text:
    Charles Butler v. The City of Toledo.
    Where the corporate authorities of a city had, in pursuance of its charter, levied a local assessment on lots bounding on and near to certain streets, for the purpose of grading said streets, and, from mistake in the preliminary estimate of cost, and extraordinary expense attending the collection of said assessment, the assessment proved insufficient to discharge the cost and expenses ; a subsequent amendment of the charter, authorizing a re-assessment on the same lots “sufficient in amount to meet said deficiency, and the cost and expenses of such re-assessment, and all other expenses incidental to said improvements,” is not in contravention of any provision of the constitution of 1802, and-is a valid law, binding on all property within its purview, although the owner may have acquired title intermediate the assessment and re-assessment.
    Nor is such re-assessment invalidated by the fact, that a small part of the fund to be supplied has been expended in extending the grading somewhat beyond the strict line of the improvement expressly authorized, and into intersecting streets, where such extension was necessary to afford ingress and egress to and from the street authorized to be graded.
    In Chancery.. Reserved in Lucas county.
    The facts are stated in the opinion of the court.

      M. R. Waite, for complainant:
    1. The laws under which the re-assessment was made are retro-active, and operate to impair vested rights. Dash v. Van Sleek, 7 Johns. 506 ; (food v. Zercher, 12 Ohio Rep. 867; Chesnut v. Shane’s Lessee, 16 Ohio Rep. 609; Schooner Aurora Borealis v. Dobbie, 17 Ohio Rep. 125.
    The charter, as it originally existed, gave no power to re-assess. Scooville v. The City of Cleveland, 1 Ohio St. Rep. 126,181.

      2. If the fund, originally provided to pay the expenses of this work, has been misapplied, or improperly expended, no re-assessment can be made, on account of a deficiency, occasioned by reason of such misapplication, or improper expenditure.
    The fund was improperly applied. 1st. The work on the grade has been largely over-estimated to the contractors, and the fund has in this way been misapplied and wasted. 2d. The interest upon the orders was improperly paid out of the fund; as were several accounts to the street commissioner, city clerk, city surveyor, printer and treasurer; and also the costs and attorney’s fees in several suits in which the city was a party, and which were not prosecuted for the benefit of the fund charged. Jonas v. The City of Cincinnati, 18 Ohio Rep. 318.
    3. The grading of Cherry, Walnut, Locust and La Grange streets, north of Summit, and Summit east of Elm, was not provided for in the ordinance for the improvement or in the contracts for the work; and the expenses of such grading were improperly paid out of the fund.

