners. The writ was quashed, and the only reason given was the public inconvenience which would result from sustaining it.
    In Ohio there would be still another.reason—the party assessed has his remedy by appeal to the board of equalization, but in the case now before the court there is no remedy provided.
    If we look into the books, many cases may be found of relief in •chancery similar to the present.
    Couch v. The Ulster and Orange Turnpike Company, 4 Johns. Ch. 26, was a bill filed to enjoin a sale of lands to satisfy an assessment for making a road, alleging sundry irregularities in making the assessment, to the injury of complainant. On motion to dissolve, the jurisdiction was sustained without hesitation; and though it was dissolved afterward, on the merits, upon answer, the right to relief was not doubted by the chancellor.
    Varick v. The City of New York, 4 Johns. Ch. 53, was an injunction to stay cutting a street through ground occupied and claimed by plaintiff till the title was tried at law.
    Gardner v. The Village of Newburg, 2 Johns. Ch. 162, was a bill to enjoin defendants from diverting a stream of water which they claimed a right to use, under an act of the legislature, authorizing works for supplying the village with water, and an injunction was allowed after investigation of the law.
    In Shand v. Aberdeen Canal Company, 2 Dow, 519, Lord Eldon said: “If the canal commissioners exceed their power, they become trespassers; but chancery will interfere to restrain them by injunction, and keep them strictly within the limits of their power.”
    Belknap v. Belknap, 2 Johns. Ch. 463, was a bill filed against inspectors appointed under a statute for draining a swamp, complaining of injustice and irregularity in their proceedings, and praying an injunction against carrying a ditch through complainant’s land, according to the survey and plan made under the provisions of the statute. “The question is,” says the chancellor, “ whether the act gives authority to interfere with the property of plaintiff in the manner proposed.” Again: “ If I am right in the construction of the act, the jurisdiction of the court and duty of exercising it, are equally manifest.” And the injunction was made perpetual.
    *It is unnecessary to pursue the investigation of decisions. They show conclusively that chancery will interfere generally to prevent the abuse of a special power created by statute, to the injury of the citizen.
    Stoker, in reply:
    It is asserted by the complainants that section 9 of the chancery act now in force gives jurisdiction to the court in the present case. The language of this section must be considered in connection with, the difficulties existing at the time the law was passed, that had a tendency to embarrass the sale of real estate and throw a cloud over the title. Perhaps the strict English rule may not apply in all its force when we give a construction to the provision in our statute; and a more extensive remedy, I will admit, is-granted than courts of equity will usually adopt, but the principle on which the remedy itself is founded is similar in its operation to that which authorizes the chancellor ordinarily to interfere' by injunction.
    The objects to be attained by the section referred to were to remove all adverse titles and pretenses of title from the estate of the real owner in possession. These incumbrances, let them be real or not, might be asserted against the freehold, and held for the mere purpose of prejudicing a sale. To compel those, then, who hold such claims, to exhibit them for legal adjudication, as well as to quiet the title of the real owner, the remedy alluded to, it is conceived, was given.
    But the claim or title, as I have before remarked, must actually exist; it can not be the expectation or apprehension of its existing in future. A person holding a mortgage that is satisfied, or that, is improperly obtained, or a judgment, the lien of which is lost by lapse of time or the act of the creditor, would very properly fall within the scope of the remedy, and be compelled in equity to release, or withhold forever, his pretended right. And in the last case it would not be contended that any part, other than the validity of the lien, could be inquired into, and certainly not the-regularity or the legality of the judgment.
    Here, if a lien exist, it is in consequence of the acts of a tribunal who had competent power to levy or assess a tax on *the prop- [82 erty. Whenever that power was executed the lien was perfect; and how can that power be examined, or questioned, on an application to release real property from a claim or title set up against it? Can the corporation re-examine their own proceedings; can they release their right to sell for the non-payment of the tax ?' Does not the right to release, does not the power of the court to decree a release of all claim, resolve itself, in the present case, into the-right of the corporation to vacate their own proceedings, and of the court to require them to do so ?
    The case of the Bank of the United States v. Schultz, 2 Ohio, 495, is confined to sale on executions, and goes full far enough,, it is believed, even for that purpose.

