text:
    *Christopher Lamberton v. The State of Ohio.
    An indictment for resisting an officer in the execution of his duty, must set forth all the facts necessary to constitute the offense.
    This is a writ of error from the county of Richland.

      The plaintiff in error was indicted under section 9 of the act of March 8, 1831, Swan’s Stat. 242, for resisting an officer.
    The indictment set forth that the plaintiff in error, “ on, etc., at, •etc., with force and arms, one'David Bryte, then and there being ¡sheriff of said county, and also then and there being in tho execution of his said office as such sheriff as aforesaid, unlawfully did resist, contrary to the form of the statute,” etc.
    The plea of guilty was entered, and judgment rendered.
    It is now assigned for error on the record, that the indictment ■does not set forth the act of resistance, the mode and manner of resistance, and that it is too general and indefinite in its terms and language.
    T. W. Bartlet, for plaintiff in error:
    The plaintiff in error relies upon the following, among other .grounds, for the reversal of the judgment:
    1. That the indictment does not set forth nor specify the process or authority under which the officer was acting, nor does it allege ■that- he acted under any process whatever.
    2. That tho indictment does not allege any particular act, nor the mode nor manner of the act of resistance.
    3. That the indictment does not set forth, nor specify, all the substantial ingredients requisite to constitute the offense charged on the defendant.
    Every indictment must contain a complete description of such facts and circumstances as are requisite to constitute the *crime charged. The proof must correspond with the allegations in the indictment, and no fact can be proven on the trial unless .alleged in the indictment. It is essential that the indictment should show the act done, or mode of resistance, so that the court can judge whether it amounts to the offense or not. See 2 Hawk. P. C., chap. 80, sec. 23; 5 East, 244; 2 Stra. 1226; 2 Sel. Cas. 31; 1 Chit. Crim. Law, 227, 228. In order to make it appear illegal to obstruct, or refuse to aid a peace officer in securing a party whom he attempts to arrest, it is necessary that the arrest itself should be lawful, and this must appear from the indictment itself. 5 East, 308; 1 Smith, 555.
    The case relied upon by the prosecuting attorney solely, is the case of United States v. Bachelder, 2 Gall. 15, as cited in the notes in 1 Russ, on Crimes, 336, and also in 2 Chit. C. L. 144. Upon an examination of the case in 2 Gall., it will be found that it is not analogous, and does not sustain the prosecutor. That was the case of a revenue officer who possessed a general authority, by virtue of his office, to seize goods imported contrary to law; and a writ, or process of the law, had not to issue to clothe him with that authority. Also, in that case the indictment distinctly alleged the act of resistance, and described it. The principle settled in this case is different from what the prosecuting attorney supposed it to be, from the notes he referred to.
    J. Brinkerhoee, prosecuting attorney, for the state:
    “It is not necessary, in an indictment for resisting a public officer, to set forth the particular exercise of office in which he was engaged, or the particular act or circumstances of obstruction.” 1 Russ. on Crime, note a, new paging, 336, citing United States v. Bachelder, 2 Gall. 15.
    “ In an indictment for a statute offense, it is sufficient if the of fense is substantially set forth, though not in the exact words of the statute.” 1 Russ, on Crime, note a, new paging, 336, 337.
    *“ Hence, on the act of Congress, which enacts that ‘if .any person shall forcibly resist, prevent, or impede any officers -of the customs, etc., in the execution of their duty,’ etc., an indictment which alleged that the defendant ‘ did, with force and arms, violently and unlawfully resist, prevent, and impede N. J. in the execution of his office, as an officer of the customs,’ etc., was held to be sufficient.” 1 Russ, on Crime, note a, new paging, 336. See also 2 Chit. C. L. 144, note a.

    In this case I deem it necessary only to cite the court to the case of the United States v. Bachelder, 2 Gall. 15, which is quite analogous, and the doctrine laid down by the court there fully sustains sufficiency of the indictment in this case.
   Birchard, J.

It is a rule of criminal law, based upon sound principles, that every indictment should contain a complete description of the offense charged. That it should set forth the facts constituting the crime, so that the accused may have notice of what he is to meet; of the act done, which it behooves him to controvert, and so that the court, applying the law to the facts charged against him, may see that a crime has been committed.

A contrary doctrine would deprive the accused of one of the moans humanely provided for the protection of innocence; the right of having the law of his case passed upon by judges learned and experienced in matters of criminal jurisprudence. For how could a court determine, upon the face of this indictment, 'what, were the facts upon which the grand inquest of the county predicated their conclusion, that the sheriff was unlawfully resisted in the execution of his duty? This indictment sets forth no fact whatsoever. It merely states a conclusion of law, predicated upon a supposed state of facts. Whether this conclusion was correct, or an error of the grand jury, we have no means of determining. For aught that appears, it may have been that the sheriff was ex-, ecuting an illegal writ, one without a seal, or issued from a court having no jurisdiction, *or from some other cause defective. It is not safe to trust to such general allegations in an indictment. They do not meet the intention of the framers of the constitution, who provided that every person should be allowed to meet his accuser face to face, and be furnished with the nature and cause of the accusation against him.

It is as general as would be an indictment for forgery, which followed merely the words of the statute, without specifying any act constituting the crime, or an indictment for perjury, which only set forth that a party swore falsely, knowing to the contrary, without setting forth what matters he stated to be facts, and then falsifying them. Would any one attempt to convict a person for passing a counterfeit bank-note on an indictment following the words of the statute, and omitting any description of such bank-note? And yet such an indictment would, in no respect, be less defective than this.

It would give the accused as much information of the nature1 and cause of the accusation sought to be proved against him, of the acts to be inquired into on trial, as does this. The day on which a crime is alleged to have been committed is not held, in general, to be material. It would not be, in an offense of this grade. The prosecutor, supposing the indictment to be good, might, without violating settled rules of law, have offered proof of an unlawful resistance, committed on any day prior to that specified in the indictment, and within the limitation of the statute. And, under this general form of indictment, the accused could not limit him to any particular day, until he offered proof of some act on some given day. It might, and doubtless often would happen in prosecutions, that the accused would be completely surprised by learning, in the midst of the trial, for the-first time, that the transaction which he had prepared to defend .against was not the one of which the state complained.

But it is said the case of the United States v. Bachelder, 2 Gall. 15, will sustain this indictment. If it would, I would overrule it, for it could not stand without violating the spirit of our bill of rights. But it does not sustain the doctrine contended *for. That was a prosecution under the revenue laws; the fact alleged was the resistance of a revenue officer. The act of Congress provided “that if any person shall forcibly resist, prevent, or impede any officer of the customs,” etc. The indictment charged that Bachelder' did, with force and arms, violently and unlawfully resist, prevent, and impede, etc.; and the question was, simply, whether the use of the words “ violently and unlawfully resist,” instead of “forcibly resist,” were sufficient, and the indictment was .sustained: That is all Bachelder’s case settles.

