text:
    Railroad Co. v. Hambleton.
    The L. M. R, R. Co. built its track on a street oí the village of Pulton, in 1843, at a grade agreed upon by the village council and the railroad, where the track has remained to the present time. Prom 1864 to 1869, the company gradually raised the grade of the track, altogether about twenty inches. In 1867, it laid a new track in the street, by putting, additional rails on the ties already there. On December 1, I860, it leased its road to the P., C. & St. L. E. E. for ninety-nine years, renewable thereafter for ever, and the latter company has continued to use the track ever since, and has, since the lease, raised the track somewhat.
    In an action against both companies by an owner of adjacent lots and property, for damages resulting from the change of grade and from the laying of the additional track:

      Held: 1. That tbe railroad company did not acquire the right to maintain its iraek at the raised grade and the additional track, until twenty-one years from the time it was so raised, of the additional track was so laid.
    2. That the plaintiff may recover for;.permarient injury to his property, ' resulting from a change of grade; or for the additional track, at any time before the right to maintain the track at the raised grade and the additional track, was complete.
    3. That the right to recover for-temporary injury resulting from a change of grade, or for the additional track, is limited to four years prior to the commencement of an action for the same.
    4. That one company having raised the grade and laid the additional track, and the other having taken possession of and continued the permanent use of the same, they are jointly liable for permanent injury to the property of the plaintiff resulting therefrom, and also for temporary injury occurring after the lease from causes created, without right, by the lessor and continued by the lessee.
    Error to tbe District Court of Hamilton County.
    The defendant in error, Hambleton, brought his action in the superior court of Cincinnati against the Little Miami Railroad Co. and the Pittsburgh, Cincinnati & St, Louis R. R. Co., alleging in' his petition that about the year 1848 the L. M. R. R. Co. built its track in what was then called Second street in the village of Pulton, and what is now known as Pulton avenue in the city of Cincinnati; that the track was built at a grade agreed upon by the railroad and the council of the village, and that the track has been used at the same place to the present time. He averred also, •that in 1859, he erected buildings on lots he then owned and still owns adjacent to this street, and that the buildings were built and-improvements made on his lots and property with reference to the grade of the street and the railroad at the time it was first built, and that afterwards and between the years 1863 and 1870, the railroad gradually raised the grade of its track in front of his property from eighteen to twenty inches, and that in the year 1867, it laid an additional track in the street by placing additional rails upon the ties already there, and that by reason of this additional track his rise of the. street was greatly, interrupted and he was hindered and impeded in the access to .his property through and across the street, and that in consequence of the raising of the grade of the track, his property was injured by overflow. His cellars, vaults, yard and other parts of his premises have been flooded, and he had been compelled to build a retaining wall to prevent the earth from the street from running over and upon his lots and property, and he claims also that the walls of his buildings have been permanently injured and that he has sustained damage by reason of permanent injury to his property.
    The petition also alleges that on December 1st, 1869, the L. M. R. R. Co. leased its road to the P., C. & St. L. R. R. Co. for ninety-nine years, renewable thereafter' for ever, and that the latter company has operated the road in same place, and in the same condition,to the present time.
    The defendants answered admitting the lease and denied all other allegations of the petition, and further answered that the cause of action did not accrue to the plaintiff within four years next previous to the commencement of the action.
    A trial in the superior court resulted in a verdict and judgment for the plaintiff, which judgment was affirmed by the district court, and to reverse this judgment is the object of this proceeding in error.

      Ramsey Sf Matthews, for plaintiff in error,
    1. The act of the railroad company in entering upon this property of the. plaintiff, and laying a new track, or raising the old one, was a trespass. Such acts have been so defined. See Wagner v. Troy, ¿•e. Co., 25 N. Y., 526, following 16 Id., 97; 24 Id., 655, 658.
    .2. As to the statute of limitations. This was an action for a trespass upon real property, and no inquiry of damages could, reach back of four years prior to the commencement of the action. Wilson v. Smith, 10 Wend., 824; Angelí on Lim., § 800, and authorities there cited.
    3. Misjoinder of parties. There was. a misjoinder of parties defendant, to thé prejudice manifestly of both defendants. The little Miami Railroad Company had no possession of the .railroad or control over its operation at any time after December 1st, 1869, a period of more than four years prior to the bringing of the action. The other defendant had no connection with the property, prior to that date. Assuming that the injuries complained of were trespass, there could be no joint liability without concert of action between the defendants in their commission. There was no such concert. If any of the acts complained of were in the nature of trespasses the misjoinder would exist and would defeat this action, although it might be true that for some of the acts complained of a joint liability might exist, which could be enforced in a proper form of action; that is to say, if the Little Miami Company created a nuisance upon its property and leased its property with the nuisance upon it, and the lessee continued to maintain the nuisance, then both landlord and tenant would be liable, but in that case the joint liability would only extend to losses suffered by the plaintiff subsequent to the date of the lease. A lessor and lessee could not be joined in an action in which the plaintiff could recover from the lessor damages which occurred prior to the lease and against lessor and lessee for damages subsequent to the lease. There could be but a single judgment against both. There could not be a several judgment against each for several acts, and a joint judgment for other joint acts. If this were an action for damages for a continuing nuisance, and the raising of the grade could be so defined, the action could not be maintained, notwithstanding the. necessary concession that an action will lie against both landlord and tenant, for injuries caused by nuisance while the nuisance, exists, having existed prior to the date of the lease, because, according to the testimony, it is not the same- nuisance. The little Miami Company prior to December, 1869, -had raised the track to a certain height, and there it stopped. Assuming that that was a nuisance, and that it occasioned damage, the Little Miami Company would be responsible for it, but in making the lease to the other defendant, it could not foresee that its lessee would raise the track further. It did not authorize such further raising, if it were illegal, and could not, upon any principle of law, be held responsible for such further additions, as the lessee, of its own motion, subsequently made.

      jRoadly, Johnson f Colston, for defendant Hambleton.
    1. Statute of limitations. Within what time was the action barred ? The answer to this question depends upon the character of the act or acts forming the basis of the cause of action. If that which is done amounts to a permanent destruction or modification of the lot owner’s easement or right of property in the street, the lot owner’s action therefor will not be barred until the usurpation has continued for a length of time necessary to create a right by prescription, which in Ohio is twenty-one years. But if that which is done be not continuous in its nature or effect, but merely occasional or intermittent, causing specific damage, then each of said acts is a distinct and separate trespass, and an action therefor should be brought-within four years. The latter is a mere tort, while the former is the assertion, by disseisin, of title to an incorporeal hereditament belonging to the lot owner. This distinction exists in the present case. Tootle v. Clifton, 22 Ohio St., 252; Beidelman v. Foulk, 5 Watts, 808; Styles v. Hooker, 7 Cow., 266; The Delaware <f* Raritan Canal Co. v. Wright, 1 Zab., 469; Same v. Lee, 2 Id., 243; 1 Robinson’s Prac., 478.
    2. Joint and several liability. The following principles of law establishing the joint and several liability in this case, are well settled, viz: that an action lies against him who erects a nuisance, and also against him who continues a nuisance erected by another. - This is so, although the author and continuer of the nuisance occupy the relation of landlord and tenant or of alienor and alienee, and their liability is joint and several. Taylor on Landlord and Tenant, § 175-; Ro.sswell v. Prior, 12 Mod,, 639; Staple:v. Spring, 10 Mass., *page 74; Woodfall Landlord and Tenant, 767; Shindleheek v. Moon, 32 Ohio St., 264; Waggoner v. Jérmaine, 3 Denio, 306; Fish v. Dodge, 4 Id., 311, 317;
      Brown v. The Cuyuga f Sus. R. R., 12 N. Y., 486; Davenport v. RucJeman, 87 Id., 568; Swords v. Edgar,' 59 Id., 28; Rich v. Basterfield, 4 Man. Gr. & Scott, 805; Todd v. Plight, 8 Com. Bench, (N. S.), 377, and note at p. 390; Bouse v. Metcalfe, 27 Conn., 632; Law of Nuisance, (Wood) § 827, p. '872; Wharton on Negligence, § 817; Shearman & Red. on Negligence, § 56, p. 61; Cooley on Torts, 608-612; Belmig v. Jordan, 53 Ind., 21; Grady v. Wolsner, 46 Ala.,- 381; Owings v. Jones, 9 Md., 108, see p. 117. Where the nuisance existed at the time of the demise, and the landlord takes a covenant to repair and keep in repair from his tenant, this does not relieve the landlord from liability. Roswell v. Prior, 12 Mod., 639; Davenport v. Ruchman, 37 N. Y., 574; Wharton on Negligence, § 817; Swords v. Edgar, 59 N. Y., 28 ; Shipley v. Eifty Associates, 101 Mass., 251; Same v. Same, 106 Id., 200.
    3. There was no misjoinder of parties defendant. Eccleston v. Clipsham, 1 Saunders (Wms.), 153; People v. Erwin, 4 Denio, 129; Irwin v. Wood, 51 N Y., 224; Clark v. Fry, 8 Ohio St., 383; Wood on Nuisances, § 826, p.872; Tate M. K. f T. R. W. Co., 64 Mo., 149; Cooley on Torts, 133-137; Eakin v. Brown, 1 E. D. Smith, 44.
   McCauley, J.

The first question presented in the case is, upon what ground does a liability exist against either or both the defendants. The interest of an adjacent land owner in a street is so well defined in this state that nothing need be said about it further than to refer to the cases in which it has been defined. Bingham v. Doane, 9 Ohio, 168; Crawford v. The Village of Delaware, 7 Ohio St., 459; Railway v. Cumminsville, 14 Id., 523; Railway v. Lawrence, 38 Id., 41. The right to maintain the railroad track at the grade at which it was first laid could not have been' questioned at the" commencement of the action, by reason of lapse of time.