      In the present case I need only refer to the point assumed in .my opening argument to prove the injurious consequences that ■would result from sustaining the complainant’s bill. I will not •recapitulate, but I will venture to remark that the same argument that would authorize this court1 to vacate, in equity, the assessment already made by the corporation, would give the power to ■enjoin the corporation from making any assessment. The proceedings may be stayed at any period of their progress.
    The complainant quotes Couch v. Ulster and Orange Turnpike Co., 4 Johns. Ch. 26, to prove that the chancellor will take jurisdiction in cases similar to this. Unfortunately for the counsel, ■the point was not raised in that cause; nor could it be, because the object of granting the injunction was to give the owners of the land assessed the time allowed by law to make certain improvements. A sale was advertised before that time had expired, and the chancellor interfered. ’ No reference is made to the irregularity or illegality of the proceedings. Varick v. The Corporation of New York, 4 Johns. Ch. 53, proves nothing for the complain.ant. It was a bill filed to stay waste actually committed on the' premises of the complainant; and even here the chancellor granted the injunction only until the right of the corporation to occupy the premises as public ground could be tried at law.
    The case of Gardner v. The Village of Newburg, 2 Johns. Ch. 162, decides no point now under discussion. The power of the court in cases of private nuisance was sustained, *and the principle asserted that private property could not be converted to the use of the public without an adequate compensation first paid or secured to be paid.
    The case of Shand v. The Aberdeen Coal Company, quoted from 2 Dow, 691, is to be found cited in the opinion of Kent, in Belknap v. Belknap, 2 Johns. Ch. 471. The reports of Dow are not in this place, and the garbled quotations, though it amount to nothing, ought to pass for nothing, until the whole case is examined. In Belknap v. Belknap, just referred to, the chancellor interfei’ed on the ground of actual trespass and irreparable injury.
    It requires, in no small degree, the faculty of running parallels bo close that the lines themselves are scarcely discernible, when ■analogies are traced from authorities of the character quoted by the ■•complainant’s counsel. But it is not difficult to obviate the whole force of their objections by referring to the decisions of the same eminent chancellor directly on the point.
    In Le Roy v. The Corporation of New York, 4 Johns. Ch. 352, Kent decides, “that he would not interfere with, or set aside an assessment for the expense of a common sewer made by the commissioners under the direction of the.mayor, aldermen, etc., on-the ground of irregularity or want of discretion on the part of the assessors.” He gives several conclusive reasons why he should not interfere. Among the rest, he says, “the aid of this court might as well be asked to review every assessment of a land tax- or poor rate.” “I apprehend it would require,” he observes, “a-special provision by statute to authorize chancery to interfere with these assessments.” . In the course of his opinion he refers to Ex parte Croxall, 3 Atkyns, 639, and this court on an examination of that case will find the reasoning of Lord Hardwicke directly in-favor of the position taken by the present defendants.
    In Mooers v. Smedley, 6 Johns. Ch. 31, a bill was filed to restrain the collection of certain assessments made by the supervisor of a township, upon lands of individuals, to pay bounties on “wolf scalps” under the statute of New York. And Kent says, in his decision, “I can not find by any statute, or precedent, orpraetice, that it belongs to the jurisdiction of chancery, as a court of equity, to review or control *the determination of the supervisors in their examination and allowance of accounts, as chargeable against the county or'any of its towns, and in causing moneys so allowed to be raised and levied.” And again: “The review and correction of all errors, mistakes, and abuses, in the exercise of the powers of subordinate public jurisdictions, and in the official acts of public officers, belongs, in my opinion, exclusively, to the Supreme Court. It has always been made a matter of legal and not of equitable jurisdiction.”
    In answer to my position that the remedy of the complainant-was full, adequate, and perfect at law, the complainant’s counsel drew a nice distinction between judicial and legislative acts. It is said that the defendants acted as legislators and not as judges; admit there is such a distinction to be found iii the books, does the charter of the city, under which the defendants acted, sustain the point taken? The language of the law is (see section 15 of theamendatory act incorporating Cincinnati, passed February 5¿ 1819) : “ That the city council shall be, and is hereby authorized-' to lay and collect a tax from the real estate, etc., of any square, etc., on the petition of not less than two-thirds of the owners thereof,” etc. The original act of incorporation, a great part of which is still in force, passed January 10,1815, prescribes the general duties of the city or town council; they may levy taxes, license houses, appoint supervisors of the highways, or generally to pass such laws and ordinances as may be necessary to carry the powers granted by the act into full effect. Whenever, then, the .council directed a tax to be levied and assessed, it could not be a legislative act in the light in which the complainant’s counsel re.gard it. The corporation was bound to proceed whenever the proper petition was before them, and if they erred in judgment, they could not be controlled by the chancellor.
    It is said that every case I have quoted, to establish the remedy by certiorari, sanctions the distinction taken by the defendant’s counsel. This is the assertion; let us examine the cases. The commissioners of sewers are certainly subject to this writ, and ■among their powers is that of assessing taxes for the reparation ■of public works, vide Bacon, 212, 213, more especially the case there cited, Rex v. The Commissioners of White Chapel, Lev. 288. The *case referred to, Rex v.-, 1 Lord Raymond, 580, in Glamorganshire, expressly proves “that the King’s Bench will examine the proceedings of all jurisdictions created by act of Parliament. And if they, under pretense of such act, proceed to attach jurisdiction to themselves greater than the act warrants, this court will send a certiorari to them to the end that this court may see that they keep themselves within their jurisdiction.” And Holt, Chief Justice, further remarks, “that the examination -of such matters is more proper for the King’s Bench. As whether the act of Queen Elizabeth empowers the justice to raise money to mend sewers, and also orders made by the commissioners of •the sewers.” So far as these cases go, the analogy between the powers exercised by the persons to whom the certiorari was directed, and those assumed by the city council, in the case now under consideration, is very strong.
    Spencer, J., in Lawton v. The Comm’r of Cambridge, 2 Caine, 182, •observes, “ the necessity of a superintending power, to restrain and ■correct partialities and irregularities which may be committed by inferior officers, is so obvious and indispensable, that the court ought by no means to deny themselves a jurisdiction of such salutary influence.” In the case alluded to, the same exceptions in point of substance were taken, as to the order for laying out a road, as are taken to the assessment, etc., of the city council, nothing was* said here, of the distinction referred to in this case.
    In Welby v. Washburn, 16 Johns. 50, though tho appointment of the constable by the justices was'a judicial act, the court say, “whenever the rights of an individual are injured by persons clothed with authority to act, and who exercise that authority illegally, and to the injury of an individual, the person injured may have redress by certiorari."

    The case of Le Roy v. Mayor, etc., of New York, 20 Johns. 432, to my mind discloses no such distinction as that referred to by the opposite counsel; the same principle is recognized as had already been recognized by the Supreme Court of New York. To put the matter at rest, as to the power exercised by, as well as that granted to the commissioners, who made the valuation that was removed by certiorari, I would refer the court to 4 Johns. Ch. 352, where the chancellor refused an injunction in the same ease, that was afterward ^decided on certiorari. The law under which this assessment was made, is extracted, and to my apprehension, presents a perfectly parallel case. The injunction was here denied on the same ground that I have urged to dismiss the bill now before the court.
    It is urged by the opposite counsel, that a court of chancery will control the unauthorized acts of corporations and individuals; and the remark is true in many respects; but the legal remedy is equally effectual. To me, it appears perfectly immaterial in what the wrong consists, provided, as a general rule, the acts of the corporation are not subject to equity revision. If it is lawful to re-examine in this collateral manner every stage of the proceedings, the chancellor is -alone the head of the corporation; he is not merely exercising the ministerial power, but controls their every act and every duty. And let me ask, what is the present application, but to declare void the entire assessment of the tax; an assessment under which other property may have been sold, and upon which a large amount of taxes have been paid?
    A strong argument is used by Lord Holt, in 1 Raymond, 580, why a certiorari should not, except in extreme cases, be granted to remove the proceedings of the commissioners of sewers, “it is that by legal delay, the county might be inundated;” and Ashurst, Justice, holds similar language in King v. King, 2 Term, 204; he remarks that the poor might suffer “ if the rate should be removed and this even .on certiorari. In short, it appears to be the settled rule of the King’s Bench, to leave the party complaining to his-action against the officer who distrains for the tax, unless extreme necessity should require the interference of the court by certiorari.

