author: Spear, J.

text:
    Bonewitz v. Bonewitz.

      Trial by jury—May be waived—How— When demand for should be made.

    1. A party may waive his right to a jury trial by acts, as well as by words.
    2. And where, in a case of which the court of common, pleas, having jurisdiction of the parties, may also, by consent, acquire jurisdiction to try the cause without a jury, the record shows that the parties appeared, and neither demanded nor waived a jury, but without objection submitted the cause to the court upon the . pleadings, evidence, and argument of counsel, it is not error for the court to proceed to final judgment in the case.

      Z. An objection by the defeated party, first made after such.submission and judgment, that his cause was not tried to a jury, comes too late.
    (Decided June 13, 1893.)
    Error to the Circuit Court of Van Wert county.
    In the petition the plaintiff in error, who was plaintiff below, set out an agreement in writing, of which the following is a copy:
    “ Van Wert, Ohio, May 26, 1877.
    “ One day after date, I promise to pay to Mrs. Elizabeth E. Bonewitz, or her heirs or assigns, thirteen hundred dollars ($1,300.00), for value received. I also hereby agree for myself, myi- heirs and -assigns, that upon the presentation of this obligation to me, my heirs or assigns, by her or her heirs or assigns, to take up this obligation and in lieu thereof, to surrender to her, her heirs or assigns, one quarter interest in the business of the firm of Bonewitz, Schumm & .Co., as that interest may appear from the books of said firm, after deducting all expenses, losses and liabilities, and making capital stock equal as between parties—that is to say, she would have an interest of thirteen hundred dollars in the capital stock and one-fourth part of the net gains or losses as the case may be.
    [sear.] “D. R. Bonewitz.”
    She averred further, in substance, that at the time of the making of the agreement, she was a married woman; that the defendant, .one O. P. Bonewitz and Uouis G. Schumm, had, about that time entered into a partnership to deal in dry goods, etc., under the name of Bonewitz, Schumm & Co.; that defendant urged her to give him the money to invest in the business of the firm, representing that she should be a dormant partner, and have a fourth interest, and relying upon those representations, and agreeing thereto, she gave him said money, and thereupon defendant executed the writing. Subsequently, P. Bonewitz and Schumm retired from the firm, the defendant purchasing their interest and continuing the business, the plaintiff still retaining her one-fourth interest upon the assurance of defendant that her interest would not be affected by the change, and the business had been so conducted to a time shortly before the commencement of the action; that defendant now denies that she has any interest in the business, and refuses to allow her any participation therein. The firm has been successful; is possessed of a valuable stock of goods, and has a large amount of debts owing to it, and a valuable good will, and since the plaintiff so entered, the partnership has gained a large amount of profits, the exact amount of which plaintiff cannot tell, though she believes and charges, exceeds fifty thousand dollars, all of which defendant has kept and appropriated, and refuses plaintiff access to the books of the firm. No part of the $1,300.00 has ewer been paid to her. The prayer was that the contract be specifically enforced; that she be deemed to be a partner, and then that defendant be compelled to account with her, and pay what may be coming to her; but if she be not entitled to such remedy, then for judgment for $1,300.00, and interest from May 27, 1877.
    By his answer, defendant admitted that he received $1,300, but averred that the money, which was received on account of the husband of plaintiff, one Frank J. Bonewitz, and not on account of plaintiff, has been fully paid to said Frank J., and took issue 'on the other allegations of the petition. Further answering the defendant alleged:
    “That he at no time to his knowledge signed the pretended contract set out in the plaintiff's petition, providing that the plaintiff could on the surrender of said pretended contract acquire an interest in the business of Bonewitz, Schumm & Co., and which pretended contract she asks to have specifically enforced, in this action, and he therefore denies that he did sign the same, and he avers that if his name attached to said pretended contract is his genuine signature, it was procured by fraud and misrepresentation, and without his consent, and without his knowledge and wholly without consideration. Wherefore the defendant prays that said pretended contract be declared fraudulent and void, and that the same may be canceled, and that the defendant go hence and recover his costs."
    The new matter was traversed by a reply.
    In the common pleas it was found, and stated in the journal entry:
    “That the cause coming on for trial came thereupon the parties and their attorneys, and neither party demanded or waived the interposition of a jury, but without objection submitted the cause to the court upon the pleadings, evidence and argument of counsel.” The court then found for the plaintiff, and rendered judgment for $1,300, interest, and costs, but; found against her as to the alleged partnership. Motion for new trial by defendant was overruled. Error was then prosecuted b3r him to the circuit court where the judgment of the common pleas was reversed, and the cause remanded.

      G. M. Saltsgaber, for plaintiff in error.

      H. G. Richie, for defendant in error.
   Spear, J.

The ground of error alleged in the circuit court was that the common pleas erred in proceeding to trial without the intervention of a jury.

To sustain the judgment of the common pleas, it must appear, either that a jury was waived, or that the issues were such that the cause could of right be tried by the court without a jury.

Section 5130, Revised Statutes, provides that' “issues of fact arising in actions for the recovery of money only, * * * shall be tried by a jury, unless a jury trial be waived,” etc. And, by section 5204, it is provided that, in actions arising on contract, trial by juiy may be waived, (1) by consent of the party appealing, when the other party fails to appear, (2) by written consent filed with the clerk, or (3) by oral consent in open court, entered on the journal.

It is insisted by counsel for plaintiff in error that the record shows affirmatively, there was a waiver of a jury trial, while opposite counsel contend that the journal entry not only fails to show there was a waiver, but does affirmatively show that a jury was not waived.

The, language of the entry is that “ neither party demanded or waived the intervention of a jury, but without objection submitted the cause to the court upon the pleadings, evidence and argument of counsel.” There is apparent verbal contradiction in the entry, and the question is, what, taken as a whole, does the language import? Upon the whole case made, was there a waiver, or not? Attention is called to the case of Slocum v. Swan, 4 Ohio St. 161, as settling the question in this case. Plaintiff’s action was in ejectment. A plea of “not guilty” had been interposed. When the case was reached, the defendant came not, although, called, and the court rendered judgment for plaintiff without a jury, and, apparently, without proof. The statute then in force provided that “when the parties to such action shall agree to waive the intervention of a jury, and to submit the case to the court, it shall be the duty of such court to try and determine the facts," etc. Under such a statute, and upon such a record, this court held that the issue made could not be tried by the court without a waiver by the parties of a jury trial; that there was no such waiver, and reversed the judgment. The real question was hardly germain to our case. It was whether or not the absence of the defendant amounted to a waiver. The holding on that question can not materially aid in the solution of the question here presented, much less settle it.

We have examined the other cases cited by defendant’s counsel, but do not find them applicable to the present facts.

As already observed, the statute indicates several methods of showing waiver. Where the parties are present, (as in this case), there must be consent, and, if it be oral, it must be given in open court, and entered on the journal. When this sufficiently appears, there is, in law, a waiver. Does not just that thing appear here? We think it does. The parties were present. Without objection they “submitted the cause to the court upon the pleadings, evidence and arguments of counsel.” This means a trial’ of the cause. It means, also, that the parties consented to go forward and try the cause to the court, and their acts, in this regard, were entered on the journal.

To submit a cause to a court is an. affirmative act. It is to ask the court to hear the evidence, consider it, and apply the law. What more potent “consent” could be given than this? A jury was not demanded because, in all probability, the counsel and the court alike regarded it as a court, and not a jury, case. True, the entry says that neither party waived a jury. This language, in the light of the entire entry, naturally means, we think, and should be held to mean no more than that no waiver was made in words. And it is true that none was so made, but actions sometimes speak louder than words.

It was not until after the court had found and adjudged against the defendant that he discovered he had been prejudiced by not having his cause tried to a jury. His objection to the mode of trial, we think, comes too late. To sustain his claim would seem to be trifling with justice. He proceeded to trial, without objection, to a court having jurisdiction of the parties, and capable of being clothed with jurisdiction of the subject matter for all purposes, taking his chance of a favorable result, and can not, now that the chance has turned against him, be heard to question the authority of the tribunal to which he consented to submit his cause. He must be held to have waived his right to a jury trial, if he had such right. Nicholson v. Pim, 5 Ohio St., 25; Ellithrope v. Buck, 17 Ohio St., 72; Arvillest. Verner, 22 Ohio St., 872; Millers. Longrave, 26 Ohio St., 298; Culver v. Rodgers, 33 Ohio St., 537.

We think it was not error for the trial court to assume jurisdiction and try the issues. And as this holding disposes of the case, it is not important to consider whether, as a matter of law, either party had the right, under the pleadings, to demand a juiy.

The judgment of the circuit court will be reversed, and that of the common pleas affirmed.


source: Caselaw Access Project

author: BurkET, J.

license: Public Domain

text:
    Probasco, Executor and Trustee, v. Raine, Auditor.—Probasco v. Raine, Auditor.

      Constitutional law—Public policy—County auditors—Powers of— Fees of.