But the right to use the street for the further purpose of supporting another track and thereby further encumbering and obstructing the street, and of maintaining a grade much higher than the original grade was an invasion of the rights of the adjacent land owner, which when accomplished, must be followed by a liability for resulting injury.

This additional use of the street, by laying the new track and raising the grade from that at which it was first laid, is the ground of liability of the defendants. These new uses of the street, in the absence of any agreement with the adjacent land owner or of an appropriation of the right to so use the street, by a proceeding for that purpose, could not become complete until the same had been so used for the period of twenty-one years.

The action was against both companies, the lessor and lessee, and the verdict and judgment were against both. To sustain this judgment it is necessary to find in the case some ground of joint liability. No matter to what extent the defendants may be severally liable for anything either may have done or permitted, the judgment can not be sustained unless there is a joint liability.

The injury as shown by the proof is of two kinds, that resulting from overflows of water on the- premises of the plaintiff and damage consequent upon it and other injuries of a temporary kind, arid injury in its nature permanent, resulting mainly from a change of grade of the railroad, whereby the relative level of the property of the plaintiff and the railroad is broken up and destroyed, and permanent changes in the buildings and improvements of the plaintiff are made necessary* and in consequence of all which his property has been permanently damaged.

This permanent change of grade was made between the years 1868 and 1870, and the most of it while the Little Miami Company operated the road. In December, 1869, the Little Miami Company leased its road to the Pittsburgh, Cincinnati & St. Louis Company in the condition which caused the injury to the property of the plaintiff, in which condition the latter company has continued to use the road to the present time. This is a state of facts which makes both companies liable for the permanent injury to the property of the plaintiff ’ which resulted from raising the grade of the track. Raising the track to such an extent as to cause overflow of water upon adjacent premises, and throwing dirt upon the premises of plaintiff or requiring á retaining wall- to be built to prevent ground from the railroad from sliding down upon adjacent lands, is in the nature of a nuisance for which all persons áre liable who create cff continue the same.

Numerous cases are referred to by counsel for plaintiff in error involving the liability of lessor and lessee. But most of them are cases involving the separate liability of lessor and lessee. This case involves the joint liability of lessor and lessee, and this class of liability is very clearly applicable to a person who creates a nuisance jointly with him who continues it. Taylor’s Landlord & Tenant, § 175; Brown v. Woodworth, 2 Barb., 550; Swords v. Edgar, 59 N. Y., 28; Wood on the Law of Nuisance, 951 (2d ed.) ; Shearman & Redfield Neg., § 56; Cooley on Torts, 608-9.

The defendants below were therefore jointly liable for the permanent injury to the property of the plaintiff resulting from the change of grade. This liability was not limited to the injury of this kind after the lease. This injury from its nature could not be separated into that which accrued before the lease and that which accrued after it.

It accrued when the grade was raised, and continued as long as the raised grade was maintained, and all parties creating or continuing it are jointly liable for it. As to the temporary injury resulting from the raised track before the lease, the Little Miami Company alone would be liable for that. And this is so because the injury is not continuing in its nature, and having occurred before the lease, the lessee had no connection with it.' As to the temporary injury after the lease, both companies might be liable for it. If the lessor without right to do so, created that which at times caused damage, as by overflow of water or any injury merely temporary, and the lessee' continued the cause of such injury, both should be liable. The charge of the court on the trial below was correct, so far as the causes of damages were affected by limitation, that is, that for permanent injury the limitation would be twenty-one years, the whole period during which the acts of the defendants in continuing the cause of such injury was without legal right. And that for temporary injury the plaintiff would be limited to ■four years before his action for the same. The only serious defect in the charge was the failure of the court to define clearly the kinds of damage for which the defendants were jointly liable. But no proper request to charge on that part of the case was made by defendants; and all the testi- ■ mony on the trial is in the record, from which it plainly • appears that there was sufficient evidence of joint liability ,to support the verdict. The verdict therefore being clearly ¡supported by the evidence and being a proper result from the case before the jury, it should not be set aside for the «■ere indefiniteness of the charge upon a material part of the ease.

Many other questions are made by counsel on both sides, .•all of which have been considered* but none • of them, we think, are of such consequence as to affect the result we ¡have arrived at; we therefore omit further mention of them.

Judgment affirmed.


source: Caselaw Access Project

author: Nash, J.

license: Public Domain

text:
    The State v. Railway Company.
    .A railroad corporation assumes the- performance of duties for the benefit of the public generally. When such corporation, for a period of five years, fails to construct the line of railroad named in its charter, but condemns private property and constructs a railroad wholly unsuited to the wants of the public, and for the benefit only of coal mines, owned and operated by the principal corporators and stockholders of such railroad company, it is a misuse of its corporate powers, franchises and privileges.
    Quo Warranto. Error to the District Court of Mahoning County.
    On the 9th -day of May, A. D;, 1871, the certificate of incorporation of the Hazelton and Leetonia Railway Company was filed in the office of the secretary of state of Ohio. Its railroad as set forth in this certificate was to be located and operated in Mahoning and Columbiana counties, commencing at a point on the Cleveland & Mahoning railroad at Hazelton and. terminating at a point on the Niles & New Lisbon railroad, five hundred feet north of the Leetonia Iron Company’s blast furnace in the village of Leetonia, a distance of about twenty miles. The capital stock was fixed at two hundred thousand dollars. The corporators were C. H. Andrews, L. G. Andrews, W. C. Andrews, A. K. Price and L. E. Cochran. The' stock was subscribed for and the organization of the corporation effected in accordance with the forms of law. C. H. Andrews, L. G. Andrews, and W. C. Andrews each took thirteen hundred shares, or sixty-five thousand-dollars of stock. L. E. Cochran took fifty shares. A. K. Price, forty, Jas. Neilan, five, and J. M. Bowman, five.
    In August, 1876, an information in the nature of a quo warranto was filed in the district court of Mahoning county against the Hazelton & Leetonia Railway Company asking that it be ousted of its right to be a corporation and of all its franchises as such. To this information special demurrers were filed and sustained by the court. In accordance with leave granted by the court an amended information was filed May 15, 1877, which contained three counts. To each of these counts, pleas were filed. The issues were made up by replication on the part of the relators. The controlling questions, as made by the pleadings, were two:
    1. Did the Hazelton & Leetonia Railway Company misuse the powers, franchises and privileges conferred upon it?
    2. Did it non-use its powers, franchises and privileges for a period of five years before the filing of the original information ?
    The district court found in favor of the railway company, and the case is in this court upon a petition in error.

      B. F. Hoffman, attorney for relators.
   Nash, J.

The only question which we can determine in this case is, as to whether the judgment of the district court was manifestly against the weight of the evidence. After an examination of all the testimony, we cannot concur in the finding of the district coiirt. To our minds there had been, for five years prior to the commencement of this proceeding, not only a non-user'of the powers, franchises and privileges conferred upon this corporation, but there had also been a palpable misuse of them.

Under its charter this railway company had a right to construct and operate a railroad, as a common carrier and for the benefit of the public, from the town of Hazelton to the village of Leetonia. It assumed the performance of duties for the benefit of the public generally. It wholly failed, prior to the filing of the original information, to take any steps looking toward the accomplishment of this purpose. It condemned right of way and constructed a track about two and one-half miles in length, three feet, two inches wide, with heavy grades and sharp curves, to coal mines owned and operated by the principal corporators and stockholders of the railway company, and suitable only for the transfer of the coal from these mines to Hazelton, where there are other railroads. No passenger cars were put upon the road, no depots or freight-houses were constructed, and nothing done to secure, or accommodate, public traffic or travel. Judging from the things done by the corporation, its sole object was to furnish a means of transferring the products of the private mines, owned and operated by the principal incorporators and stockholders, to a place where they could be carried to market.

Judgment reversed and cause remanded.


author: Martin, J.

text:
    Hawkins v. Furnace Co.
    1. Where to a petition against several defendants an amendment is filed setting out new matter intended as another and'different cause of action against one only of the defendants, and - such new matter is not sufficient to constitute a cause of action, there is no misjoinder of causes of action, hut such amendment should be disregarded or stricken out as irrelevant.
    2. An action by a creditor of a manufacturing company organized under the act of May 1, 1852, to enforce the individual liability of the stockholders in an action upon a liability created by statute named in section 14 of the Code (S. & C., 948; sec. 49S1, Rev. Stats.), and must be brought within six years after the cause of action accrues.
    Error to the District Court of Jackson County.
    In September, 1878, Hawkins brought suit against the Iron Yalley Furnace Company and its surviving stockholders and the administratrix of a deceased stockholder.
    The petition set forth the due organization of the company in the year 1858, its indebtedness to the plaintiff, and averred that the plaintiff did not know the amount of stock subscribed and owned by each of the defendants “ excepting that the defendant Newton Brailey was the owner of seven shares of $100 each.” It further averred that in the course of its business the company became largely involved in debt, and became insolvent in the year 1860. And that afterwards, in the year 1865, the said, Brailey and all the other stockholders conveyed their stock to William McGhee (the stockholder since deceased) in consideration that he would save them harmless against the debts of the company. The prayer was for an account of thé indebtedness d.ue plaintiff, and for discovery of the ■ amount of the capital stock subscribed, paid up and owned by the defendants severally, and that the administratrix of said deceased stockholder be required to pay the amount due plaintiff, or that the stockholders be required to contribute ratably sufficient to pay the same, and for other relief.
    It does not appear that there were at the commencement of the action creditors of the company other than the plaintiff.