It may be presumed, as was undoubtedly the fact, that the other parts of the indictment, which are not set forth in the report, were in due form, and clearly specified the acts of resistance; and the reason why those parts were not reported was, that they were not to elucidate the point decided.

In the case of Ohio v. Johnson, in which I was counsel, decided by Judges Lane and Wood, on the circuit, in 1834, on an indictment like this, the judgment was reversed. In 1837, before two other judges of this court, two judgments, in the case of the State v. Shoemaker, were reversed in the county of Geauga; the indictments were precisely similar in form to this. A like indictment was held defective, and judgment reversed by Judge Reed and myself, in the county of Wayne, on the last circuit.

It is admitted that this view taken of the case in 2 Gall, is •different from that taken by the American editors of Russell and Chitty. But this fact only shows how unsafe it is to rely on digests, without examining the books of reports, from which the legal principles are supposed to have been gathered.

Judgment reversed.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    *Mary Perlee Brush v. Samuel Brush, Platt Brush, Eliza Brush, and Susan Albina Brush.
    A deed of conveyance, made subsequent to a devise, does not revoke the will, unless it makes an entire disposition of the estate; but to any portion undisposed of by the deed, the will attaches, pro tanto, and carries it to the devisee.
    This was a bill in chancery, for partition, from Sandusky county.
    The facts and legal questions arising are stated in the opinion of the court.
   Read, J.

This case was reserved from Sandusky county. It comes up on a bill filed by Mary Perlee Brush, an infant, by her guardian, Platt Brush, seeking partition.

1. Of the remainder of that portion of Platt Brush’s estate, which was set off as dower to Eliza Brush, his widow, against the-heirs at law of the said Platt Brush, deceased; and,

2. Such estate as the complainant claims to inherit, with Samuel and Platt Brush, being sister and brothers of John T. Brush, as his heirs at law.

As to the first-named parcel of land, the remainder dependent upon the dower estate of Eliza Brush, widow of Platt Brush, deceased, there is no dispute; and, if it be desired, the case may be-remanded for such proceedings as the parties may agree upon, or the court order.

But as to the second, the estate of John T. Brush, deceased, the question for determination here, is, whether he left any estate undisposed of, to descend to his sister, Mary Perlee Brush, and his-brothers, Samuel and Platt Brush, as his heirs at law; and if soy what estate ?

The determination of this last question depends:

1. Upon the validity of the will of John T. Brush, executed September 21, 1840, making ^entire disposition of his whole estate to his wife and children, if any; and,

2. Upon the validity of a deed of trust, executed by John T. Brush, on October 31, 1840, operating upon the same estate; and,

3. If both are valid, their construction and effect. If the deed is invalid, and the will prevails, the whole estate of John T. Brush is disposed of, and nothing remains to his heirs for partition. If the deed is valid, it remains to determine whether it operates as. an entire revocation of the will, or only in part; and if it totally destroys the will, whether any estate remains to the heirs; and, if in part only, and both will and deed stand together, whether .they entirely exhaust the estate, and leave nothing to descend at law to the heirs.

We will consider, first, of the validity of the deed :

Susan Albina Brush, widow of John T. Brush, deceased, claims, in her answer, that the whole estate is hers under the will; and that the deed of trust to Samuel Brush is invalid, because her husband, John T. Brush, at the time of its execution, was incompetent to make a deed, either from being actually insane at the time, or, at least, in such a state of mental imbecility, from drunkenness and long habits of intemperance, as to be incpable of making a contract; and that Samuel took advantage of the unfortunate situation of his brother, corruptly to procure this deed, for the purpose of revoking the will and defrauding the respondent.

To this point the whole body of the testimony in the ease has been directed. It discloses that John T. Brush had been, for many years, habitually intemperate. That the-family witnessed, with grief, its rapid advances; and felt that, unless he could be restrained, he must soon fall its victim. Every effort was made, and especially by Samuel, who spared no means to reform his brother. His kindness was reciprocated by John, who relied upon him in every time of need and distress. When their father died, in August, 1840, and a division of his estate was had among the heirs, and John came into the possession of his portion, Samuel perceived that *it would soon be swallowed up by dissipation and sharpers, who would take advantage of the intemperate situation of his brother, and rob him of his property. John had married a wife; there was promise of offspring, and a certainty that, unless something was done, poverty would soon come with dissipation, and destitution and want be added to the misery of drunkenness. To reclaim the brother, and protect his. wife, it was a family arrangement that John should move on to his farm in Seneca county. It was hoped that thus removed from his evil associations, he would relorm; but, not reforming, and contracting debts, he felt himself, as well as did his friends, that he must soon be reduced to utter destitution. Samuel felt deeply upon the subject. He desired, if possible, to secure to his brother and his family a support, and provide for the wife and children, if any, in case of John’s death. He consulted with his friends ; and, upon the advice of distinguished counsel, it was concluded to take a deed of trust to Samuel, to hold the real estate of John, for the use of John and his family. In pursuance of this arrangement, John T. Brush executed a deed, dated October 31, 1840, to Samuel Brush, in trust, to pay over the rents and profits to his wife Susan Albina, for their joint support, and the support of the children ; and, in case of his death, the profits of one-half of the estate to support his widow during life, and the profits of the other half to the guardian of his children, for their support; and, in case of the death of the wife, the whole estate to go to his children.

A few days after the execution of this deed, John died of delirium tremens. He had concluded to leave off drink. Samuel had hired his brother, Platt, and paid him to go to John’s and take care of him, whilst he made the effort to leave off liquor. Delirium tremens was the consequence.

Nothing is disclosed by the proof, to show in Samuel anything but the conduct of a kind and affectionate brother. Indeed, the whole evidence shows that Samuel, throughout, was actuated, in his conduct toward his brother and wife, by the most praiseworthy motives; and we are happy to be able to *add, that so far from any fraud being imputable to him in the procurement of the deed, the evidence bears much honorable testimony of the pure considerations and affection which have governed him in this whole transaction.

But was John of sufficient mental capacity to make this deed ? The proof shows that, at the time he made the deed, he was as capable of doing business as he had been for months; that he understood his interests at the time, and conducted business as usual. True, some say that thoy would not trust him to do business for them; but who would trust an intemperate man with business of¿ importance ? But certainly he may be permitted to contract for his own benefit, to secure his properly to himself and family.

The very nature of the deed, as well as the proof, show that the protection of John’s interest, and to prevent his estate from being squandered, was the object in the execution of this deed. We regard this deed, then, as valid.

Does it revoke the will?