    1 .If a statute is constitutional, it is valid, and can not be set aside by a court, as being againstpublic policy or natural right. There can be no public policy or right in conflict with a constitutional statute.
    2. The fee of four per centum to county auditors, provided for by section 1071, Revised Statutes, does not disqualify such auditors from performing tbe duties, and exercising the powers imposed on them by sections 2781 and 2782, Revised Statutes.
    3. As to what constitutes “a false return,” under section 2781, Revised Statutes, Ratterman v. Ingalls, 48 Ohio St., 468, is followed and approved.
    (Decided June 13, 1893.)
    Error to the Superior Court of Cincinnati, in General Term.
    On June 30, 1887, plaintiff in error, also plaintiff below, filed his petition in the Superior Court of Cincinnati against the defendant in error, also defendant below, as auditor of Hamilton county, seeking to enjoin said auditor from placing upon the tax duplicate, for taxation for the year 1887, the sum of one hundred thousand dollars of the stocks of the state, issued under the act of April 8,1856, held by plaintiff, for the years 1881 to 1886, both inclusive, which stocks plaintiff claimed were exempt from taxation, by virtue of the act of February 4, 1825, Ohio Laws, vol. 23, page 55, Chase’s statutes, page 1472, and the act of April 8, 1856, Ohio Laws, vol. 53, page 112.
    Defendant in his answer admits that he is about to place said stocks on the duplicate for taxation for the years aforesaid, and avers that said stocks are not exempt from taxation, and that they have been omitted for said years.
    The case was reserved to the general term of the Superior Court, and was there tried upon an agreed statement of facts, and judgment rendered for defendant at costs of plaintiff. By the judgment of the court the auditor was ordered to proceed and place said stocks on the duplicate for taxation for each of said years, including in said assessment for the year 1886, a penalty of fifty per centum. To all of which plaintiff excepted.
    Plaintiff filed his motion for a new trial, which was overruled, and exceptions taken.
    A bill of exceptions was filed bringing into the record the said agreed statement of facts, which is as follows:
    “ For the purpose of the trial of this cause, the parties to this action agree upon the following as a full and complete statement of the facts herein, and also that, in so far as the pleadings herein may vary therefrom, the said pleadings may be considered as amended, or may be amended at any time, so as to conform thereto:
    “1. That Julia A. Probasco died prior to the commencement of this action, and that for more than ten (10) years immediately preceding the time of her death, she was a resident of Clifton, Millcreek township, Hamilton county, Ohio.
    “That on the day preceding the second Monday in April in each of the following years, Henry Probasco, as trustee and executor of the estate of said Julia A. Probasco (the said Henry Probasco having been during all of said years a resident of Clifton, Millcreek township, Hamilton county, Ohio), was the owner and holder of certificates of indebtedness of the state of Ohio, commonly known as canal stocks, in the amounts of the par value thereof, as follows, viz.:
    1881..................................................................$100,000.00
    1882.................................................................. 100,000.00
    1883 .................................................................. 100,000.00
    1884 .................................................................. 100,000.00
    1885 .................................................................. 100,000.00
    1886 .................................................................. 100,000.00
    none of which were returned for taxation- nor listed upon the blanks left by the assessor in each of said years for his returns.
    “2. That said certificates of indebtedness were issued under and by virtue of an act of the legislature of Ohio, passed April 8, 1856, Ohio Raws, vol. 53, page 112, entitled: ‘An act to provide for the payment of the public debt of the state, due January 1, 1857, and for the payment of the interest on the public debt.’ And it is agreed that said certificates were in the form of the blank certificate attached to the agreed statement of facts in case No. 42,618, of this court, marked ‘Exhibit A.—A. Gardner, Jr., clerk of sinking fund commissioners;’ and which blank form, it is agreed, may be copied into the record herein as part thereof.

      “4. That the holding by plaintiff of certificates of indebtedness, issued as aforesaid, and the redemption thereof, as shown on the books of the sinking fund commissioners of the state of Ohio, were as follows, viz.:
    Oct. 24, 1865, certificate No. 1635.......................................$25,000.00
    “ “ “ “ “ 1637....................................... 5,000.00
    Jan. 24,1866, “ “ 1675, to 1679, inclusive............. 70,000.00
    Making a total of................................................$100,000.00
    “That on the 25th day of January, 1887, all of said certificates of indebtedness were fully redeemed by the sinking fund commissioners.
    “5 That there was no change in the ownership»of said certificates from the date of the first ownership thereof by plaintiff, save as above set forth, and that plaintiff was never otherwise the owner or holder of any of the said certificates of indebtedness, or of any other certificates of indebtedness of the state of Ohio.
    “ 6. That the certificates issued under the act of 1856, above referred to, bore the same rate of interest as those issued under the acts of 1825 and 1826, referred to in the pleadings, to-wit: six percentum per annum.
    “7. That, prior to the commencement of this action, the defendant, Frederick Raine, as auditor of Hamilton county, Ohio, was about to charge plaintiff on the tax lists and duplicates of Said county with the proper taxes on the said investments in said stock or bonds, as set forth in section 2, of this agreed statement of facts, and would have done so, except for the proceedings herein.
    “ 8. That, as to all other property owned by plaintiff subj'ect to taxation during each of said years, the same has been properly listed for taxation, and the taxes paid thereon by plaintiff.
    “9. That none of said bonds or the state stocks issued under the said act of 1856, nor the investments therein, have ever, as a matter of fact, been listed for taxation, or subjected thereto by state authority; but the question as to whether the law required the same to be listed and taxed under all the circumstances, is to be passed upon herein.

      “10. The amount of the indebtedness under the acts of 1825 and 1826, was, in 1865, $2,334,000.00, and remained then outstanding at the date of the passage of the act of April 8, 1856.
    , “ The income of said bonds was distributed and paid over by the executor and trustee to the beneficiary as the same was received.
    “ EXHIBIT ‘A.’
    “Provisions of the constitution of Ohio, adopted A. D. 1851.—Article 7. The faith of the state being pledged for the payment of its public debt, in order to provide therefor, there shall be created a sinking fund which shall be. sufficient tcf pay the accruing interest on such debt and annually to reduce the principal thereof by a sum not less than one hundred thousand dollars increased yearly, and each and every year by compounding at the rate of six per cent, per annum. Article 8. The auditor of state, secretary of state and attorney general are hereby created a board of commissioners, to be styled the commissioners of the sinking fund. “No. 1637. $5,000.
    “ State op Ohio Canal Stock.
    “Columbus, Ohio, Oct. 24, 1865.
    “Be it known the state of Ohio owes to Mrs. Julia A. Probasco, or her assigns, the sum of five thousand dollars, bearing interest from the first day of July, 1865, inclusively, at the rate of six per cent, per annum, payable half yearly on the first days of January and July, in the city of New York, being stock created in pursuance of an act of the general assembly of the state of Ohio, passed April 8, 1856, the principal of which is reimbursable in the city of New York, at the pleasure of the state, after the 31st day of December, 1886, which debt is recorded in this office, and is transferable only by appearance in person or by attorney, according to law, upon the books of the commissioners of the sinking fund.
    “In testimony whereof, this certificate hath been signed at the office of the board of commissioners of the sinking fund at Columbus, aforesaid, by the president thereof, countersigned by the secretary of state, who hath also registered and certified the same and affixed the great seal of the state thereto, and hath been certified to be valid and in due form, by the attorney general of the state.
    “James H. Godman,
    “ Auditor of State and President.

    “Countersigned and registered,
    “Wm. Henry Smith.
    f Great seal 1 -j of the j-(_ state of Ohio.)

    “Office op the Attorney General,
    “Columbus, Ohio, Oct. 24, 1865.
    “ It is hereby certified, that this obligation is in due form of law and valid.
    “ C. N. Olbs,
    “ Attorney-General,.”

      Paxton & Warrington, and Ramsey, Maxwell & Ramsey, for plaintiff in error.
    Brief of John W. Warrington and Lawrence Maxwell, Jr.

    The return by the plaintiff in error, was not a false return. Ratterman, Treas., v. Ingalls, 48 Ohio St., 468; Insurance Co. v. Cappellar, 38 Ohio St., 560; 3 Curwen, p. 1805, sec. 2; 4 Id., p. 3091, sec. 2; Revised Statutes secs. 228, 231; 53 Ohio L., 112; 2 Chase, 1474, end of sec. 5.
    Are the certificates taxable? If we are right in the foregoing, it follows that the question of taxability of the certificates does not really arise. 2 Chase, 1474; 53 Ohio L., 112; 65 Ohio R., 38; section 2737, Revised Statutes; Wise v. Miller, 45 Ohio St., at p. 397; McKee v. Hamilton, 33 Ohio St., 7; Horsey v. Heath, 5 Ohio, 353; Lee v. Hollister, 5 Fed. Rep., 752; Hotchkiss v, Marion, (Mont.) 29 Pac. R., 821; Curtis v. Hibbard, 9 Met., 328; 2 Chase, 1472, sec. 6, art. XII, of the constitution; States. Medberry, 7 Ohio St., 522; section 3 of article VIII, of the constitution.
    Was there power to exempt? Sec. 2 of art. VIII, of the constitution; Hill v. Higdon, 5 Ohio St., 249; Reeves v.

