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

text:
    Nicholas Longworth v. Josiah R. Sturges and Alonzo W. Anderson.
    A bill of review to reverse a decree of reversal of this court can not be sustained while the cause is pending in the court below, undetermined, nor until there has been such a decree rendered between the parties, as either may plead in bar to an action for the same subject-matter settled by it.
    Bill of review.
    At the February term, 1840, of the court*of common pleas of Hamilton county, a decree was taken for complainant for the sale of lands mortgaged by defendants, to secure the payment of promissory notes given by them to complainant for the same land, under .and by virtue of which sales of the premises were made; and at the November term, 1840, a final decree was entered in the case, .approving the sales and proceedings.
    On the 10th of June, 1847, a bill of review was filed by defend-1M] ants, in the same court, which, at the February term, *1851, -reversed the former decree. From this decree an appeal to the Supreme Court of Hamilton county was perfected by complainants, which vacated the decree of reversal; but before any adjudication of the cause by that tribunal, it was, by the new constitution, transferred into the district court of the county, by which last-named • court it was reserved for decision here.
    At the January term, 1853, of this court, the original decree of •the common pleas., and all proceedings had under it, were reversed, ..and. the cause remanded to that court to be proceeded in “ to final de•cree between the parties.” Sturges and Anderson v. Longworth, 1 Ohio St. 545.
    In March, 1853, a petition for the rehearing of the order of reversal, was filed by complainant, and at December term, 1854, determined against him. Sturges and Anderson v. Longworth, 2 Ohio St. 104.
    The present bill was thereupon filed to review and reverse the decree of reversal, made in 1853 by this court.
    A motion was made by defendants to strike the bill from the ■files, for want of jurisdiction in the court to entertain it. Pleas were also interposed, averring, in substance, that the cause had been, in conformity to the order of this court, docketed in the common pleas of Hamilton county, and the papers removed into that court; that new pleadings, in part, had been filed, and new parties, having interests adverse to both complainant and defendants, brought into the case, and the whole, thus changed, was proceeding to final decree in said court of common pleas. No replications have been filed to these pleas, and they must therefore be taken as true. Defendants also filed, in connection with their motion and pleas, a demurrer.
    At the December term, 1855, of this court, the motion to dismiss, for want of jurisdiction, was overruled. 4 Ohio St. 690.
    *The case, at this term, has been heard upon the several [145 objections raised by the motion, pleas, and demurrer.

      Worthington & Matthews, and Henry Stanbery, for complainants.

      A. E. Gwynne, T. Ewing, C. P. James, Caldwell & Paddock, H. H. 3unter, and E. P. Norton, for defendants.

      T. Ewing, for Anderson:
    I. Courts without original equity jurisdiction, and which are ■courts of the last resort, and which do not retain causes for execution, can not, according to the usages of courts of equity, entertain bills to review their own decrees.
    All these elements combine in the constitution of this court, and therefore it can not, consistently with the usages of courts of equity,. entertain a bill to review its own decrees.
    II. No power is granted to, or duty imposed on, this court, by the constitution Or by statute, to entertain a bill of review to re.examine and reverse or affirm its own decrees.
    III. But the jurisdiction, if granted, could not be exercised without the introduction of a loose novelty in practice which departs-from all that is logical and exact in legal procedure.
    The court is asked to review, not the original case which was-once here, on appeal and by reservation, that has been sent back the way it came, through the district court, to the common pleas, and is there pending.
    Then what have we here for this court to act upon ?
    The case was appealed from the common pleas to the Supreme-Court, under the 127th section of the practice act. Swan’s Statutes, 1841, p. 683. A transcript of the journal entries, and of the final decree rendered in the case, 11 together with the- original papers,”' 146] was delivered by the *clerk of the common jileas “ into the-office of the clerk of the Supreme Court,” and the ajijioal was jierfected. The district court took the jilace of the old Supreme Court1 antf the cause was reserved for decision, and transmitted to this-court, and decided and remanded by it, under the fifth and sixth sections of the act of February 19, 1852. The original papers came-to this court when the cause was transmitted .here; they went back again when the cause was remanded.
    What is here now? In legal contemplation, nothing but journal entries of your decrees of reversal and mandate. The transcrij>t of the journal entries certified to the old Sujireme Court from the-common jileas, is, or ought to be, in the district court, through which the cause was remanded. The case is in the common jileas — soul and body, it is there, and that court has 11 full jurisdiction over it.” The pajoers making up the case, and embodying it, are neeessarily there also. It is n.o matter whether they have in fact been brought back and jiut in a jfigeon-hole in your court-room or not, they are not here under any legal provision, and this court has no power to-get them here. A case in chancery could come here only after final decree in the court below, and the case, when it comes, brings with it the pajiers in which it is embodied; but there is no means known to equity practice by which this court can invoke papers from the-common pleas, out of a case still-jiending there, and. bring them into, and make them a part of,11 another case” pending in this court. The absurdity of the thing — its legal ¡impossibility — accounts for the fact that no attempt was ever before made to review a chancery-case in an ajipellate court, after it had been remanded to the inferior court, or to review the decree of the revising court, after it had reviewed and remanded the cause. This court is, almost be-yond example, destitute of means for *sueh action. Gen- [|47 erally, there is a record of the whole case sent up with the appeal, as in the Supreme Court of the United States, and that record remains in the appellate court. In the Supreme Court of Tennessee, the whole case, record and all, remains, and the decree is executed there; and that was the reason Judge Peck gave, in the case of Cox & Catron v. Breedlove, for dissenting from the rest of the court, and holding that the bill of review would lie.
    Here there is nothing- but the record of the decrees of this court, embodying the mandates. There are no bills, no demurrers, no depositions belonging to the ease, in which the decrees were entered. Indeed, the decrees, all that -was vital in them, are gone from this court — sent down to the court below, with -the case into which they became incorporated, and of which they form a part. And if this court reverse all of them that remain upon its records, what does it reverse ? Not the case — for there is no case before it 1 —but the principle, heretofore decided merely, but connected with, or involved in no case in this court, or over which this court has control. "What remain here of these decrees are what the old logicians called quiddities — “ghosts of defunct bodies”- — shadows only, or mementoes of what once were. It was quite idle to review them. If the decisions are wrong, it will be in áccordance with equity practice to overrule them in future cases involving the same principle, but it were more idle than boys’ play to attack and try to kill the skin after the snake has slipped out of it.
    For suppose this court to go on and review so much of this case as remain in it, and suppose it to hold that the entire case is potentially here, so that it can act upon it. Then, since it is a case of this court, not of the common pleas- — since the final decree, which is under review, is a decree of this court, not of the common picas, *the revisory action of the court must terminate upon the [148 decree reviewed, and upon the court in which the case is reviewed. The legislature, might, doubtless, have provided that the reversal of a decree of this court, reversing a decree of an inferior court, should, ipso facto, affirm the decree of the inferior court, and it might have authorized this court to send down a mandate to the inferior court to embody its decree in the cause pending below, and give it that or any other proposed effect; but there is no such statutory provision, and nothing of the kind is to be found among the usages of courts of equity. And there is no means known to the books ¡by which this court can communicate thefact of such reversal and its contemplated operation to the inferior court. The act would The, in the parlance of modern metaphysics, entirely subjective, not •operating beyond the action itself, nor reaching any external •object.
    No mandate can be sent down, for there is no cause from the ■court below in this court to be re-manded. The statutes cited above, which allow this court to re-mand cases to the courts below, •do not authorize it to make its own case, send down its decree, which ■which it has made in its own case, and incorporate it with, or sub •.stitute it for a ease pending in the inferior court. That would be mandat, not remandat. And-I need not say that this is not 'a case in which a mandamus can lawfully issue.
    Such irregular action has no warrant or precedent in the “ known usages of courts of equity,” and I do not think a case of the kind ever occurred in the abnormal practice of our old Supreme Court, as I can find none, where the case reversed had been sent down for •execution, and was pending in the court below when the second bill •of review was filed. If such case had arisen, it would have been made a question and noticed in our reports. But, if there ever 149] *was any such, it must have arisen under the act of March 17, 1838 (Swan’s Stat., 1841, 717), which does not apply to this •court, but to the district court, as the successor to the old Supreme 'Court.
    In the case of Strader v. Byrd’s Heirs, 'the Supreme Court dismissed the bill for want of jurisdiction. Judge Hitchcock’s opinion therefore, as to certain circumstances under which such bill might lie in that court, was obiter, and he says it was formed without much .aid from counsel, or examination of authorities. So much of it as •does not tend to a decision of the ease ponding, though entitled to respect, is not authority, and there never was a bill sustained in our •old Supreme Court to review its own decrees, until the act of March 17,1838, provided for in it.
    But I need not pursue this point further; every step exposes a new absurdity consequent upon the proposed review. The thing •claimed has no legal warrant, and if the court could legislate thom•selves into possession of such power, the consequences which it ■would involve must forever forbid it. The high appellate court of England made, its own laws, and it denied itself this power, because at could not be exercised without destruction to system and order.

      On the whole, then, we submit that this court can not, by virtue of its general powers as a court of equity, or of special powers conferred on it by the constitution, or by law, entertain a bill to review its own decrees. If it do possess such power, all other courts similarly constituted, both in England and in the United States, have failed to perceive the extent of their powers and duties, or percieving, have failed to execute them.

      Caldwell & Paddock made the following points:
    This bill of review will not lie:
    *1. Because the decree sought to be reversed is not a final [150 •decree.
    A final decree is one that definitely settles the claims of the parties to the controversy. This decree settles no rights, but leaves •all the parties with the same rights which they had at the commencement of the suit. It has been frequently decided that a writ of error or certiorari would not lie to a judgment of reversal where the cause was retained for another trial. 12 Ohio, 219; 10 Ohio, 268; Wright, 418; 20 Ohio, 74, 79, 80; Swan’s Rev. Stat., sec. 533, p. 692.
    2. Because the ease is now pending in the court of common pleas which had obtained jurisdiction before this bill of review was filed. The same subject-matter, of controversy can not be pending in two ■courts at the same time.
   Bowen, J.