The will bequeaths all his property, both real and personal, of which he may die possessed, either in law or equity, to his wife, Busan Albina; but in case of children, the one-half to go to them, and the other half to the wife. No child was born alive, to take under the devise, and the contingency not happening, the will vests the whole estate in the wife. This will bears date September 21, 1840.

The deed differs from the will. The will gives the widow the whole estate, if there be no children; and, at all events, the fee -of one-half. The deed secures her only a life estate in the one-half. If the deed had disposed of the whole estate, it would revoke the will.

The contingency failing to happen, which would have vested the rest in the heir, and carried the entire estate, the trust results in favor of the grantor, to be inherited by his heirs; and hence, a portion of the estate is left undisposed of by the deed, to descend as at law.

*The act relating to wills in sections 37 and 38, Swan’s Btat. 997, provides that a conveyance, settlement, deed, or other act of the testator, by which his estate, or any interest in property, previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise; but such devise or bequest shall pass to the devisee or legatee the actual estate or interest of the testator, which would otherwise descend to his heirs or pass to the next of kin, unless, in the instrument by which such alteration was made, the- intention is declared that it shall operate as a revocation of such previous bequest or devise. So, in section 38, it is provided that when there is a total disposition of the property, it shall operate as a revocation, unless it be upon a condition or contingency, and such condition bo not performed, or such contingency do not happen.

Thus, when there is a will devising the whole estate, and a subsequent conveyance or deed which does not divest the whole estate, it does not revoke the will, but the devise operates pro tanto upon that portion not divested.

The rule is this: If the will conveys the whole estate, and the subsequent disposition, by deed or otherwise, does not transfer the-, whole estate, but leaves a portion which would descend as at law, the devise attaches to such descendible portion, and carries it to the devisee.

S. Brush and G. Swan, for complainants.

B. P. Buckland, for defendants.

Now, in this case, the heirs of John T. Brush,'his sister and brothers, claim, as heirs at law, the one-half of the estate conveyed in trust, to be held for John’s children, if any, and the reversion in the other half dependent upon the life estate of Susan Albina.

Thus, by the deed of trust, there is one-half of the estate named in it, and the reversion of the other half undisposed of, which, if there is nothing to prevent, would descend to John T. Brush’s, heirs at law.

Thus, although the nature of the estate, by the deed of trust, was converted from a legal into an equitable estate, and, as there-was 110 express revocation of the will under the statute, *it attaches to all that portion of John T. Brush’s estate which would descend to his heirs at law, and vests it in the devisee, Susan Albina. Hence, although the deed and will are both valid, yet they dispose of the whole estate, and nothing descends to the complainant, but the whole belongs to Susan Albina, the respondent. Therefore the bill is dismissed; but, as it is the case of a minor seeking her estate, the court decree no costs.

Bill dismissed.


author: Lane, C. J.

text:
    Allen Cadwallader v. The Granville Alexandrian Society, James Doster, et al.
    A judgment creditor may pursue different interests of the debtor, and against different persons, in the same bill. A judgment creditor may demand from his debtor, in general terms, a disclosure of his assets and the names of his debtors.
    This is a bill in chancery from Muskingum county.
    The bill shows that the complainant has a judgment against James Doster and others,' which is unsatisfied, and that the judgment debtors have no property liable to execution at law; that an execution issued upon his judgment, and was levied on March 5, 1842, on all the interest of Doster in a parcel of land, situated in Morgan county, Ohio, and in a certain water privilege thereto-belonging, which land and easement were leased, by the State of Ohio, to one Coneklin, and by him assigned to Doster and Cassell ; that Doster and Cassell’s title is supposed to be only equitable, by reason of the *want of an acknowledgment to the assignment from Coneklin ; that Cassell has no bona fide interest-in said premises, but became a party to the assignment to defraud Doster’s creditors.
    That the Granville Alexandrian Society, of Licking county, pretend to have some interest in, or claim to, the premises and' hydraulic power aforesaid, and in other property of said Doster’s, by way of mortgage or otherwise ; and which said interest, if any such exist, arose out of and was created by banking operations, carried on in violation and in fraud of the several acts of the general assembly of the State of Ohio against unauthorized and illegal banking, by the Granville Alexandrian Society, the said society not being a bank incorporated by law. That the said Gran-ville Alexandrian Society was not authorized by law to transact banking business, and that all interest, claim, or lien of the said Granville Alexandrian Society in, to, or upon the said premises and hydraulic power, or upon either of them, were, by the said Doster and Cassell, given to said society for and on account of the notes and bills thereof, issued and intended to circulate as money, by the said society as a bank, and by the said society lent, by way of banking and discount, to the said Doster and Cassell, for the use of said Doster; and that all such pretended claim, interest, and lien, being in violation of the several laws of this state-against unauthorized banking, are - fraudulent and void. The bill proceeds to allege that a cloud is cast upon the title by reason of this pretended claim of the society, and that Doster fraudulently sets it up to defraud his creditors.
    The society is called upon to discover all property transferred' or sold to it by Doster and Cassell, or either of them, and to release its pretended claim aforesaid. The bill has no charge of combination, and alleges no participation of the Granville Alexandrian Society in the fraud of Doster. It prays that the premises and hydraulic power, and all the interest of Doster and Cassellin said lease, be sold, and the proceeds be applied to complainant's judgment, and for general relief.
    *To this bill the Granville Alexandrian Society demurred, assigning for demurrer:
    1. That the said bill is multifarious in this, that it seeks to draw in question the title of the demurrants to the mortgaged premises described in said bill; and seeks discovery and relief from their said co-dofendants, Doster and Cassell, wholly independent thereof, and touching matter with which these demurrants are in no way concerned.
    2. That there is no matter to impeach or draw in question the title or interest of these demurrants to said lease and demised premises, inasmuch as it appears that the contract between these demurrants, and Doster and Cassell, touching said lease and premises, is fully executed.
    3. That nothing is shown in said bill to impeach the title of these demurrants to said lease and premises, for want of power and authority, on the part of these demurrants, to accept and receive such title, and the assignment thereof.
    4. That if anything is shown to impeach said title, or to avoid the assignment of said lease to these demurrants, and the interest conveyed to them thereby, that matter of avoidance can not be set up by the complainant.
    5. That the said bill shows that neither the said Doster, nor the said Doster and Cassell, have such title to said lease and mortgaged premises, as can be sold by execution at law.
    Doster assigned for additional cause :
    6. That neither the State of Ohio, nor her authorized agents, nor the person holding the legal title to the said demised premises, are made parties to said bill.
    7. That the said bill charges that this demurrant was formerly possessed of large and valuable property, both real and personal, without describing said property, or any part thereof, and asking a discovery relating thereto, whereas no relief could be granted if such discovery were made, or if said allegation were true.
    8. That the charges in the bill respecting the property, money, notes, choses in aetion, etc., of the demurrant, are *loo vague and general, and the bill does not show that he is now possessed of any of the said property, or choses in action, or money, or that if he were, the same are subject to the notion of the court.