      Charles W. Sill and Ira S. Lee, for defendant:
    1. We maintain that the first assessment did not exhaust the power of the council to raise money for the improvement in question, by a discriminating tax upon this property.
    Section 28th of the charter of 1837, gives
    1st. Power to grade and otherwise improve streets, and to levy a special tax to defray the expenses thereof, by a discriminating assessment upon the land and ground bounding and abutting thereon, in proportion to benefits.
    2d. It points out the mode of making the assessment.
    2. If the power to re-assess under the old law was not adequate, and we are compelled to look to the amendatory acts of 1849 and 1851 for authority, then were those acts constitutionally applicable to the facts in this case ? We contend that they were. They certainly were not ex post facto. The prohibition of ex post facto laws, in art. 8, sec. 16, of the constitution of 1802, appears in the same connection and is used in the same sense as that in the constitution of the United States, art. 2, sec. 9, and in both cases they relate to crimes only, and have no reference or application to civil proceedings or private rights of property or contracts. We cite the following authorities as directly in point: Colder v. Bull, 3 Dallas 386; Fletcher v. Peek, 5 Cranch 138; Ogden v. Sanders, 12 Wheat. 266; Satterlee v. Matthewson, 2 Peters Rep. 380 ; Watson v. Mercer, 10 Peters 88; Baugher v. Nelson, 9 Gill 299; 2 Pick. 170 ; 7 Johns. 488 ; 1 Blackford 196 ; 6 Binn. 271 ;'l J. J. Marshall 563.
    The prohibition relates to crimes and putiishments only, and not to criminal proceedings. Perry v. The Commomvealth, 3 Grattan 632.
    In numerous instances under the constitution of 1802, the legislature found it necessary to pass retrospective laws to compel men to do justice. Those laws were resisted upon grounds as plausible and consistent, and a claim of rights not inferior to the complainant’s in this case. But those laws were sustained by this court and the doctrine was here settled, that “ retrospective laws that violated no principle of natural justice, but that, on the contrary, were in furtherance of equity and good morals, were not forbidden by the constitution of 1802.” Lewis v. McElvain, 16 Ohio Rep. 347; Johnson v. Beaty, lb. 97; Bartholomew v. Bently, 1 Ohio St. Rep. 37; Kearny v. Buttles, lb. 362; and Trustees of C. F. B. F. A. v. MeCaughy, 2 Ohio St. Rep. 152.
    3. The amendatory acts of 1849 and 1851 do not operate to impair vested rights, but only to make those who have been benefited by the improvements, pay for them. Under'this head reference is made to the following cases: Meeh. Traders' Bank v. Bebolt, 1 Ohio St. Rep. 591; Toledo Bank v. Bond, lb. 622; Thomas v. Leland, 24 Wend. Rep. 65 ; Shaw v. Dennis, 5 Gilman’s (111.) R. 405; Norwich v. Co. Comr's, 13 Pick. 60 ; Sawyer v. City of Alton, 3 Scam. 127; Vanderbilt v. Adams, 7 Cowen 349; Trustees of Paris v. Berry, 2 J. J. Marsh. 483; Scooville v. City of Cleveland, 1 Ohio St. Rep. 126.
    4. Complainant contends that the re-assessment covers items not properly chargeable against the “ Vistula grade fund,” which, as he says, were improperly expended, and that now, whatever may be the deficiency, a re-assessment'for a deficit thus occasioned cannot be sustained. We insist that those matters are not open for discussion, aside from the stipulated facts in the case.
    The acts of the assessors (47 O. L. 207, 213, sec. 17) were so far judicial as to conclude the complainant; and to this point we cite, The People v. The Mayor of Brooklyn, 9 Barb. 542 ; Shaw v. Dennis, 5 Gilman’s R. 405, 417, 418 ; 27. S. v. Arredonto, 6 Pet. 691; 16 Mo. Rep. 88 ; Adams’ Lessee v. Jeffries, 12 Ohio Rep. 253, 257 ; 2 Bond. Just., p. 373, sec. 3097; 1 Greenl. Ev., p. 654, sec. 523 ; Lessee of Payne v. Moorehead, 15 Ohio Rep. 435, 443, 445 ; Bank of Wooster v. Stevens, 1 Ohio St. Rep. 233, 235.
    5. But if we are wrong in saying that the complainant is concluded by the action of the assessors, then we deny that the assessment included too much.
    6. We deny that the work on the grade was largely over-estimated to the contractors, and the fund in that way misapplied and wasted.
    7. The interest on the orders issued was properly allowed, after the money was due.
    8. We deny that the complainant is entitled to any relief in consequence of the work done in Cherry, Walnut, Locust and La Grange streets, north of Summit, and in Summit east of Elm. All along Summit street, and throughout the work, except along the margin of the river, the “ improvement ” was a deep excavation ; and if what Mr. Waite claims was the whole Vistula grade, had been executed alone, Summit street could not have been entered except from the river.
    9. We claim that the new law could add to the property charges that would not have been authorized under the old. The limit was subject to the discretion of the legislature. See authorities already cited.
   Brinkerhoff, J.

This is a bill in chancery, originally filed in the common pleas of Lucas county, for an injunction .to restrain the city of Toledp from the collection of an assessment, ordered by the corporate authorities of the city, on certain lots of complainant, bounding on Summit and Water streets, for the purpose of paying the unpaid balance of the cost of grading said streets, and other expenses incidental to said improvement; and is reserved for decision here from the district court of that county.