      Treasurer of Wood county, 8 Ohio St., 333; Marmet v. State, 45 Ohio St., 63.
    Section 1071 of the Revised Statutes, gives to the auditor such an interest in any finding he may make against the tax-payer, under sections 2781-2, as to vitiate his proceedings and render the latter sections themselves void.
    We insist that the statutory scheme thus enacted provides for the exercise of quasi, if not real, judicial power; and that it provides for paying the officer exercising the power, a pecuniary reward for exercising it in favor of the state. If such a statutory scheme were not itself void, certainly the action of the auditor threatening to find the large sum in question against Mr. Probasco, and assess taxes against him and collect four per centum as a reward for doing so, ought to be void. It is obviously vicious. That the power of the auditor is judicial in its nature has been declared by this court, and has for many years been recognized by the legislature. Gager, Treas.. v. Prout, 48 Ohio St., 110; State v. Crites, Auditor, 48 Ohio St., 172; Commissioners of Wood Co. v. Junkins, 19 Ohio St., 348; Hoff v. Fuller, 45 Ohio St., 497; Lewis v. Laylin, 46 Ohio St., 664; Genin's Ex'r v. Auditor, 18 Ohio St., 534.
    Our contention is, that paying a reward, only, when the finding is in favor of the state, is at once committing an injury and depriving the person injured of the “remedy by due course of law” which is guaranteed by section 16 article I of the bill of rights; and is also taking property “ without due process of law,” within the inhibition of section 1 of the fourteenth amendment of the federal constitution. Gregory v. C., C. & C. Railroad Co., 4 Ohio St., 676; Pearson v. Atwood, 13 Mass., 324; State v. Shaw, 43 Ohio St., 324, and authorities cited at p. 329; Dimes v. Grand Junction Canal Co., 3 H. L. Cas. 759; Hall v. Thayer, 105 Mass., 219; La Fayette Conklin, Treas., v. Squire, 29 W. L. B., 157.
    Brief of R. A. Harrison.

    I. It is evident the general assembly by passing the act of April 8th, 1856, intended to renew and extend the canal loan upon the same terms and conditions under which it was contracted by the act of February, 1825, save only as to the time of payment. This is not a mere inference. The intention is as plain as if the very words renewal and extension had been written in the act. In other language, such is the meaning and intendment of the act, or it is wholly without meaning or intendment.
    II. The bonds belong to a class of indebtedness which the state is authorized to incur by section 2 of article VIII, of the constitution, which ordains that the state may “ contract debts to repel invasion, suppress insurrection, defend the state in war, or to redeem the present outstanding indebtedness of the state.”
    It is claimed- by the plaintiff in error, that éxemption from taxation of the bonds in question is authorized by this section without any reference to the question of renewal; which question has been before argued.
    On behalf of the defendant in error, it is asserted that the bonds are subject to taxation by virtue of laws which have been passed taxing all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise, as provided in article'XII, section 2, of the constitution.
    These two sections of the constitution properly considered and construed, will be found to be independent of each other. The truth is, there is not the feast connection nor conflict between them. They relate to entirely different conditions of affairs.
    III. Before the original action was brought, no attempt had ever been made, or suggested, to subject these bonds to taxation, for the simple reason that 'every body who had occasion to consider the subject was thoroughly convinced that they were not liable to taxation.
    An elaborate brief was, also, filed in the case, by Henry C. Noble.

      Spiegel, Bromwell & Foraker, county solicitors, W. L. Avery, W. W. Boynton, and L. W. Goss, for defendant in error.
    Brief of W. L. Avery.

      I. The contention of counsel for plaintiff in error is, that the exemption from taxation in this earlier act was adopted in the latter one, by the language: “That the commis-
    sioners of the sinking fund be and they are hereby authorized, to issue in accordance with the provisions and conditions of the act of February 4, 1825, creating the state debt, and of the several acts amendatory thereof, transferable certificates,” etc.
    An obvious comment upon this is that the commissioners of the sinking fund could not have so construed the act, since they did not incorporate in the issue any provision, or condition, for exemption from taxation.
    Much admirable sentiment is indulged in by learned counsel, both volunteer and regular, upon plighted faith of the state against taxation; but at all events no such pledge is to be found, where one would naturally look for it, on the face of the certificates themselves.
    To be issued “in accordance with the provisions and conditions of the act of February 4, 1825,” if by this it were meant to adopt the provision or condition for exemption from taxation, must necessarily have been to express such provision or condition in the issue. The omission of this by the commissioners of the sinking fund is conclusive of their construction at least. It was a contemporaneous construction by' those who were^o carry the statute into effect. Edwara's Lessee v. Darby, 12 Wheat., 207, 210; U. S. v. Pugh, 99 U. S., 265,269; Hahn v. U. S., 107 U. S., 402, 406; State ex rel. v. Cook, 20 Ohio St., 252, 259; Regina v. Archbishop of Canterbury, 11 Q. B., 581; Champaign Co. Bank v. Smith, 7 Ohio St., 42, 52, 53; Revised Statutes, 2730, 2731, 2736, 2737.
    Taxability will be presumed. Cooly on Taxation, 2d'ed., 204; Providence Bank v. Billings, 4 Peters, 563; Christ Church v. County Philadelphia, 24 How., 302; Gilman v. Sheboygan Bank, 2 Black, 513; Rwy. Co. v. Supervisors, 93 U. S., 595; Cincinnati College v. State, 19 Ohio, 110; Lima v. Cemetery Association, 42 Ohio St., 128; Ins. Co. v. Ratterman, 46 Ohio St., 159.

      The power of exemption from taxation is not incidental to the power of borrowing money, but to the power of taxation. It is but the withholding the exercise of the power of taxation. In a written constitution, the natural place for enjoining exercise of the power, or forbidding the withholding the exercise, would be under the head of limitation or regulation of the power.
    The argument of learned counsel for plaintiff in error, notably of two of them, is the reverse of this. It is upon article VIII, section 2, of the constitution, limiting the borrowing of money. The arguments further take a wide and interesting range upon the nature of the borrowing power, upon taxes as distinguished from assessments, upon the taxing power and police power, and upon “uniform rule,” as prescribed in section 2, article XII, of the constitution.
    For general reply it. may be that exemption from taxation is incident to the power of contracting, in the sense of requiring a contract to make the exemption. But this is a fallacious sense, when applied as the learned counsel would apply it. Champaign Co. Bank v. Smith, 7 Ohio St., 53, 54.
    Again, it may be there have been distinctions and exceptions taken by this court, upon the difference between taxes and assessments; and upon the definition of “property,” within the requirement of section 2, of article XII, of the •constitution, for taxing by “uniform rule,” and upon the taxing power and police power. Counsel have collected the ■cases. But none of them exempt “property” from the uniform rule of taxation; they only differ upon what is “taxation,” and what “property;” they merely affirm that, “in raising general revenue to meet the necessities of government, certain designated kinds of property are required to be taxed by a certain rule. ” Anderson v. Brewster, 44 Ohio St., 585.
    No provision of the constitution is more explicit in its terms or less open to construction. Bradley v. Bauder, 36 Ohio St., 33.
    The very last construction, therefore, that should be adopted, of the act for the issue of these certificates, would be one that makes it conflict with the constitution. Zanesville v. Auditor, 5 Ohio St., 592; Exchange Bank v. Hines, 3 Ohio St., 42, 43; Matheny v. Golden, 5 Ohio St., 374; Fields v. Commissioners, 36 Ohio St, 481.
    II. The question of renewal, is a point in argument for plaintiff in error, much elaborated by the briefs. But the extension was upon new terms. If the holders of the old issue chose to exchange for certificates of the new, doubtless they might have done so; at least, for argument’s sake, this will be conceded, although the act vested the commissioners of the sinking fund but with power to sell. If the holders did not want the new issue but wanted their money, the5r would be paid out of the proceeds of sale to others, of the new issue. In either case, the existing contract with the state created under the old issue would be at an end, and that issue extinguished.
    III. Section 2781 is construed in Ratterman v. Ingalls, 48 Ohio St., 468. The result is, as against the presumption arising from a return false in fact, to allow the circumstances, under which it was made, to rebut the inference of intention, or inference of culpable negligence in discharge of the duty to return taxable property for taxation. This leaves therefore upon the taxpayer, or rather non-taxpayer, the burden of excuse or explanation. The facts in Ratterman v. Ingalls, therefore, were all wanting here.
    IV. Section 1071, Revised Statutes. The auditor is not a judge. Const., article IV, section 1. The auditor is no more a judge than a fence-viewer is a judge. Both fence-viewer and auditor determine upon evidence; the exercise of deliberation and judgment is involved; and notice is required. Township trustees and county commissioners establishing ditches and roads, and other boards exercising similar judicial functions, just as the auditor, may be reviewed by petition in error. Haff v. Fuller, 45 Ohio St., 495, 497; Lewis v. Laylin, 46 Ohio St., 663, 676. But none of these is a judge.
    The legislature has not assumed to make the auditor a judge in his own cause. To leave the auditor to be compensated in that way may have been impolitic. It was to create an interest in him, of course; that was for the legislature to consider. But how was it unconstitutional? Or how unconstitutional, so providing the official fee for the service, to devolve upon him the inquiries and corrections under sections 2781 and 2782? The legislature was competent to provide official fees out of public money not otherwise appropriated. Anderson v. Commissioners, 25 Ohio St., 13; 11 Ohio St., 237, 238; 54 Mich., 383.
    In the only sense of the words having pertinency to the argument, however, that is, to the point of constitutional restrictions against the legislation, we submit, nevertheless, that with notice and opportunity for hearing, saving that the specific reward of the officer is not paid out of the property, for only the public charges here are out of the property, it would be due course or due process of law. The state for the proper purposes of assessment and taxation,1 with notice and opportunity to be heard in the proceeding, may determine the liability by the judgment of its own taxing officers. Spencer v. Merchant, 125 U. S., 345, 353, 356; Walston v. Nevin, 128 U. S., 378, 582; Lent v. Tillson, 140 U. S., 316, 327, 328, 331; Adler v. Whitbeck, 44 Ohio St., 571.
    Statutory inhibition aginst a judge sitting in his own cause will be construed to apply only to a judge eo nomine, or to a justice or other person holding a court eo nomine. Foot v. Stiles, 57 N. Y., 399; People v. Wheeler, 21 N. Y., 82; O'Reilly v. Kingston, 114 N. Y., 439, 450; State Winans Pros. v. Crane, 36 N. J. L., 394; Stockwell v. Township Board, 22 Mich., 341, 345; Hall v. Thayer, 105 Mass., 219; Wilbraham v. County Commissioners, 11 Pick., 322; Thompson v. Love, 42 Ohio St., 61; People ex rel. v. Kingston, 101 N. Y., 82.
    The question is only of the constitutionality of the legislation. The function of the auditor here was not judicial power within the meaning of the constitution. Logan Br. Bank, ex parte, 1 Ohio St., 432, 434; Murray's Lessee v. Hoboken, 18 How., 272, 280.
    The legislation, here, bore no relation to the apportionment of judicial power, but was in pursuance of the mandate, under the head of “finance and taxation” in the constitution, enjoining that laws be passed to subject all property to the common burden of taxation and let none escape. Art 11, Sec. 20; Cricket v. State, 18 Ohio St., 9, 21; Spencer v. Merchant, 125 U. S., 355.
    The county auditor is the only officer left with authority to reach omitted property for taxation. Pearce v. Atwood, 13 Mass., 324, 340; Dimes v. Gr. Junc. Canal Co. 3 H. L. Cas., 787, 788; Matter of Ryers, 72 N. Y., 1, 12, 13; Robb v. Brachman, 38 Ohio St., 423, 426; Freeman on Judgments, section 145; Thompson v. Love, 42 Ohio St., 72.
   BurkET, J.