      The indebtedness of the company to the plaintiff is upon eleven promissory note's made by it to sundry persons and by them transferred, and which are all set out by copy. The earliest' matured in March, 1859, the latest in . September, 1860.
    An amendment intended to be taken as inserted in the body of the petition was filed in 1877. It reads:
    “ And the said plaintiff further saith that, after said corporation became involved as aforesaid, the said corporation made a lease or pretended-lease of said furnace property, and delivered. 140,000 of personal to the said William McGhee and William Radcliff; said McGhee was a member of said corporation, and the stock in the name of James McGhee, a son of said William McGhee, was, in fact, the stock of said William McGhee; and that the lease was made on or about the moffth of February, A. D. 1861; and that said parties ran said furnace and made a large amount of money, but failed to apply the same to pay the debts of said corporation, and that about the year A. D. 1864, the stockholders sued said William McGhee, said Radcliff being out of said business, claiming that the money so made was the money of said corporation, and liable for the payment of the debts of the same; and that such proceedings were had in said case, that the same was compromised by and between said parties, whereby all of the real estate of said corporation was vested in said William McGhee, as well as said sum of forty thousand dollars of personal property; and all profits - made, with which said William McGhee was to pay off the debts of said corporation; and in consideration thereof, the said William McGhee gave the other stockholders of said corporation said. agreement of indemnity against the debts of said corporation. Yet, said William McGhee did not pay said corporation debts,' but kept, and his estate still keeps unapplied for that purpose, the said sum of forty thousand dollars -of personal property so received; and said profits which said William McGhee took and received as a fund with which to pay the debts of said corporation; that said William McGhee, in his lifetime, did not out of said funds pay the debts above stated, but claimed, or pretended to claim said large sum of 140,000, and said profits amounting to a still larger sum, as his own private property, and that the same was not liable for the payment of said debts; and that neither said creditor nor said plaintiff had a knowledge of said arrangement or agreement between said stockholders whereby said William McGhee received said personal and real estate in trust to pay said debts, and save the other parties harmless from all liability to pay the same. And the plaintiff avers that he has in equity a right to be subrogated to the rights of said parties so indemnified by the said William McGhee against said debts of said incorporation.
    “And said personal property, so delivered to said William McGhee, remained in the hands of said William McGhee, unexhausted in the payment of the debts of said corporation, at the time of his decease; and now remains in the hands of the said Electa McGhee, his administratrix, unexhausted, and, in equity, bound to be applied to the payment of said claims above named.”
    To the petition as amended the defendant, James McGhee, and the administratrix severally filed demurrers alleging defect of parties, misjoinder of actions, limitations of six and seven years, and no cause of action.
    In the common pleas the demurrers were sustained.
    On appeal, the district court sustained the demurrers and dismissed the action,
    The object of the present proceeding is to reverse the judgment of the district court.

      W. W. Johnson and .Simeon Nash, for plaintiff in error.
    The limitation is not six-years, but the limitation attached to the nature of the claims. The limitation of six years is limited to an action upon- a liability created by statute, other than for a forfeiture or penalty. The last two words mean the same thing. Now, is this a liability created by statute in the sense of the statute? The Constitution, art. Ill, sec. 3, 1 S. & C., St. 50, declares that “ dues from corporations shall be secured by such individual liability of the stockholders as may be prescribed by law,” not less than a sum equal to the stock held by the stockholders. This liability is provided to secure the creditors of corporations. When must the limitation begin to run as to the stockholders ? Can it be possible that a delay of six years from the date of the debt relieves the stockholder, while the debt itself may have fifteen and twenty years to run ? It is the debts of the corporation that they are to be made liable for. While, then, these are corporate debts against the corporation for which it is liable, there must exist an individual liability on the part of the stockholders. And to reach this personal liability of stockholders, there must be a petition in chancery to settle up the condition of the corporation as to debts, to ascertain who are stockholders and what percentage each is liable to pay. I say, then, that this is not a liability created by statute, but one created by the Constitution and for the 'benefit of creditors. It is created by the charter, which is a contract between the state and the stockholders. And to make it effectual for the benefit of creditors, this liability must exist as long as there are debts due and owing by the corporation. Wright v. McOormielc, 17 Ohio St., 86-95, involves the taking of an account of the debts of the corporation, the ascertaining of who are the stockholders, and the amount of stock held by each, and the percentage each has to pay in order to raise a fund sufficient to pay all debts, if this sum does not exceed the amount of stock held by the stockholders.
    Parties are misled by the- New York decisions. The statute of New York is .wholly unlike ours. By that law, the stockholders are made liable when the debts are contracted, and declared liable to be sued when an execution against corporation has been returned not satisfied.
    The New York statute of limitations is also wholly unlike ours. The charter, or act, of corporation, under our statute, does not point out" how this liability is to be enforced, and, I. think, it can only be enforced- by a petition in equity, as I have above stated.

      If there is any limitation, save this limitation of the debts themselves, then the question arises, when does this limitation begin to run ? It is impossible to tell. The court say that this liability is collateral and conditional to the original obligation. If this ‘is so,-, it must exist as long as the debt exists. The incident must await on' and follow the principal obligation. An adjudication' of insolvency may, if any fact can, be a date from which the statute of six years might begin to run, if that statute applies to this liability. But no such fact has here taken place, nor are these claims, any of them, bound by any other clause of the statute.

      Samuel A. Nash, also for plaintiff in error.

      W. A. Hutchins and O. F. Moore, for defendants in error.
    I. It has always been the law, that as to causes of action, not created by the contract of the parties, but by the positive requisitions of a statute, that limitation acts do not apply, except (as in Ohio), where the statute itself expressly makes such provision. Angelí on Limitations, 80-83. In this connection, several cases are referred to as to what are statutory causes of action. One of the old oases was an action of debt on the statute of tithes, and this was held to he a cause of action created by statute, and hence, the limitation act did not apply. So an action for an escape was beld, not to be reached by the statute, “ both because it was not founded upon any lending or contract, and was founded on a specialty, namely, on statute law.”' Angelí on Limita.-, tions, 80; Shepherd v. Hill, 32 Eng. L. & E.; Jones v.; Pope, 1 Saund. R., 38; Ward v. Reeder, 2 H. & McH., 154; Lane v. Morris, 10 Geo., 162; Thompson on Liability of Stockholders, § 56; Brinham v. Coal Co., ,47 Pa. St., 49; Ballard v. Bell, 1 Mason, 243; Duchy v. Brown, 24 Vt., 197; Hoard v. Wilcox, 47 Pa. St., 51; Frielcson v. Nesbit, 15 Gray, 222. But then many cases, and probably the weight of authority now is, that an action against stockholders, to enforce their individual liability, is upon an implied contract obligation. • Caroll v. Creen, 92 U. S., 509; Corning
      v. Horner, 1 Comst., 58; Baker v. Bank, 9 Met., 182; Commonwealth v. Bank, 8 Allen, 42; Terry v. Anderson, 95 U. S., 628.
    II. When did the cause of action accrue? That the cause of action accrues when in fact the company is insolvent, or when its property is insufficient to pay the judgment, there can be no doubt. The time when a party may first discover that the firm property is insufficient, is not. material. Kerns v. Shoemaker, 4 Ohio, 814; Parsons on Contracts, 372; Wright v. McCormick, 17 Ohio St., 95.
   Martin, J.

The original petition was intended to enforce the individual liability of the stockholders. The representative of the only deceased stockholder, and all the surviving stockholders are defendants and relief is asked against them all. The amendment was filed about four years after the suit was brought, and seems to count on an alleged agreement of McGhee to indemnify his co-stockholders against loss on account of the corporate indebtedness. It assumes that the plaintiff, who is a simple contract creditor of the company, had a right to appropriate to the payment of his claim the corporation property which had passed to McGhee as consideration for that agreement and to trace its avails to his estate. It is not a creditor’s bill. It shows no breach of the alleged agreement. None that would be available to the direct parties to it. We consider it an attempt to inject into the petition a cause of action against only one of the defendants, which could not be prop-, erly joined with the action against the stockholders. But as its averments do not constitute a cause of action, it must be disregarded here as irrelevant.

We proceed to consider the issues raised by the demurrer to the petition. Counsel have confined the discussion to those setting up limitations. It is contended for the plaintiff that -the limitation attaching to his notes as against the company (15 years) is applicable. If this claim be correct the action is not barred. It is claimed on the part of the stockholders and administratrix that the cause of action is. either an implied promise or a liability created by statute and falls under the b.ar of six years, and that it appears from the face of the petition that the action accrued in 1860, when the company became insolvent. If this position be sound the action is barred. We are first to determine the nature of the plaintiff’s cause of action.

The company was organized in 1858 under the provisions of the act of May 1, 1852, and its amendments. The 78th section reads:

“All stockholders * * * * shall be deemed and held liable to an amount equal to their stock subscribed in addition to said stock for the purpose of securing the creditors of such company.”

The petition seeks to enforce the obligation imposed by this section.

In Wright v. McCormick, 17 Ohio St., 86, this section received a construction which has been followed and approved. It is there held that “ The liability thus imposed upon stockholders is not a primary resource or fund for the payment of the debts of the corporation. It is collateral and conditional to the principal obligation which rests on the corporation, and to be resorted to by the creditors only in case of the insolvency of the corporation or when pay-' ment cannot be enforced against it by the ordinary process. It is a security provided by law for the exclusive benefit of creditors, over which the corporation authorities can have no control.” To repeat what is here said or inferred. The liability of the stockholder is to pay the debt of the corporation, not his-own debt. His obligation is distinct and dehors that of the company. Being a mere collateral security or promise it must have a fixed limitation. We cannot accede to the proposition- that the limitation is shifting and diverse, corresponding identically to the unexpired periods of limitation on the corporation debts.' If the statute had made the liability primary and direct, thus binding the stockholder to the very terms of the corporation debt, a suit to enforce the liability would be virtually against J^im as original debtor, ^,nd upon the debt, and its proper limitation would apply. But as has already been stated, no such liability is imposed. On the contrary, as we have seen, the provision is secondary and in the nature of, if not purely, a suretyship clearly definable and not at all coincident with the principal obligation.