      9. That the persons indebted to him, on the said choses in action, are not made parties to this bill.
    10. That the discovery asked of all the transactions of this demurrant, for the last six years, is not warranted by any of the charges of said bill.
    H. Stanbeby and T. Ewing, for demurrants :
    We claim, for the Granville Alexandrian Society, that no case is made against it for equitable relief.
    The bill does not charge the society with any fraud or combination, but claims that it holds some interest in the leased premises,, by mortgage or otherwise, which was given or conveyed to the society by Doster and Cassell, on account of the notes issued by the society as a bank, and lent by the society to Doster and Cassell in the way of banking; and that, as the society has no banking powers, such interest is void, as against the laws in restraint of illegal banking, and prays a discovery of the interest so held by the society, in order that it may be declared void.
    It is not alleged, by the bill, that the society has no capacity to hold lands; but the bill proceeds upon the fact, that an interest in the land, or the chattel real, is in the society by virtue of some transfer from Doster and Cassell, and the object of the bill is to-take this-interest from the society, or to declare it void, for the benefit of the complainant.
    I. We insist that a court of equity will not compel a discovery,, or lend its aid in order to enforce a forfeiture. Dunham v. Fanning, 5 Johns. Ch. 145; Beach et al. v. Fulton Bank, 3 Wend. 573; 2 Bridg. Eq. Dig. 418; 2 Ball & Beatty, 125.
    2. The complainant is in no privity with this land; he has not purchased it, is a stranger to it; and, if the court declare *the contract void, non constat, he will ever purchase. Green v. Kemp, 13 Mass. 515.
    The case of a conveyance to defraud creditors, stands upon a different ground. The court only declares the conveyance void as to creditors; it leaves it in force between the parties to the conveyance. The statute makes it void as to creditors, and, therefore, without a purchase, a creditor at large may avoid it.
    3. This society had power to hold lands by the second section of i1s charter. The title passed to it, by assignment, from Doster and Cassell; and, if it were prohibited from holding lands, upon an illegal consideration, and liable to forfeit those lands for violation of law, the state is the proper party to take advantage of that forfeiture. The Banks v. Poiteaux, 3 Rand. 141.
    4. The contract by which the society holds lands is not executory, but executed. The bill charges that some interest has been given to the society by mortgage or otherwise. Now, admitting that the loan was void, or that the note which contains the promise to pay is void, yet this executed thing is not void. 7 Ohio, 71; 3 Ves. 613.
    Goddard & Converse, for complainant, insisted:
    That the bill is not multifarious. 6 Johns. Ch. 139; 12 Maine, 164; Wright, 729; 4 Johns. Ch. 199, 204; 1 Eng. Cond. Ch. 160; 8 Wend. 339.
    That the complainant is entitled to have the premises mentioned in the bill sold, disincumbered of the pretended lien of the Granville society. 2 Hill, 522; 4 Pet. 205, 228; 3 Wend. 574, 584; Swan’s Stat. 137, sec. 9; Swan’s Stat. 154, sec. 64.
    That the holder of a legal title need not, and, in the present case (the state holding that title), can not be defendant. Swan’s Stat. 704, sec. 14; 1 Paige’s Ch. 637. And *Miers. etc. v. Zanesville and Maysville Turnpike Road Company, decided at the present term.
    That the seventh, eighth, ninth, and tenth causes of demurrer by Doster are not well taken, and that complainant is entitled to the relief prayed for as against Doster and Cassell. 6 Ves. 788; 3 Wend. 618; 1 Paige’s Ch. 168, 170; 3 Paige’s Ch. 234; Miers, etc., v. Zanesville and Maysville Turnpike Road Company, ut sup.

    That the demurrer to the whole bill is bad, if the complainant is entitled to an answer to any one of the matters stated in the bill; being bad in part, is bad in toto. 4 Ohio, 385; 9 Pet. 632.
   Lane, C. J.

This bill is filed by a judgment creditor of Doster, to discover his effects, from which the complainant may obtain satisfaction of his judgment.

To this bill, the defendants demur.

The right of a judgment creditor, seeking satisfaction, to demand, generally, from bis debtor, a disclosure of his assets and the names of his debtors, without more minute specification, is maintained by this court in another case, decided at the present term-Miers et al. v. Zanesville and Maysville Road Company. The complainant is therefore entitled to a full answer from Doster.

The bill states, amongst other effects of Doster, which it pursues, that be, together with one Cassell, held an equitable leasehold interest in certain lands and hydraulic power from the state; that, in truth, it belongs wholly to Doster. That the Granville Alexandrian Society set up some interest by way of mortgage, which interest or claim arose out of illegal banking operations. That all their interest, claim, or lien on the premises, were given by Doster on account of notes illegally issued, and intended to circulate as money, in violation of the law, and void. The Granville Alexandrian Society is therefore required to disclose what property it has received from Doster, and release its interest. The society demurs to this ^disclosure, on the ground that it may subject it to forfeiture, or its officers to-penalties.

It is conceded, that where a forfeiture or penalties may ensue from the answers to a bill, the defendant is not bound to make it. But the complainant insists, that a demurrer, which covers too much, can not be sustained for any part; and that here, although the society may justly decline answers touching the consideration of the mortgage, they ought to disclose the amount of property transferred, and the extent of their claim to it.

The proper rule of practice, in this respect, is not contested, and we are called upon to decide if this is a case for its application. If this bill had been framed in the alternative, demanding of the defendant what property they derived from Doster, charging that it was under an illegal and void agreement, and asking that it might be set aside, or that, if it should be held valid, the residuary interest of Doster might be subjected to his debt, it would afford an example which the defendant would be protected in withholding a disclosure to a part of the bill, while he would be bound to answer the remainder.

But the mind of the pleader did not embrace such an alternative. He assumed the whole dealings between Doster and the society were illegal, and sought to set the whole aside, without making a statement broad enough to cover a case in which the validity of the mortgage to them could be maintained.

We think his antagonist was warranted in believing that he intended to prefer his claim under no aspect, except on this hypothesis, and is justified in withholding his answer.