The sections of the Revised Statutes under which the auditor claims the authority to act in placing omitted property on the duplicate for taxation, are sections 2781 and 2782. The validity and scope of these two sections have been determined by this court in former decisions. Gager v. Prout, 48 Ohio St., 89; Ratterman v. Ingalls, 48 Ohio St., 468; State ex rel. v. Crites, 48 Ohio St., 142.

But the point is now made that as the auditor receives a fee of four per cent, under section 1071, Revised Statutes, that he is thereby disqualified from acting in the case. The fees of the auditor in Hamilton county are regulated by a statute applicable to Hamilton county alone, and are somewhat less than the other counties of the state, but the principle involved is the same.

The question is a very important one and has been differently decided by different courts in this state, but this is the first time that the question is made here.

We have carefully considered, not only the arguments presented by counsel in this case, but also the published opinions of the lower courts on the question, and we are clear .in the opinion that the fees provided for in section 1071, do not disqualify the auditor from performing his duties under said sections 2781 and 2782.

Whatever may be the rule elsewhere, it is clear that in this state the validity of an act passed by the legislature must be tested alone by the constitution, and that the courts have no. right or power to nullify a statute upon the ground that it is against natural justice or public policy.

When the legislature is silent, the courts may declare the public policy, and mark out the lines of natural justice; but when the legislature has spoken, within the powers conferred by the constitution, its duly enacted statutes form the public policy, and prescribe the rights of the people, and such statutes must be enforced, and not nullified, by the judicial and executive departments of the state.

When the legislature, within the powers conferred by the constitution, has declared the public policy, and fixed the rights of the people by statute, the courts cannot declare a different policy or fix different rights. In this regard the legislature is supreme, and the presumption is that it will do no wrong, and will pass no unjust laws. The remedy, if any is needed, is with the people and not with the courts.

Section 2 of article XII of the constitution, requires the legislature to pass laws, taxing, by a uniform rule, all property in the state, except such as is therein exempted. This has been construed by this court to impose upon the legislature the dutjr of passing laws which will secure equality in the burden of taxation. The Exchange Bank of Columbus v. Hines, 3 Ohio St., 1.

The result to be attained by the laws to be passed under this section, is equal taxation, but the means by which that end shall be attained, is left to the judgment and sound discretion of the legislature acting within the powers conferred by the constitution.

To have equality in taxation, all property must be brought upon the duplicate. Some officer must be authorized and empowered to cause all property to be listed for taxation. Such officer must be paid for his services, either by fees or salary. The legislature has full power tinder the constitution to say what officer shall perform such duties, and in what manner he shall be paid.

It has enacted that such duties shall be performed by the auditor, and that he shall be paid as provided in section 1071. In the opinion of the legislature this is a proper means to attain, in part at least, equal taxation. It matters not whether the auditor acts judicially or ministerially in the discharge of his duties. The legislature is free to employ such means, as in its opinion, shall be most effective, whether they be judicial or ministerial, or both.

The objection urged in argument that a man cannot be a judge in his own case is a fallacy. The auditor has no case to be judged, but on the contrary, he is the taxing officer before whom other parties are cited to appear and show cause why they should not bear their equal burden of taxation.

His actions in the premises are subject to review in the courts, and thereby due process of law is had. Sections 2781 and 2782 are not in conflict with any provision or inhibition of the constitution, but seem to be clearly authorized by section 2 of article XII of that instrument.

The auditor acts under oath, and good faith and an honest purpose in the discharge of his official duties are to be presumed.

A probate judge, acts judicially in the appointment of guardians and administrators, and receives a fee for each appointment, and yet such fee does not disqualify him from acting in the premises. A justice of the peace acts judicially, and is paid therefor by fees collected from litigants before him, and while his mind may be biased in particular cases, it cannot be claimed that he is thereby disqualified from discharging his judicial duties. A judge who is a large taxpayer in his county or city, is not thereby disqualified from sitting in judgment in cases against his county or city. And in such case a resident taxpayer in such county or city is not by reason thereof disqualified from sitting as a juror in the trial of such case. Commissioners of Clermont County v. Lytle, 3 Ohio, 290.

The rule insisted upon in the case by plaintiff, as to the interest of the auditor, would disqualify every member of this court from sitting as a judge in the decision of this case.

Almost every officer in this state is more or less, directly or indirectly, interested in the result of the duties by him performed, whether ministerial or judicial, but such interest does not disqualify him from performing his official duties, unless the legislature has by statute so provided.

The case of Gregory v. Railroad Co., 4 Ohio St., 675, cited and relied upon by counsel, fully sustains this view of the powers of the legislature, and the limitations of the powers of the judiciary. In that case the legislature by statute declared the policy of the state to be, that when a judge should be interested in the subject-matter of the case, he should not sit therein, and that the case should be transferred to an adjoining county for trial and decision. The two judges in that case disregarded that provision of the statute, and sat as judges in a case in which they had an interest, and ‘the judgment was reversed for the reason that the judges were disqualified by statute. The court say on page 679, that the judges should have refused to sit in the case, and should have made known their interest at the earliest moment, so that the case. might under the statute be transferred to an adjoining county. The case was reversed because the judges refused to follow the policy of the state as declared by the statute, and not because of some public policy invented by the court. In this case the auditor has obeyed the statute, and we are asked to reverse the judgment and adopt a policy different from that adopted by the legislature. This we can not do.

The action of the auditor is not final, so as to cut off further inquiry, but the whole case may be gone into anew by proper proceedings in court, as was done in this case, and therefore no great harm is likely to result to those who have not made a false return of their property.

We therefore hold that the auditor should be sustained in exercising the powers and performing the duties imposed by sections 2781 and 2782.

But this does not dispose of the case. For myself, I think that these stocks are expressly exempted from taxation by the act of April 8, 1856, taken in connection with the act of February 4, 1825, and that the act of 1856 is constitutional. But, as the court is divided upon this question, the point is left undecided.

From the agreed statement of facts, it appears that these stocks were registered, and therefore could not be concealed; that such stocks had never been taxed by state authority, and that there was good reason for the belief that the stocks were not taxable; and therefore the court is unanimous in the opinion that the returns for taxation for the years 1881 to 1886, both inclusive, were not false returns, within the meaning of that term, as defined by this court in Ratterman v. Ingalls, 48 Ohio St., 468.

It therefore follows that the judgment of the Superior Court of Cincinnati in general term is erroneous, and that the judgment should be reversed, and judgment entered for' plaintiff as prayed for in his petition.

Judgment accordingly.


author: Williams, J.

text:
    Neininger v. State.

      Reformation of written instalments— When may be had against a surety—Recognizance in bastardy proceedings—When may be forfeited—Practice in civil cases.

    1. A written instrument executed by a surety, which., by mistake, fails to express the actual agreement and intention of the parties, may be reformed, upon parol proof, like other written instruments, and then enforced against the surety.
    2. A recognizance, conditioned that the accused in a proceeding in bastardy shall appear at the next term of the court of common pleas and answer the accusation, and abide the order of the court thereon, may be forfeited after trial and verdict of guilty, if he then fail to appear and perform the order and judgment of the court.
    3. There being no rule day prescribed by statute for answer to an amended petition, the time which may be allowed for filing the answer is within the discretion of the court; and when no other time is fixed by the court, setting the case for trial on a specified day, is, in effect, an order that the issues be made up by that time.
    (Decided June 13, 1893.)