It seems that in and prior to the autumn of 1848, ordinances had been passed by the city.authorities, under their charter, ordering the grading of Water street to Lagrange street, and of Summit street to the easterly side of Elm street; but no provision was made for the grading of Summit street east of Elm street, or of the cross streets north of Summit. Preliminary surveys and estimates of the cost of the projected improvement, were made by the city engineer; contracts for the work were entered into; a local assessment on the lots bounding on and near to the improvement was made, to meet the estimated cost; and the work was done. The contracts having been made on the basis of a certain price per yard for excavation and embankment, it was found, on the completion of the work and its measurement by the city engineer, that the cost exceeded the preliminary estimate. In addition to this, the payment of the assessment was for a long time resisted by different owners of lots assessed, thus leading to the accumulation of a considerable amount of costs in court, attorney’s fees, printer’s bills, and interest — which the city authorities had resolved to allow — on the unpaid orders issued to contractors on the city treasury, and the like; so that a large deficit was found to exist in the amount necessary to meet the costs of the work and the expenses incidental to, and growing immediately out of, the improvement.

It being doubtful whether the city charter, as it then stood, would authorize a local re-assessment to meet this deficit, or whether the same would have to be met out of the general fund of the city, application was made to the general assembly of the State, which, on the 29th of January, 1851, passed, among others, the following amendment to the charter :

Sec. 1. That it shall and may be lawful for the common council of the city of Toledo, in all cases of special assessment heretofore made, or hereafter to be made, for the grading, planking, paving or other improvement of the streets, lanes or alleys, squares and public places in said city, where the same shall have proved or may hereafter prove inadequate, defective or insufficient, by reason of any error or defect in the proceedings of said council, or any of its committees or officers, or assessors, or insufficient in amount, to cause a new and further assessment to be made upon the property originally chargeable with the cost of said improvement, sufficient in amount to meet said deficiency and the costs and expenses of such re-assessment, and all other expenses incidental to said improvement, and to levy and collect the tax therefor, at any time in the year other than the time prescribed by the charter of said city, for collecting the annual taxes of said city, as well as at the times of collection of said annual taxes; and in case any person shall be dissatisfied with the re-assessment aforesaid, the same right of appeal shall be had, and in case of any appeal, the same proceedings shall be had as is hereinafter provided in the case of other assessments for improvements of streets,” etc. Ohio Laws, vol. 49, page 71.

And, on the 21st of July, 1851, the city council proceeded to re-assess, on the same lots before assessed, the aggregate sum of $9,086.36, that being the estimated amount of the deficiency before mentioned.

This aggregate deficiency is made up of the following items :

Orders outstanding.

Interest accrued and estimated to accrue, before tax can be collected.

Eor re-imbursement of general fund, for payments made out of it on expenses of this improvement, and interest.

Costs and law expenses.

Printing.

Compensation to city officers for services in the making of said improvements, in the litigation growing out of them, and in the levying and collection of the assessment and re-assessment.

And it is to restrain the collection of the aggregate re-assessment thus constituted, that this bill is filed. It appears that the complainant became the owner, and acquired title under deeds of quit-claim, of a portion of the lots assessed, between the time of the first assessment and of the subsequent re-assessment. It further appears, that of the total amount of orders issued to contractors for the work, amounting, without interest, to something over $33,000, the sum of $1,017.58 is for work done on Summit street east of Elm street, and on cross streets north of Summit, and therefore not expressly embraced in the terms of the city ordinances authorizing the assessment and re-assessment.

On this state of facts, it is claimed in behalf of the complainant,

1. That any local re-assessment on his lots, for the purpose of making up any deficiency in the amount of the original assessment, is unauthorized by law ; and this on the ground that the proceedings, and the laws under which they were had, are retroactive and operate to impair his vested rights.