Demurrer sustained.


author: Wood, J.

text:
    *Stephen Slipher v. Isaac Fisher and Lowen R. Cooch.
    In a suit against principal and surety, a plea, by the surety, that the time was extended without his consent, is had, not being an answer to the whole-cause of action.
    Proceedings may he arrestod at any stage of the case, when it is discovered . that judgment would be arrested after verdict.
    This is a motion for a new trial, in an action of assumpsit, from the countv of Butler.
    The declaration in this case is founded on a promissory note, bearing date August 12, 1838, for $770, payable twelve months after date, to the order of the plaintiff.
    The defendant, Fisher, filed the plea of the general issue; the-defendant, Cooch, a like plea; and also a plea in bar of the action, that after the note fell due the plaintiff contracted with the defendant, Fisher, to extend the time for the payment of the note one year, in consideration of the payment of ten per centum interest, which-was paid and indorsed on the note. The plea then-avers that Cooch was only a surety for Fisher, and that such agreement was without his knowledge or consent.
    On this plea issue was joined, and the cause came on to be tried1 before a jury at the last term of the Supreme Court, when the-defendant, Cooch, offered evidence of the facts set up in his special plea; but the court decided, and so instructed the jury, that such defense could not be made at law, but only in chancery. On this instruction Of the court the jury found a verdict for the plaintiff, and the defendant, Cooch, filed his motion for a new trial on the ground that the court mistook the law, and erred in their instruction to the jury.
    Elijah Yanoe, for plaintiff:
    The first question which presents itself is, whether the defendant, Cooch, when sued by Fisher, law, can be permitted *to set up the defense made by his special pleas; and, upon this question, it has been decided, in the ease of Farrington v. Galloway, 10 Ohio, 543, that where the suit is brought against the defendants jointly, and the matter offered in evidence was not a good defense as to all the defendants, one of them could not. take advantage of it to defeat the action at law, but his remedy is in equity. The authorities cited by the defendants’ counsel, to wit, 5 Ohio, 214 and 6 Ohio, 18, do not come in conflict with the decision of this court above quoted, for the reason that in the last mentioned cases the security, in the one case, and the representa tives of the security, in the other, were sued alone; and, as a matter of course, had a right to set up this matter of defense at law.
    The next question presented, by the motion now pending for a new trial, involves the inquiry as to whether the defendant has gained the right thus to defend himself at law, in consequence of an issue of fact having been taken upon his special pleas, instead of an issue at law. In the case of Thornton v. Sprague, Wright, 645, which was an action of replevin, the court decided that a plea, non cepit, is an immaterial plea, and, therefore, the issue being of no moment, the finding upon it secures no legal consequences, etc. See also 5 Ohio, 108. In Bates v. Cooper, 5 Ohio, 115, the court have said that, after a verdict, an objection to the form of the plea, either for the purpose of obtaining a new trial or a repleader, will not be received, etc., particularly if it appear not to be in furtherance of justice, etc.
    But there is another principle of law which, it is believed, may be properly called in aid of the settling of this point. A new trial will not be granted fora defect in pleading (5 Ohio, 108; 1 Johns. 510; 15 Johns. 212), and, most certainly, not in aid of the party who pleads an immaterial plea. Neither can a ropleader be granted in favor of the person who is guilty of the first fault in pleading. 1 Chitty, 694; 1 Ld. Raym. 170; Doug. 396, 747; 2 Strange, 994; 9 Bing. 532; 3 Hen. & Munf. 388. See also 5 Ohio, 108, 115.
    *Take, therefore, the ground assumed by the defendants’ counsel, that the pleas filed by him are immaterial, making an immaterial issue; still, when he has committed the.first fault, he- can neither insist upon a new trial, nor for the granting of a repleader.,
    It is scarcely presumable that the defendant will insist that a new trial should be granted him for the cause that he may have matters of defense, other than those disclosed by his pleadings.
    No argument for defendants came to the reporter’s hands.
   Wood, J.

To sustain this motion, the counsel for the defendant have cited the Bank of Steubenville v. Leavitt et al., 5 Ohio, 207, and the Bank of Steubenville v. Hoge et al., 6 Ohio, 18. In the first, the question was distinctly made, and appears to have been well considered ; numerous authorities cited on which the decision is predicated, and the doctrine unequivocally maintained that such defense may be made at law.

In the latter case, the same point was again before the court, and it is there asserted that when, by the forms of pleading, the evidence is admissible, the defense may as well be made at law as in equity; and delay should not be increased, and the expenses of litigation multiplied, by sending parties into another forum. These decisions, however, are inapplicable to the case at bar. There, the sureties only wore before the court, and it would have been strange, indeed, that any other rule should have been maintained. The pleas were full and perfect answers to the whole declaration.

In the case now before the court, no analogy is perceived. The suit is on a joint obligation. The writ issued against both principal and surety, was served upon both, and the declaration follows the process.

In such a case, at common law, judgment must be against both, or neither, except in the isolated ease of personal privilege, *as infancy, when judgment may be rendered against the adult alone.

This being the common law, and modified by no statute, where the suit is against all, it follows that whether the plea be joint or .several, it must be an answer to the entire cause of action.

If bad in part, it is bad for the whole. The plea in this case is .a bar for Cooch only, while it loaves the cause of action unanswered ..as to Fisher; and, upon the principle before stated, as it is bad for part, it is bad for the whole.

This question was distinctly presented to the court at the last term, on an application for the allowance of a writ of error. The .action was instituted on a note in hcec verba:

“$1,040. Six months after date, we, or either of us, promise to pay E. Farrington, or order, $1,040, for value received.” Signed “ Galway & Myers, Galway, Jr., George Myers.” Plea, the general issue.

On the trial, the defendant, George Myers, offered to prove that ho executed the note as security for the other defendants; that the plaintiif, at the time, knew it; that when the note became duo, the plaintiff, in consideration of the payment by the principals of a large sum of money for usurious int. rest, agreed with them to give further time to pay the note, until, etc. This evidence was rejected by the court, and a bill of exceptions taken. On the application being made for a writ of error, a non allocatur was indorsed by all the judges, on the ground that as the suit was joint, and the matter offered in evidence was not a good defense as to all of the defendants, one of them could not take advantage of it to defeat the action at law, but his remedy was in equity. On this application, it is true, we had not the aid of learned counsel to assist us in our conclusion, but it was, nevertheless, believed to have been well considered.

It is, however, argued by counsel that if the issue were immaterial, and the evidence offered is relevant, the court are bound to receive it, and after verdict award a repleader.

This court never hesitates to arrest the trial at any stage of the proceedings, when it is discovered, if a verdict is taken, *the judgment must be arrested. Any other course would be a useless delay of time, which the technical forms of proceeding should not be suffered to produce, unless in very special cases.