    To conclude, it is clear that even the legal remedy referred to, is-adopted with great caution, where public interests are concerned,, such as tax assessments, etc.
   By the Court:

The billin this ease, represents, that under a proceeding altogether illegal and void, but nevertheless under legal color, the defendants-are about to sell a part of the real estate of the complainant, and prays the interference of the *court, in the exercise of its chancery powers, to restrain them by injunction. The demurrer, and the argument in support of it, admit the truth of the allegations, and deny that this court can aid the party. If this be a tenable position, it results that public officers, having authority t® operate upon the property of their fellow-citizens, must be permitted to proceed, however illegal, unjust, or oppressive their conduct may be. It follows, too, that the property of a citizen may be exposed to sale, under circumstances that render it impossible for the-parties to know whether a title can pass or not. Thus involving great hazard to all concerned, and perplexing th.e titles to real-estate, for no beneficial purpose to any person whatever. If such be the rule of the law, we-must so administer it. But nothing short of a series of repeated adjudications, would be sufficient to-demonstrate that the law is so settled.

The authorities which have been referred to, do not lead to the-conclusion insisted upon by the defendants. They all proceed upon-the principle, that in very many cases, this court may interpose to-prevent mischief, and to protect individuals in the enjoyment of their rights. Whore aid has been decreed, it has always arisen-from the circumstances of the particular case. And the confusion and seeming contradictions in the eases, are occasioned by the dicta -of the judges, and not by any conflietion in the principle decided.

In regard to real estate, it is well established that chancery may interpose by injunction, to prevent what is considered as destruction. But destruction in the sense used, does not mean annihilation. It means no more than that injury which greatly impairs its intrinsic value. In a city, the sale of part of a lot for assessments, may often be very destructive to the interest of the proprietor, though no title passed by such sale. A cloud would be cast upon the title, which litigation only could remove, and until removed, the }3roperty might be valueless to the owner, subject, too, during the period of litigation, to additional assessments and embarrassments.

When an assessment of a tax is made, and its legality disputed, the uncertainty attendant upon the final result puts the estate upon which it operates in imminent jeopardy. If no title pass by a sale, the party has remedy at law. He *can defend his possession, but if title do pass, he is remediless altogether. A mode, therefore, of deciding the question before any right is affected, is safest for all parties. It was upon this ground, the court entertained jurisdiction in the case of the Bank of the United States v. Schultz, from which, in principle, this case is not distinguishable.

The defendants concede that if a sale were made, this bill might be sustained under our statute. To sustain it now, is clearly within its letter. A claim is set up, not to enter in and enjoy under title, but to create a title under which another may so enter. Setting up a claim to dispose of the title, is “ setting up a claim thereto,” which are the terms employed in the statute. The case is clearly within the mischief intended to be remedied, as it is within the words of the law. The power to interpose, might be safely grounded upon the statute alone. But we think it stands upon the general principles that govern the court, with respect to injuries to which no other adequate remedy can be extended.

Consequences that might ensue in respect to the collection of revenue, furnish no. reason why the court should not interpose. The application for an injunction is addressed to the sound discretion of the judge who allows it, and there is no reason to apprehend that it will be allowed upon trivial grounds. The case of the Bank of the United States v. Osborn and others, 9 Wheat. 738, is a case directly in point, of enjoining the collection of a tax. That case was most earnestly litigated, and yet the counsel who resisted the injunction did not attempt to maintain that the jurisdiction could not be sustained, on the ground that it interfered with the collection of the revenue.

We overrule the demurrer, and send back the cause, at the suggestion of the defendants, for further proceedings.


author: By the Court :

text:
    *Heirs of Sullivant v. Commissioners of Franklin County.
    Deed to the county commissioners, for lot on which to erect a jail, though not operative as a conveyance, is good as a license to enter and possess for the purposes specified.
    This cause was adjourned here for decision, from the Supreme Court of the county of Franklin, on a motion for a new trial.
    In the month of April, 1808, Lucas Sullivant and wife conveyed in-lot No. 25, in the town of Franklinton, to the commissioners of the county, for the time being, by name, and to their successors in office. The writing intended for a deed contained, besides the operative terms of conveyance, this proviso : “ Provided, however, and this conveyance is made on the express condition and no other, that the jail or prison house, when built, shall be built on said lot No. 25.” The jail was erected upon the lot, and continued there, and was used as a jail when this suit was brought. But- in 1826, the legislature removed the seat of justice fx’om Franklinton to Columbus, and, in the summer of 1827, a new jail was erected there. The deed from Sullivant and wife, though signed and sealed and acknowledged before a justice of the peace, was not attested by any subscribing witnesses. The heirs of Sullivant brought the ejeetment, and on the trial, the cause being submitted to the court, a proforma judgment was entered for the defendants, and a motion made by the plaintiff, for a new trial, upon a case .agreed.
    Leonard, for plaintiff:
    The question in this case grows out of the covenant of warranty ■ contained in the deed, made by Lucas Sullivant to the commissioners. The deed is defective for two reasons: First. Because there is no pecuniary or other sufficient consideration inserted in it. The deed must take effect, if at all, as a deed of bargain and -sale, and, to support such a deed, a money consideration should be •inserted in the deed. See Cruise Digest, title Deed, chap. 11, secs. 5-12, 22-25 ; 3 Johns. 484; or if any consideration other than .money will answer, it must be a valuable consideration to the bargainer, and not a contract made by the bargainee with another to erect buildings; and it must likewise be a contract *executed, and not executory. See same case, and, especially, 3 Johns. 484.