To this claim we cannot assent. The amendment to the city charter, of January, 1851, clearly authorizes a re-assessment of some kind and to some amount, and is a valid law, binding on all persons and property within its purview, unless its provisions are found to be in contravention of the constitution of the United States, or of the State constitution of 1802, under which the amendment was enacted and these proceedings were had. This amendment is not an ex post facto law ; for such laws relate to crimes only, and constitutional provisions on the subject of them have no application to civil proceedings. 1 Blackstone’s Com. 46 ; Dash v. Van Kleck, 7 J. R. 488-9. Nor does it impair the obligations of any contract. The constitutipn of 1802 contained no provision against retro-active or retrospective laws ; and such laws, passed under that constitution, have always been upheld, where they “violated no principle of natural justice,” and were in furtherance of it. Lewis v. McElvain, 16 Ohio Rep. 347; Trustees of C. F. R. E. A. v. McCaughy, 2 Ohio St. Rep. 155. Here the property of the complainant had reaped the benefit of a local improvement, for the making of which the property was originally and justly liable to contribute. By a mistake in the preliminary estimate of cost — a thing of no rare occurrence, and affording no presumption of fraud — the fund first assessed proved to be insufficient. It is but just that he should contribute ratably to supply the deficiency, and if he refuses, it is but just to compel him. Nor do we see how any vested right is impaired by the fact of his purchase intermediate the ássessment and re-assessment. He voluntarily purchased lots in a young and thriving city, to the prosperity and growth of which, assessments for purposes of local improvement were absolutely essential, and which, as a reasonable being, he must have anticipated. He purchased his lots subject to any burden which the State might lawfully impose, and we cannot perceive how the vested rights of complainant are any more impaired than are those of every recent purchaser of real estate in Ohio, whose estate is now yearly taxed for the payment of interest and principal on a State debt contracted long before his purchase.

The complainant claims,

2. That, admitting an asssesment to make up the proper deficiency, if any, in the original fund to have been authorized by law, still this assessment is illegal, because the amount includes items not properly embraced within it. And

First. It is alleged that the original measurement by the city engineer of the work done, was erroneous, and too favorable to the contractor. On the question of fact thus presented, and without going into a detail of the evidence on which our conclusion is based, we content ourselves with saying that the evidence fails to satisfy us of any substantial error in the original measurement.

Second. It is contended that interest on outstanding orders ought not to be included in the amount of the re-assessment. The contracts for the work provide that the contractors “ shall be paid in warrants of the mayor of said city, and shall be payable only out of the fund to be collected as aforesaid.” Rut surely the contractors-had a right to expect that the fund would be collected within some reasonable time ; and when its collection was unexpectedly, and, to the contractors, ruinously delayed, we think the contractors had a legal right to demand interest on the dishonored warrants of the city; that the city authorities had a legal right to allow interest; and that it is rightfully included in the re-assessment, as one of the expenses incidental to said improvement.”

The same may be said in respect to other items — such as costs, attorney’s fees, printer’s bill, and compensation of city officials for superintending the work, making measurements, defending suits instituted to restrain the collection of the assessment, and the levying and collection of the assessment. None of these items would have accrued had it not been for the improvement, and they are, we think, legitimately classed among the “ expenses incidental ” to it. ,

3. And finally, it is claimed that of the $33,096.07 of orders drawn for the cost of this improvement, the sum of $1,017.58 was on account of work done on Summit street east of Elm, and on the cross streets north of Summit, neither of which were embraced in the terms of either the ordinance directing the improvement or the contracts for the work.