Whether a judgment creditor only can, in analogy to a creditor’s bill, maintain the action, is a question that has not been argued before us, and upon which we express no opinion. The theory of the petition is that when the company is insolvent and the debt is due the action accrues. This theory is the more favorable one for plaintiff in considering the demurrer, and we adopt it. His cause of action arose when the company became insolvent. He has his action in virtue of the statute. Without the statute there is no right of action. Is this statute liability within the six years’ limitation either as a liability created by statute or an implied promise ?

The action is governed by the limitation act of 1852 (S. & C., 948). One of its provisions is this:

“ Within six years.
“ An action upon a contract not in writing, express or implied.
“An action upon a liability created by statute other than a forfeiture or penalty.”

We think the action falls within this limitation, and is properly of the class described in the latter clause. It also embraces the elements of an implied contract.

The terms “forfeiture and penalty,” though generally regarded as synonyms, are not such in this provision. The statute was prepared with care and skill, and repetitions are avoided. The terms are used in contrast, and effect must be given, if possible, to each. A penalty in its original and legal sense means a penal punishment. Crabb’s Tech. Diet.; Webster’s Diet. Like corporal punishment, it is inflicted by or in right of the public, and a recovery enures in^whole or in. part to the public. A forfeiture is more comprehensive in its signification, yet it generally accrues to individuals, and may well be so limited in a statute requiring strict construction.

By the employment of both terms all penalties and all forfeitures are excluded. Whereas, if either alone had been used, the clause would have been open to a construction that would let in the other. The clause thus restricted is of rare application, and we think further restriction by construction is inadmissible.' We therefore interpret the phrase, “ a liability created by statute,” to mean a liability which would not exist but for the statute. The stockholder, it is true, may be said to impliedly assume statute burdens previously imposed; and if the parol promise only could'furnish a bar, we would for the reasons stated be bound to apply it.

And such was the situation in Carrol v. Green, 92 U. S., 509. That case was as follows: The Exchange Bank of Columbia, S. C., failed in 1865, and thereupon a creditor’s bill was exhibited to enforce an individual liability of the stockholders under a charter stipulation. The defense was a limitation in the act of 1712 applying a bar of four years to an implied assumpsit. For the creditor it was claimed that the liability was created by statute, and was therefore a debt by specialty which was not barred by any act of that state. The court held that the stockholder impliedly assumed the individual liability imposed by the charter, and that the action was barred in four years.

In that case there was but the one limitation. In this case we find a promise running with the statute liability. Both are barred by statute. The assumpsit is an incident to the statute liability. But the inherent and superior force of the statute creates the obligation without regard to the promise raised by implication. There was no error, therefore, in sustaining the demurrer.

Judgment affirmed.


text:
    Thomas v. Wilton.
    County commissioners, who act in their official capacity in good faith and in the honest discharge of official duty, cannot be held to personally respond in damages.
    Error. Reserved in the District Court of Pickaway County.
    The plaintiffs in error, who were defendants in the court of common pleas at the time of the doing of the things complained of, were the duly elected and acting commissioners of Pickaway county. In 1878, the commissioners of that county accepted in accordance with law and undertook to keep in repair the road and bridges in the county, before that time belonging to the Circleville and Washington Turnpike Company, and they became a public highway. In 1877, the commissioners decided to re-build a bridge which had stood on this road and across Deer Creek for a period of thirty or more years. There was a necessity for a new bridge, and all steps towards taking down the old bridge and in the letting of contracts for the new one were taken by the commissioners in conformity to the statute.
    The defendants in ei’ror were the owners- of a flouring mill on Deer Creek, near the old bridge. The mill-dam was constructed in connection with the piers of, the bridge. In the .removal of the abutments and piers of the bridge, breaches were made in the mill-dam, through which the water of the creek escaped, and it is claimed that the commissioners wrongfully and unreasonably delayed the construction of the new abutments, piers and bridges for eight, months, and during all that time the plaintiffs below were unable to re-build their dam, the mill remained idle and th.ey lost the use and profits thereof.
    On the 15th day of May, 1877, the commissioners entered into a contract with one Padgett to re-build this bridge and he agreed to have the same completed by August 15, 1877. Padgett gave bond to secure the performance of his contract. The contractor having delayed his work, the commissioners on July 2, 1877, ordered the county auditor to notify him to proceed with his work. This was done. On Sept. 18, 1877, the contractor having failed to complete his work, the auditor, by direction of the commissioners, notified his bondsmen of that fact. On October 23d, the contractor aiid his bondsmen failing to do anything, the commissioners directed the auditor to proceed forthwith to advertise for proposals for the completion of the unfinished portions of the- masonry. Nov. 17, 1877, the new contract was awarded to Henson & Wiley, who speedily completed the work.
    The judgment rendered against the plaintiffs in error in the court of common pleas was against them as individuals.

      Smith Morris, and Harrison, Olds <f* Marsh, for plaintiffs in error.

      Charles J. Delaplane, and Page Sp Abernethy, for defendants in error.
   Nash, J.

We have examined the evidence relating to what the plaintiffs in error did in re-building the bridge across Deer Creek, and the statutes defining their duties in such cases. We conclude that in all they did they acted in their official capacity, in good faith and in the honest discharge of official duty. The judgment which held them to personally respond in damages was erroneous. Gregory v. Small et al., 39 Ohio St., 346; Stewart v. Southard, 17 Ohio, 402; Ramsey v. Riley, 13 Id., 157.

Judgment reversed.


author: McCauley, J.

text:
    Spence v. Insurance Co.
    1. Where a corporation in its petition made no averment of its corporate existence and no objection was made by answer or otherwise until after judgment, the defect was waived.

      2. The pendency of an action on a promissory note secured by mortgage, to have the amount,due on the note found, and for a decree for the sale of the property described in the mortgage, but in which no personal judgment was demanded, is not a bar to another action upon the note against the maker for a personal judgment.
    Error to the District Court of Hamilton County.
    The defendant in error, the Union Central Life Insurance Company, commenced an action in the court of common pleas of Clarke county against the plaintiff in error, George Spence and his wife, upon a promissory note secured by a mortgage of lands, in which the relief demanded was a finding of the amount due on the promissory note and a decree for the sale of the property described in the mortgage to pay the' amount due on, the note. There were no averments in the petition of a cause of action on the note for a personal judgment, nor was such judgment prayed for.
    While this action was pending, the insurance company commenced an action in the superior court of Cincinnati against Spence, in which it demanded a personal judgment against him upon the promissory note. The petition in the superior court did not allege the corporate existence of the insurance company, the plaintiff, and no objection to the form or sufficiency of the petition was made until judgment had been given for the plaintiff. The defendant in the superior court answered the pendency of the action in Clarke county.
    •On the case as above stated the superior court gave judgment for the plaintiff; and this judgment was affirmed by the district court.

      J. A. Jordan, for plaintiff in error.
    I. That the petition should aver corporate capacity, which it does not. It is not sufficient to recite the fact in the caption to the petition. Devoss v. Gh'ay, 22 Ohio St. R., 159; 1 Nash PL, 347; Bliss on Code PL, 246, 260; 1 West L. M., 155. .
    It is a material averment, and the defect is not waived by failure to raise the question by demurrer or answer. Weidner v. BanJcin, 26 Ohio St. R., 528.
    II. The pendency of a suit in equity to foreclose a mortgage and ascertain the amount due on the debt, when equitable relief only is sought, may be plead in abatement in a subsequent action at law on the debt for judgment.
    ■ The principle upon which I make this claim is that the subsequent suit is unnecessary, vexatious, oppressive. If it be such, then it may be plead in bar of the former action.
    The whole question turns upon the question of necessity. 1 refer the court to Harris v. Johnson, 65 N. C., 478; The Kalorama, 10 Wall., 204; State v. Douglass, 45 Mo., 294 ; Donner v. Garland, 21 Vt., 362; Gamsby v. Bay, 52 N. H., 513; State v. Morris, 10 Tex., 263; People v. Warfield, 20 111., 164; State v. Jones, 10 Iowa, 65; Harmer v. Bell, 7 Moore (P. C. O.), 267; Kittridge v. Baee, 92 W. S. R., 116 ; Williamson v. Paxton, 18 Gratt. (Va.), 475, 504; Gould Plead., 263, Ch. 5, S., 112; People v.-, 27 Mich., 406; 2 Dame Oh., 962.

      Bamsey $ Matthews and Edward Barton, for defendants in error.
    1. No principle is better settled than that a judgment in rem from which enough cannot be realized to satisfy the claim of a plaintiff, is no bar to a subsequent action in personam for the balance. Nelson v. Coueh, 15 C. B. (N. S.), 99.
    2. To make a plea in abatement good, the relief sought in the two actions must be the same. “In an action of ejectment, a plea of abatement of the pendency of an action to quiet the title cannot defeat the action, though the same questions are litigated in both.” Bolton v. Landers, 27 Cal., 104. See also, Hall v. Wallace, 25 Ala., 438.
    3. The pendency of a suit at law upon the mortgagedebt is no defense to a suit to foreclose the mortgage unless made so by statute. Suydam v. Bartle, 9 Paige (N. Y.), 294; Williamson v. Ohamplin, 1 Clarke (N. Y.), 9; Tappan v. Evans, 11 N. H., 311: Guest v. Byington, 14 Iowa, 30.

      4. An action in rem is essentially different from an action in personam, and one should not suspend the other. Parmer v. Bell, 22 E. L. & Eq., 62; 10 Wall., 204; People v. Judges, 27 Mich., 406; Belahey v. Clement, 8 111., 201; Joslyn v. Millspaugh, 27 Mich., 517; Booth v. Booth, 2 Atkyns, 343 ; 2 Daniels Ch. Pr., 962; Maholm v. Marshall, 29 Ohio St., 616.
   McCauley, J.

The plaintiff in error, after the trial of his case in the court below and without making any defense there that the corporate existence of the defendant in error was not averred in its petition, now insists that the judgment should be reversed for want of this averment.

The averment, while it was necessary, was waived by going to trial without objection, and was supplied by the allegation in the answer that the defendant below contracted with the plaintiff in its corporate name. Smith v. Sewing Machine Co., 26 Ohio St., 562; Rev. Stats., 5064.