The remedy by bill of review is a well known proceeding in chancery, and lies for errors appearing in the record, or for evidence which has been discovered since the decree was entered, and which, when properly applied, may servé to correct or change it in some material respect. It must be brought before the same court which decided the original cause, and can only be sustained after final decree made.

The chancery practice act of 1831, section 54 (Statutes of 1841, p. 714), confers the right on any one who was a party to 'a decree, or his representatives, at any time within five years after its date, to “ file a petition for a review of the proceedings in which such former decree was rendered.” ■ Beyond the authority to prefer the petition, the manner pointed out Of obtaining a stay of proceedings till the review can be heard, and the mode of bringing parties into court, there is very little instruction given in the statute as to any other 151 proceeding to be observed. We are left to ^pursue the practice of the courts of chancery so far as it may be applicable to our institutions, and we readily adopt for our guide, principles which have been established by the usage of those tribunals as safe precedents to follow, and we usually feel much security in conforming-our orders and decrees to them.

It is urged by counsel for defendants that there had been no final decree rendered when this bill was filed — that after the order of reversal, the cause was remanded to the inferior court to be further proceeded in, and consequently that nothing remained in this court to be reviewed; the original papers having passed into the court of common pleas, to enable that forum to make a proper and complete determination of the subject-matter involved in them. This argument is met by the assumption that the sole power of the court, over the proceedings and papers in review, was exhausted when the decree of reversal was rendered, that nothing further remained to be done except to remand them to the common pleas, or retain them here for decision on their merits, and, therefore, that the act of reversal was a finality — a conclusion of the controversy thus raised, and of the complainant’s rights, as fully as they could be affected by that proceeding ; and that a party, who deems himself injured, may, without awaiting the further progress and final ending of the cause in the court below, have a review of the reversing decree, and a confirmation of the original decree, and thus be restored to what he has lost by the erroneous reversal.

If this difference between the parties were settled by any known usages of chancery, as evidenced by books of authority, we should, feel relieved from the hazard of declaring a rule which may seem to conflict with the doctrine of elementary writers, and would quite willingly pursue the path which others have trodden, rather than 152] incur *such hazard. But in the absence of any well settled, authoritative adjudication relative to the point made, we are constrained to adopt what seems to us a reasonable, if not in fact the only, view which can be sustained, and leave the case unembarrassed by future grave difficulties.

Mitford, in his treatise on Chancery Pleadings, page 88, lays down this rule: “ If upon a bill of review, a decree has been reversed, another bill of review maybe brought upon the decree of reversal;” and refers to Neal v. Robinson, Dickens, 15, and to Chan. Prac. 633. Cooper, in his work on Chancery, page 92, makes the same general remark, and refers to the same authorities, and to Redesd. Tr. Ch. Plead. 79. Maddox, Story, and Adams reiterate the doctrine, and ■give the same references to support it.

The book of Chancery Precedents and Practice referred to, we have not been able to examine. It is not to be found in the libraries to which we have had access. What rule it indicates, or what form it furnishes, we have not the means of knowing. It is believed, however, that he origin of the passage in Mitford, which is ■copied by many of the elementary writers on chancery practice, may be traced to Neal v. Robinson. It is the only reported case referred to by any of them. In order to know whether the principle promulgated by them is sustained, or was, in fact, ever announced by a court, we here quote from 1 Dick. 15, the case in full as it there appears:

“ Neal v. Robinson [November, 1683], (Reg. Lib. B. B., fol. 168.) Bill of Review reheard.”

A case more meagerly reported can not, perhaps, be found. It contains but a simple sentence, which fails, certainly, to authorize the doctrine in Mitford. It shows that a bill of review had been reheard. The court which had rendered or was asked to render a ■decree of reversal, wo infer, listened again to arguments touching the *propriety of the reversal. That may have been on'peti- [153 tion filed, or on re-argument ordered by the court. The same may be done here. That actually was attempted in this case. A petition for rehearing was filed, but the court declined to again hear and pass upon the bill of review. The case in Dickons was, doubtless, of that character; the court being satisfied that the question ought to bo further considered. There is not, to our comprehension, much .similarity between that reported decision and the dictum put forth in Mitford. No other authority has been quoted by counsel, and we have not been able to find any bearing upon the point.

In Strader v. Byrd, 7 Ohio, 184, the court experienced the same difficulty now encountered, in finding authorities- to sustain the bill then under consideration, which had been filed to review the decree of the Supreme Court, on appeal from an order of reversal of the court of common pleas, but finally settled down in a doctrine that a bill of review will not lie after two concurrent decrees have been made by courts possessing a proper jurisdiction to render them, and turned the complainant out of court by dismissing his bill. The syllabus of this case is printed as follows: “A decree upon a bill of review can not be again reviewed in a second bill of review.” It is worthy of remark that there had been a final decree 'made in this case, before any attempt was made to review it.

By our statutory practice, as well as that which,- independent of it, prevails in courts of chancery, no review of a decree, either on appeal or by bill filed, can be had until such decree, in its terms or operation, becomes final. While it is interlocutory in its form, or there remain any rights to be settled, or further proceedings to be had between the parties, no such remedy is allowed. The litiga154] tion must be ended so as to leave no other question or *direetion for the future judgment of the court. There must be a disposal of the whole merits of the cause, and the suitors out of court, before a decree can acquire that characterof finality, which subjects it to review. Statutes of 1841, 743, secs. 52, 54; Mills v. Hoag, 7 Paige, 18; Bowyer v. Lewis, 1 Hen. & Munf. 553. It must also possess the additional quality of being a bar between the parties, which either may plead to any new bill for the same matter. 2 Dan. Ch. Prac. 1190, and notes.

Now, to test the case before us by the application of this undeniable and well recognized doctrine, how will it stand ? This court has reversed the decree of the common pleas in a ease which, upon its face, clearly shows that justice can not be done without further proceedings are had in it. An error which intervened in the latter court, deserved, in the opinion of this court, to be corrected, and the defendants, who claimed to be injured by it, to be placed in statu quo, or, it other words, permitted to answer and make defense. It was apparent that such decree, when set aside, would leave valuable, though controverted rights'of property undetermined. Hence, it was the duty of the court, in its efforts to administer impartial and adequate relief, to provide for the settlement by future decree,, of all such question as might be opened or unsettled by the reversal. This, it might have accomplished by retaining the cause in this court for decree, or by remanding it to the court below for such further proceeding as was proper. The latter course was chosen. It went back to the common pleas. New parties have been made, and new questions raised in it, and it is either now pending, or has been terminated in that tribunal. While it is thus standing undecided upon its merits, or after another decree predicated upon and required by our mandate, and-which cures the mischiefs which crept into the former decree, by means of error committed, *has been signed and enrolled, as for aught we know [15ft may be the fact, we are asked to reverse the decree which has accomplished, or may produce these results, and to do this upon the theory that the reversal was a final decree, and that we can not regard the remanding of the cause — the redocketing of it for hearing —the filing of a supplemental bill — the introduction of new parties on the record — the filing of answers by defendants, and the taking of new proofs, as a continuation of the subjects litigated, nor as matters bearing relation to, and as being inseparable from, the decree itself; nor are we at liberty to regard these unavoidable and unnecessary incidents of it, in solving the query, whether it be final or interlocutory in its nature. , But it is insisted that we should, in framing conclusions upon the effect of that decree, in order to satisfy ourselves whether it bo of such character as may be reviewed, keep out of mind these considerations, and wholly disregard the fact whether other proceedings, incidental to the reversal, are in progress between the parties.

We are disinclined to adopt this restricted mode of answering the proposition, for we are met, full in the face, with what seems to-us the inflexible objection that the litigants and their cause are yet in court, invoking the'chancellor’s adjudication between them, upon controverted questions of right. We are not able to place the decree, now sought to be reviewed, upon ground so • exclusively isolated from and independent of an important branch of itself It can not be severed from the parent which,, gave it birth, but must continue one of its offspring, bearing an indissoluble relation to it — each being a part of the other. It seems to us to be interlocutory in its main object, intended to serve the simple office of correcting an error, and of commanding further action to be had to relieve those who were injured by it; in short, to prepare the way *for settling anew, and upon a more correct basis, all quesi [156 tions of right and of equity, between complainant and defendants, by avoiding the mistakes which introduced impure and unconscionable principles into the former decree. It seeks no other end, and should serve no other purpose.

How, then, can it with propriety be said, while the court below is proceeding to carry out this design, that the foundation for a review has been laid ? After the court which now holds jurisdiction of the cause shall conclude its charge over it, by a final determination the merits, there be no cause of complaint by any party to tbe proceeding. That ruling which shall comport strictly with principles of equity, it is to be presumed, will bo administered, and with that all should be satisfied. It is due to that tri bunal to await its determination of the matters remanded to it for decision. If a bill of review shall then be deemed necessary, the objection now urged will be removed.

W e do not intend to say that a bill will not lie in any case to review a decree of reversal. There may be instances in which a decree would be final between the parties — a conclusion of the merits in controversy. Where this occurs the review may lie, if .there be no other objection. Such was the case of Strader v. Byrd, 7 Ohio. The order sought to be reviewed was a decree of dismissal of the original bill. That had put an end to the proceeding, and the parties were out of court. This is deemed to be a final decree, and the text-books may speak correctly in laying down the doctrine that such bills may be filed, if they refer to that class of cases; but outside of that description of decrees, it can not, as we think, ■ upon principle, be made to apply. A decree of dismissal is final, unless it be made without prejudice. 2 Dan. Ch. Prac. 1200.