We fully admit that it is essential to the validity of this re-assessment, that all the money to be collected under it, shall have been expended substantially in the improvement directed by the ordinance; and we have not been free from embarrassment in our deliberations on this point. But, it satisfactorily appears in the evidence that the improvement in Summit street consisted almost entirely of excavation, varying in depth from three to six feet; in consequence of which, and of the perpendicular cuttings thus made at the points of intersection with the cross streets north of it and with Elm street, all ingress and egress to and from that part of Summit street covered by the improvement, would have been effectually barred, had not the excavations been extended somewhat into the cross streets north of Summit, and into Summit east of Elm. Had the projected improvement been thus left, it would have been no improvement, but a detriment; and, on the whole, we are satisfied, from the nature of the improvement itself, and from the small proportion of the whole amount expended on them, that these extensions of the excavations beyond the strict line of the main work, were substantially and properly part and parcel of the main work, rather than improper and unauthorized departures from it.

Injunction dissolved, and MU dismissed with costs.


source: Caselaw Access Project

author: J. R. Swan, J.

license: Public Domain

text:
    The State ex rel. Parley L. Howlett v. The Directors and Warden of the Ohio Penitentiary.
    The directors of the Ohio Penitentiary gave notice that they would receive proposals for the labor of fifty convicts, to be worked at the manufacture of wood type, rules, try-squares, etc., etc., and that bids would be considered for the manufacture of any other articles, or any other kinds of business. With the exception of one person, who bid sixty-one cents for raw, and one dollar for experienced hands, each day, H. made the highest bid for convicts, to work at the coopering business. The directors refused to enter into a contract with H., but closed a contract with D. & Co. for the manufacture of wood types, at a bid less than H’s. Held:
    That under the notice and statute, the directors were authorized to exercise a discretion in regard to H.’s bid, and to reject it.
    Application for mandamus.
    In the act of the general assembly, passed April 26, 1854, “ providing for the appointment of officers of the Ohio Penitentiary, fixing their compensation, prescribing their duties, and determining the manner of working Gonvicts,” (43 Ohio Laws 60,) it is provided in sec. 13 as follows :

      “ All contracts for working convicts, shall be given to the highest reputable bidder ; the letting of which the directors shall give at least six weeks notice in two daily or weekly newspapers published in the city of Columbus, two in the city of Cincinnati, and one in the city of Cleveland ; and all contractors shall be required by the directors to give security to the State for the faithful performance of their contracts, in such amounts as the directors in their judgment may think proper and right.”
    In sec. 14, it is further provided as follows :

      “ Convicts may be hired in any number, not exceeding fifty in a contract, and for any time not exceeding five years, in such manner as the directors, in their judgment, may think most conducive to the interests of the State.”
    The directors of the Penitentiary caused the following notice to be published in accordance with the statute :
    “ Convict Labor for Hire. — Sealed proposals will be received at tie office of the Ohio Penitentiary, until the lllh day of July next, at 10 o’clock A. M., for the labor of 50 convicts in this institution, for five years from tho first day of August next. Said convicts to be worked at the manufacture of wood type, rules, try-squares, gauges, axe-handles, frames for buck-saws, etc., etc. Comfortable shops will be furnished, and the discipline in shops maintained at expense of State, but no fuel furnished.
    “Bids will be considered for the manufacture of any other articles, or other kinds of business; the bidders to specify particularly the kinds of work at which they desire to employ the convicts, the probable amount of shop-room needed, and the prices for labor. The directors reserving the right to select such bids as will least conflict with the mechanical interests of the State, and best promote the pecuniary and reformatory interests of the institution.
    “ No bids received for less than 20, nor more than 60 men. Successful bidders required to give satisfactory security. The usual privileges of contractors extended to successful bidders.
    “J. B. BUTTLES,) . “J. P. BRUCE, j-dJiiectois.

    “ A. G. DIMMOCK, Warden.

    “ Ohio Penitentiary, May 25, 1854.”
    Howlett, the relator, was a bidder under this notice. His proposals were as follows:
    Columbus, July 11,1854.