At common law three actions could be maintained concurrently upon a debt secured by mortgage, — an action to foreclose, a personal action on the debt and an action in ejectment to recover possession of the mortgaged property. Dunkley v. Van Buren, 3 Johns. Ch., 330; Delahey v. Clement, 3 Ill., 201; Joslyn v. Millspaugh, 27 Mich., 517; 2 Dan. Ch. Pr., 815.

The section of the Code, Revised Statutes, section 5021, which provides that in an action to foreclose a mortgage a personal judgment may be asked for, recognizes the right to unite two of these actions, a right which existed without this provision. In an action for a foreclosure and for a personal judgment, the plaintiff may have both forms of judgment at the same time.

This section of the Code does not require the two remedies to be demanded in the same action — it is only permissive ; separate actions may therefore be maintained, one to foreclose and the other for a personal judgment in the same court at the same time. If they may be maintained in the same court at the same time, and judgment in one action is no defense in the other, then the same consequence follows if the different actions are in different courts. The two actions are essentially different, one exhausts the mortgage security, the other affords a personal remedy; one may be maintained without personal service and the other may not. From this fact alone both actions at the same time in different courts may be necessary to furnish a complete remedy.

It is urged by counsel for plaintiff in error that the second suit was not necessary, and therefore could not be maintained. The reason why a second action cannot be maintained for the same cause at the same time is, that it is not necessary. This, however, is where the object sought in both cases is the same. The actions here were for different purposes and different relief. In a case situated as this one was, the only way in which it could be-shown that the second suit was not necessary, would be to show that the cause of action alleged in the second suit by reason of the proceedings had in the first suit, had been satisfied, or a state of fact equivalent to a satisfaction. The pendency only of another action for the same cause was not enough. In this ease the pendency only of the suit on the mortgage security of the debt was pleaded as a defense.

Judgment affirmed.


author: Dickman, J.

text:
    Higgins v. Grove.
    1. An action to recover the penalty provided for in section 4748 of the Revised Statutes, for unnecessarily obstructing a public road or highway by a fence, may be maintained before a justice of the peace, not only by the trustees of the township, but by any other person suing for the same, the fines accruing under the section to be applied by the trustees of the township to the improvement of roads and highways therein.
    2. No action can be maintained to recover the penalty provided for by that section, unless the obstruction therein mentioned amounts to the actual hindrance or inconvenience of travelers, or of any person passing along or upon such, road or highway.
    Error to the District Court of Morrow County.
    The plaintiff in error, Enoch Higgins, brought an action against Joseph Grove, the defendant in error, before a justice of the peace, to recover the statutory penalty for an alleged obstruction, by Joseph Grove, of a county road forty feet wide, laid out on the middle line that divided section twelve in township seventeen and range twenty, and extending to the north-west corner of north-east quarter of section thirty-six in township eighteen and range twenty, in Morrow county. The case was appealed to the court of common pleas of Morrow county, and Enoch Higgins, the plaintiff therein, suing for the people of Franklin township, as well as for himself, set forth in his petition that Joseph Grove, the defendant, on or about the first day of May, 1880, fenced, up and inclosed a part of said public road and highway by placing a fence in and upon said road where the same adjoins the lands of the defendant, to the hindrance and inconvenience of the plaintiff, and of travelers and persons passing along and upon said road; and by permitting said fence to remain upon said road, had unnecessarily obstructed the same. That the plaintiff, on the eighteenth day of May, 1880, notified the defendant to remove said fence, but the defendant refused so to do, and after being thus notified, did, on the nineteenth, twentieth, twenty-first, twenty-second and twenty-third days of May, 1880, permit said obstruction to remain in and upon said road for the period of twenty-four hours on each of said days, thereby unnecessarily obstructing said road as aforesaid. The plaintiff prayed judgment for the sum of $100, that being the aggregate amount of penalty imposed by statute for the alleged offenses on all said days.
    The defendant denied that on or about the first day of May, 1880, he set his fence, or any part thereof, in, upon or across said highway; and denied that his said fence, or any part thereof, obstructed said highway to the hindrance,. inconvenience or damage of the plaintiff, or any traveler or other person passing along or upon said highway; and averred that his said fence referred to in the petition, was placed and- built in the place where it now stands, prior to the tenth day of April, 1859, and from thence hitherto it has stood, and still stands, in the same place.
    The parties waived a trial by jury; the case was submitted to the court, and the court found in favor of the defendant. The plaintiff filed his motion for a new trial, which was overruled, to which ruling of the court the plaintiff excepted, and a bill of exceptions was taken embodying all the testimony offered on the trial. On error the district court affirmed the judgment of the court of common pleas, and this petition in error is prosecuted to reverse the judgment of the district court.

      A. K. A. O. Bunn, for plaintiff in error.

      Balrymple Powell, for defendant in error.
   Dickman, J.

This action is based upon section 4748 of the Revised Statutes of Ohio, which provides as follows: “ If any person or corporation obstruct, unnecessarily, any public road or highway authorized by any law of this state, or permit any timber, lumber, wood, or other obstructions to remain upon or across the same, to the hindrance or inconvenience of travelers, or any person passing along or upon such road or highway, every person or corporation so offending shall forfeit and pay, for every such offense, any sum not exceeding twenty nor less than two dollars, and shall be liable for all damages arising to any person from such obstruction, or injury to such road or highway, to be recovered by an action at the suit of the trustees of the township in which the offense is committed, or of any person suing for the same before a justice of the peace within the county where the offense is committed, or by indictment in the court of common pleas in the proper county; every twenty-four hours such person or corporation, after being notified, suffers such obstruction to remain, shall be deemed an additional offense against the provisions of this section; and all fines accruing under this section, when collected, shall be paid to the treasurer of the township in which the offense was committed, and. be applied by the trustees to the improvement of roads and highways therein.” It is contended in behalf of the defendant, that an action to recover the penalty imposed by this section may be maintained by the trustees of the township, but not by a private individual. We do not think that the language of the section is to be so construed.- While the person placing or permitting the obstruction to remain upon the highway is held to be liable for all damages arising to any one from such obstruction, he is also subjected to the prescribed penalty, to be recovered by an action at the suit of the trustees of the township or of any person suing for the same. An action for damages alone might prove a very inadequate remedy, as a highway might be obstructed to the great hindrance and inconvenience of the traveling public, without the infliction of positive damage or injury upon travelers. But there will be a strong guaranty for a safe and unobstructed road, by giving a right of action to recover the statutory penalty, not only to the trustees of the township, but to any person who may take enough interest in the public convenience and safety to institute legal proceedings. We are of opinion, that the words, “ at the suit of any person suing for the same,” have more particular reference to the recovery of the penalty, provided for by the section, by an action before a justice of the peace. This interpretation of the language of the statute becomes obvious, by recurring to past legislation in pari materia. The act for regulating roads and highways, passed February 6, 1832.

Chase’s Stat., vol. 3,1917, provides, that if any person shall obstruct any public road or highway, “ Every person so’ offending shall, for every such offense, forfeit and pay any sum not exceeding twenty dollars nor less than two dollars, to be recovered by an action of debt, at the suit of any supervisor or other person suing for the same, before any justice of the peace within the county where such offense was committed.” And in Bittle v. Hay, 5 Ohio, 270, which was a suit by a supervisor for the penalty for obstructing a road, the court say: “The section under which the action is brought subjects the person who obstructs a public road to’ not less’than two, nor more than ten dollars penalty, and authorizes a supervisor to sue for and recover the amount before any justice, unless some other person may have sued for and recovered the same.”

But, the -alleged obstruction of the county road for -which the plaintiff brought his action in the court below, does not come within the purview of the section of the Revised Statutes now under consideration. The obstruction must amount to an actual hindrance or inconvenience of travelers, or of any person passing along or upon the road or highway. There must be a real impediment to the free use of the highway" — a real obstacle that hinders and incommodes those who travel or pass along the road; Ingersoll v. Herider, 12 Ohio, 527. The statute is penal, and if the encroachment by a fence upon the highway is of such a nature that no one using the highway is practically incommoded ; if the highway, notwithstanding, meets all the requirements of public travel and convenience, the obstruction is not such as is contemplated by the' statute. The fence, too, may be subject to removal by the supervisor of the district into its proper place, while as an encroachment upon the highway, it may not be sufficient to incur the statutory penalty. The record in this case shows, that the road in controversy — on the opposite sides of-which lay the lands of plaintiff and defendant — was laid out and established, with a width of forty feet, in the fall of 1851, over a lane or “passway” running along or near the middle dividing line, of section twelve. The fences along this “passway” remained unchanged until the spring of 1859, when, after a survey made by the county surveyor, they were moved by the adjacent land-owners to the places they occupied at the commencement of this action. . Since the year 1859, the defendant has not moved his fences except to repair them or re-set them in their then position. No one resides on the road in controversy, save a son of the defendant. He and the defendant travel over it, but there is little or no travel over it by other people. The road is thirty feet wide, except where the plaintiff made it narrower by moving out his fences. From the evidence embodied in the bill of exceptions, we are satisfied, that the fences as moved and set by the adjacent property owners in the spring of 1859, have not, within the meaning of the statute, caused the hindrance or inconvenience of travelers or persons passing along the road in controversy. The judgment of. the district court must be affirmed.

Judgment accordingly.


text:
    Buckland et al. v. Rice et al.
    Where a trade-mark contains a material misleading representation a court of equity will not protect it.
    Error to the District Court of Sandusky County.

      JR. P. JHJ. S. Buckland, for plaintiffs.

      J. M. Lemmon and William JBJenry Browne, for defendants.
   Nash, J.

The defendants in error- in the court of common pleas, asked for an injunction to restrain the plaintiffs in error from infringing upon an exclusive right claimed by them in the word “ Trommer,” used together with the words “ Extract of Malt Co.,” as a trade-mark upon bottles of a malt extract and advertising pamphlets.