*Having failed to find any authority in the chancery books to warrant the filing of the bill now before us, and, indeed, having failed, almost entirely, to find any decision on the subject of bills filed under similar circumstances, we are led into an examination of proceedings at law, between which and causes in chancery there may be some analogy to support the view we take.

A writ of error to a judgment at law, and a bill of review to a decree in chancery, alike seek the correction of errors. They may, by our statute, each be prosecuted within five years from the date of the judgment or decree. The writ of error is hoard, usually, in a different court from that which rendered the j udgment. A bill of review is filed in the same court which pronounced the decree. In both, the uniform practice, after reversal, is to subject the matters in dispute to further judicial action, either by remanding the cause to the inferior court, from which it was removed by appeal, for such action, or by retaining it for disposal in the same court which ordered the reversal. Neither the judgment nor the decree is 'final, while any thing further remains to be done in that suit between the parties. If the effect of the reversal, in view of the grounds upon which it is predicated, be such as to close, at that stage, the litigation of the parties, and to send them out of court, without the power to recommence another action for the same •cause, it is quite clear that, in either case, the remedy in error will lie to such final adjudication, but not otherwise.

In Reed v. Dewolf, Wright (S. C.), 418, the judgment of a justice of the peace was reversed by the court of common pleas, and the cause set down for hearing in the latter court. While pending there, for trial; a writ of error was brought in the Supreme Court to reverse the judgment of the common pleas, and to affirm that •of the justice. The *court say that the writ of error will only [158 bring up the record of a final judgment, and if it appear that the cause is still pending in the court below, the writ must be quashed, as none other than a final judgment can be reached on error.

In Herf v. Shultz, 10 Ohio, 268, the court say that writs of certiorari are not allowed in Ohio, by the Supreme Court, until the cause is finally disposed of in the court below. The same point is , ruled in Kelly v. Hunter, 12 Ohio, 216.

Although we do not claim perfect anology between proceedings .at law and in chancery, in the form of error, yet it must be conceded that much of the reasoning which prohibits the courts from entertaining any jurisdiction of writs of error while the case is pending and undetermined in the court below, is equally applicable to bills of review. If, for example, the judgment of the court of common pleas, rendered by default, were reversed by this court, because the defendant was insane at the date of the judgment, and a procedendo sent to that court, commanding it to proceed to the further hearing of the cause, no one will pretend that a writ of error would lie to the judgment of reversal. Why? Because there has been no final judgment given. The cause is pending, and, notwithstanding the power of the court has been exhaustedj under the petition in error, and as to that, a final judgment rendered, yet the suit must progress further; and until that progress is complete, by a final termination of the issue formed, the remedy by error can not be had against the judgment of reversal. It is difficult to perceive any reason for the observance of this rule as to judgments, which does not apply with equal force to decrees in chancery. The effect of a review of a former reversal, during the continuance of litigation in the ease, would be the same as to both. ^Another judgment, or decree, might in the court below, be [159 rendered, pending the proceedings in error, which would differ from, or be inconsistent with the one which would be reinstated, and thus present the absurdity of the existence of two judgments, or decrees, on the same subject-matter, in the same court, liable to be enforced at the same time, and without any known judicial power to declare which shall take precedence, as res adjudicata, or which shall prevail against the other. After judgment or decree, in the sense hereinbefore defined, no such difficulty will arise in the way of proceedings in error, to reverse either judgments or decrees ; and hence the necessity of following the practice, so well maintained at law, of carrying the cause to final judgment or decree, before attempting to review it,

A majority of the court concur, for the reasons given in the opinion, that this bill can not be sustained, and that the pleas should, therefore, be allowed, and the bill dismissed.

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

Swan, J., dissented.

Bartley, C. J.,

concurred in the decision dismissing the bill, for the reasons following, in addition to those stated in the opinion of the majority of the court:

1. The decree sought to be reviewed was not final upon the controversy between the parties, and, therefore, not the subject-matter of a bill of review.

A bill of review must come under the head of either original or appellate jurisdiction. If it be a distinct and original proceeding, and, therefore, a matter of original jurisdiction, this bill must be dismissed, on the ground that it is not included in the original 160] jurisdiction of this court prescribed by the constitution. If it fall within the appellate jurisdiction of this court, it is on the ground that it is a mere continuation of, and an additional proceeding in, the original case, over which we had already acquired jurisdiction by appeal. And if the bill of review be simply a renewal and prolongation of the original case, the decree under the bill of review, being a mere supplemental or additional step or proceeding in the original case, can not be the subject-matter of another bill of review, unless it be a final disposition of the controversy involved in the original case. The decree of reversal, however, in this case, simply set aside the decree of foreclosure in the common pleas, leaving the rights of the parties in the original case unsettled,, and directing further proceedings by the proper steps, by •which .a final decree could be had, conclusive upon the parties. Had this court, after setting aside the decree of foreclosure, retained-the case for further proceedings and final decree, it would scarcely have been claimed by any one that the progress of the case could, have been interrupted by a bill of review .to reverse the decree of reversal. And how much more absurd to say that the same thing could be done after the cause had been remanded, the jurisdiction of the common pleas over the case had attached, and while that, court was proceeding with an amended bill, new and additional parties made, and new answers filed; or where, for aught we know,, a final decree on the whole merits of the case, settling all the equities of the parties, may have been rendered before this time.

2. Jurisdiction has not been conferred on the Supreme Court by-statute, to supervise its own decrees in chancery, by bill of review ; and such jurisdiction is not usual or proper in the court of last resort.

The decision in this case, at the December term, 1855, on the-motion to dismiss this bill of %’eview which is reported in [161 4 Ohio St. 690, is not conclusive on this court. That decision was made without a full court; and with all proper deference for the opinions of the learned judges by whom the decision was made, he-deemed it proper to say that it never received his assent, and he did not regard it as a well-considered decision. The very fact that the important preliminary question upon which a majority of the-court now concur in dismissing the bill, was in that decision wholly overlooked, or passed without notice, shows that the decision was-made without full consideration. Besides, the manifest effect of that decision, if it prevail, is to overrule the doctrine of the decision in. this case, on the petition for rehearing, reported in 2 Ohio St. 104, which he regarded as good law.

3. The further and prolonged investigation of this case since the decision reversing the decree of the common pleas, reported in 1 Ohio-St. 545, has only tended to strengthen his convictions of the correctness of that decision, which established a sensible and practical rule resting on reason, instead of making the aj^pearance of a lunatic,, in a suit against him, by. a guardian ad litem, a mere useless matter-of form.

J. R. Swan, J.

I am constrained to dissent from the opinion off the court in this case.

It is insisted that a decree of reversal can not be reviewed, be•cause it is interlocutory, or not final.

The rule that an interlocutory order, which disposes of part only ■ of the questions made by the allegations and proofs, is not subject to review until final decree, is undoubtedly true. A decree, however, which passes upon and determines all questions made by the bill, answer, and exhibits, is a final decree, and may bo reviewed. To determine, therefore, whether a decree of reversal is a final 162] ^decree, depends upon the fact whether the decree of reversal ■ determined all the questions made by the bill of review. In the •case before us, the bill of review filed by Anderson and Sturges, in the court of common pleas of Hamilton county, stated, by reference, the original bill and the proceedings thereon, the decree, and the points in which the petitioners conceived themselves aggrieved by it, and the errors upon which they sought to have it reversed. The questions made by the bill of review were, whether there were errors in the decree of the common pleas. This was the whole scope of the bill, and the only questions which the court could decide. The .action of the court upon the bill of review ended when they pronounced the decree of reversal. Under the bill of review, the court could take no action whatever in the original cause; for, if the court of common pleas, or the district court, proceeded after the reversal ■of the decree of the court of common pleas, they did so in the original suit, and not on the bill of review. And if this court, after the reversal of the decree of the court of common pleas, had made any orders or decree affecting the rights of the parties under the original bill filed in the court of common pleas, those orders and that decree must have been made in the original cause, and not on the bill of review; for the latter had done its work and determined the questions — -and the only questions made under it. But in answer to this it is said that, although the questions made by the allegations in the bill of review were determined and finally passed upon by the reversal of the decree, yet, inasmuch as further proceedings may be had under the original bill pending in the court of common pleas, the decree of reversal in the Supreme Court becomes a kind of interlocutory order in that case. I deem it a sufficient answer to this to say, that the decree of reversal was not made upon the 168] original bill filed below, *nor will the decree hereafter made below be made upon the bill of review.

It is only by mixing the two cases together, and treating them as one,-and by calling the orders and decree hereafter made in the-original suit, as made also upon the bill of review, that this course-of reasoning can be maintained.

Independent of any judicial authority, it seems to me that a decree reversing a former decree comes within the settled definition of a final decree.

There is no authority to the contrary.

In England, upon bill of review, the defendant pleads the decree, and demurs against opening 'its enrollment. If the demurrer is-allowed, it has all the effect of confirming the decree, and terminates the suit. And so, if the demurrer is overruled, its effect is to reverse the decree. 3 Dan. Pr. 1732. On arguing the demurrer, the-original petition and exhibits can not be read; but after the demurrer is overruled, the plaintiffs are allowed to read the bill, or answer, or any other evidence, as at a rehearing; the cause then being open for a rehearing. Catterall v. Purchase, 3 Swanston, 290. Upon the reversal, therefore, of a decree in England, the original cause proceeds, as in this country, to a further hearing, and to further orders, and final decree; so that it is manifest that-the decree of reversal by the same court which proceeds with a rehearing and a final decree, is as much interlocutory in its nature as a decree of the Supreme Court of Ohio reversing a decree of the-court of common pleas is interlocutory to a final decree by the-court of common pleas after such reversal.