      Error to the Circuit Court of Belmont county.
    Margie Coss, an unmarried woman, made complaint in writing, under oath, before F. C. Robiqson, a justice of the peace of Pease township, Belmont county, charging Ado Kyne with the paternity of her illegitimate child. The accused was arrested upon a warrant issued on the complaint, and taken before the justice, who, after the examination required by the statute, directed the accused to enter into a recognizance payable to the state of Ohio, in the sum of three hundred dollars, with sufficient surety, for his appearance at the next term of the court of common pleas of that county, to answer the accusation, and abide the order of the court thereon. Frederick Neininger and John F. Kyne offered themselves as sureties, and, as such, entered into a recognizance with the accused, in accordance with the provisions of the statute, and the order of the justice. In entering the recognizance on his docket, whére it was signed' by the parties, the justice, by mistake, inserted the name of the complainant as Margie Kyne, instead of Margie Coss.
    The following is a copy of it, as it was signed:

      “'The State of Ohio, Belmont County, ss.:

    “Be it remembered, that on this 27th day of December, A. D. 1887, Frederick Neininger and John F. Kyne personally appeared before me, F. C. Robinson, a justice of the peace of Pease township in said county, and jointly and severally acknowledged themselves to owe and be indebted unto the state of Ohio, for the use and benefit of Pease township in said county, the sum of three hundred dollars, to be levied of their goods and chattels, lands and tenements, upon this condition:
    “That the said Ado Kyne shall personally appear before the court of common pleas, to be holden in and for the county aforesaid, on the first day of the next term thereof, and continue from day to day, and then and there answer unto a complaint of bastardy, made by Margie Kyne against him, and abide the order of the court thereon, then this recognizance to be void, otherwise to be and remain in full force.
    “Ado Kyne, [sear.]
    “ Feed Neininger, [sear.]
    “John. F. Kyne [sear.]
    “Taken and acknowledged before me, the day and year aforesaid.
    “F. C. Robinson,
    , “Justice of the Peace.”

    The accused did not appear at the next term of the court of common pleas, and the cause was tried in his absence, resulting in a verdict of guilty, upon which judgment was rendered, charging him as the reputed father of the child with its maintenance, in the sum of five hundred dollars, to be paid to complainant in installments as therein provided, and requiring him to give security to perform the order and judgment of the court, which he failed to doJ whereupon the recognizance was forfeited.
    Afterward, the action below was commenced in the court of common pleas of Belmont county, against the sureties, to recover the amount of the recognizance. In an amended petition subsequently filed, the facts hereinbefore stated are alleged. It is also averred, that the defendants intended to, and in fact did enter into the recognizance for the appearance of the accused to answer the complaint of Margie Coss; that there was no complaint of Margie Kyne, nor such a person, when the recognizance was executed; and, that the defendants well knowing the facts, and to obtain the release of Ado Kyne from the custody under which he was then held on the complaint of Margie Coss, agreed to, and did become sureties for him, on the recognizance, thereby binding themselves that he would appear in the court of common pleas, and there answer to the accusation made by Margie Coss, and perform the judgment of the bourt thereon, and by so becoming his sureties obtained his release from the custody under which he was then held on her complaint. The amended petition prays for the reformation of the instrument by correcting the mistake in the name of the complainant, and then, for judgment upon it.
    The defendants filed a general demurrer to the petition, which was overruled. They then answered, denying its allegations. Upon the trial, the court found for the plaintiff, decreed the reformation,' and rendered judgment accordingly. That judgment was affirmed by the circuit court, and to reverse both judgments this proceeding in error is prosecuted.

      Jas. M. Rees, and N. K. Kennon, for plaintiffs in error.
    I. The defendants had their rule day within which to plead to the second amended petition; to so deprive them of their rule day was unauthorized.
    No order was made as to the time the defendants were to plead to this second amended petition. Time had not been given defendants to make up the issues; the defendants were not in default. Even in the presence of an order fixing the time within which the defendants should plead to the second amended petition, but especially in the absence of such an order, we submit that they should have as long to answer the second amended petition as they had to. answer an original petition. Sections 5111 and 5112 of the code, by analogy seem to give the defendant to and including the third Saturday to plead. It seems there is no direct provision of the code as to when an answer to an amended petition must be filed; but certainly the practice is to give the defendant as long a time to answer the amended petition as he has to answer the original petition. Cunningham v. Mathivet, 1 Cleve. Rep., 341; Kimmel v. Pratt, 34 Ohio St., 344.
    II. A forfeiture of the recognizance was not properly had in this cause. We submit that this forfeiture of the bond, after the trial, is void. Revised Statutes, Secs. 5623-4-5. The proceedings are purely statutory. Jurisdiction is obtained and exercised only in the manner of the statute, and the forfeiture was unauthorized and void. Grieve v. Fretag, 31 Ohio St., 147.

      III. No principle is better settled, both in this state and elsewhere, than that a surety is not bound beyond the letter of his bond. His liability is strictissimi juris; no intendments are to be made against him. His liability can not be enlarged by presumption or by construction. The bond speaks for itself, and the law is that it shall so speak. Sureties stand upon the words of the bond, and their liability is limited to the exact letter. thereof. There is no construction, no equity, against sureties. The cases speak a uniform language on the subject. McGovney v. The State, 20 Ohio, 93; The State v. Medary, 17 Ohio, 554, 565; Grant v. Naylor, 4 Cranch, 224; Meyers et al. v. Parker, 6 Ohio St., 501; The State v. Johnson, 13 Ohio, 176; Pickersgill v. Lakens, 15 Wall., 140; Palmer v. Yarrington, 1 Ohio St., 253, 260, and cases cited; The State v. Crippen, 1 Ohio St., 399; The State v. Cutting, 2 Ohio St., 1, 6; Dobbin, et al., v. Bradley, 17 Wendell, 422, 180; Wright v. Johnson, 8 Wendell, 512; Miller v. Stewart, 9 Wheat., 680, 702, et seq; U. S. v. Boyd, 14 Pet., 206; Bank v. Carroll’s Adm'r, 5 Ohio., 131.

      R. J. Alexander, and J. C. Heinlein, for defendant in error.
    I. Continuance is a matter of judicial discretion, and not reviewable on error. 1 Ohio St., 286; 32 Ohio St., 173.
    II. Recognizance was properly forfeited. Sec. 5623-4N5, Revised Statutes. Fight v. The State, 7 Ohio, Pt. 1, 181; Clark & Clark v. Petty, 29 Ohio St., 452; Porter v. The State, 23 Ohio St., 320.
    III. A mistake in the recognizance may be corrected. 2 Ohio, 32; 19 Ohio,406; 3 Ohio St., 508; 39 Ohio St., 226; 38 Ohio St., 606.
    Intentions of parties will be carried out. 1 Ohio, 490.
    Chancery will both reform and execute. 16 Ohio, 490; 11 Ohio, 480; 21 Ohio St., 119; Railroad Co. v. Steinfield, 42 Ohio St., 449, 457; 46 Ohio St., 269. The record of forfeiture is conclusive. Morgan v. Kinney, 38 Ohio St., 610.

      Recognizance not void in certain cases. 29 Ohio St., 452; Proseck v. Ohio, 38 Ohio St., 606.
    If certain words are omitted or if name is omitted. Partridge v. Jones, 38 Ohio St., 375; Clutes v. Knies, 102 N. Y., 377; 32 Vt., 833; Wiser v. Blackly, 1 Johns. Ch., 607; Gerould v. Wilson, 81 N. Y., 573; Alber v. Froehlich, 39 Ohio St., 245; Henkle v. Royal, 1 Vesey, Sr., 317. Equity will grant relief against a surety. Bryant on Suretyship sec. 118; 3 Abbott R. N. J.
    Corrections will be made against sureties in bonds. Olmstead, Guard, and another v. Olmstead, Ex’r, 38 Conn., 309; Butler v. Durham, 3 Ired. Eq. (N. C.), 589; Hudson v. Pitman, 2 Hayw. (N. C.), 331; Sikes v. Pruitt, 4 Jones (N. C.), Eq., 361, 2; Armistead v. Bozman, 1 Ired. Eq. (N. C.), 117; Prior v. Williams, 3 Abbott (N. Y.), Ap. Dec., 624; 35 Barbour, 565, Sterns v. Marks, Adm’r, etc.; U. S. v. Cushman, 2 Sumner, 434; 2 Rowles, 428; Moser v. Liebenguth et al., Adm’r; 1 Brandt on Suretyship, sec. 141 and cases cited; 1 Story’s Eq., sec. 164 and cases cited; State of Missouri v. Adm’r of John A. Frank, 51 Mo., 98.
   Williams, J.

The principal question presented is, whether a written instrument, which, by mistake, fails to express the agreement of the parties, may be reformed, and then enforced against a surety. The plaintiffs in error contend that it cannot; and, for that reason, they claim the court of common pleas erred in overruling their demurrer to the amended petition, and awarding the relief it demanded against them.

This court, in a number of decisions, has strictly adhered to the rule, that the lialility of a surety cannot be extended by implication, beyond the terms of his contract. In State v. Medary, 17 Ohio, 554, it was held, that t.he sureties on a bond conditioned for the faithful performance by the principal of his duties as a member of the board of public works, were not liable for his defalcation as an acting commissioner under the appointment of the board.

In McGorney v. State, 20 Ohio, 93, which was an action at law, on an executor’s bond conditioned for the faithful administration of the estate of James Findley, the court held that the sureties were not liable for the maladministration by the executor named, of the estate of Joseph Findley; and, that the bond could not, by parol evidence, be made applicable to the estate of Joseph Findley. It was decided in the case of Myers v. Parker, 6 Ohio St., 501, that an appeal bond, which recited that the appellant had taken an appeal from the judgment of the court of common pleas to the Supreme Court of the county, and the condition of which was that he would pay the amount of the condemnation money in the Supreme Court, in case a decree should be entered therein in favor of the appellee, did not bind the .sureties for the payment of a judgment of the district court, which, at the date of the bond, had superseded the Supreme Court. In neither of these cases, however, was the reformation of the written instrument sought, nor, were the allegations necessary to entitle the parties to that remedy, made by the pleadings. The same may be said of all the cases cited by counsel for the plaintiffs in error. We have been unable to find any reported decision, in which the question here presented has received the consideration of this court.