The following facts appear from the bill of exceptions: The extract of malt sold by the defendants in error was made by one Gessner, and in accordance with a formula prepared by him. The preparation of this extract was begun in 1874. Many years before that time, Dr. Felix Von Niemeyer, a German physician of some note, published a “ Text Book of Practical Medicine,” the third American edition of which was printed in 1870. This book was a standard work and became authority with physicians and students of medicine. In this book Dr. Niemeyer stated that in late years he had obtained very good effects from an extract of malt, prepared by Trommer. He also in general terms described Trommer’s malt-extract. Ziemssen, in his “ Cyclopedia of the Practice of Medicine,” a standard medical authority, also speaks of a malt-extract prepared from Trommer’s receipt. Gessner did not know Trommer’s receipt, and it is not claimed that the malt-extract' sold by the defendants in error was prepared in accordance with Trommer’s method, or that their malt-extract was like Trommer’s extract of malt. When they put their extract upon the market they adopted the word Trommer to be used as a trade-mark upon their labels and in their advertising matter.

What was the object in doing this ? Why was the name of Gessner — the real author of the extract — concealed and “Trommer” put forward as the catch word? There could have been but one motive, and that was that the public should be led to believe that the defendants in error were malting an extract of malt like that made by Trommer and mentioned by Niemeyer and Ziemssen. This object is made more apparent by an examination of the advertising pamphlets issued by the defendants in error. In these, upon the page immediately following the title page, are printed without note or comment, except to show where they came from, extracts from Niemeyer’s text book and Ziemssen’s cyclopedia in regard to Trommer’s extract of malt, and in such manner as to indicate to the ordinary reader that what these authors had written was in regard to their extract of malt.

It is well settled that where any symbol or label claimed as a trade-mark is so constructed or worded as to make or contain a distinct assertion which is untrue, a court of equity will not protect it by injunction. Leather Cloth Co. v. American Leather Cloth Co., 4 DeGex., Jones & Smith, 136; 4 H. of L. Cases, 523; Connell et al. v. Reed et al., 128 Mass., 477; Manhattan Medicine Co, v. Wood, 108 U. S., 218.

We think that the word “Trommer” was used by the defendants in error so as to hold out to the public that they were making a malt extract like that made by Trommer. This was a deception, and to the extent that the district court by its order protected them in the use of the word “ Trommer ” it erred. For this reason we reverse the judgment of the district court.

There are however other distinctive features of the trademarks, labels and circulars of the defendants in error which are not subject to the objection urged herein to the use of the word “ Trommer,” which the courts below were asked to and did protect by their decrees in this case. Some of these devices the plaintiffs in error wrongfully made use of, and in rendering the judgment which the district court should have rendered, we make our decree the same as that of the court below, except wherein it protects the defendants in the use of the word “ Trommer.”

Judgment accordingly.


author: Granger, C. J.

text:
    Bank v. McIntire.
    1. Where a national bank is in fact organized as the successor of a state bank with the consent of more than two-thirds of the stockholders, it may hold and own assets of its predecessor, although in form it was organized as a new bank, and the assets were transferred to it as if I by sale and purchase.
    2. After a mortgage creditor had, in two actions, obtained decrees for sales of the mortgaged premises, the judgment debtor died testate. The will gave power to the executor to sell lands to pay debts. The holder of the decrees and the executor agreed that the latter might sell the mortgaged lands under said power — he promising to pay said decrees in full out of the proceeds, or out of other assets of the estate as preferred claims. The executor sold the lands for more than was due under the decrees; paid nothing on the decrees; paid out and distributed the entire estate to others and died. In an action by the holder of said decrees against the executor’s estate:

      Held: 1. Said agreement in effect “allowed” the decrees as valid claims against the estate of the mortgage debtor.
    2. The holder of the decrees had a specific interest in so much of the purchase money received by the executor as equaled the sum due on the decrees; and, under the agreement, held alike interest in the other assets of the estate, so soon as the executor applied said purchase money upon other debts.
    3. So soon as the executor, by parting with those assets to others, made it impossible to pay said decrees out of his testator’s estate, he became individually liable to the holder of said decrees.
    4. Such act by the executor was a fraud upon the holder of the decrees, and no statute of limitation could begin to run in his favor until said creditor had notice of the act.
    Ebbob to the District Court of Knox County.
    At April term, A. D., 1859, of the court of common pleas of Knox county, Ohio, the Western Reserve Bank, an Ohio corporation, in an action to' foreclose a mortgage, obtained a decree ordering the sale of a tract of land, in said county, then the property of Daniel S. Norton, in order to satisfy a debt of A. Baldwin Norton secured by said mortgage. This debt was found to be 1535.48. Daniel S. Norton had bought the land subject to said mortgage and assumed its payment. He was a defendant in said action and bound by said decree.
    At same term of said court the same plaintiff recovered a judgment against said Daniel S. Norton and Orange Hollister for $1070.83 and costs. In the same action another tract of land in said county belonging to said Daniel S. Norton and incumbered by a mortgage securing the debt for which said judgment was rendered, was ordered to be sold to satisfy said debt. This debt, also, was one assumed by said Daniel S. Norton.
    On May 31,1859, orders of sale were duly issued under said decrees to the sheriff of the county, who caused the lands to be duly appraised, advertised and offered for sale, but, no bid being made, the writs were duly returned indorsed “ not sold for want of bidders.”
    About November 1, 1859, said Daniel S. Norton died testate; and on November 16, 1859, his will was admitted to probate. Rollin C. Hurd was duly appointed and qualified as executor, but did not publish notice thereof until March 10, 1860. The will gave the executor power to sell arid convey the testator’s lands for the payment of debts. He took possession of the lands covered by said decrees.
    Charles H. Scribner was then the attorney of the bank. An arrangement was made between the executor and said attorney as stated in the following'extract from Mr. Scribner’s testimony in this case :
    “ After the death of Mr. Norton, the subject of the payment of these decrees was the subject of frequent conversation between Judge Hurd, his executor, and myself. I did not understand, inasmuch as there was a decree of foreclosure, that any formal presentation of the claim for allowance was necessary. My view was that he had a right to press a sale at any time; but Judge Hurd was actively engaged in endeavoring' tg effect sales for the payment of debts, under the will of Mr. Norton, and in the conversations I had with him on the subject of the payment of the decrees, he-exhorted me to patience, and said to me that the decrees should be paid as fast as money could be realized from the sales of the mortgaged property. At times the officers of the bank became very pressing; on one or more occasions the cashier came to Mount Vernon to look after the matter; I think his name was Taylor. I introduced him to the judge, and they conversed upon the subject to some extent in my hearing; the same promises were made to him. Many of- these conversations took place between Judge Hurd and myself within four years after the death of' Mr. Norton. I urged payment with all the persistency I could without giving offence. Judge Hurd never questioned the validity of the claims. He always'spoke of them as debts which he was bound .to pay as executor; repeatedly promised to pay them; but insisted that we should not proceed to expose the property to sale under the decrees, claiming that he, as executor, was the proper person to make the sale, and apply the proceeds on the decrees. He spoke the same way on different occasions after he had made a sale of the lands, or some part of them; but on one occasion said he desired to make some sort of a turn of one or more of the notes received upon the sale, with some other person. I have forgotten who it was, but it runs in my mind it was Mr. Israel. He stated, however, that he would make it all right on the final payment of the decrees.”
    About the first of August, A. D., 1863, more than two-thirds of the stockholders of the Western Reserve Bank determined to discontinue the existence of that institution as a state bank, and to organize anew as a national bank under the act of Congress passed February 25, 1863, entitled “ An act to provide a national currency, &c.” As a few of the stockholders did not wish to continue in the new bank, all the surplus assets of the old bank (after each stockholder had received his stock) were sold and transferred to one John H. McCombs, who immediately transferred said assets to the new organization which was styled “ The First National Bank of Warren.” Among the assets so. transferred were the said Knox county decrees and the claim on the Norton estate. The sale to McComb was merely a mode adopted for transferring the assets from the old bank to its successor.
    On the 25th of March, 1864, Hurd, as executor of Norton, sold one of the mortgaged tracts for $1600; and on the 21st day of July, 1866, he sold the other tract for $1400. He received all of the purchase money but made no payment on either decree; filed no account in the probate court, and died on February 13, 1874, testate. A. R. Mclntire and Frank H. Hurd were duly appointed and qualified as administrators (with the will annexed,) of the Hurd estate.. To them, on May 18, 1877, the plaintiff duly presented for' allowance a claim for the entire amount of said decrees with the interest and costs. On September 24, 1877, said administrators rejected the claim. On November 3, 1877, the First National Bank of Warren began in Knox county common pleas a civil action against said administrators of the Hurd estate upon said claims.
    The petition as amended contained a count upon each decree; set out the arrangement between Scribner, as attorney, and Hurd, as executor; the transfer to the plaintiff; the sales by Hurd; his receipt of the money, his failure to pay; his death; the appointment and qualification of defendants ; that defendants had received, and still held part of the proceeds of said mortgaged lands and other assets of the Norton estate; asserted a lien upon said proceeds and assets; and prayed for a judgment against the Hurd estate, and the application of said proceeds and assets to pay it.
    The defendants, by demurrer to the petition, as amended, urged (1) the six years bar; (2) the ten years bar; (3) that the plaintiff had not “ capacity to acquire or hold said judgment, decree and claim, or any power or capacity to enforce the collection thereof” ; and (4) that “ the facts stated * * are not sufficient to constitute a cause of action against these defendants, or to entitle the plaintiff to the relief prayed for.” These demurrers were overruled, and except tions noted. The defendants then answered, denying sundry averments in the petition, and setting up, as a separate defense to each cause of action, that the claim was not presented to Rollin C. Hurd, as executor, for his allowance within four years after he had given notice of his appointment as executor.
    The plaintiffs, by reply, set out the facts as to the decrees, the substance of the arrangement made by Scribner and Hurd; the latter’s admission of the claims as valid; his promise to pay them, and that he “ so waived all other formal proofs of the validity of said claim against said Norton’s estate.” To this reply defendants demurred. The common pleas overruled their demurrer.
    By amendments to their answer the defendants specially pleaded as separate defenses, (1) the incapacity of the. plaintiff; (2) the six years bar; (3) the ten years bar; and (4) that before his death Hurd had fully accounted for and paid out all moneys received by him as executor of the Norton estate, and that there was a balance of over 12,500 due from said estate to his estate.
    Trial was had in the common pleas when evidence put in by tbe defense proved that Rollin C. Hurd had received as éxecutor of the Norton estate $76,155.36, and no more; and had “paid out upon the indebtedness of said estate, the expenses of continuing the business of said decedent, the administration of said estate, the sum of $82,164.04.” The court found the issues in favor of the plaintiffs; that $3,994.57 was due to it, and gave judgment against the defendants as administrators of the Hurd estate. In the judgment the common pleas declared this claim a preferred debt and entitled to priority of payment out of the Hurd estate. A motion for a new trial was overruled, exception taken, and a bill of exceptions,' presenting’all the evidence, duly made part of the record. Upon error the district court reversed the judgment of the com- - mon pleas for error in (1) overruling the demurrer to the amended petition; (2) sustaining the demurrer to the answer filed February 16, 1880, setting up the four years statute of limitation; (3) overruling the motion for a new trial.
    The record (as already stated) discloses that the plaintiffs replied to the said answer of February 16,1880; the defendants demurred to the reply, and the common pleas sustained that demurrer.
    The bank, by petition in error, asks this court to reverse the action of the district court.