      Secondly. But the statute in this state provides a mode of executing deeds for the conveyance of land. It prescribes certain ceremonies, among which it is one that there shall be two witnesses to the deed — in this case there are no witnesses whatsoever. This, therefore, conveys no estate; it is totally and for every purpose void. It is the same as no deed. There is, however, an attempt to set this deed up, by the warranty. The rules on the subject of warranty are laid down in 7 Bac. Abr. 228, title Warranty. The ruléis, that the warranty is void unless there is an estate created on which the warranty can operate. If there is no estate, then there is no warranty. Warranty is a covenant real, annexed to lands and tenements. If there is no title, there is nothing to which the warranty can be annexed. It is said that the warranty is designed to operate in the very case in which the deed is void. No such thing ; the object of the warranty is to protect the estate created by the deed, as in case of eviction, to enable the party evicted to recover over the value of his land, “ and either, upon voucher, a judgment in a warrantia chartoe to yield other lands and tenements, to the value oí those that shall be evicted by a former title, or else may be used by way of rebutter." Coke Lit. 365, a; 22 Cruise, tit. Deed, chap. 2, sec. 69.
    Ewing, for defendants:
    1. The deed by Sullivant to defendants, though informally drawn, contains on the face of it a sufficient consideration. The grantees are about to erect a public building; in consideration that they will erect it on the spot designated by Sullivant, he grants them' this lot, to be its site, and the, grant is to be void, if the consider-' ation be not complied with.
    2. Although the deed have no subscribing witnesses, yet, as it contains a covenant of warranty, it is <good by way of rebutter in ■ this action.
    The eases from the elementary books, cited by plaintiff’s counsel, rest for their authority on Seymore’s case, 10 Rep. 96, where it is said, “ that every warranty ought to be knit and ^annexed to an estate, for every warranty has its essence by its dependency upon an estate.”
    Neither the point that was adjudged by the court, in that case, nor the language of the court, go to avoid a warranty, on account of the defective execution of the deed which contains it. In the case of Seymore, an estate, with reaimnders over, was created by devise, which was afterward passed by fine with warranty. It was held that the warranty ceased with the estate to which it was attached, and that the remainder mentioned, was not barred by it. The language of the case means simply this, that the warranty relates to the granting words in the deed, and can not be extended beyond them, because the clause of warranty is attached to the granting clause as its incident. But to make the warranty effectual, it is not necessary that the instrument which contains it, should pass any title independently of the warrant- For example, a release without warranty by a person who has no title, is void, even against the releasor, if he afterward acquire title. But with warranty, it rebuts the leasor and his heirs. C. L. 265, a.
    N or is even a capacity in the grantor to take by the deed, necessary to render the warranty effectual against the grantor and his heirs. 9 Cranch, 52, 53; 9 Wheat. 445, note.
    To determine the extent of a principle of law, the reason on which it is founded is to be sought. The rebutter, by warranty, operates solely to prevent circuity of action; it must, therefore, operate in all eases where there would otherwise be that circuity. If the grantor, having evicted his grantee, would be liable on his covenant to keep him in possession, he shall be rebutted by that covenant, for it would be trifling with justice to permit the grantor to recover the possession, and then hold him responsible in damages for the eviction. ' If we be evicted in this action, we can sustain our action of covenant on the warranty. That covenant goes to the possession, and, although our title may be defective, tho covenant is executed with all legal formality, and if it be broken we can recover damages for the breach. It may be urged that the application of this principle would defeat the effect of the statute prescribing the mode of executing deeds. But where is the injury, if, by the application of a well *known legal principle, there are certain cases taken out of the operation of the statute. Clearly, the defect in the execution of this deed would be remedied in a court of equity — why, then, should this court refuse to apply a legal principle, which will cure the defect at law, or, in other words, why extend this statute by equity, to defeat at law the very estate which a court of equity would set up and protect. A statute is to be construed according to the principles of the common law, 11 Mod. 150, hence, a provision in a statute is to have the same effect as il, in other words, it were common law of undoubted authority, and it is to be extended no further, unless to meet some manifest intention of. the legislature. As no such intent is manifest here, this statute can not be extended to defeat the operation which this covenant would have on the estate at common law. The statute, de donis, 13 E. 1 chap. 1, is distinct and positive in its provisions, that donee in tail shall not defeat the estate of the issue, but its operation is avoided by a lineal warranty descending with assets, or of a collateral warranty without them. In the first case, because the heir, being liable on the warranty to the amount of the assets descended, shall be rebutted to prevent circuity; in the second case, because he is presumed to have inherited assets, and the case not coming within the letter of the statute, he is rebutted on that presumption.
    3. But, at least, this written instrument is a good license to enter and erect the jail and remain in possession. We have entered, in pursuance of this license, and occupied the premises for the sole purpose named in the instrument. No notice has been given us to depart the premises; we hold, therefore, by right, and no action of trespass will lie against us; nor has the period of our possessory right expired ; we are authorized to enter and possess, and the plaintiff covenants to defend our possession forever. And even if the legal estate still vest in the plaintiff, yet he stands seized to our use and we have entered, holding the equity under that use, and the legal possession under the license.
    4. But this is an appropriation to public uses ; no grantor or grantee is necessary ; a mere written declaration, “ I appropriate this property to public uses,” naming the uses, is sufficient. 9 Cranch, 331, and cases there cited.
    ^Leonard, in reply:
    It is then insisted that at least this is a license to enter. The license to enter, if any where, must be contained in the granting part of the deed, and^that is clearly void, as not executed agreeably to the statute. This doctrine, too, will make every defective conveyance good. An action of ejectment is brought; a deed not executed comformably to the statute is exhibited in defense; the deed is void, and yet under another color, it is immediately set up, and the estate is held under the good-for-nothing deed. This is not an appropriation of land for public uses. If the deed had been formally executed, it would have been a common conveyance of bargain and sale, with a condition to erect a jail on the premises, a condition subsequent, to.be executed in a reasonable time, and when executed, the fee would have been irredeemably vested in the county. And this is all that can be said or mado of the deed.
   By the Court :