It is well settled, that written contracts, and other instruments of writing, may be reformed, when, through fraud or mistake, they fail to express the actual agreement and intention of the parties; and, that the fraud, or mistake, may be established by parol evidence. That doctrine has been fully maintained in numerous cases in this state. The remedy has been administered even where the mistake was in the legal effect of the terms of the instrument; and, but for the statute of frauds, there would appear to be no reason why the contracts of sureties should not be subject to the remedy, the same as other written instruments. The obligation of the surety rests upon a consideration as adequate as that of the principal; for, though he receive no pecuniary or other benefit for his undertaking, credit is extended to' the principal, and advantages are obtained by him, upon the faith of the surety’s engagement. But, as the statute requires a promise to answer for the debt or default of another to be in writing, and signed by the party to be charged therewith in order to be binding, it is contended that, to permit the writing to be reformed in any material part upon parol proof of a mistake, would in effect be to establish a verbal contract, and make it obligatory upon the surety, contrary to the provisions of the statute. If that is a valid, objection to the reformation of a contract executed by a surety, it must be equally so, to the reformation of any other contract embraced in the statute of frauds; for, it is-obvious, the objection applies with equal force to all contracts that are within its provisions. The statute is not less', explicit in its requirement that contracts for the conveyance of any interest in lands shall be in writing, and signed by the party, than it is, that those of a surety or guarantor shall be of that character. Indeed, it is expressed as to both classes of contracts, in the same language, and in the same section. And if those of either class cannot, be reformed, on account of the statute, it follows that those of the other cannot; but, if either may be, then so may the other. The statute presents no greater or different obstacle in the one case, than in the other. It has long been the settled law of this state, that contracts concerning lands, and even deeds and mortgages by which they have been conveyed, may be reformed, on the ground of mistake, and upon parol proof, by correcting misdescriptions, including lands omitted by mistake, enlarging or restricting the character of the estate, inserting or qualifying covenants and conditions, and in other respects. In Davenport v. Scovill, 6 Ohio St., 459, it was held, that a mortgage might be reformed so as to include land not described in it, and then enforced against the same. In the case of Clayton v. Freet, 10 Ohio St., 545, a deed which conveyed an estate in fee simple, was so reformed as to convey a life estate to the grantee, with remainder to her children. And a deed, defective for want of an acknowledgment, was reformed by enlarging a life estate into a fee simple, and a conveyance decreed accordingly, in the case of Ormsby v. Longworth, 11 Ohio St., 653. Other instances in which like relief has been awarded, may be found in Hunt v. Freeman, 1 Ohio, 490: Evarts v. Strode, 11 Ohio, 480; Webster v. Harris, 16 Ohio, 490.

With respect to the reformation of contracts within the statute of frauds, Mr Pomeroy, in section 866, of his work on Equity Jurisprudence, says: “ The doctrine in all its breadth and force is maintained by courts and jurists of the highest ability and authority, which hold that, whether the contract is executory or executed, the plaintiff may introduce parol evidence to show mistake or fraud whereby the written contract fails to express the actual agreement, and to prove the modifications necessary to be made, whether such variation consists in limiting the scope of the contract, or in enlarging and extending it so as to embrace land or other subject matter which had been omitted through fraud or mistake; and that he may then obtain a specific performance of the contract thus varied, and such relief may be granted although the agreement is one which by the statute of frauds is required to be in writing. This view, in my opinion, is not only supported by the overwhelming preponderance of judicial authority, but is in complete accordance with the fundamental principle of equity jurisprudence.” In Story’s Equity, section 164, the rule is broadly stated, that equity will administer the remedy of reformation, “on the ground of mistake,” as fully against a surety or guarantor, as against the principal party. And such is the current of authority. In Wiser v. Blackly, 1 Johnson Ch. 607, it was held that, “when the intention is manifest, this court will always relieve against mistakes in agreements, and that as well in the case of a surety, as in any other case.” There a guardian’s bond payable to the people, was corrected td run to the ward. In the case of Olmstead v. Olmstead, 38 Conn., 309, the court held that, “when the contract of a surety does not express the agreement or intention of the parties, to the injury of the obligee, and that is clearly made to appear, equity will reform the instrument, as well against the sureties as the principal.” It has been decided by the Supreme Court of Missouri, that “courts may reform bonds, both as against the principals and sureties. But to authorize such step the evidence must be unequivocal to show the existence of the mistake, and its precise character.” State v. Frank, 51 Mo. 98. And to the same effect are many cases. Among them Smith v. Allen, 1 N. J. Eq., 55; Armstead v. Bozman, 1 Ire. Eq., 117; Sipes v. Truitt, 4 Jones Eq., 361; Butler v. Durham, 3 Ire. Eq., 589; Huson v. Pitman, 2 Hayw., 504; Cute v. Knies, 102 N. Y., 377; Prior v. Williams, 3 Abb. Court of App. Dec., 624; Brandt on Suretyship, section 141.

After a careful and somewhat extended examination of the question, we have arrived at the conclusion that a written instrument executed by a surety, which, by mistake, fails-to express the actual agreement and intention of the parties, may be reformed, upon parol proof, like other written instruments, and then enforced against the surety. But the evidence must be of that clear and convincing character which leaves no reasonable doubt, either of the mistake, or the terms of the agreement.

The plaintiffs in error further claim that their demurrer to the amended petition should have been sustained, because, its averments show, that the recognizance was not legally forfeited; the forfeiture not having been made until after the verdict. The recognizance was conditioned, as the statute requires, that the accused should appear and answer the accusation made against him, and abide the order of the court. The provision of the statute is, that “if the accused fail to appear at the term of the court to which he is recognized his recognizance shall be forfeited.” The verdict was rendered and judgment entered at the term to which the accused was bound to appear, and we see no reason why the forfeiture could not be made any time during the term. The important condition of the recognizance is, that the accused shall abide the order of the court. When that is performed, its purpose is substantially accomplished; and his appearance is material only, to enable the court to enforce its judgment against him, by committing him, as the statute provides, upon his failure to furnish security for the sum he is adjudged to pay for the maintenance of the child. If he appear and defend at the trial, but fail to appear and perform the judgment of the court, there is a breach of the recognizance for which it may be forfeited; and that breach can only occur after trial and verdict. We think, therefore, that the objection urged by the plaintiff in error to the forfeiture of the recognizance, is not a valid one.

It is also contended that the court erred in requiring the plaintiffs in error to go to the trial too soon after the amended petition was filed. It was filed, as the record shows, on the first day of December, 1888, and against their objection the cause was set for trial on the 8th day of the same month. Their claim is, that they were entitled to the same time in which to answer the amended petition, that is allowed by law for answer to an original petition which, it is claimed, gave them until, and including, the third Saturday after the pleading was filed, for answer; and especially should they have been allowed that rule, it is said, because no other time for answer was fixed by the court. The court is authorized to permit amendments of pleadings, before or after judgment, in furtherance of justice, on such terms as may be proper, “by inserting other allegations material to the case,” and in many other respects. Revised Statutes section 5114. An amended petition, which contains all, or part, of the ¿negations of the original petition, with others that are material, is a form of amendment permitted by the statute, and a mode often adopted; and, as the statute has prescribed no rule day for answer to such a pleading, nor to an amendment in any form, the time within which an answer may be filed to a pleading of that kind, is within the discretion of the court. Where no other time is fixed by the court, setting the case for trial on a specified day is, in effect, an order that the issues be made up by that time; and it appears they were made up in this case, before the trial commenced.

Judgment affirmed.


author: Minshall, J.

text:
    Railway Company v. Garrett.

      Railway companies—Consolidation of—Rights of stockholders who refuse to convert stock—Duties of companies to stockholders— Arbitration.

    1. In the consolidation of railway companies under the statutes of this state, a stockholder who refuses to convert his stock into that of the consolidated company, may, by the amendment of April 4, 1890, (87 Ohio Laws, 159), compel the submission of the question of the value of his stock to the arbitration of three disinterested men to be appointed by the judge of the court of common pleas of the proper county; an agreement to arbitrate between him and the company is not required.
    2. A failure to make a demand before the proposed consolidated company acquires the status of an incorporated company under the laws of Ohio, by filing a copy of the ratified agreement of consolidation with the Secretary of State, or a failu're to make an attempt to agree with the company as to the value of his stock, does not defeat the right of a stockholder refusing to convert his stock, to be paid its value.

      Z. It is the duty of the company proposing to consolidate to ascertain who, if any, of its stockholders refuse to so convert their stock, and to cause the value of the stock of any who refuse, to be ascertained and paid, “ before the consolidation takes effect.”
    (Decided June 13, 1893.)
    Error to the Circuit Court of Franklin county.
    The facts are stated in the opinion.