We think the court did not err, and that judgment should be entered on the verdict. Judgment for plaintiff.


author: Birchard, J.

text:
    James Bowman v. Brice Hilton.
    A common carrier, receiving goods in the ordinary course of business, and in the proper line of transit, has a lien for the freight and charges paid, although the goods may have suffered damage before they reached him while in the hands of some preceding carrier.
    This is a motion for a new trial, in an action of replevin, reserved from Williams county.
    On the trial, it appeared, in evidence, that the plaintiff shipped a lot of goods from Cleveland, marked “Jacob Bowman, Williams Centre, care of Forsyth & Hall, Maumee City, Ohio.” Forsyth & Hall having relinquished the business, the goods were left with Smith, Howe & Co., of the same place, and by them sent to P. B. Brown & Co., Providence, and by him shipped by boat, Eber Hilton, master, to Brice Hilton, Brunersburg, Williams county, Ohio, who paid the charges thereon from Cleveland to Brunersburg. The goods, when taken from the warehouse of Hilton, at Brunersburg, upon the writ of replevin, were damaged to the amount of one-quarter or one-third of their value, which was about $900; said Hilton claiming a right to retain the goods for the charges by him paid.
    Upon this state of facts, the plaintiff asked the court:
    1. To instruct the jury that Brice Hilton, by receiving said goods, made himself liable for any damage done to them *in the course of their transportation from Cleveland to Brunersburg, whether done by him, his agents or servants, or any other person ; and,
    2. That if such damage amounted to a sum greater than the freight and charges, that they must return a verdict for the plaintiff for nominal damages.
    The court thereupon instructed the jury, that they should make the deduction in case they found that the damage to the goods occurred by the negligence of the defendant, or some one with whom he was in partnership; but not if they found that the damage was occasioned by any person other than Hilton, or his partners, although they were engaged in transporting the same goods.
    For this direction to the jury, the counsel for the plaintiff ask the court to grant a new trial.
    Leland & Spink, for the plaintiff.
    D. Higgins, for the defendant.
   Birchard, J.

A correct determination of this motion requires, to some extent, a consideration of the responsibilities which the law casts upon common carriers. The general rule is, that they are bound to carry salely, and deliver in good order, at the place of destination, the goods which they contract to carry. That for the acts of commission or omission, of agents or servants, occasioning damage, the principal is equally liable as for acts of his own. And in case of loss or damage, the presumption of law is against the bailee, unless he shows it was occasioned by the public enemies, or such acts as could not happen by the intervention of man. That when a responsibility has begun, it continues until there has been a proper delivery, or the party has, in some way, been discharged of -his peculiar relation to the property. A question arises incidentally, in this case, concerning the commencement and termination of the relation of carrier, by the several persons engaged in transporting these goods.

The owner shipped them *from Cleveland to Williams Centre, to the care of Forsyth & Hall, Maumee City, which was an intermediate point. On their arrival at this place they were delivered to Smith and Howe; Forsyth and Hall, to whom they were consigned, were not in business. Conformably to the usages of trade, the carrier for the first stage did his duty under the circumstances, by depositing with a responsible warehouseman. This would determine'his duty, entitle him to receive his freight, and impose upon the warehouseman the duty of forwarding the goods in accordance with the original design of the owner. Smith and Howe gave the goods such direction, and they ultimately came to the defendant’s possession, within the originally designed line of transit, from the place of shipment to the point of ultimate destination. They were received in the ordinary course of business, in good faith, in apparent good order, by the defendant, who paid the costs and charges. Had he been, in any legitimate sense, the agent of the bailee, in’whose hands they received the injury, the jury could not have allowed the lien set up by him under the charge of the court. Such was not, however, the defendant’s position. By the usages of the trade, he became, for the purposes of paying charges, and receiving and forwarding from Brunersburg to Williams Centre, the agent of the plaintiff, and his lien attached for the moneys expended in an honest endeavor to discharge his duty. Liens of this kind are said to be favored in law, and are not subject to the objections against general liens. From the general course of business, and the directions upon the goods, the defendant had a right to receive them from his immediate consignor, and to presume that the owner had duly authorized the consignment. To entitle him to claim his lien for commission and advances, the law imposed upon him nothing beyond what, a prudent man would, under like circumstances, have done in the discreet management of his own business. Nothing appears in this case which should deprive him of his lien, or that required different instructions to the jury. Motion overruled.


text:
    *Nelson J. Elliott and Richard S. Elliott v. George H. Ellery.
    A. general and standing order of the court of common pleas, directing tha clerk to issue execution for his own benefit, and at the instance of any person entitled to costs, will authorize the clerk, without any special order, to issue such execution.
    This is a certiorari, from the court of common pleas of Cuyahoga county, to reverse certain proceedings in that court, on a motion to retax costs.
    Judgment had been rendered against the defendant in a suit pending in said court, wherein Nelson J. Elliott and Richard S. Elliott were plaintiffs. The clerk’s and' sheriff’s costs, made by the plaintiff, were taxed at nine dollars and seventy-two cents, for which the clerk issued execution against the plaintiffs, on August 16, 1841. The writ followed the form prescribed by the act to regulate the taxation and collection of costs. Swan’s Stat. 405.
    The execution was returned, at the November term, satisfied, and, on its return, a motion was made to retax the costs, because the clerk had, for his own benefit, issued the execution without any order of the court, and because the costs of issuing the execution, and the costs made thereon, were taxed against the plaintiff.
    On this motion the following order was made:
    “The court, being fully advised in the premises, are of opinion that the execution set forth in said motion was illegally issued by the clerk, and order that said execution, and the proceedings under it, be and the same are hereby set aside and held for naught, and that the cost accruing under, and by virtue of said execution, be retaxed, and taxed to the clerk, at whose instance said execution issued.”
    A bill of exceptions was taken by the clerk. The bill showed a standing order, entered on the journal of the court, at the October term, 1835, and in force at the time the execution was issued. The order was as follows:
    *“ Ordered by the court that, in all cases whore the party recovering judgment in this court shall neglect to sue outexecution immediately; or, after execution shall have been returned without satisfaction of costs; or, where costs are adjudged against either party on continuances, amendments, or any special rule,the clerk may, for his own benefit, or at the instance of any person entitled to fees in the bill of costs, issue execution against the party indebted to such clerk or other person, for such fees, whether plaintiff or defendant, at any time after the expiration' of the time given for the payment of the same, agreeably to the act regulating the taxation and collection of costs; and this is made a standing order of this court.”

      Ip was agreed that execution had been first issued against the defendant, without satisfaction of costs. In these proceedings, it was assigned for error, that the court held the standing order of the common pleas inoperative; had set aside the execution, and taxed the costs made thereon against the clerk.
    H. Rice argued:
    ' That, upon a proper construction of the statute, the clerk was authorized, at his own instance, to issue execution for costs, without any order of the court. That the words of the act, “by order of the court,” referred only to such costs as might bo taxed by order of the court. But that, if any order were necessary, the general and standing order was sufficient, without direction for execution in each case; and, that execution having boon issued and returned unsatisfied, the clerk was fully authorized to issue against the plaintiffs in the suit below for the costs made by them.
    Bolton & Kelly, contra.
   Read, J.