It is unnecessary to decide upon the various points of learning discussed by the counsel, in this case. A license to enter and occupy lands may be given in writing, without any of the formalities of a deed of conveyance. A possession taken under a license from the party is a good defense in an action of ejectment. The writing purporting to be a deed, in this case, authorized, by an inevitable implication, the commissioners, for the time being, to enter and erect the jail. It also authorizes the commissioners and their successors to hold and use the lot in question, while occupied as a jail. It has been so used and occupied. No attempt has been made to use it for any other purpose, up to the commencement of this suit. No right of entry, for a departure from the license, has accrued to the heirs of Sullivant. The motion for a new trial must be overruled.


author: Judge Hitchcock :

text:
    *John Johnson v. Alexander Stedman.
    Proof of general reputation and acting aa constable, competent evidence on a trial involving that fact.
    This cause came up on a motion for a new trial, adjourned here from the county of Meigs. It was an action of trespass for taking and converting goods. The defendant pleaded that he was a constable, and that an execution was put into his hands to be levied, by .virtue of which he took the goods in question, as the property of the defendant, in execution, the now plaintiff. Upon this plea, issue was joined. At the trial, the defendant, to establish the fact that he was a constable, offered parol evidence, and no other, that he acted and officiated as constable of the township, at the time the levy was made. The plaintiff objected to the admission of this evidence, but the court received it, and a verdict passed for the defendant. A motion was made for a new trial, upon the ground that improper testimony was admitted; maintaining that the actual appointment in writing,-and other requisites, should be produced in evidence.
    Nye, for plaintiff:
    The only question in this case is, whether it was competent for the defendant to prove by evidence of reputation that he was a constable, he having pleaded and issue being taken upon the fact?
    The general rule, requiring the best evidence, appears to require proof of the fact, by the production of the written evidence, provided for by the positive law for the election and qualification of township officers. “ Parol evidence of the authority (of an agent, etc.) is inadmissible, where the authority, from its nature, must have been in writing.” 2 Stark. Ev. 55, and see Id. 373, 374, title Character.
    By the act for the incorporation of townships, Rev. Laws, 412, et seq., the evidence of the election and qualification of a constable must be, and exist in writing, in the office of the township clerk (in the returns of the election deposited, and the certificate of his official oath, recorded there). And it is said, that “ the regular proof in England, of a person’s being a constable, is by production and proof of his appointment and swearing.” 2 Stark. 413.
    *The case reported in 3 Johns. 431, appears to have passed without argument, and to have been decided by the court in New York, on the supposed authority of Berryman v. Wise, 4 Term, 3C6, but which, on examination, does not appear to have decided the point in question ; and it is' pretty evident that the general remark of the New York tribunal, respecting the proof in such cases, was founded upon, and should have been applied to another and different description of cases than these in which the officer is a party, and in a civil case. Some remarks, obiter, were made by Buller, Justice, in the case referred to, respecting the proof of official character of ministerial officers ; but they were rather aside from the case before the court, and may be explained by an nbvious distinction, on which the English cases of that nature depend ; that when the question is between third parties, proof of an exercise of the office is sufficient; as, if a man acting in the capacity of a constable should, in arresting another upon a warrant, be resisted and killed, proof, on the prosecution of the offender for mui’der (as it is said by the learned judge), that the supposed officer had acted in that capacity, has been held sufficient. Such is the character of the cases to which the judge referred. But, where the supposed officer is himself the party, and affirms the fact in his own person, in pleading, it would seem that the rule directly applies, and that the case does not come within the reason of the exception recognized in the other class of cases. It is not like a general averment, as between other parties, or in a prosecution, that A. B. was a constable, etc.; for they are only supposed to be charged with a knowledge of the fact, from that of his acting in the capacity; whilst himself must be immediately conuzant of it, and should have preserved or secured the evidence of his authority. It may also be observed, that in England, constables are merely peace officers, appointed by the court-leet, or by two justices of the peace, nor does there appear to be any determinate or limited period of office. Nor is it incumbent on the plaintiff here to show that the defendant is not within an exception to the general rule of evidence adverted to, since the rule plainly applies; and, if an exception, which embraces his case, circumstanced as it is, he being the party who claims to have been an officer, has been recognized on a *full consideration of the point, the onus lies upon him to show it; and, as an authoritative settled exception, which it is respectfully submitted, has not been satisfactorily shown; and therefore that a new trial ought to be granted.
    H. Stanbert, for defendant:
    The single question presented by this case is, whether general reputation be sufficient proof of the averment that the defendant was a constable. It will be seen, upon reference to the authorities, that such proof has been uniformly held to be admissible, as well when the reputed officer is a party, swearing or defending in his' official character, as between third persons.
    In Berryman v. Wise, 4 Term, 366, which was an action by an attorney, for words spoken of him in his profession, proof that he acted as an attorney was admitted, and Mr. Justice Buller, in delivering the opinion of the court, states the rule to be, “that in the case of peace officers, justices of the peace, constables, etc., it is sufficient to prove that they acted in those characters, and that even in the case of murder.” Gordon’s case, Leach, 581; R. v. Shelley, Id. 381, n.
    Potter v. Luther, 3 Johns. 431, is precisely analogous to the principal case. The defendant there pleaded, that as one of the deputy sheriffs of Washington county, he took the goods upon a fieri facias, arid offered to prove by reputation that he was a general deputy of the sheriff. This testimony was objected to, and it was insisted that he should produce and prove his appointment by the sheriff. The court admitted the evidence, and fully recognized the rule laid down by Justice Buller in the above case.
   Opinion of the court, by

Judge Hitchcock :

The question now presented to the court was considered at the last term, in the case of Barret v. Reed, 2 Ohio, 409, but, inasmuch as there was some difference of opinion, and that case was decided upon a different point, was left undetermined.