The law upon the question before us is thus stated in the English books of chancery pleading and practice: “ If upon bill of review a decree has been reversed, another bill of review may bo brought upon the decree of reversal. If the bill is brought to review the reversal of a former decree, it may *pray that the [164 original decree may stand.” Mit. Pl. 88; Daniels Pr. 1725, 1729; Adams Eq. (Perk, ed.) 881, 883; Cooper’s Eq. Pl. 93; Cooper cites Ch. Pr. 633; Redesd. Tr. Ch. Pl. 79. The same rule is stated in Story’s Eq. Pl., section 418, thus: “A bill of review may be brought after one bill of review already filed; as if upon bill of review a decree has been reversed, another bill of review may be brought upon the decree of reversal.”

The first case cited by elementary writers is Neal v. Robinson, which was decided in 1683, and is simply referred to in Dickens’ Reports by giving the volume of the chancery register and folio-where the ease is to be found.

It'is said that these elementary writers are not sustained by .Dickens’ Reports, inasmuch as he has not reported the case. We have not access to the register containing the case of Neal v. Robinson. The English elementary writers, however, had an opportunity to consult the record of • the case referred to. But the eleme.ntary writers are themselves authority upon the subject; especially such writers as Lord Redesdale, and Justice Story, and .authority, too, of the highest character upon this particular ques"tion; for it is hardly possible that a principle like this should have remained for more than one hundred years in the text-books of every writer, English and American; should never have been overruled by any court in England or the United States during all that time; should never have even been questioned by any counsel in any case, and yet not be in accordance with the usages and practice of courts of chancery. I feel constrained to believe that the reason why elementary writers have always stated the law uniformly upon this subject, and why the learned and industrious counsel in this important cause and the members of this court have been unable to find a single case as a precedent for their decision, is because the-principle was never before questioned.

*The reversal of a mere money judgment at law, is generally much less serious in its consequences to parties, than the reversal ■of a decree, which.deals with and settles complicated rights aüd interests growing out of trusts, partnerships, and equitable estates in land. If an error is committed in the reversal of a money judgment, a party may be restored to his rights by another judgment. But interests intervene and changes take place under decrees which may render it vital to the rights of parties that a decree erroneously reversed should be reinstated. Hence upon setting aside a decree of reversal, a court of chancery may decree that the original decree •shall stand; a remedy which courts of law can not in general afford, .■and which inasmuch as they give remedies only in money seems unnecessary. Hence to reason- from any analogy between writs of •error and bills of review to sot aside a decree of reversal does not •satisfy my mind that a bill of review to reverse a decree will not lie in chancery.

But if there be any analogy between writs of error and bills of review, it is conclusive against the principle announced by the •majority of this court, in the present case; for nothing is more ••common £han to review, by writ of error in this court, a judgment of the district court which has reversed a judgment of the court of common pleas. Thus, in the case of Chapman v. Weimer et al., 4 Ohio St. 483, the judgment of the court of common pleas had been reversed, and a new trial in the common pleas ordered by the district court; and then a petition in error was filed in the Supreme Court to reverse the judgment of reversal of the district court; and the judgment of the district court was reversed, and the judgment of the common pleas affirmed, notwithstanding the new trial pending in the common pleas under the order of reversal of the district 166] court; presenting the same apparent embarrassment *which the majority of this court now feel in the case before us; and the judgment" of reversal of the district court being quite as interlocutory in its nature and effect as a decree of reversal. So, in the case of Follett v. Buyer, 4 Ohio St. 586, the court of common pleas had given judgment for a set-off, and the district court being of the opinion the set-off should not be allowed, on error reversed the judgment. This last judgment was then reviewed, on error, in this court, and reversed5 and the original judgment affirmed. See also Lewis v. Eutsler et al., 4 Ohio St. 354; Huntington & McIntyre v. Finch & Co., 3 Ohio St. 445.

The case of Strader v. Byrd, 7 Ohio, 184, is cited as having something to do with the question before us.

In England, after two concurring decrees, a bill of review will not be entertained.

The case of Strader v. Byrd is an "affirmation of this English doctrine, and is sanctioned by the same rules and the same authorities, which permit a bill of review in the case now before us. I do not, therefore, perceive the. application of the case of Strader v. Byrd; nor do I perceive how the statutory remedy, by certiorari, has any analogy to the present question.

It is said that great confusion would arise from the prosecution of the present bill, while the court below are proceeding in the original ■cause. The same objection would be equally satisfactory against the prosecution of a writ of error, upon a judgment.of the district court reversing a judgment of the common pleas, and remanding the cause for a new trial, Or prosecuting a writ of error upon a judgment, while ■the judgment creditor was proceeding by bills in chancery and attachment against the debtors of the judgment debtor, and suing to judgment and execution the special bail. But what is the law in all 167] *sueh cases? If the judgment is reversed, every superstructure reared upon it falls. So here, if the decree of the common pleas is made to stand, and the decree of reversal held for naught, the proceedings after the reversal end.

If a hill of review to reverse the decree of reversal, and to reinstate the original decree of the common pleas, is prosecuted after a final decree shall hereafter be pronounced below, will that relieve the case of any confusion or embarrassment ? Titles to real estate have been canceled by the reversal of the decree ; and if the court of common pleas now proceed to final decree on the original action, and titles are acquired thereunder, will a bill of review to-reverse that decree, or the decree of reversal of this court, and reinstate the old reversed decree, make these proceedings less vexatious, or rights of property more secure ?

But it is said by counsel that we can not review our own decree-of reversal, because the papers in that case have passed from the' control of this court.

A bill of review, by the English practice, sets forth the original bill, answer, exhibits, testimony, orders, and decree. The practice in this state is to make the original papers a part of the bill of review. This practice, adopted for the purpose only of saving costs-to suitors, can not change the remedies of the parties or the jurisdiction of this court. Upon the reversal of a decree upon a bill, of review, the record here should contain all that the English practice requires; or, if no record be made, the papers are as much under the control of this court as when the original bill of review was filed.

This case was before this court at their December term, 1855. A motion was then made to dismiss the bill, on the ground that the-court had no jurisdiction to entertain it. When that motion was-argued counsel insisted, as they do now, that a decree of reversal 168] is not in its nature final. No *new arguments have been urged at the present hearing. The court then considered the question, and were of the opinion, and for the reasons which I have now stated, that a decree of reversal could be reviewed, and was not in its nature interlocutory, but final. But the question was deemed of so little importance that the judge, to whom was assigned the-delivery of the opinion of the court upon that motion (4 Ohio St. 690), has not noticed it. What was deemed then an incidental question, and decided against the defendants in error, nowi’ules the: case the other way, and is armed with judicial authority.


source: Caselaw Access Project

author: Scott, J.

license: Public Domain

text:
    C. W. West & Co. v. The Valley Bank.
    A bill of exchange was drawn in Cincinnati, directed to “ T. & C., New Orleans.” T. & C. were a mercantile firm, having business houses both in New Orleans and Cincinnati; T. residing in the former city, and C. in the latter. The bill was accepted for the New Orleans house by C., at Cincinnati, and, at maturity, was presented for payment to the house in New Orleans, and protested for non-payment. Held, that the drawers were liable to pay six per cent, statutory damages on the bill.
    Petition in error to reverse the judgment of the Superior Court of Cincinnati in general term.
    The facts are sufficiently stated in the opinion of the court.

      Goffin & Mitchell, for plaintiffs in error :
    We claim that the award of damages to the holder of a protested bill of exchange, drawn in Ohio upon a firm doing business both within and without the state, one out of the two persons composing the firm being a resident of Ohio, was erroneous ; and that such a bill was not drawn *upon a “person or persons ” without [169 the state, within the meaning of the statute.
    Our statute gives damages against the drawers and indorsers of bills of exchange only when the bills are drawn upon a “ person or persons, or a body corporate,” without the State of Ohio.
    This language does not include p_artnerships, except when all the partners are without the state. The statute should be construed strictly; the damages given by it have been, held to be in the nature of a penalty. Farmers’ Bank of Canton v. Brainerd, 8 Ohio, 292.

      Collins & Herron, for defendant in error:
    This case comes within both the letter and spirit of the statute. Grimshaw v. Bender et al., 6 Mass. 157; Case v. Heffner, 10 Ohio, 180; The State Bank of Indiana v. Bowers, 8 Blackf. 72.

      Allen G. Thurman, on same side :
    1. That this is a foreign bill can not be questioned. At least it is so for all purposes connected with the present controversy. 10 Ohio, supra; Smith’s Mercantile Haw, 271, and note, and numerous authorities there cited; 3 A. K. Marsh. 488; 7 Monroe, 281; 1 Handy, 382.
    2. The drawers.are estopped, upon principles of public policy, from saying that the drawees were not domiciled at New Orleans. 1 Greenl. Ev., secs. 207, 208.
   Scott, J.

The plaintiffs in error drew a bill of exchange at Cincinnati for $5,000, addressed to “ Taylor & Cassily, New Orleans,” which was purchased by the defendant in error, and having been transferred to other parties, was at maturity returned protested for non-payment. The defendant in error thereupon took up the bill, 170] paying the ^holders the full amount thereof and six per cent, statutory damages; for which amount, including said damages, the ■defendant in error subsequently recovered a judgment against the plaintiffs in error, at a special term in the Superior Court of Cincinnati. This judgment was, at a general term of said court, on petition in error, affirmed; and this judgment of affirmance is now sought to be reversed, mainly for the reason that the said Superior Court erred, as is alleged, in rendering judgment for six per cent, .-statutory damages upon the protest of this bill.