      Watson, Bivrr & Livesay, for plaintiffs in error.
    I. Plainly, section 3388, as it stood before the amendment of 1890, did not provide for compulsory arbitration, but simply made it the duty of the common pleas judge to select the arbitrators after the parties had agreed to arbitrate. Section 3389, did provide for compulsory arbitration on the motion of a director of one of the consolidating companies. Thus the law stood from 1856 to 1890.
    The amendment of 1890 provided for the repeal of original sections 3388 and 3389, and is the only authority in the law for an order appointing arbitrators; and by its provisions the power of the court to act arises only when the parties agree to arbitrate. The language is that, if they cannot agree, “the parties may submit the question to arbitration,” not that they must do so.
    The provisions of section 8389 above stated in reference to compulsory arbitration were omitted from the law of 1890, and nothing enacted in place thereof—and at the time of this application there was no authority to compel arbitration. The law has since been again changed. In vol. 89, p. 88, original sections 3388 and 3389 are (excepting as to length of time and as to the judge making the appointment) substantially reenacted and consolidated into'one section, and the law of 1890 repealed, and now again we have a clause providing for compulsory arbitration, and from this it is evident that the legislature considered that by the act of 1890 compulsory arbitration was not provided for, else there would have been no reason for reenacting section 3389. It is a canon of construction that a statute must if' possible be so interpreted as to give it a reasonable and useful intendment, and hence it might be claimed that the law of 1890 was idle and useless if it simply referred to voluntary arbitration.
    It may be contended that as the old law provided for compulsory arbitration, the legislature evidently intended in amending the act not to disturb that feature of it. But so grave a matter as compelling a party to submit his cause to a tribunal other than the regularly constituted courts, cannot be incorporated into an act by mere construction, or by assuming that the legislature could not have intended otherwise. Endlich on the Interpretation of Statutes, sections. 7 and 155.
    In short, when the words admit of but one meaning, a court is not at liberty to speculate on the intention of' the legislature, or to construe an act according to its own notions of what ought to have been enacted. Nothing could be more dangerous than to make such considerations the ground of construing an enactment that is quite complete and unambiguous in itself. The moment we depart from the plain words of the statute, according to their ordinary and grammatical meaning, in a hunt for some intention founded on the general policy of the law, we find ourselves involved in “a sea of troubles.” Difficulties and contradictions meet us at every turn. Indeed, to depart from the meaning an account of such views, is, in truth, not to construe the act, but to alter it. But the business of the interpreter is not to improve the statute; it is to expound it. Whilst he is to seek for the intention of the legislature, that intention is not to be ascertained at the expense of the clear meaning of the words. The question for him is not what the legislature meant, but what its language means.
    And again, section 155, “As it is presumed that the legislature would not effect a measure of so much importance as the ouster or restriction of the jurisdiction of the Superior Court without an explicit expression of its intention, so it is equally improbable that it would create a new, especially a new and exclusive jurisdiction, with less explicitness; and therefore, a construction which would impliedly have this effect is to be avoided. Crisp v. Bunby, 8 Bingham, 394; Connor v. Drake, 1 Ohio St., 168.
    If Garrett and sons are entitled to the value of their stock in money, they have their right of action in the courts—the law of 1890 providing that a stockholder who refuses to convert his stock shall be paid at least the actual value of his stock, etc., and if the parties cannot agree as to the value, they may submit the question to arbitration.
    The obligation created by the statute is like any other— to be enforced in the courts if not discharged voluntarily, with the additional provision, that if the parties agree to submit the matter to arbitration, they can call on the judge of the common pleas court to appoint the arbitrators.
    II. The stockholder who refuses to convert his stock into the stock of the consolidated company, must make known his refusal before consolidation is consummated.
    Section 3388, as amended in 1890, upon which applicant relied, provides that “a stockholder who refuses to convert his stock into the stock of the consolidated company, shall be paid at least the actual value of such stock, etc. * * * Such payment to be before consolidation takes effect.”
    This is saying, in effect, that the stockholder who refuses to convert, must make that fact known before the consolidation is perfected. He could not be paid before consolidation takes effect without his signifying his refusal before that time. Ample time was afforded.
    This provision of the law requiring the matter to be entered upon before the consolidation takes effect is manifestly just and proper.
    It would be inequitable and unfair to permit a stockholder to wait till after the consolidation is effected before signifying his refusal, for those desiring consolidation are really those on whom the burden of paying the dissenting stockholder rests, and these might be deterred from completing the consolidation, if too many should refuse to come into the scheme, for the burden of making payment might be too great.

      J. H. Collins, for defendant in error.
    I. The entire provisions of the statutes of Ohio with, reference to consolidation of railroad companies are found in sections 3379 to 3392 inclusive, excepting sections 3388- and 3389, which were repealed by the act of April 4, 1890, and the amendment of section 3388 substituted,
    Upon the construction of section 3388, as amended April 4, 1890, depends the questions involved in this case.
    Before discussing the meaning of this statute, it may be well to call attention to some elementary principles. Sections 395-396 of Morawetz on Corporations; Redfield on Railways, Sixth Edition, vol. 2, pages 623, 624; Fisher v. Evansville & Crawfordsville Railroad Co., 7 Ind., 407; Kean v. Johnson, 1 Stock. Ch., 405, 424; Chapman v. Mad River & Lake Erie Railroad Co., 6 Ohio St., 119; Black v. Delaware & Raritan Canal Co., 22 N. J. Eq., 130; McGray v. Junction Railroad Co., 9 Ind., 358; State v. Bailey, 16 Ind., 46; McMahon v. Morrison, 16 Ind., 172; Stevens v. Rutland &

      Burlington Railroad Co., 1 Raw Reg., 154; Clearwater v. Meredith, 1 Wallace, 25.
    II. One of the provisions which the directors of the several companies desiring to consolidate, were required to make was that for converting the stock of the old companies into that of the new: that is, providing the manner in which the capital stock of the constituent companies might be converted into that of the new. This contemplated a new contract between each stockholder in the old companies and the new. That is, it required on his part a surrender of his old stock and the acceptance of the new. This was the only way in which any stockholder of either of the old companies could become a stockholder in the new 'company. The contract here contemplated was, of course, a voluntary contract on the part of the stockholder. He could not be coerced into surrendering his old stock nor accepting the new. He could not be compelled to exchange his interest in one corporation for an interest, in another; and this of course, could not be done until after the new company had been organized and was ready to issue certificates of stock in lieu of the old ones to be surrendered.
    The statute does not contemplate any meeting of the directors of the old corporations after the execution of the contract provided for in section 3381, because after that the next step is a meeting of the stockholders, and this meeting is conducted by stockholders and not by directors; the certificate with regard to the votes is filed by the secretary of the respective companies, and the stockholders, in case the agreement to consolidate is adopted, appoint a time and place for the new election. There is nothing for the old boards of directors to do after the execution of this agreement. And if the construction which plaintiffs in error are insisting upon for this statute is to prevail, then all that is necessary to deprive a party of his stock will be to do what was done in this case-call a meeting of the board of directors at a time and place of which.no stockholder has any notice or knowledge, adopt a contract of consolidation and then adjourn, after having appointed a time and place for meeting of the stockholders. There is then no possible way by which a dissenting stockholder can obtain compensation for his stock, tie has no power to call the board of directors together; they themselves have adjourned without day, and they never meet again, as in this case. And yet, it is said, that because the owners of this stock did not make an effort to agree with this board of directors as to the value of this stock before the consolidation, that they have waived their right to do so. That is, they have lost their property because they failed to do that which it was impossible for them to do. What is a refusal as mentioned in the first section of the amended law?
    Webster defines the word “refuse” to be. “To decline to accept something offered.” So that this statute contemplated an offer. 20 Am. and Eng. Ency. of Raw, 721; Day v. Griffith, 15 Iowa, 104; Cobb v. Chase, 54 Iowa, 253; Bums v. Fox, 113 Ind., 205; Merryfield v. Cobleigh, 4 Cushing, 178; Kimball v. Rowland, 6 Gray, 225, 226; Deere v. Nelson, 73 Ia., 186.
    Viewing this case as stated, and keeping in mind the principles already stated, the amendment to this section of the statute requiring the old company to settle with each of its stockholders before the consolidation and pay him for his interest in the property of such corporation, before its transfer to the new, was wise, and was made for the purpose of doing equity to all parties concerned, and for preserving the rights of stockholders who do not choose to go into the new corporation.
    The contention of the company here is that the stockholder must in some way find out the time and place when the directors are to meet and consider the proposed contract of consolidation, and then and there to notify the board that he will not accept the stock of the new company; or after he receives notice that the directors have entered into the contract, and of the meeting of the stockholders to vote on it, he must ascertain as best he may when and where the board will meet, ami if allowed to be present, notify them of his refusal and endeavor to agree upon the value of his stock. Or, if there is to be no meeting, or if he cannot find out when or where it is to be held, he must induce the president or other proper officers to call a meeting and if they refuse, he is without remedy.
    The construction of this statute contended for would make it unconstitutional under Art. 5 and Sec. 1st of Art. 14, Constitution of the U. S, as it would deprive a party of his property without due process of law. That is, it would compel him to surrender his interests in the old corporation and either lose it altogether, or take the stock of the new.
    Our construction makes the statute practicable, and in accordance with the intent of the legislature, will protect the rights of the stockholder fully, and will deprive the corporation of no rights or property which it possesses.
    There is another view of this whole question which seems conclusive, and that is that these statutory provisions to which reference has been made, are found in Part second, Title second of the Revised Statutes, being that part of the revision having reference to persons, corporations, schools, property, police regulations, drainage and public ways, and is not governed by any of the provisions of Part third. See Section 4956, Revised Statute; State v. Marlow, 15 Ohio St, 114.
    III. The plaintiff in error resisted the application of the defendant for the appointment of arbitrators upon the sole ground that the application came too late; that it should have been made before the consolidation, and the value of the stock determined before that time, and that by waiting until after the consolidation, the defendants in error had forfeited their right to payment for their stock and were bound to take that of the consolidated company in lieu thereof. The papers show that this was the sole ground of their resistance.
    Upon the argument of the case in the circuit court, however, a new question was presented for the first time. And that is, that the amendment to section 3388, passed April 4, 1890, does not provide for compulsory arbitration, but means simply that the railroad company desiring to consolidate, and its stockholder who does not desire to go into such consolidated company, may arbitrate as to the value of the stock of the latter. That the party applying to the common pleas judge for the appointment of arbitrators must show affirmatively thát the parties have agreed to arbitrate and that the matter of disagreement between them is as to who shall be the arbitrators. That is, it contemplates a case in which the parties have agreed upon all of the preliminaries for the arbitration except to name arbitrators; and the sole purpose of this section of the statute as amended, was to .authorize a judge of the court of common pleas in such case to make the appointment, and it was gravely insisted in the circuit court, and now in this court, that this is the proper construction of this statute as amended.
    The remarkable thing about this is that the plaintiff in error did not discover that this was the meaning of this statute until this case was in the circuit court, having previously litigated the case of Robert Sherrard, who was also a stockholder, before arbitrators, in the common pleas and circuit courts of Jefferson County, and now in the Supreme .Court. Having the most eminent counsel in this state representing it, it never occurred to them that this amended statute had the limited meaning for which they now contend; and the contention itself is as remarkable as the fact of the lateness of its discovery. This whole claim is based upon the use of the word “may” in the clause of the sentence “parties may submit the question to arbitration.” In view of this claim, it may be well to examine the definition of the word “may.” Webster’s Dictionary; Century Dictionary; 1 Peters, Reports, 46, 64; 3 Hill’s (N. Y.) R, 612, 615; 9 Gratton s R, 391; 1 Vern. 153; 1 Kent’s Com. 467; 24 Miss. 657; Burrill’s Daw Dictionary; American and English Encyclopedia of Daw; Mason v. Faerson, 9 Howard, 248; Regina v. Barlow, 2 Salkeld, 609; The King v. The Inhabitants of Derby, Skinner, 370; Blackwell’s case, 1 Vernon, 152, 154; 2 Chitty, 251; Dwarris on Stat. 712; Newburgh T. Co. v. Miller, 5 Johns. Ch. 113; City of New York v. Furse, 3 Hill, 612, 614; Minor et al. v. The Mechanics Bank, 1 Pet. 64; Malcom v. Rogers, 5 Cowen, 188; 1 Pet. 64; Scully & Dixon v. Ackmeyer, Second Cincinnati Superior Court Reports, 296; Railroad Co. v. Mowatt, 35 Ohio St., 284.
   Minshall, J.