But one serious objection is made to the admissibility of the evidence received on the trial of the issue in this case.

*It is this, that if such testimony is received, the rule “that the best evidence which the nature of the thing admits, and is capable of, must always be given,” will be violated.

This rule is founded "in wisdom, and consistent with obvious reason, and ought not to be departed from upon light or trivial grounds. Its true meaning is that no such evidence shall be introduced, as, in the nature of things, supposes greater or better evidence in the power of the party producing it. If there be such greater or better evidence, and the party fails or refuses to produce it, a presumption arises, that if produced it would operate against him. Such being the presumption, the lesser evidence shall be excluded.

This rule, however, is general, and not without exceptions. Not only copies of public records and proceedings, but under peculiar circumstances copies of private instruments of writing are given in evidence. It is a common practice to receive parol evidence of the contents of a deed or other instruments of writing where the deed or instrument itself is lost, or is in the possession of the opposite party, if notice has first been given to produce it. These instances are but few, among the many which might be named, to show that the general rule is not so unbending that courts will not dispense with a strict adherence to its letter in order to arrive at substantial justice.

Constables in Ohio are township officers, although in some few instances they may serve process in any part of the county. They are elected by the people at their annual township elections, and any person elected and refusing to serve is subject to a penalty. Within ten days after the election, the individual elected is to take an oath of office, which oath may be administered by the township, clerk, or any other person having general authority to administer oaths. In addition to this, before entering on the duties of his office, he must give a bond with one or more sureties, to be approved of by the trustees of the township, for a sum not exceeding two thousand dollars, payable to the State of Ohio, conditioned for the faithful discharge of those duties. The election, the giving of bonds, the approval of the sureties, the administration of the oath of office, ought to be noted by the township clerk in his book of record. This would undoubtedly be done-should the clerk, and every Mother officer concerned, do their duty. The constable, however, receives no certificate or other written document, to prove his official character and qualifications. The best evidence “the nature of the thing admits of,” to prove this official.character would undoubtedly be the township records, provided these records had been properly kept. Experience, however, teaches us that in many parts of the country these records are so loosely kept that we are, from necessity, compelled to resort to evidence of a secondary nature.

Under these circumstances, does either policy, justice, or law dictate that, in cases like the present, we should strictly adhere to the rule that the best evidence which the nature of the thing admits and is capable of shall be given ?

So far as it respects third persons, there is no doubt on the subject. Whore such persons are interested, it is believed to be the practice of all courts to permit them to prove that an individual who claims to be a public officer, is such de facto, without requiring them to prove that he is such de jure. The great danger which will result from adopting the same rule of evidence, where the officer himself is a party, is not readily conceived. There is a difference, it is true, between the two cases. Every man who undertakes to exercise the duties of an office, ought to know whether he is legally qualified, while this knowledge can not be supposed to extend to others. This difference of circumstances, however, is not so great as to require a difference in the rule of evidence.

In deciding this question, it may not be improper to turn our attention for a moment to the nature of those suits, in which constables or other ministerial officers are parties. In some cases the principal question is, whether the party is, or is not, an officer de jure. But such cases are not of frequent occurrence. Were it otherwise, it might be expedient to adopt a different rule of evidence. It is believed, however, that in ninety-nine cases in a hundred, this is a question of secondary importance. The object more generally is to determine the right of property, the legality of process, the validity of an arrest, or something of a similar nature. In most of these cases, to require of the party claiming to be a public officer, proof that he had complied with every requisite *of the law to qualify him to act, would be attended with unreasonable inconvenience to him, without any commensurate advantage to his opponent.

In the case before the court, the real question in dispute was» not whether Stedman was a constable, but whether the house which was the subject matter of litigation, was the property of Johnson, the plaintiff, or the property of Hollingsworth. Under these circumstances, the evidence was properly received. It was sufficient for the purposes of this case to prove that Stedman was a constable de facto.

The principle here decided is supported by high and unquestionable authority. ' In the case of Potter v. Luther, 3 Johns. 431, the Supreme Court of the State of New York say: “ It is a general rule to admit proof by reputation that a person acts as a general public officer or deputy.” In Berryman v. Wise, 4 Term, 336, the court of King’s Bench, in England, decided that in the case of all peace officers, justices of the peace, constables, etc., it was sufficient to prove that they acted in these characters, without producing their appointment. This, to be sure, was the expression of Justice Bailer, but from an examination of the case, I am satisfied it was the opinion of the whole court. So in Esp. Dig. 783, it is laid down that cases similar to the one under consideration, are exceptions to the general rule, “that the best evidence, etc., must always be given.”

Upon the whole, we are of opinion that the motion for anew trial must be overruled, and judgment entered on the verdict.


author: Judge Hitchcock:

text:
    Trustees of Jefferson Township, Adams County, v. The Trustees of Letart Township, Meigs County.
    A minor obtains a settlement in the township where his father was legally settled, and can by no act of his own, whilst a minor, obtain a legal settlement elsewhere.
    This was' an action of debt under the statute, in which a verdict was given for the plaintiffs, and a motion made fora new trial, on the following state of facts :
    In September, 1823, the parents of the pauper resided and had a legal residence in Lebanon township, in Meigs ^county. At this time the father died, and the mother, with her children, went to reside with her father in Lebanon township, where she remained until July, 1824, when she married again and removed with her children, except the.pauper, and with her husband, into Virginia.
    In April, 1824, the pauper being about seventeen years of age, left his mother and went into Letart township, where he remained, working for his support, until October, 1825, when he left that township. In December, 1826, he came into Jefferson township, Adams county, where he was taken sick and became a township charge. Upon his recovery, in March, 1827, he was sent by the trustees of Jefferson township to Letart township, and a demand made for the expenses incurred in taking charge of him and his removal. The jury gave a verdict for the plaintiffs, and the motion was made for a new trial, the decision of which was adjourned by the Supreme Court, sitting in Meigs county.
    Nye, in support of the motion :'
    It is confidently insisted, for the defendants, that the pauper gained no settlement in Letart township; his settlement was in Lebanon. “The settlement of a child is where the father was last settled; if the father has none, the child must go to the settlement of the mother.” 17 Johns. 91; Overseers of Niskayuna v. Overseers of Albany, 2 Cow. 537.
    The settlement of the mother, in this case, after the death of Samuel Jackson, her husband (the father), followed his, in Lebanon. 17 Johns, supra; Ohio Rev. Laws, 332, sec. 4. The pauper not being sui juris, could not, it is apprehended, gain a settlement in any other township except by an apprenticeship, created or evidenced by indenture. The act concerning apprentices and servants, Rev. Laws, 381, sec. 2, provides for the apprenticing, by indenture, of destitute children, and those of poor persons, by the trustees, etc., males till twenty-one years of age. The act for the relief of the poor, Rev. Laws, 333, sec. 6, contains a similar provision. There is good reason in such cases why a regular apprenticeship should be required to give a settlement to a minor; it is an authoritative act of the officers acting for the township; and the service extends to the period of legal emancipation, when *the minor becomes capable to contract for himself. In the case of The King v. The Inhabitants of Margram, 5 Term, 153, it was held, that a service of seven years as an apprentice, without an indenture, did not gain the pauper a legal settlement, either as an apprentice or as a yearly servant. In the case before the court, there was not even a contract for hiring and service in Letart, nor a proposition to remain with Smith, for any definite time, for victuals and clothes. And it appears clear that the legislature (so far as enactments affect the question), in providing for the case of an “ indentured servant,” intended to distinguish his from that of a “ person,” sui juris; and to require a year’s service in the township, under an indenture, to gain a settlement.
   Opinion of the court, by

Judge Hitchcock:

This action was brought by the plaintiffs to recover the amount of moneys expended in the support and removal of Edmund Jackson, a pauper, charged to have been legally settled in the township of Letart. It is different from the case of Wayne v. Stock Township, decided at the present term, in one particular. In that case the pauper is supposed to have been of full age ; in this he is admitted to have been an infant under the age of twenty-one years. Whether this can make any difference, or whether such an individual can by his own residence, merely, gain a legal settlement, is tho point to be determined.

Section 4 of the act for the relief of the “poor,” speaks df any person or persons,” etc., in general terms without reference to age or sex. Intended servants, legally brought into tho state, and married women, are expressly provided for, but nothing is said about infants or children. It is perhaps a misfortune that the statute is not more explicit. Still we apprehend there is no difficulty in arriving at-the intention of the legislature. We have no doubt it was understood and intended that the legal settlement of children should follow that of their parents. It is not believed that by the word “ person,” as used in this section of the statute, any other person was intended than such as have arrived at the years of discretion. Such as, so far as age is ^concerned, were capable in law of contracting and being contracted with. Such as have a legal right to remove from place to place, and were free from the superintending control and guardianship of others.

To prove the correctness of this construction of the statute nothing more is necessary than a consideration of the absurdity to which we should be held by a different decision. If the legal settlement of tho child does not follow that of the parent, it might and frequently would so happen that the legal settlement of the child would be in one place, while that of a parent would be in another. And a case might be presented where there are many children that the settlement of the parent and each one of the children would be in separate and distinct townships. Will it be fora moment believed, that such is the policy or meaning of the law ? If such is the law, children of the same family, in their tender years, may be separated from their naturaL guardian, the parent, and from each other, and a statute which is entitled, “an act for the relief of the poor,” may be made to operate most oppressively upon'that class of the community.

An examination of the other parts of the same section 4 of the act will tend to fortify the construction of the court, “ any person or persons residing one year in any township in this state without being warned,” etc. Now the warning presupposes that the person warned has a legal power or right to leave the township. But what right has an infant to remove ? Does the law authorize such an individual to abandon or leave his father ? The parent is bound, both by the laws of nature and the laws of the land, to provide for and take care of his infant child, and in return is entitled to the services and control of the child. This right is so perfect that, unless in extraordinary cases, it can not be interfered with. Let it not be said that this is one of those extraordinary cases. The legislature have not, in 'this section of law, undertaken to interfere as it respects the relative duties and rights of parent and child. It must be remembered that the overseers of the poor are not to wait until a person becomes chargeable before they warn him to depart. The apprehension that he may at some future period become chargeable, is sufficient to justify, nay, to require of them the performance of this duty. If, then, the warning presupposes a *right in the individual concerned to remove from the township, it follows, of course, that an infant can not with propriety be warned, because the infant has no legal right to remove, where such removal would separate him from or place him beyond the control of his natural guardian. Inasmuch, then, as the overseers of the poor can not with propriety warn an infant to depart the township, it would be unjust to say that the infant by residence, merely, shall gain a legal settlement.

In the case before the court, the pauper, it is -true, alj the time he went to reside in the township of Letart, had no father living. This, however, can not vary the case. Samuel Jackson, the father, was last legally settled in the township of Lebanon. In virtue of the settlement, Edmund Jackson, the son, was legally settled in the same place. By no length of residence in any other township, previous to arriving at the age of twenty-one, could he gain any other legal settlement. Having been reduced to poverty during his infancy, the township of Lebanon was chargeable with his support.