C. W. West & Co., the ¡plaintiffs in error, are flour dealers in Cincinnati. Taylor & Cassily are a mercantile firm having business houses both in Cincinnati and New Orleans — Taylor living in New •Orleans, and Cassily in Cincinnati. .These houses kept distinct .accounts with each other, the same as with the individual members of the firm and their customer^ generally. The draft in question was accepted by Cassily in Cincinnati, for, and to be paid by, the .New Orleans branch of the 'house. It was, in fact, drawn for the .accommodation of the acceptors, but this fact was unknown to defendants in error, who had previously purchased other drafts from the same parties, and had always been informed that they were -drawn against flour shipped by C. W. West & Co. to Taylor & Cassily for sale.

The statute “ ascertaining damages on protested 'bills of exchange,” provides in its first section “ that when any bill of exchange shall be drawn for the payment of any sum of money, and .such bill shall be legally protested for non-acceptdnce or non-payment, the drawer or drawers, indorser or indorsers, shall bo subject to the payment of twelve per centum damages thereon, if drawn •on any person or persons, or body corporate, without the jurisdiction of the United States; and six per centum damages thereon, if ■drawn on any person or persons, or body corporate, *within [171 the jurisdiction of the United States, and without the jurisdiction ■of this state,” etc. Swan’s Stat. 576.

Now, it is claimed by the plaintiffs in error, that the bill in question is not “ drawn on persons without the jurisdiction of this state,” because Cassily, a member of the firm, resided in Ohio ; that the damages allowed by the statute are in the nature of a penalty, and the statute is, therefore, tobe construed strictly, and that the words “person or persons” as used in the statute, do not, therefore, embrace a firm, as distinct from the persons who compose it; and that even were it otherwise, yet, as one branch of the house of “Taylor & Cassily” is located and carrying on business in Cincinnati, this bill is not drawn on a firm without the jurisdiction of this state.

The principal authority relied on by the plaintiff in error is the case of Farmers Bank of Canton v. Brainerd et al., 8 Ohio, 292. That was an action brought against the defendants, as drawers and indorsers of a bill of exchange, drawn on one Joy H. Pendleton, payable at the office of John Ward & Co., in the city of New York, and which was protested for non-payment. Pendleton, the drawee, was a resident of Ohio, and Judge Hitchcock, delivering the opinion of the court, held, that although the bill was payable in New York, yet, as the drawee was a resident of Ohio, the plaintiff was not entitled to the statutory damages. But the facts in that case, as well as in the similar case of Clay v. Hopkins et al. (3 Marsh. 488), which Judge Hitchcock refers to as an authority in point to sustain his decision, are, in several material points, unlike those in the case under consideration. For, in each of those cases, the bill was drawn, not on a, firm, but an individual, resident within the state, and not appearing to have any place of business without the state, at which the bill was addressed to him. The judgment under.review does not, therefore, ^necessarily conflict with the decis- [172 ion in 8 Ohio. It is not necessary to adopt all the reasoning of the court in that case in order to justify the decision. It may well be sanctioned under the ¡^articular facts of that case, without holding that the damages allowed by the statute are in the nature of a penalty, and, therefore, are only to be allowed in cases which can be fully brought within the precise words of the statute.

According to the law merchant, uncontrolled by local usage, or statutory regulation, where a foreign bill of exchange is protested for non-payment, the holder is entitled to recover the face of the bill, and the charges of the protest, with interest from the time when the bill ought to have been paid, and also the price of re-exchange, so that he may purchase another good bill for the remittance of the money, and be indemnified for the damage arising from the delay of-payment. (See opinion of Ch. J. Parsons in Grimshaw v. Bender, 6 Mass. 157). The statute, having its reason,, doubtless, in the convenience of avoiding all disputes growing out. of the claim for re-exchange, substitutes therefor six per cent, as a? uniform compensation.

This amount, though in many instances liberal as a compensation,, is doubtless, in many other instances, wholly inadequate as an indemnity to the holder of a foreign bill, for its non-payment at maturity. If then, these statutory damages are not a penalty, but are intended simply as a compensation to the holder for actual loss and damage resulting to him from the failure of the drawer or indorser to comply with the terms of his contract, there can be no-good reason for giving such a strict and literal construction to the statute as would wholly ignore its reason, equity, and spirit. It can hardly be doubted that the terms, “any person or persons, or body coi’porate,” as used in the statute, were intended to include 173] all persons, natural or artificial, *upon whom bills of exchange could properly be drawn. Can any good reason be assigned why mercantile firms, by whose agency so much of the commerce of the world is transacted, should be excluded from the operation of a statute designed to regulate commercial paper?

The bill in question was not drawn upon the natural persons composing the firm of Taylor & Cassily, but upon thefirni itself, that. ideal, mercantile person, known to the world as “ Taylor & Cassily,” to whom it is addressed as domiciled at New Orleans; and by-whom, as such firm, so domiciled, it was accepted.

In the foreign character thus given to this bill, there was nothing-fraudulent or false. The firm of Taylor & Cassily have a distinct branch of their mercantile house domiciled and actively engaged in business at New Orleans; keeping its own books of account, as well with the Cincinnati branch of the same house as with its customers generally. Upon this New Orleans branch of the firm, the bill was-understood by the parties to be drawn ; for this branch it was accepted ; at its place of business it had to be presented for payment ; and there it was expected, in good faith, to be paid. Under these-■circumstances, we think the bill in question comes clearly within ■the spirit of the statute; it was drawn on a mercantile “ person without the jurisdiction of this state.”

We are not aware of any authorities with which this opinion conflicts. On the contrary, in Kentucky and in Indiana, a still more liberal construction has been given to statutes, similar to our own on this subject. Wood v. Farmers and Mechanics’ Bank of Lexington, 7 Mon. 281; The State Bank v. Bowers et al., 8 Blackf. 72. In the former of these cases, a bill of exchange drawn in Kentucky, and addressed to Mr. James I. Wood, New Orleans, was held to be a bill drawn upon a person out of the state, *and statu- ]174 tory damages were given accordingly; although the drawee, for years before and after the date of the bill, was a resident of Kentucky. And in the latter case, a bill drawn by a person resident in Indiana, payable in New Orleans, and directed to himself, in that city, was held, upon protest for non-payment, to come within the equity of the statute. The case of Grimshaw v. Bender, 6 Mass. 157, referred to by Judge Hitchcock in 8 Ohio, 292, simply decides that the domicil of a mercantile house, upon which a bill of exchange is drawn, determines the foreign or inland character of the bill.

As to the other points on which error has been assigned, they have not been discussed by counsel for plaintiff. We do not suppose they are relied upon ; and it may be sufficient to say, that we think they are not well taken.

The judgment of the Superior Court is affirmed.

Bartley, C. J., and Swan, Brinkerhoee, and Bowen, JJ., concurred.


author: Bartley, C. J.

text:
    William R. Sapp v. Joseph Laughead and others.
    A notice of appeal given at the time of the rendition of a judgment, on the 12th day of March, 1852, in the common pleas, and in due form entered on the records of the court, and standing there as such notice in the case on the 23d of the same month, when the law regulating appeals from the common pleas to the district court was enacted, operated as a sufficient compliance with the law as to notice of the. intention of the party to appeal.
    "Where, in an action of assumpsit, there is an issue by the plea of non-assumpsit,
      and also on a special plea of accord and satisfaction, a verdict of a jury-finding for tlie plaintiff on tlie first issue, is sufficient, inasmuch as the the general issue covers the ground of defense set up by the special plea.
    Petition in error, to reverse the judgment of the district court of Holmes county.
    *The original proceeding was an action of assumpsit, instituted in the common picas, by the defendants in error, against the-plaintiff in error. The declaration contained a special count on a promissory note, and the common counts; to which the plaintiff in error plead non-assumpsit, and also two special pleas, setting up, in different forms, accord and satisfaction.
    In the court of common pleas the case was submitted to the court, and judgment rendered in favor of the plaintiff in error. An appeal was taken to the district court, where the cause was submitted to a jury, and verdict for defendants in error, for the amount of the promissory note, with interest.
    After verdict the plaintiff in error moved to dismiss the appeal, which motion was overruled, and judgment rendered on the verdict.
    It is now assigned for error:
    1. That the court erred in overruling the motion to dismiss the appeal.
    2. That the jury did not pass upon all the issues made by the pleadings in the case.

      W. H. Smith, for plaintiff in error.

      M. Soagland, for defendants in error.
   Bartley, C. J.

The ground of the motion to dismiss the appeal was that, after the judgment in the common pleas, on the 12th of March, 1852, the defendants gave notice of appeal, which was at that time entered on the records of the court; whereas the law regulating appeals from the common pleas to the district court, and providing for the notice of appeal, was not enacted until the 23d day of the same month. This notice of the intention of the party to appeal, although entered on the journal of the court prior 176] *to the passage of the law, remained tb,ere, after the law had taken effect, as a standing notice in the case. The opposite party was bound to presume that the appellants would avail themselves of any law which might exist within the time allowed for perfecting the appeal for carrying out tbeir intention. With this notice in the case standing on the journal, it would have been idle to have required another notice to be given after the passage of the law. The notice of appeal given, therefore, and still standing in the case, operating as a sufficient notice to the opposite party of such intention to appeal, it becomes unnecessary for us to go further and inquire whether the motion to dismiss the appeal for mere informality in perfecting it, came too late after verdict.

As to the other assignment of error, it is sufficient to say, that the verdict fully responds to the issue made by the plea of non-assumpsit ; and this covered the whole ground of the defense set up in the special pleas. As accord and satisfaction could have been given in evidence under the general issue, the special pleas were superfluous; and it did not become essential that the jury should pass upon them in form.

Judgment of the district court affirmed,-and cause remanded.