      Messrs. Directors and Warden Ohio Penitentiary:

    I will give sixty-three cents per day each, for twenty-five good, able-bodied convicts, to work at the coopering business for five years.
    (Signed) P. L. HOWLETT.
    This bid was higher than any other, except that of one person, which was sixty-one cents for raw, and one dollar for experienced hands, per day.
    The relator shows by affidavits that he was a reputable bidder, and able to give security to the State for the faithful performance of any contract the directors might have made with him.
    The directors refused to enter into a contract with Howlett, but closed a contract with W. T. & S. D. Day & Co., for the manufacture of wood type, at a bid of sixty cents per day for each convict.
    On the 26th of July, 1854, the relator applied to this court for a peremptory mandamus to compel the said directors to let out and assign to him twenty-five convicts, in accordance with the terms of his bid. The court granted an alternative writ, commanding said directors to assign and execute to the relator a contract for the labor and privilege of working the number of convicts specified in his said proposals, and in accordance with the terms thereof, or show cause, on the first day of the next term of the court, why they refuse so to do.
    The directors did refuse so to do, and for causes, set up in their answer the following :

      First. That the work upon which the relator proposed to employ the labor of the convicts, was coopering, as appears by his proposal. That any work of this nature was, necessarily, to be conducted within the walls of the prison. And that, in the exercise of the discretion conferred upon them by law, the directors determined, for the security of the prison, that the business of coopering should not be conducted within its walls. Wherefore, they lawfully rejected said proposals.

      Second. The directors were also authorized to let the contracts in such manner as, in their judgment, would be most conducive to the interests of the State, and, in the exercise of their judgment and discretion, they determined to let these contracts so that the labor of the convicts should least conflict with the mechanical interests of the State ; and as the business on which the relator proposed to employ the convicts would directly conflict with a mechanical interest of the State, they determined to and did reject the same.

      Third. There was no shop within the walls, sufficient for carrying on said business, and for this reason said proposal could not be entertained.
    The directors further state, that by law they are entitled to the exercise of their judgment and discretion as to the kind of labor upon which the convicts should be employed, and as to the person with whom the directors should contract for their employment, which this court would not and may not control.

      H. B. Carrington, for the relator.

      McCook, Attorney General, for the directors and warden.
    The answer of the directors sets up distinctly the defense on which I rely.
    It was clearly competent for the directors, in the exercise of their discretion, to exclude any particular trade from the prison. And they could, accordingly, refuse to let tbe convicts to any person, no matter how high the sum offered, who proposed to conduct a business within the walls, which they thought endangered the prison.
    It is, therefore, not a case for mandamus. They are clothed with the discretion, and cannot be controlled in its exercise. 12 Ohio Rep. 57 ; 12 Johns. Rep. 414.
   J. R. Swan, J.

The notice of the directors for proposals, invited bids which would be considered for the manufacture of articles other than wood type, etc. Hewlett’s bid came under that part of the notice in which the directors expressly reserved the right to accept or reject the bids. The bid did not therefore bind them. A peremptory mandamus is refused.


author: Bartley, J.

text:
    Henry Hullman and others v. Frederick Honcomp and others.
    The legality of the election of persons as trustees of a cemetery association, and their right, by'virtue of such election, to exercise the powers and conduct the affairs of the association, are questions which cannot be judicially tested by bill in chancery, but fall appropriately within the jurisdiction of proceedings at law by quo warranto.

    A special and express trust created by the appropriation of a lot of ground by a cemetery association, for the exclusive purpose of the burial of the dead of . a certain religious society, and the appropriation of the surplus means of the association solely to pious and charitable uses, are objects which will be upheld, and the execution of the trust strictly enforced in a court of equity, upon the application of any member of the association, where there has been an abuse or perversion of such trust.
    Where such association was not, either by its charter, or' its articles of association, placed under the special authority, control or direction of such religious society, the fact that some of the members of the association made special stipulations with the bishop of the diocese, that in consideration of his blessing the cemetery and consecrating the burial grounds, the rules and usages of the church should be strictly observed, and the directions of the bishop and priests of the church, be followed as to what members of the church should be entitled to burial in the cemetery, do not legally constitute conditions in the terms of the trust, so as to restrict, or in any manner control the legal powers of the corporation.