Under this construction of the statute, the-question reserved must be decided in favor of the defendants, and in pursuance of the terms of the agreed case, the verdict of the jury must be set aside and judgment entered against the plaintiffs.


text:
    Commissioner of Insolvents v. Way and others.
    Insolvent’s bond valid, though, condition does not in terms follow the statute.
    Where commissioner of insolvents fails to advertise, and the party appears at a subsequent term, in good faith, and obtains a discharge, the condition of the bond is saved, though a specified term be named in it.
    It is the duty of commissioner of insolvents to cause the advertisement of notice of intention to apply for the benefit of the law to be published.
    This was an action of debt upon a bond given by the defendant, Way, and the other defendants, to the commissioner of insolvents. The condition inserted was, that Way, who was the applicant for the benefit of the insolvent act, should “appear at the next May term of the court of common pleas of Belmont county, and not depart without leave.” The declaration set out the bond and the condition, and alleged, as a breach, that the defendant, Way, did not appear at the next May term, etc. The defendants demurred to the declaration, and also pleaded five special pleas, which were put to issue also, on demurrers, replications, and rejoinders, which it is not material to state. The ^object of all the pleas was, to present for decision this fact, that the commissioner of insolvents did not advertise the application to be made at the May term, but did at a subsequent term, when the defendant, Way, appeared, complied with the requisitions of the law, and obtained the certificate under it. The cause was adjourned here for decision from Belmont county.
    GenIN and Kennon, for the defendants, argued:
    That the bond was void, because the condition did [not] conform to the statute. They argued, also, that the defendant, Way, had performed the condition of the bond, in substance and effect, by his subsequent appearance and obtaining the object for which the bond was given; and that his failure to appear at the May term was in consequence of the omission of the commissioner of insolvents, by which the defendant ought not to be prejudiced.
    Goodenow and Hubbard, for the plaintff, maintained:
    That the bond was valid. That it was the duty of the defendant, Way, to give the notice, and having failed to do it, the forfeiture of the bond was the consequence of his own act, by which he and his sureties were concluded. They contended, also, that the subsequent discharge could not operate to save a condition already broken.
   Opinion of the court, by

Judge Hitchcock:

The bond, which is the foundation of this action, was given pursuant to the requisitions of the “act for the relief of insolvent debtors,” passed February 23, 1824. Section 8 of that act relates-to those who are arrested, or are in custody, upon mesne or final process. Of such persons a bond is required, the condition of which is specific in the law, and the bond now in suit was intended to be in compliance with this requisition. The condition does not literally conform to the statute, inasmuch as the statute requires it to be that the insolvent shall appear at the term of the court at which the application for the benefit of the act may be made, whereas the condition annexed to this bond provides for the appearance of the defendant, Way, at a specific term of the court of common pleas, viz: “the next May term, and that he shall not depart the court without leave.” This variance, however, is not so great as to invalidate the bond. It *is not material. The “next May term of the court was the term at which the application for the benefit of the insolvent act should regularly have been made. In fact, I incline to the opinion that the specific term of the court, at which the insolvent is to appear, should in such cases be named. Without determining this point, however, it is sufficient, for the purposes of the present’case, to say that by the execution of this bond the insolvent substantially complied, so far, with the law.

Whenever the legislature undertake to act upon a particular subject, and, in the’course of legislation, deem it necessary to require the execution of a bond specifying the condition to be annexed te such bond, it is impossible correctly to settle the rights of parties, originating in or growing out of such bond, unless we look to the whole law and ascertain specifically the intention of the law-making power. In fact, the bond becomes a part of the law and must be construed in connection with it. The object of the legislature, in requiring a bond from the insolvent debtor, was to secure the party at whose suit the insolvent should be arrested, against any fraud which might be practiced by a defendant in attempting to release himself from arrest under the pretense of taking the benefit of this act. If the insolvent acts with good faith, and neither obtains a certificate of discharge or surrenders himself a prisoner to the proper officers, the bond, to use the words of the statute, “is canceled.” In other words, the insolvent, by obtaining a certificate of discharge or by surrendering himself to the proper officer, substantially complies with the condition of his bond, and discharges himself and his sureties from liability.

Way, the defendant, did not appear at the May term of the court of common pleas, as he was bound to do by the letter of the condition of his bond. If the bond stood alone, and was to be considered without reference to the statute under which it was executed, here was a breach of the condition; the bond itself becomes absolute, and the liability of the defendant is fixed. Under the impression that this is the legal effect of the non-appearance of Way, at that term of the court, this sxiit was commenced.

The defendants, however, undertake to excuse themselves, and after demurring to the declaration, have filed several *ploas in bar. The fourth of those pleas is the one to which the attention of the court has been principally turned. To this plea there is a general demurrer, and the question is as to its sufficiency. This plea alleges, in the first place, that the commissioner of insolvents did not, previous to the May term, 1826, at which the ■defendant, Way, was bound to appear, give the necessary notice required bylaw of his intention to apply for the benefit of the insolvent act. It is to be observed that the notice not having been .given, the application could not be made, of course the appearance would have been nugatory. If, under these circumstances, Way .and his securities are made liable, it is not so much on account of .any neglect of his as on account of the neglect of a public officer. It is the duty of the commissioner of insolvents to give notice of the intention to make application for the benefit of the act. I am aware that an attempt has been made, in argument, to show that this is the duty of the insolvent, but the court think otherwise. Section 4 of the act provides that this shall be done by the commissioner, and there is no other provision of the law expressly interfering with this. To subject third persons to a penalty in consequence of the neglect of a public officer, is not consistent with justice; still we no not undertake to say, that had the plea been stopped here it would have been sufficient.

The plea, however, alleges, that subsequent to this, to wit: after the May term, and before the September term, 1826, notice was given that the defendant, Way, would make his application at the September term, and that Way did appear at that term and obtained a certificate of discharge, etc. From this it appears that the defendant, Way, so soon as he could, consistently with the law, make application for the benefit of the insolvent act, did appear and obtain a certificate of discharge. Why, then, should he or his securities be made liable on this bond? Neither he nor they have been guilty of any neglect. Everything, the security of which the law by requiring the bond intended to provide for, has been performed. The insolvent, for aught that appears, has acted with perfect good faith, the certificate has been obtained, and the bond itself is “ canceled,” or satisfied.

The plea, therefore, is sufficient, and judgment must be rendered accordingly.