Swan, .Brinkerhoee, Bowen, and Soora?, JJ., concurred.


author: *J. R. Swan, J.

text:
    Israel Pim v. Valentine Nicholson.
    The provision in the constitution, article 11, section 10, that “no bill shall contain more than one subject, which shall be clearly expressed in its title,” was incorporated into the constitution, for the purpose of making it a permanent rule of the houses, and to operate only upon bills in their progress through the general assembly. It is directory only, and the supervision of its observance must be left to the general assembly. The act, *there- [177 fore, of April 10, 1856 (53 Ohio L. 179), entitled “an act in addition to the several acts in relation to the courts of justice, and their powers and duties,” can not be impeached as a violation, in the title or subject, of the above-mentioned permanent rule of the general assembly.
    The law (Swan’s Revised Statutes, 692, note) vesting in a judge of the Supreme Court in vacation the power to stay proceedings upon a decree, until the next term of this court, carries with it, as an incident, and by implication, the power in this court to continue the stay.
    .Upon a notice to vacate such stay, or continue the stay, the court will not hear an argument upon the errors assigned, nor determine the same.
    When the decree below, upon which stay of proceedings is asked, is for a gross sum, and the amount covered by the assignment of errors is uncertain, the order of stay, if granted, must be for the whole amount of the .decree.
    Under the act of March 18, 1851 (Swan’s Revised Statutes, C92, note), the stay allowed by a'judge in vacation ceases to operate after the expiration of the next term thereafter; and if an order of the courtis moved to continue the stay, and is objected to, cause must be shown by the party making the motion.
    Motion to stay proceedings pending a petition in error in the nature of a bill of review, etc.
    ■On the 26th day of October, 1856, during the vacation of this court, one of the judges thereof granted to the plaintiff in error leave to file in this court his petition in error to review the decree of the district court of Champaign county, and, at the same time, directed that proceedings on said decree should be stayed, on the petitioner giving bond in the sum of ten thousand dollars. The petition in error was filed, and bond was given in vacation.
    There are two motions in the case. The plaintiff moves the court to continue the stay of execution allowed by the judge in vacation, until final hearing; and the defendant moves to discharge the stay.

      John H. James, for plaintiff" in error.

      S. Mason and John D. Burnett, for defendant in error.
   *J. R. Swan, J.

This petition in error, in the nature of a bill of review, was authorized by the act of April 10, 1856 (53 Ohio L. 179) , entitled, “ an act in addition to the several acts in relation to the courts of justice and their powers and duties,” which provides: “Section 4. A petition in error, in the nature of a bill of review, may, on leave of the Supreme Court, or any judge thereof, be filed in the Supreme Court, to reverse or modify, any decree in chancery that heretofore has been or that hereafter shall be rendered in any district court in this state, in which the title to real estate is in controversy, or the amount in controversy is not less than five hundred dollars, and the proceedings upon said petition in error, shall, in all respects, be governed by the act of the general assembly of the State of Ohio, passed February 24, 1848, entitled, ‘ an act to disjiense with the necessity of copying the papers in bills of review, and for other purposes;’ and the act of March 18,1851, entitled ‘ an act to amend the act directing the mode of proceeding in chaneery provided, however, that the provisions of this section shall not extend to suits that shall have been commenced since the 1st •day of July, A. d. 1853 ; and provided, also, that said petition in ■error shall be filed within three years from the time of the rendition of said decree so sought to be reversed or modified.”

I. It is insisted, on the part of the counsel- for the defendant in •error, that no order for the stay of execution on the decree of the ■■district court can be made, because the act above referred to, is unconstitutional and void, because it contains more than one subject, and that the subject of the act is not clearly expressed in its' ■title.

The provision of the constitution is as follows.:

“ Art. II, Sec. 16. Every bill shall be fully and distinctly read •on three different days, unless, in case of urgency, *three- [179 fourths of the house in which it shall be pending, shall dispense with this rule. No bill shall contain more than one subject, which ■shall be clearly expressed in its title; and no law shall be revived •or amended, unless the new act contain the entire act revived, or the section, or sections amended; and the section, or sections so amended, shall be repealed.”

This court held, in the case of Miller and Gibson v. The State, 3 Ohio St. 475, that the provisions of the above section, relating to the distinctness required in reading a bill, and the number of times a bill shall be read, were, as they in fact import, intended as permanent rules for the proceedings of the houses. They are directory ■only, and are to be enforced by the houses, and not by judicial interposition. The further provision, in the same section, that no bill shall contain more than one subject, which shall be clearly ■expressed in its title, is also made a permanent rule in the intro'duction and passage of bills through the houses. The subject of the bill is required to be clearly expressed in the title, for the purpose of advising members of its subject, when voting in cases in which the reading has been dispensed with by a two-thirds vote. ‘The provision that a bill shall contain but one subject, was to prevent combinations, by which various and distinct matters of legislation should gain a support which they could not if presented separately. As a rule of proceeding in the general assembly, it is manifestly an important one. But if it was intended to effect any practical object for the benefit of the people, in the examination, construction, or operation of acts passed and published, we are unable to perceive it. The title of an act may indicate to the reader its subject, and under the rule each act would contain one subject. To suppose that for such a purpose the constitutional convention 180] adopted the rule under consideration, *would impute to them a most minute provision for a very imperfect heading of the chapters of laws and their subdivision.

This provision being intended to operate upon bills in their progress through the general assembly, it must be held to be directory only. It relates to bills and not to acts. It would be most mischievous in practice, to make the validity of every law depend upon the judgment of every judicial tribunal of the state as to whether an act or a bill contained more than one subject, or whether this one subject was clearly expressed in the title of the act or bill. Such a question would be decided according to the mental precision and mental discipline of each justice of the peace and judge. No practical benefits could arise from such inquiries. We are therefore of the opinion, that in general the only safeguard against the violation of these rules of the houses, is their regard for, and their oath to support the constitution of the state. We say in general the only safeguard : for whether a manifestly gross and fraudulent violation of these rules might authorize the court to pronounce a law unconstitutional, it is unnecessary to determine. It is to be presumed that no such case will ever occur.

II. It is further insisted by the counsel for the defendant in error that the fourth section of the act of April 10, 1856, under which this proceeding was instituted, provides that the proceedings shall be governed by the act of March 18, 1851 (Swan’s Rev. Stat. 692, note), which authorizes a judge in vacation, “ and upon good cause, to stay proceedings on the former decree until the next term of the court where such proceeding is pending,” and that, inasmuch as no reference is made in the act of April 10, 1856, to the old chancery act of 1831, and which has been repealed, this court has no authority 181] to allow a further stay of proceedings. It *is sufficient to say that the authority of a judge of this court in vacation to stay proceedings until the next term of this court carries with it, as an incident, a ppwer in this court to continue the stay.

III. The counsel for the defendant ask the court on the motions now before us, to examine and determine upon argument, whether the errors assigned are well taken ; and if the court find that the de-' cree of the district court ought to be affirmed, then to refuse a further stay of proceedings on the decree. Such 'a practice would be irregular, and can not be sanctioned.

IV. The counsel for the defendant have argued the errors assigned, and insist that if they are sustained they still leave a portion of the amount of the decree still due the defendant in error, and they ask that the stay if granted may be limited to the amount involved in the errors assigned. When the decree below is for money only, and is divisible, and the assignment of error affects only a specific ■ sum, it would be proper to stay execution for a specific sum only. But in the case before us, the record does not show any specific-sum, but on the contrary, the amount covered by the assignment of errors is uncertain; and the errors patent and assigned are so - stated that the order of stay must necessarily be general.

V. The judge in vacation allowed a stay of proceedings under the decree. This order was temporary and ex parte. It ceases to operate when this court adjourns. An order of this court is necessary to continue the stay. Upon that motion the court may require the plaintiff in error to show good cause for the order. The decree may have been such that the stay should cease when the court sits, and the order of the judge may have fulfilled the object intended. If, however, no objection is made to an order of stay by the court, it would be entered of course. Objection is made in *this case, [182 and we are of the opinion that the plaintiff should show cause for the order.

Bartley, C. L, and Brinkerhoee, Bowen, and Scott, JJ., concurred.


author: Brinkerhoff, J.

text:
    The Little Miami Railroad Company v. Daniel Collett and others.
    In a proceeding by a railroad corporation for an appropriation of a right of -way under the act of April 30, 1852, the jury, after allowing for the full value of the land actually appropriated for the right of way, in view of all its uses and relations, without deductions for benefits of any kind, in their estimate and assessment of the incidental damages accruing to other lands of the owner, can not legally take into consideration and make allowance-for general benefits — or such as accrue to the community and vicinage at: large — from the construction of the work proposed.

      'Whether special benefits, or such as accrue directly and solely to the owner of the lands appropriated, may be taken into consideration and allowed for— quaere.