On June 10, 1890, the directors of The Pittsburgh, Cincinnati & St. Rouis Railway Company, an Ohio corporation with part of its road situated in this state, entered into an agreement with the directors of certain other railway companies for the consolidation of their respective companies under the statutes of this state, the new company to be known as The Pittsburgh, Cincinnati, Chicago & St. Rouis Railway Company. Afterward, in pursuance of proper notice to that effect, this agreement was submitted to, and ratified by, the requisite majority of the stockholders of each company, on August 19,1890, and on the 28th day of the same month, a copy of the agreement was filed in the office of the Secretary of State, and thereby under the provisions of section 3382, Revised Statutes, the several companies, parties to the agreement, became “one companj'-,” possessing in this state all the rights and franchises, and subject to all the restrictions and duties of a railroad company.

Robert Garrett, as surviving partner of Robert. Garret & Son, defendant in error, being the owner of 1728 shares of fifty dollars each in the capital stock of The Pittsburgh, Cincinnati & St. Rouis Railway Company, refused to convert his stock into that of the consolidated company; and not being able to agree with his own, or the new company, as to the value of his shares, applied to a judge of the court of common pleas of Franklin county, for the appointment of arbitrators under the act of April 4, 1890, amending section 3388, and repealing section 3389 of the Revised Statutes. 87 Ohio Raws 159. The principal question presented by the record is, whether, without an agreement with either of the companies to submit the question to arbitration, the stockholder can compel such submission, and have the value of his stock ascertained in that way.

The amendment in substance provides, that a stockholder who refuses to convert his stock into that of the consolidated company, shall be paid its actual value, to be ascertained as therein provided, “such payment to be made before the consolidation takes effect.” And if he and the board of directors of his company cannot agree as to the value, “the parties may submit the question to arbitration * * * by three disinterested persons, to he appointed upon the motion of either of the parties,” by the judge of the court of common pleas of the proper county, to be conducted in conformity to the law regulating arbitrations “so far as the same may be applicable.” It is claimed that the language, “the parties may submit the question to arbitration,” requires that the submission must be by the agreement of both parties. It is, however, evident to our minds, that such is not the proper construction. The language “the parties may submit,” does not necessarily import, that the submission must be the concurrent act of both parties; if both may, it certainly avails as a right to either; and that such is .the intention, becomes clear from the language that immediately follows, that the application for the appointment of arbitrators may be made “ upon the motion of either of the parties.” Either may make the application, not either with the consent or concurrence of the other. This gives to the proceeding an adversary character; and, where either refuses to enter into a submission, changes it from a voluntary, into a compulsory arbitration. This conclusion is emphasized by the provisions of the following section, 8390, which reads as follows: “In all such cases of arbitration the party desiring the arbitration shall give the opposite party at least ten days’ notice of his intention to apply to the judge for the appointment of arbitrators, which notice shall be served in the same manner as is provided for the service of a summons, and shall specify the time and place of the hearing of the application.” This provision, providing as it does, that the proceeding shall be commenced, by giving notice to the other party to be served as a summons, by the party desiring arbitration, is irreconcilable with the claim that it can only be had upon the mutual submission of both parties. And, recurring again to section 3388, we find that either party may .appeal from the decision or award to the court of common pleas of the county in which the arbitration is held, by giving bond, “unless, previous to the arbitration, the parties agree in writing to abide by such award.” This provision further indicates that arbitration may be had against the consent of one of the parties, and when so had an appeal is given. It is improbable that parties would enter into an agreement to arbitrate without an agreement to abide the award. It is the universal chracteristic of a voluntary submission. And the giving of a right to appeal when no such agreement has been made, shows the legislative understanding as to the character of the proceeding authorized by the statute. Unless commenced upon a sub- ' mission entered into by both parties upon a stipulation to abide the award, the proceeding is not properly an arbitration. It is in the nature of a reference, and being compulsory, an appeal is given to the dissatisfied party to the common pleas, where the matter can be determined by due course of law. It is a mode provided for the condemnation of the^ stock of a dissenting stockholder; and, in analogy to many | similar proceedings, as in the taking of private property for a , public road, a summary method is provided for ascertaining , the compensation to be paid the individual for his property i taken, with the right to appeal to a tribunal in which the i compensation can be assessed by a jury, if that made in' the summary mode is unsatisfactory.

As a second defense to the application for the appointment of arbitrators, the companies set forth the making .of the agreement to consolidate by the directors of the different companies between the 10th and 18th of June, 1890; the submission of the agreement to the stockholders of the respective companies for their ratification on August 19, 1890, upon due notice having been previously given, and its ratification by them at that time, and the filing of a copy of the agreement so ratified with the secretary of state, on August 28, 1890, and then aver, that no notice or refusal to convert his stock by Robert Garrett or his firm was given prior to the ratification by the stockholders, nor was any such notice given until long after August 28, 1890; nor was any attempt made to agree with the board of directors of the company as to the value of the stock, or upon arbitrators to whom the question might be submitted. This was demurred to, the demurrer was sustained, and the ruling of the court thereon is assigned for error.

From the first statute to the present, authorizing the consolidation of railroad companies in this state, it has been the policy of the legislature to require payment to be made to a stockholder of the value of his stock, where he refused to convert it into that of the consolidated company. But under the previous legislation this right was only given him where previous to the consolidation he requested it to be done; and, in such cases, its value having been fixed and ascertained by arbitration, voluntary or compulsory, if the party owning the stock refused to receive the amount awarded, the company could deposit the same with the clerk of the court of common pleas of the county in which the arbitration was held, which deposit authorized the parties to proceed to consolidation without further payment to the stockholder. .

The statute has, by the amendment of April 4,1890, been changed in this regard. By the amendment the value of the stock of one who refuses to convert it, must be ascertained and paid him before consolidation takes effect; the provision requiring the stockholder to demand it to be done before consolidation, as a condition to the right, being dropped from the statute. So that under the amendment it became the duty of the company, desiring to enter into the consolidation, to ascertain who, if any, of its stockholders refused to convert their stock into the proposed consolidated company, and to have the value of the stock of any who refused, ascertained and paid them in the manner provided, before the proceeding could be regularly perfected. So that none of the matters stated in this defense are of any avail as against the rights of the defendant in error. The statute fixes no time in which the dissenting stockholder must indicate his refusal to convert his stock into that of the new company. It is the duty of the company of the dissenting stockholder to get his consent, and if it cannot, it must then proceed to condemn the stock, under the provisions of the statute, and to pay its value before the consolidation takes effect. The fact that this was not done before filing a copy of the ratified agreement of consolidation with the secretary of state, and thereby acquiring the status of an incorporated railway company under the laws of this state, ■only shows that the consolidating companies proceeded in ■disregard of the rights of dissenting stockholders in The Pittsburgh, Cincinnati & St. Rouis Railway Company; and, unless a party may take advantage of his own wrong, can be of no avail to the old or new company, as against the rights of such stockholders. As to this claim the old company may be deemed in existence; or the claim may be prosecuted against the new company, which took the property of the old company charged with the payment of its ■debts. Section 3384, Revised Statutes; Compton v. Railway Company, 45 Ohio St., 592.

Judgment affirmed.