      John C. Devin, for plaintiff in error.
    The statute of limitations has no application as against the claim of the plaintiff. Banh v. Carpenter, 7 Ohio (pt. 1), 21; 5 Ohio, 181; 1 Powell on Mortgages, 279; 2 Id., 519; 4 Kent’s Com., 154; 1 Pet. (U. S.), 388, 441; 4 John., 216.
    When the law creates a trust, or confers authority to execute a trust, it imposes upon the purchaser no obligation to apply the money further than to pay it to the trustee. Miller v. Greenham, 11 Ohio St., 486.
    The statute directs the application of the money arising from sales made by administrators and executors. 1 Swan 6 Critchfield Stats., 594.
    In the case of a continuing and subsisting trust the statute of limitations does not begin to run as against the cestui que trust, and in favor of the trustee, until he repudiates the trust. Roberts v. Roberts, 7 Ky., 100; 3 Johns. Ch., 216'; 8 Geo., 97; 27 Cal., 274; 11 Humph., 369; Angelí on Lim., § 468; Hill on Trustees, 264; 7 Johns. Ch., 316; 2 P. Wins., 145; 33 Conn., 97; 2 Perry on Trusts, 863; 3 Ired. Eq., 102; 10 Id., 22'.
    As to the capacity of plaintiff to acquire and hold the judgment, see National Rank r. Matthews, 98 U. S., 621; Thompson’s Bank cases, 128.

      A. R. Mclntire and J. R. Critchfield, for defendant in error.
    I. The claim of plaintiff was barred by the statute of limitations.
    As to the class of cases that come within the exception of continuing and subsisting trusts, see Kane v. Rloodgood, 7 Johns. Ch., 90; 20,Johns., 676; Cocke v. McGHnnis, M. & Y. (Tenn.), 261; 63 111., 254; 23 Pa. St., 456; 1 Watts, 271; Talbott v. Todd, 5 Dana (Ky.), 190; Webster v. Webster, 10 Yes., 93; 2 Merivale, 93 ; 4 Mason U. S. C. C., 16 ; 2 Atk., 610; 3 Johns. Ch., 215; 8 Yerger, 145; 4 Wash., 631; Angelí on Lim., §§ 168, 170.
    Before'the Code, it became the settled rule in Ohio that the statute of limitations applied to all cases in chancery where there was a remedy at law. Tuttle v. Wilson, 10 Ohio, 27; Horton v. Homer, 14 Id., 444; Paschall v. Hinderer, 28 Ohio St., 568.
    Hence it was those trusts and those only that were within the exclusive jurisdiction of courts of equity that before the Code were excepted from the operation of the statute. And the foregoing authorities clearly point out what class of trusts was known only in courts of equity, namely, “ continuing and subsisting trusts.” It is clear, therefore, that the legislature, in excepting that class of trusts,-meant to exclude sucli trusts, and such only, as had been exempt from the operation of the statute prior to the Code.. Such was the view expressed in the case of Carpenter v. Canal Co., 35 Ohio St., 307.
    The plaintiff hacía complete and adequate remedy at law. Sect. 182 1 S. & C., 606; § 6110.Rev. Stats.; Q-reer v. State, 2 Ohio St., 575; 7 Ohio (pt. 1), 223; 25 Ohio St., 443.
    But there was still another remedy. The plaintiff could have caused a citation against Norton’s executor for final settlement; and then upon the filing of such settlement could have proceeded against him to judgment, either in the probate court or the court of common pleas. Sec. 1 and 6 of the act of April 17, 1857, S. & C., 1st vol., 619.
    Or the plaintiff could have brought an action for money had and received. 31 Ohio St., 643; 2 Id., 568; § 189 S. & C., 604.
    The plaintiff’s claims constituted the first liens, and hence could .not be affected by the insolvency of the estate. When the claims were made they became, upon the theory that no presentation and allowance were necessary, due and payable ; and the demand for their payment gave the plaintiff a clear right under sec. 182 to bring suit at law.
    This suit is not upon the bond, and hence is barred by the limitation of six years provided for by sec. 14 of the Code. Had the action been upon the bond it would have been barred in ten years under sec. 17 of the Code. Adm'x Mount v. Laheman, 21 Ohio St., 643.
    More than seventeen years had elapsed before the commencement of this suit, since the executor’s default in filing his account; more than thirteen years had elapsed since the cause of action accrued on the first claim, and more than eleven years had elapsed since the cause of action accrued on the second. So that each and all the remedies provided at law were barred before the commencement of this action. And the attempt to make this a proceeding “ on the chancery side of the court ” will not prevent it from coming within the operation of the statute, for the plaintiff had a complete remedy at law for the same right, and that remedy having been barred, the remedy in equity is also barred. So that whether this be regarded as a suit in equity, or at law, in either case it is barred.
    Having neglected the remedy, both^legal and equitable, the plaintiff cannot complain that the statutes which “ rest upon sound policy and tend to the peace and welfare of-society” now interpose a bar to its right of recovery.
    II. The said claims were not only never presented to said executor for his allowance, and never were allowed by him, Wit that it does not appear that said executor had any actual notice of the existence of said claims within four 3rears from the date of his appointment. Section 103 S. & C., 585; 17 Ohio St., 548.
    III. The plaintiff had not the corporate capacity to purchase those claims. 8 Ohio, 287; 4 Craneh, 127; 12 Wheat., 64; 6 P. F. Smith, 14; 4 Wheat., 636; 9. How., 186; 15 Ohio St., 68 ; 23 Minn., 198 ; 16 Albany L. Jour., 316; 68 Me., 43; 39 Md., 600; 42 Id., 581; 47 Vt., 456 62 Mo., 329 ; Morse on Banks, 566 ; 71 N. Y., 161; 2 Dillon, 371; 72 Pa. St., 456; 83 Id., 57; 36 Iowa, 443; 23 Ohio St,, 329; 101 U. S., 79.
   Granger, C. J.

Had the plaintiff power to become the owner of the assets of the Western Reserve Bank, including the decrees and judgments against Norton ?

Congress intended to encourage the conversion of state banks into national banks. To further this intent it provided an easy mode of effecting the change without materially interrupting the business of the bank. When that mode was adopted the national bank' became the owner of all of the assets of its predecessor (the state bank), of whatever nature. In this case the First National Bank of Warren was organized by the stockholders of the state bank; it actually succeeded the Western Reserve Bank of Warren in its location and business, and became possessed of no assets that would not have belonged to it if the statutory mode of transformation had been adopted. In another mode the new national bank was legally constituted and assets of its predecessor transferred to it. As we construe the “Act to provide-a national currency” it clothes a national bank with power tó succeed a state bank; to hold and own its assets, and then pursue the business of banking under the limitations of the act itself. Whether it .becomes such successor in the mode provided by the act, or in the manner adopted by the plaintiff, is immaterial in this case. We hold that the plaintiff is the legal owner of the claims set out in the petition as amended. See first paragraph of the syllabus in Ehrman v. Ins. Co., 35 Ohio St., 324; also the last paragraph of the opinion of Peck, J., in White’s Bank of Buffalo v. Toledo Ins. Co., 12 Id., 610.

What is the nature of these claims ?

Before Norton’s cTeath the Western Reserve Bank had obtained a personal judgment against him in one case and decrees in both for the sale' of the mortgaged premises. Instead of making the executor a party to the cases, and enforcing sales under the decrees, the bank and Norton’s executor agreed that the latter might use the power to sell, given by the will, he agreeing, as executor, to pay the decrees in full with interest and costs, as preferred claims. This agreement entitled the bank to receive from the executor so much of the proceeds of the mortgaged premises as equalled the decrees with the interest and costs, or to receive a like amount out of the other Norton assets, notwithstanding such payment to it might consume those assets and leave other liabilities of that estate unpaid. This arrangement was beneficial to the estate. It saved further costs §,nd expenses in the suits, and gave the executor at least an opportunity for getting higher prices for the land. Such an agreement was within the scope of the executor’s powers, and made it unnecessary for the bank to formally present the claims for allowance. If any such presentation was necessary, this agreement accepted the statements of Mr. Scribner as such presentation, and admitted that both decrees were .valid claims against the estate. We think the four years’ statute of limitation did not apply to either of them under the facts stated in the petition as amended or in the reply, and the common pleas did not err in overruling the demurrer to the reply to that defense.