    .In order to the reversal of a judgment, error must appear affirmatively on the face of the record on which error is assigned; it will not be presumed.
    This is a petition in error to reverse the judgment of thecourt •of common pleas of Warren county, affirming a judgment of the probate court of said county.
    The record shows the following state of facts :
    In August, 1854, the Little Miami Railroad Company instituted • certain proceedings in the probate court of Warren county against the defendants, heirs of Moses Collett, deceased, for the purpose of appropriating to and for the use of said company about five acres -of land.
    The cause was submitted to a jury in said probate court, pursuant 183] to the act of April 30, 1852, “ to provide compensation *to ■owners of private property appropriated to the use of corpora■tions,” and the acts amendatory thereto.
    The bill of exceptions, taken by the plaintiff at the trial, to the .ruliug and charge of the court, shows the following facts : The defendants, who, under the law then in force, held the affirmative, proceeded to offer testimony to the jury, by which it was shown ■that the premises sought to be ajipropriated for the use of the plaintiff, consisted of about five acres; and the quantity of land owned by the defendants in the tract out of which said five acres were taken contained about 393 acres. Defendants then offered testimony tending to show the cash value of the five acres sought to be appropriated, and offered testimony tending to show also that the residue of said tract of land owned by the defendants would' be incidentally injured and rendered less valuable by reason of the .actual appropriation of said five acres to the use of the company.
    The plaintiff, by its counsel, conceding that, under the law of April 30, 1852, under which the proceedings were commenced and -conducted, the defendants would be entitled to a verdict for damages or compensation to the amount of the actual cash value of the land sought to be appropriated, contended that so far as respected the claim of the defendants to incidental or consequential damages to the residue of their said tract of land (resulting, as defendants ■claimed, from said appropriation of the five acres), that, if they were entitled to recover for such damages, it was competent for the plaintiff, under the act incorporating said company, to offer and. prove to the jury, and that said company was not precluded by the-present constitution nor the act of April 30,1852, under which these-proceedings were had, from offering testimony and proving to the-jury that the residue of said tract of land would be enhanced in-value by the location and construction of the Little Miami Railroad-^through and on the five acres sought to be appropriated, [184 and proposed and offered to establish the fact of such enhanced, value by testimony; the court, however, decided and so charged the jury that the defendants • might legally recover for any incidental or consequential damages to the residue of said premises - that they could prove ; and that the plaintiff was not entitled, as an answer or set-off to such claim for incidental damages, to show that the residue of said defendants’ land was enhanced and increased in value by the location and construction of plaintiff’s road on the five acres sought to be appropriated, and would not permit-the plaintiff to offer to the jury any evidence tending to establish the fact of such enhancement of value. To which opinion and ruling of the court the plaintiff excepted.
    The jury returned a verdict for the defendants, and assessed-their damages at one thousand dollars.
    Judgment was entered on the verdict.
    A copy of the record and judgment of the probate court was-taken to the common pleas of Warren county on certiorari; and-at the December term, 1854, of said common pleas, said judgment: was affirmed.
    To reverse this judgment of affirmance the present petition in-error is prosecuted.

      George J. & John E. Smith, for the plaintiff in error.

      Thompson & Collett, for the defendants in error.
   Brinkerhoff, J.

The fifth section of the thirteenth article of the constitution of the state provides that no right of way shall" be appropriated to the use of any corporation until full compensation therefor be first made in money, or first secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by *such corporation; which compensa- [185 tion shall be ascertained by a jury of twelve men, in a court of as shall be law.” The nineteenth section of' the bill of rights has a provision substantially similar, its language :being: “Such compensation shall be assessed by a jury, without . deduction for benefits to any property of the owner.”

The act of April 30, 1852 (Swan’s Stat. 233), under which these proceedings were had, and by which they must be governed in prescribing the juror’s oath, and the manner in which his assessment of compensation shall be made, embodies the very language of the fifth section of the thirteenth article of the constitution above quoted.

Benefits accruing, from the construction of a railroad, to an owner of lands through which it passes, may properly and conveniently bo divided into two classes, to wit:

1. General benefits, or such as accrue to community, or the vicinage at large, such as increased facilities for transportation and travel, and the building up of towns, and consequent enhancement of the value of lands and town-lots..

2. Special benefits, or such as accrue directly and solely to the owner of the lands, from which the right of way is taken; as when the excavation of the railroad track has the effect to drain . a morass, and thus to transform what was a worthless swamp into valuable arable land, or to open up and improve a water-course.

Now, as to the first of these classes, we know from the debates ■ of the convention which formed the constitution (1 Debates Ohio Convention, 446), and from the discussions which preceded and followed the calling of that convention, as well as from the language ■ of the constitution itself, that it was the express design of the framers of the constitution, to exclude that class of benefits from the consideration of jurors in their assessment of compensation for 186] *’rights of way appropriated by corporations; and we are not aware that the contrary has ever been claimed. It has, however, been made a question at least in speculation, whether, after .allowing full compensation for the land actually appropriated for the fight of way, in view of all its uses and relations, without deducting for benefits of any kind, the jury may not, in their estimate and assessment of the incidental damages accruing to other lands of the owner from the construction of the work proposed, take into consideration, and make allowance for, incidental bene- ■ fits of the second class ? And this question has been ably argued, ■ on the part of the plaintiff in error, in the case before us; but the question is not made in the record, and we prefer not to pass upon it until it shall be distinctly presented in an actual case.

It is shown in the bill of exceptions taken in the probate court, and assigned for error, that the plaintiff in error was precluded by that court from giving testimony to the jury to show that the residue of the lands of the defendants in error, not covered by the right of way appropriated, “ would be enhanced in value by the location and structure of the road.” How enhanced in value? and by what means ? By means of what we have designated as general benefits ? or by means of what we have designated as special benefits? The bill of exceptions does not inform us. The presumption is quite as great that they were the former, as that they were the latter. If the former, then there was clearly no error. If the latter, then the action of the probate court was, perhaps, questionable; but the fact ought to be distinctly shown in the record. We can not presume that it was the latter class of benefits rather than the former, which were offered in evidence; for then we might presume the existence of error, and this a court of error will never do. Error *must appear affirmatively in the record [187 on which error is assigned, and will not be presumed.

Judgment affirmed.

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


author: *Per Curiam.

text:
    Dennis McElroy and James McElroy v. Reuben Goble.
    'The use of streams of water for domestic, agricultural, and manufacturing purposes, being, to some extent, publica juris, an action for a nuisance, caused by any obstruction or diversion of the water of a stream for any such purpose, will not lie, unless the damage occasioned thereby be real, material, and substantial.

    Cooper v. Hall, 5 Ohio, 321, followed and approved.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Perry county.
    The parties being adjacent proprietors on a stream of water in Perry county, the defendant constructed and kept up a mill-dam on his premises, which flowed back the water upón the land of the plaintiffs, for which they brought this suit. On the trial, the district court charged the jury, that if they should find that the defendant had raised his dam to an unjustifiable hight, and thereby backed up the water in the channel of the stream through the lands of the-plaintiffs, and also overflowed their lands, yet, unless the proof showed that material and substantial damage had been thereby done-to the plaintiffs, they would not be entitled to a verdict. The jury found for the defendant. Plaintiffs moved for a new trial for misdirection of the court to the jury. The court overruled the motion, and plaintiffs excepted; and now assign the above instruction-of the court to the jury as ground of error.
   *Per Curiam.

The charge of the district court to the jury was in strict accordance with the principle decided in the case of Cooper v. Hall, 5 Ohio, 321, which has been regarded as settled law in Ohio for more than twenty years. It has been said that this ease was not strictly adhered to by the late Supreme Court on the circuit, in some parts of the state. We can not sanction this assertion. The case of Cooper v. Hall was decided on the authority of Palmer v. Mulligan, 3 Caine, 307, and the doctrine laid down by Chancellor Kent, in his Commentaries, 3d vol., sec. 440, page 546. And it is a doctrine which rests upon sound reason, and is well sustained by the analogy of numerous well-considered cases both in England and in this country. Weston v. Alden, 8 Mass. 136; Beissel v. Strall, 4 Dallas, 211; Wadsworth v. Tillotson, 15 Conn. 366; Johns v. Stephens, 3 Vt. 308; Williams v. Morland, 9 Eng. Com. L. 269; Embrey et al. v. Owen, 4 Eng. L. & Eq. 466.

The right of the riparian proprietor to the natural flow of the stream through his premises is subject to qualification, from the circumstance that streams of water being intended, as is well said by Chancellor Kent in his Commentaries, “ for the use and comfort of man, it would be unreasonable, and contrary to the universal consent of mankind, to debar riparian proprietors from the application of the water to domestic, agricultural, and manufacturing purposes,” in a proper manner, even although it did, to some extent, interfere with the natural flow of the water. The principle, therefore, arises out of the nature of the subject-matter, and the necessity required in the practical application of the water of running streams to the useful purposes mentioned, that no action can be sustained for any such use of the water, whereby the quantity is diminished in the: stream, or the water caused to flow more irregularly, *or to [18^ flow back on the land of the proprietor on the stream above,.unless the damage occasioned bo real, material, and substantial, arising from an unreasonable or improper use, appropriation, obstruction, or diversion of the water from its natural course or flow.

Motion overruled.


author: By the Court.

text:
    *William E. Ogborn v. William Taylor.
    Reserved in the district court of Montgomery county.
   By the Court.

This case irivolves the determination of mere questions of fact, and should have been decided in the district court, and not reserved for the Supreme Court, in view of important and difficult questions of law.

. The case is therefore remanded to the district court of Montgomery county.


text:
    Henry L. Holbrook, Administrator of Bernard Connelly, v. Edward Connelly.
    Motion for leave to file a petition in error.
    The plaintiff sued the defendant in the common pleas of Fairfield county. The defendant demurred to the petition. The court overruled the demurrer, and the defendant, by leave, answered. The plaintiff demurred to the answer; which demurrer was sustained, and an amended answer filed. And the plaintiff moved to strike out a part of the amended answer; which motion was sustained. To these several rulings of the court, the defendant excepted. And in this stage of the case, while still pending, and before final judgment, the defendant comes here and asks leave of this court to institute a petition in error, to review and reverse the above-mentioned decisions of the common pleas.
   Bartley, C. J.

No final order, within the meaning of the 512th section of the code of civil procedure, is shown *to have [200 been made. It does not appear that either of the decisions made “ in effect determined the action and prevented the judgment.” For aught that appears, the defendant may yet succeed in his defense to said action. The record, therefore, discloses no foundation for a proceeding in error.