The determination of the question, in this case, depends upon the construction of section 4 of the act regulating the taxation and collection of costs. Swan’s Stat. *405. The execution issued by the clerk included the plaintiffs’ costs and costs of the execution, and such costs as might accrue under it. Had the clerk the right to issue such execution? Section 4 of the act above cited is as follows:

“That when the party recovering judgment shall neglect to sue out execution immediately, or after such execution shall have been returned without satisfaction of costs, the clerk may, (or his own benefit, or shall, at the instance of any person entitled to fees, in a bill of costs, taxed against either party, and by order of court, issue against the party indebted to such clerk or other person, for such fees, whether plaintiff or defendant, an execution to compel the party to pay his own costs.”

The form of the writ prescribed, commands the sheriff to make not only the original costs for which the writ issued, but also the costs of the writ itself so issued, and all the costs that may accrue. Thus, the person against whom this process under the act issued, is charged with the costs of such process, as well as the original amount of costs adjudged against him.

The question then is: May the clerk, at his own instance, and for his own benefit, or the instance of any person interested in the costs, issue such process without an order of court; or, if there must be an order of court authorizing it, must it be a special order in each case, or may it be upon a general and standing order of the court for all cases ?

Must there be an order at all to authorize the clerk to issue? The object of the statute is to confer power upon the clerk to issue execution for the costs due himself and others, when the party having judgment fails to do so; or, where doing so, the execution is -returned unsatisfied. It was to enable the persons to whom the costs were due to collect the same, without awaiting the tardy action of the parties to the suit, or from being driven to a distinct action to recover the same.

The whole solution of this question depends upon the fact, whether the clause, “by order of the court,” refers to the taxation of costs, or to issuing the writ of excution. The clause of the act is in these words: “The clerk may, for his own benefit, *or shall, at the instance of any person entitled to fees in the bill of costs, taxed against either party, and by order of the court, issue against the party indebted.” Shall he not then issue for costs regularly taxed, in accordance with the foe bill, and such costs as, by order of court, may be taxed against either party? The court often directs one party to pay costs which he wmuld not,* except for such order, be compelled to pay, as a condition to some favor which he seeks at the hands of the court, that delays or is detrimental to the other party. How can the clerk issue immediately (upon the contingency happening named in the statute), if he is to await the order of the court to issue? Why say he shall issue at the instance of any person entitled, if it can only be done by order of the court ? Why should it be done by order of the court? The amount of costs are already ascertained by the original judgment.

It would read, on this construction, “the clerk shall issue, at the instance of the person entitled, and by order of court.” The clerk shall issue by order of the court. This he would have been compelled to do without this act. Whenever the court award execution for costs, it is the duty of the clerk to issue it. What is awarding execution but ordering execution ? It then comes to this: that, whenever the court order execution, the clerk shall issue. Why, then, say he shall issue at the instance of the party entitled? It appears to me, that the phrase, “by order of the court,” applies to taxation of costs, and embraces such costs as the court order, in the progress of a suit, either party to pay.

We all are of opinion, that a special order is in no case necessary ; but a general order, directing the clerk to issue in all cases, as in the order set out, is sufficient to authorize the clerk to issue a writ of execution for costs. Upon the construction, that some order of the court is necessary to authorize a clerk to issue execution under the statute for costs, a general order is a full compliance with the statute; and, hence, it is not necessary to decide more than this point to determine this case.

*Such general order, being in full force at the time that the clerk issued the execution, the court below erred, both in setting aside the execution, and taxing the costs accruing under the same to the clerk. Proceedings reversed'.


text:
    Irad Kelly et al. v. Alexander L. Collins.
    The omission to make the certificate, which judgment debtor is principal, and which is surety, can not be corrected by a writ of error.
    This is a writ of error to the Supreme Court of Cuyahoga county.
    The plaintiffs in error gave a joint promissory note, which came by indorsement into the hands of Collins. The signatures were as follows: “ Gay &Hubbell, Irad Kelly, surety, Abraham Ilickox.” In the suit on this note, the common general judgment was ren. dered against all. A writ of error was prosecuted, because the court omitted to find, or certify the fact, that Kelly was surety. At the term of the Supreme Court of Cuyahoga, in 1841, the judgment of the common pleas was affirmed. This writ of error is brought to reverse both the original judgment and the judgment of affirmance.
    No arguments came to the hands of the reporter.
   Lane, C. J.

Whenever it is made to appear to the court rendering a judgment, that one of the parties is a surety, the court is required to certify which is principal and which is ^surety, so that execution may be first levied on the property of the former. Swan’s Stat. 482. The plaintiff in error insists, that where this fact appears of pleading, as in this case, it is matter of error to omit the certificate. We think the party has mistaken his remedy. The judgment in such case is right, and there is nothing to reverse. There may be good cause why the certificate is omitted by the court. If it were refused in a proper case, and the facts appeared in a bill of exceptions, we would correct it; but bare omission can be corrected'only in the court where the judgment was rendered.

Judgment affirmed.