Under the agreement the executor was required to pay the decrees out of the proceeds of the mortgaged premises, or oxd of the Norton estate as preferred claims. So long as he retained enough of that estate to make such payment, he did not make himself individually liable to the bank. This action is predicated upon such individual liability. It is true that the petition charges that part of the proceeds of the mortgaged premises and other assets of the Norton estate had come into the possession of the defendants, and sought to give effect to a lien upon them; but it prayed for a judgment against the Hurd estate, and the evidence showed that no Norton assets came to the defendants. The defendants are not liable in this action as, in any sense, the representatives of the Norton estate. Their only power and duty touching that estate was to file an account showing Hurd’s transactions while executor, and to deliver to his successor, when appointed, the remaining moneys and assets, if any, of that estate.

Treating the action as one against the Hurd estate, upon his individual liability, when, if ever, did the statute of limitations begin to run ? So long as he retained assets of Norton, sufficient to pay the decrees in full, his mere delay to make the promised payment created no personal liability. So long as the settlement of the Norton estate remained open; so long as Hurd delayed to file his accounts in the probate court, all unpaid claims that he, as executor, had admitted to be valid, remained in full force and effect against that estate. Holding the moneys and assets of the estate in a trust capacity, he held them subject to the right of the bank to priority in payment, and the moment he, by otherwise applying them, made it impossible for him to pay the bank out of the Norton estate, he became individually liable to the bank. But as such payment by him under the case shown was a fraud upon the bank, the statute would not begin to' run in his favor, if at all, until the bank had knowledge that he had so acted as to incur this liability.

The petition does not show when the bank first acquired such knowledge. As it set out a valid claim to the proceeds of the sale of the mortgaged premises and averred that part of said proceeds were in defendant’s hands, the common pleas did not err in overruling the demurrer to the petition as amended.

The defendants sought to avail themselves of the six years’ bar. This imposed upon them the burden of proving that Hurd individually ought to have been sued more than six years before this action was begun. The exhibit from the probate court showed that Hurd had, during his lifetime, disposed of all of the Norton assets, and so made it impossible to pay the bank out of that estate. But there was no evidence even tending to show when Hurd so disabled himself, or ivhen the bank 'first had notice of it. Hence the common pleas did not err in finding that the plaintiffs’ action against the Hurd estate was not barred, or in overruling the motion for a new trial.

But that court did err, as we think, in holding the claim a preferred debt against the Hurd estate, If the record disclosed any specific assets of the Norton estate in the hands of the Hurd administrators, the plaintiff would be entitled to an order applying them upon the judgment; but no such fact is shown.

Judgments of the district court and common pleas reversed and decree for plaintiffs for the amount found by the trial court, with interest and costs. Execution to run against the Hurd estate.


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    Waggoner v. Cox.

      1. Where the larger sum mentioned in a note is the actual debt, and a smaller sum has been agreed ttpon as a release, if paid under stated conditions, the failure to comply with the easier terms gives the creditor the right to enforce the payment of the larger sum.
    2. Where damages, resulting from a failure to comply with the easier terms, are uncertain or impossible of ascertainment, the stipulated sum will he treated as an alternative sum to be paid unless manifestly inequitable.
    Ekroe to the District Court of Hamilton County.
    On the 5th day of August, 1866, Jacob Cox died intestate. At the time of his death he was seized of one hundred acres of land in Hamilton county of the value of 116,000. His wife Sarah Cox and seven children survived him. In April, 1867, and after' the children had partitioned the land among themselves, the widow entered into a contract with her children in regard to her dower interest. Upon each of the children giving a note secured by mortgage upon his or her portion of the land, she released her right of dower therein. The note reads as follows:—
    “ For value received, I promise to pay to Sarah Cox eight hundred dollars on the first day of September next; provided that if I pay to the said Sarah Cox semi-annually on each first day of September and first day,of March twenty dollars, amounting to forty dollars a year, during the life of the said Sarah Cox, it shall discharge the whole debt. This note is secured by properly stamped mortgage. Given under my hand this 27th day of April, 1867.”.
    One of these children was Ann Cox, who married Abraham Lenhart in the fall of 1869. The condition of the mortgage upon her portion of the land — fifteen and a half acres — was as follows:—
    “ That if the said Ann Cox shall cause to be paid unto said Sarah Cox eight hundred dollars, or in lieu thereof twenty dollars semi-annually, on every first day of September and first day of March, during the lifetime of the said Sarah Cox, according to a note of hand dated April 27th,' 1867, signed by the said Ann Cox, drawn in favor of the said Sarah Cox, then these presents shall be void.”
    On the 7th day of October, 1869, John H. Glensman purchased of Ann Cox her fifteen and a half acres encumbered by the mortgage given by Ann Cox to her mother Sarah Cox. Glensman afterwards paid the semi-annual installments up to and including March 1st, 1877. The installments due September 1st, 1877, and March 1st, 1878, were not paid. On March 5th, 1878, an action was begun in the court of common pleas of Hamilton county, Sarah Cox against Ann Lenhart, John H. Glensman and others. In the prayer of the petition she asked judgment for the $800 with interest from September 1st, 1878; for a sale of the mortgaged premises and that the amount of the note with interest be paid out of the proceeds.^
    The judgment of the court of common pleas was in accordance with this prayer. During the progress of the trial the defendants tendered to Sarah Cox the sum of $200 and her costs, in full satisfaction of the semi-annual payments to that date, the note and mortgage to remain in full force as security for future dues.

      Isaac J. Miller and Francis Lampe, for plaintiff in error.
    The stipulation to pay $800 in the nature of a penalty. Longworth v. Asieren, 15 Ohio St., 875. As to whether the sum to be paid is a penalty or liquidated damages, see 3 Parsons on Contracts, 159; Sedgwick on the Meas, of Dam., 421; Tiernan v. Herman, 16 111., 400; Haldeman v. Jennings, 14 Ark. (1 Barb.), 329; Beale v. Hayes, 5 Sandf. (N. Y.), 640; Hutchison v. McNutt, 1 Ohio, 20; 2 Story on Equity, § 1314; Broclmay v. Ciarle, 6 Ohio, 45; Pollock on Contracts, side page 446; Peachey v. Buhe of Somerset, 2 White & Tudor, 2024 and 2044; Seton v. Slade, Id., 1132, Lead. Cas. in Eq.

      Hoadly, Johnson Colston, for defendant in error.
    The sum of $800 was money due by contract. Thompson v. Hudson, 4 Eng. & Irish App., 28; Berrinhott v. Traphagen, 39 Wis., 219. For the rule in regard to penalties, see Sutherland on Damages, 497, 498; Mayne on Damages, 126; Thompson v. Hudson, L. R., 4 Eng. & Ir. App., 27;
      James v. Thomas, 5 Barn, and Ad., 40; Schooley f Price v., Romain, 31 Maryland, 574, 578,579; Baldwins. Van Vorst, 2 Stock Eq., 581; Robinson v. Loomis, 61 Pa. St., 78; Leading Cases in Equity, vol. 2, part 2, p. 2049, last paragraph; Early v. Rogers, 16 How., 599; Jaequith v. Hudson, 5 Mich., 123. And see also Lange v. Werlc, 2 Ohio St., 533; Berry v. Wisdom, 3 Id., 241, 244; Grrasselli v. Lowdon, 11 Id., 361; Wolf Creelc Co. v. Schultz, 71 Pa. St., 180; Sutton v. Howard, 33 Ga., 536; Hodges v. King, 7 Met., 583.
   Nash, J.

The evidence shows that the parties who had the best opportunity of knowing the physical condition of Sarah Cox and the probable duration of her life, considered her life interest, in one third of the fifteen and one-half acres of land apportioned to Anna Cox, to be of the value of eight hundred dollars. This interest Ann Cox bought and gave to her mother therefor a note and mortgage, which provided two modes of payment, namely: Eight hundred dollars on the 1st day of September, 1867, or twenty dollars on each 1st day of September and March until the death of Sarah Cox. The plaintiffs in error claim that the stipulation to pay $800 is in the nature of a penalty, and admit that there was no error in the proceedings of the courts below if this stipulation is not so considered.

The question here presented is difficult of solution. Where, in case of a failure to pay a sum which is the actual debt, it is stipulated that a larger sum, which is not the actual debt, shall be paid, such larger sum will be regarded as a. penalty. The case of Longworth's Executors v. Askren et al., 15 Ohio St., 370, seems to have been determined upon this principle. In that case the court found that the smaller and not the larger sum was the principal debt, and therefore held that the larger sum was in the nature of a penalty.

In the case before us we conclude from all the facts that ' the sum of $800 was the price agreed to be paid to Sarah Cox for her dower interest in Ann’s land and was the principal debt. To this state of facts another principle applies and is decisive. When the larger sum is the actual debt, and a smaller sum has been agreed upon as a release if. paid under stated conditions, the neglect to comply with the easier terms gives the creditor the right to compel the payment of the larger sum. 1 Sutherland on Damages, 499.

There is another important consideration in this case. The amount to be paid in installments was not a fixed sum, but was uncertain and conjectural. No data are apparent from which the actual damages to Sarah Cox can be calculated in case of a failure to pay the semi-annual installments. Under these circumstances the stipulated sum will be regarded as liquidated damages, unless facts appear which would make it inequitable to pursue this course. Berrikott v. Traphagen, 39 Wis., 219; Bagley v. Peddie et al., 5 Sandf., 192; Coal Co. v. Schultz et al., 71 Pa. St., 181; Jacquith v. Hudson, 5 Mich., 123.

To compel Mrs. Cox to resort to a suit at law whenever there is a default in the payment of the $20 would be inequitable, and this would be the only practicable remedy in case the eight hundred dollars should be treated as in the nature of a penalty.

Judgment affirmed.