Motion overruled.


text:
    The Cincinnati Insurance Company v. Charles Duffield and others.
    A steamboat, insured only as to three-fourths of its agreed value, was wrecked and abandoned to the insurance offices.
    The policy of insurance contained the following clause: “And in all cases of abandonment, the assured shall assign, transfer, and set over to said insurance company all their interest in and to the said steamboat, and every' part thereof, free from all claims and charges whatever.” Held—
    1. The term abandonment, as used in policies of marine insurance, is a technical one, denoting an act, the legal effect of which is to transfer to the underwriter only that interest of the insured which is covered by the policy, though the legal title to, and right to dispose of, the entire wreck, thereby passes to the insurer; and in giving a construction to such policy, this term will be supposed to have been used in its technical legal sense, unless a. different intention is clearly expressed.
    2. The owners had an interest in the boat, after abandonment, of one-fourth, as to which they were their own insurers.
    Petition in error to reverse the judgment of the Superior Court of Cincinnati, at general term.'
    An insurance was effected on the steamboat Sam Cloon, in four insurance companies; the agreed value of the boat being $20,000, and the amount insured- in each office $3,750, or in all $15,000. The policy in each case was in the same form and with the same conditions.
    The steamboat having been sunk in the Mississippi river was, 201] *by a writing executed for the purpose, abandoned to the insurance companies; who, by means of persons acting for them, raised the boat, and realized from the wreck, after deducting charges and expenses, the sum of three thousand dollars. An action was brought by the owners, who effected the insurance, to recover onofourth of that sum, claiming that they still retained, after the abandonment, an interest of one-fourth in the wreck. This claim was resisted by the insurance companies on the ground that by the terms and conditions of the policies, the owners were required to abandon not only'to the extent of the interest insured, but all interest in the subject-matter insured. The part of the policies supposed to bear on this question was as follows: “And in case of loss or misfortune, as aforesaid, it shall be the duty of the assured, their agents or assigns, to use every reasonable effort for the safeguard and recovery of the said steamboat, and every part thereof, and if recovered, to cause the same to. be forthwith repaired, if practicable; and in case of neglect or refusal on the part of the assured, their agents or assigns, to adopt prompt and sufficient measures for the safeguard and recovery thereof, then said insurers are hereby authorized, and shall have the election to interpose and recover said steamboat, and cause the same to be repaired for account of the assured, to the charges of which the said insurance company will contribute in proportion as the sum herein insured bears to the agreed value in this policy, or to consider such neglect or refusal as an abandonment, and be entitled to recover said steamboat, or any part thereof, at their own expense, and for their own •use and-benefit; and in no case whatever shall, the assured have-the right to abandon, until it shall be ascertained that the recovery and repairs of said steamboat are impracticable; nor sell the-wreck, or any part thereof, without the consent of this company; and in all cases of abandonment the. assured *shall assign, trans- [SOS' fer, and set over to said insurance company all their interest in and to the said 'steamboat, and every part thereof, free of all claims and’ charges whatever.”

    The action was submitted for trial to the Superior Court of Cincinnati, at special term, and judgment was rendered in favor of the insured, for one-fourth of the sum realized from the wreck.
    To reverse this judgment, a petition in error was preferred by the insurance company before the Superior Court, at general term,, and the judgment at special term, was afiirmed.
    To reverse this judgment of affirmance, the present petition in error is prosecuted in this court.
    In argument, counsel confined themselves mainly to this question : Under a form of policy above mentioned, what is the legal effect of the term abandonment. ? Is it to transfer to the underwriter, as and for his own, the entire interest of the insured in the-proceeds of the wreck, or only the interest which is covered by the-policy ?

      Coffin and Mitchell, for plaintiff in error:
    Cincinnati Insurance Co. v. Blackwell, 4 B. Monroe, 541; Phillips, 388, 390, 459, 460; Marshall, 519; Abbott, 69, 150, note; 13 Mass. 96.

      John S. Nixon, for defendants in error:
    Marshall on Insurance, 1157; The Patapsco Insurance Co. v. Southgate et al., 5 Pet. 622; Emerigon, 684; Phillips, 382; Higgenson v. Dall, 13 Mass. 96.
   Scott, J.

In order to have a clear apprehension and correct, solution of the question made in this case, it is necessary to understand what is meant by an abandonment; what are its legal effects, and what would be the legal rights of the parties, independent of the provisions of the policy on the subject of abandonment.

*The term 11 abandonment,” as used in policies of marine [208-insurance, and in the law regulating that subject, is a technical one.

“ An abandonment is an act on the part of the assured, by which he relinquishes and transfers to the underwriters his insurable interest, as far as it is a subject of the policy, or the proceeds of it, or the claims arising from it.” Phil. on Ins. 382.

“ The abandonment can not transfer the interest of the assured any further than that interest is covered by the policy.” Arnould, 1159.

The abandonment, when properly made, operates as a transfer •of the property, to the underwriter, and gives him a title to it, or what remains of it, as far as it was covered by the policy.” 5 Pet. 622.

Such we understand to be the well-settled legal effect of an abandonment. It operates as a transfer to the underwriter of the property insured, only to the extent of the indemnity contemplated by the policy; and this limitation of its operation is not only sanctioned by the authority of the elementary writers and the general ■current of decisions, but has its foundation in equity- and sound principle.

Upon what principle of equity should the underwriter, in case of abandonment, take the wreck, not only of that which he has insured, and of which his contract binds him to pay the full agreed -value, but also of that which he has not insured, and for which he is in no event liable to pay ?

It would seem equitable — and in ordinary cases of insurance such is doubtless the law — that where an abandonment may be and is legally made, the wreck, or its proceeds, inure to the benefit of thoseVho bear the burden of the loss — to the underwriters in proportion to the parts by them severally insured, and to the owner 204] in proportion to *the part remaining uninsured, and as to which he is virtually his own insurer. The ground upon which the insurer takes the wreck is, that he pays the party assured for a total loss — and to the extent to which his contract binds him thus to pay, to the same extent, and no further, is he entitled to the proceeds of the wreck. His rights originate from his obligations, and ■can not be more than co-extensive.

But did the parties intend, by the clause in the policy out of which this controversy arises, materially to change'the legal rights •of the insurer and the assured, growing out of and incident to an abandonment ?

That clause is in these terms: “ In all cases of abandonment, the assured shall assign, transfer, and set over to said insurance cornpany all their interest in and to the said steamboat, and every part, thereof, free of all claims and charges whatever.”

The right of the party assured to “ abandon ” in a proper case, seems here to be contemplated and strictly recognized; and yet, if we adopt the construction claimed by the plaintiff in error, the policy does not permit the making of a legal technical abandonment under any circumstances, but substitutes therefor a transfer, having an effect which the law does not attach to an abondonment.

That the “ claims and charges,” mentioned in this clause, were understood by the parties to refer, not to the interest of the party insured in the boat, but to mortgages or other liens held by other-parties against the -boat, is satisfactorily shown by the terms of the guaranty taken by the plaintiff in error from the defendants on the payment of the sum insured.

The construction claimed would, in cases of partial insurance, often prevent an abandonment, where the settled rule of law would authorize it, or would defeat that indemnity, which is the very ground and object of all legitimate insurance.

*A construction leading to such results, so vitally changing [205 the legal rights of the parties, and working apparent injustice, ought not to be adopted, unless required by clear and explicit language.

We think a different construction may be fairly given to the-clause in question — that it waá not intended to change the legal effect of an abandonment, which the framer of the policy may be-presumed to have understood, but to prescribe the form in which the transfer should be made to the underwriters of the interest which they derive by law from the abandonment, and to point out. the mode in which the intention to abandon should be unequivocally expressed.

The elementary writers tell us that no particular form of abandonment is prescribed, nor is the form material;” “ it has not been considered necessary, as a general rule, that it should be made in writing.” Phillips on Ins. 447.

In Chesapeake Insurance Co. v. Stark, 6 Cranch, 272, C. J. Marshall, giving the opinion of the court, said : “ The informality of the deed of cession is thought unimportant, because, if the abandonment was unexceptionable, the property vested immediately in the underwriters, and the deed was not essential to the rights of either party.”

As no deed of cession, transfer, writing, or particular form is essential to an abandonment, doubts have sometimes arisen as to what will constitute a valid abandonment. To prevent all difficulty ■cr misunderstanding on this jooint, we may reasonably suppose was ■the object in requiring that the abandonment should be accompanied and evidenced by a formal assignment and transfer of the property insured. And the clause may have also been intended to provide that the abandonment should be general, embracing the whole subject-matter of the insurance.

Besides, we understand an abandonment to operate as a transfer 206] to the underwriter of the legal title to, and right *of disposal ■of what remains of the thing insured; and the formal assignment provided for in the clause under consideration, may reasonably have been intended simply to facilitate the sale of the wreck by the insurance companies, without discharging them from their legal liability to account to the party assured for his proportion of the proceeds. Such discharge can only be effected by language so clear and explicit as to leave no reasonable ground for misapprehension on the part of the insured.

Judgment affirmed.

Bartley, C. J., and Swan, Brinkerhoee, and Bowen, JJ., concurred.


text:
    Shibnah Spink v. Asa C. Keating.
    Motion for an order making an entry of a certificate of facts, showing that the decision of the case of Asa O. Keating v. Shibnah ■Spink, reported in 3 Ohio St. 105, involved the question of the repugnancy of the water-cpaft laws of this state to the constitution •of the United States, for the purpose of enabling the party to carry the ease to the Supreme Court of the United States on writ of error.
   Bartley, C. J.

This motion is overruled. It is not deemed necessary to assign the reasons for this decision. In the case of Thompson v. Steamboat Julius D. Morton, 2 Ohio St. 26, as well as in the case of Keating v. Spink, this court held that the jurisdiction of the state courts, under the water-craft law of Ohio, was •concurrent with that exercised by the federal courts. We are not disposed to depart from these well-considered decisions.