text:
    Robert M. Lamb v. Thomas C. Rickets.
    Where a deed calls for an object on the bank of a stream, thenco south, thence east, thence north to the bank of the stream, and with the course of the bank to the place of beginning, the stream, at low-water mark, is the boundary.
    Where tho owner of land is bounded by a stream, he owns to the center of the stream, subject to the easement of navigation, etc., but to calculate the quantity in a survey, no reference is had to what lies between low-water mark and the center of the stream.
    This is a bill in chancery from Coshocton county.
    The bill sets forth, in substance, that on April 13, 1837, a written agreement was entered into, under the hands and seals of the parties, by which the complainant bargained and sold to the respondent lot No. 2.16, in the town of Coshocton, with the improve-merits thereon, immediate possession, rents, etc. That, in consideration thereof, the respondent bargained and sold to the complainant the tract of land lying east of the town of Coshocton, and adjoining the out-lots, known as the Hamlin lot, containing forty-two acres, more or less; and also out-lots, Nos. 22 and 23, being the same lots deeded by *Wm. Cantwel, to Joseph Rickets, and supposed to contain ten acres.
    That the said agreement contained a proviso, if the Hamlin lot, and the out-lots, jointly, should contain more than fifty-two acres, the excess was reserved to the respondent; that the complainant, Lamb, executed his deed, and delivered possession of lot No. 216, in pursuance of the agreement, on May 8, 1837; that Rickets, the respondent, convoyed tho Hamlin lot, and described it as containing lorty-one acres, and being tho same tract deeded by James Moore and wife to James Calder; that the description in this deed is in these words: “Beginning at the south bank of the Tuscarawas river, where tho line between the first and second quarters of the fifth township intorsects tho same, where there is an old dogwood, with a notch and blaze in it, and a nnmber of shoots springing from the roots, from which a white oak, fifteen inches in diameter, bears south twenty-eight degrees, west fifteen links; thence south, with tho division line, thence east, etc.; thence north, etc., seventy-two chains and ten links, to the south bank of the Tuscarawas river, from whence a maple, four inches in diameter, bears south thirty-six degrees, east eleven links; a forked maple bears south, etc., thence with the courses of the south bank of the Tuscarawas river to the place of beginning.”
    The bill also states, that the respondent, Rickets, refuses to convey tho two out-lots, and prays for the specific execution of the contract.
    Tho respondent, in his answer, admits his refusal to convey the two out-lots, and sets up, by way of defense, in substance, that before he conveyed the Hamlin lot, large accessions had been made to the southern shore of the Tuscarawas river, along where the line runs, on the bank, from the forked maple to the place of beginning, and claims the benefit of these alluvial formations to make up the quantity of fiity-two acres, which he obligated himself to conve3r, and which he claims is nearly, if not wholly, sufficient for that purpose. »
    ^Mathews and Humriokiiouse, for complainant,
    cited Stoner v. Freeman, 6 Mass. 439; Hopkins v. Kent, 9 Ohio, 15; Sibley v. Holden, 10 Pick. 249; 4 Pet. Cond. 694; 7 N. H. 241; 17 Pick. 357; 3 Pick. 356; 10 Mass. 149; 11 Pick. 193; 5 N. H. 520; 10 Pet. Cond. 716; 3 Ohio, 495; 2 Ohio, 309; 6 Ohio, 507; 17 Mass. 289; 3 Sumn. 178, 179.
    Spangler, for defendant,
    relied on Lessee of McCulloch v. Aten, 2 Ohio, 307; Gavit v. Chambers et al., 3 Ohio, 495; Benner’s Lessee v. Platter et al., 6 Ohio, 504; New Orleans v. The United States, 10 Pet. 717; 4 Pick. 268; 2 N. H. 369.
   Wood, J.

It is very clear if the Hamlin lot contained fifty-two acres, when conveyed to the complainant in exchange for lot No. 216, the contract is satisfied by merger in the deed, and the complainant has no rights to enforce in the case at bar.

It was the manifest intention of the parties, as arising upon the face of the agreement, that no more than the quantity, fifty-two acres, was, in any event, to be conveyed by the respondent, unless contained in the Hamlin lot; but it was supposed by the parties there was not so much in that tract, and the deficiency not being ascertained, the proviso was inserted in their agreement, “ that if there should be more than fifty-two acres in the Hamlin lot and out-lots, the excess was reserved to the respondent.”

It is admitted that if the line of the Hamlin lot, on its northern boundary, is extended so as to cover the alluvial formation to low-water mark, the complainant has his fifty-two acres in that lot. By a survey made under an order of court, the lot, without the alluvion, contains 42.68 acres; with it, 52.25.

It is a well-established principle that formations, by slow and gradual accretion, belong to the owner of land, when made by a stream forming Ms boundary, and opposite thereto; and whether those slow and gradual accretions were those of the *respondent, when he conveyed the Hamlin lot, depend entirely on the fact whether the Tuscarawas river was his boundary, where these deposits were made. This question must, therefore, be ascertained. The deed of Moore and wife to Joseph Rickets is the oldest deed, and the one on which both the parties rely, and it describes the tract by metes and bounds as follows: “Beginning on the south bank of the Tuscarawas river, where the line between t.ho first and second quarters of said fifth township intersects the same, etc.; thence south, with the division line of the first and second quarters, etc.; thence east, etc.; thence north, etc.; to the south hank of the Tuscarawas river, from which a maple, four inches in diameter, bears south, etc.; thence, with the courses of the south bank of the Tuscarawas river, to the beginning.” As counsel suggest, in argument, it commences with the bank, returns to the bank, and thence, with the courses of the bank, to tho beginning. Not from, to, or with the bank, as it was twenty-five or thirty years ago, but as it was when the Hamlin tract was conveyed to the complainant; to the bank, with it, and from it, as the lines of the survey must now be extended, so as to include the alluvion to low-water mark.

The counsel for the defendant contend that from, to, and with the hank of a stream, as here expressed, does not extend to low-water mark, but leaves a narrow strip between low-water mark and the break of the bank, not covered by the deed, to which the alluvion attaches, and therefore belongs to Moore, or the original owner. If so, it is not probable the parties had any such intention. The Tuscarawas, around the north end of the Hamlin lot, is a curve, and a curved line, with the course of the river, would be inconvenient in other respects, as well as by depriving Hamlin of access to the river, while the strip not conveyed, as it then was, if the counsel for the defendant is right in his conclusion, could have been of no use to any other person. We need not, however, elaborate this principle. It has been done by those who have gone before us, and, as we think, the rule, as there laid down, ought to be adhered to.

*In the case of the Lessee of McCulloch v. Aten, cited by counsel, 2 Ohio, 307, the court say: “When a deed calls for a corner standing on the bank of a creek, thence down said creek with the several meanders thereof, the boundary is the water’s edge at low-water mark. In this case a white oak called for by the deeds was found on the ground, about four rods from the channel of the creek, and about one rod from the top of the bank.”

This authority settles this case so far that it is clear the alluvion attaches to and forms a part of the Hamlin lot; but the west line of this tract of Hamlin divides the quarter township, and cuts off a part of this alluvion, which, it is admitted by counsel, does not belong to this tract; the quantity is 3.97 acres. The plaintiff’s counsel claim, however, that the line of the Hamlin lot should be extended to the center of the river, and, computing the quantity of land between low-water mark and the center of the river, there is then more than sufficient to make up the number of acres called for by the agreement. In the case of Gavit v. Chambers, 3 Ohio, 495, it is said: “In Ohio, owners of land situated on the banks of navigable streams, running through the state, are also owners of the beds of the river to the middle of the stream, as at common law, subject only to the easement of navigation.” This is undoubtedly correct; and in Benner’s Lessees. Platter et al., 6 Ohio, 504, it is said a call for a stream, not navigable, is a call for the main branch of such stream, and the boundary is the middle of the stream. But, nevertheless, it is certain, in the computation of the number of acres in a survey, for that purpose, the stream, at low-water mark, is the boundary. This result requmes of the respondent, to satisfy1 the terms of his agreement, to convey to the complainant, from the two out-lots, sufficient to make up the deficiency in the alluvion, and a decree may be so entered.

Decree for complainant.