      This is a Bill in Chancery reserved in the District Court of Hamilton County, for decision here.
    The bill was filed in the commercial court of Cincinnati in April, 1850, and represents that the German Catholic St. Peter’s Cemetery Association of Cincinnati was constituted in January, 1843, for the purpose of providing a suitable place of burial for the German emigrants, their families and relatives of Cincinnati and its vicinity, who might be members of the Catholic church, and in accordance with the doctrine, discipline, usages and ceremonies of the same. And with a view to that object, a lot of land containing ten acres, in Hamilton county, was purchased and conveyed to George F. Eichenlaub, Charles Schultz, Christian Schwegmann and Simon Oehler, in trust, for the association, until the same could be incorporated.
    That the association was incorporated in the month of March, 1843, and that in accordance with the act of incorporation, the members of the association adopted a constitution and by-laws, by which it was provided that the management of the property and affairs of the association should be committed to fifteen trustees, members of the association, to be elected annually on the 2d day of February ; and from this body the officers of the association were to be elected.
    It is charged, that pursuant to the constitution, an election was held in February, 1850, at which time the complainants were elected trustees for the succeeding year, and as such, were entitled to be declared elected, and to receive their certificate of such election, and also entitled to receive the property and manage the affairs of the concern. But that the officers of the association refused to declare them elected, and on the contrary, combining with the board of trustees for 1849 and with defendants, declared the defendants in this cause, trustees duly elected.
    That notwithstanding the complainants were not declared elected, they called upon the officers and trustees of 1849 and demanded possession of the property and books of the association; but they were refused, and ever since defendants have usurped the offices of the association, and are now, contrary to law and tbe constitution of the association, controlling the property and affairs of the corporation.
    The complainants allege, that they have filed an information in the nature of quo warranto, and that the same is pending in the Supreme Court, in order to test their right to the office.
    The complainants next claim, that after the organization of the society, and before the adoption of the constitution and by-laws, the committee of the association called upon the bishop of the Catholic diocese of Cincinnati, to bless and consecrate the burial ground according to the doctrine, discipline, usages and ceremonies of the Catholic church, before it could be used for burial purposes.
    That the bishop, before he would bless it, stipulated with the committee in writing:
    1st. That the rules of the Catholic church should always be faithfully observed in this, chiefly, that no one should be buried in the ground who had not been baptized, or who died out of the communion of the Catholic church, of which the bishop, or in his absence, the clergy of the German Catholic church, or churches, should be the judge.
    2d. That no poor person should be denied a place therein, because his friends were unwilling to pay.
    3d. That any money accruing from the ground should be expended for pious uses, and specifically for the relief of the German Catholic poor.
    4th. That the remains of persons interred in the Catharine street burial ground might be removed and interred in the new ground.
    This writing, they say, was signed by Eichenlaub, Schultz, Schwegmann and Oehler, committee as aforesaid.
    That on the 25th August, 1846, after the ground was blessed, the trustees deeded the ground to the corporation.
    The bill complains that the trustees managing the affairs of the association, have violated the constitution and by-laws; have violated the stipulation with the bishop, and in all respects defeated the trust:
    1st. By admitting those to burial who died out of the communion of the Catholic church.

      2d. By refusing to poor persons the right of burial.
    3d. By expending the funds of the association in other than pious uses and relief of the poor.
    Eor these reasons the bishop, on Sunday the 9th Sept. 1849, pronounced in the several German Catholic churches of Cincinnati an interdict against the further use of the said cemetery as a place of burial for members of the Catholic church.
    That complainants are hereby (that is, by the interdict of the bishop) deprived of the use of the said cemetery and the benefit of its revenues.
    Eor these reasons complainants believe the majority of the members of the association did, on 2d February 1850, elect them trustees for the ensuing year, so that the trust might be carried out and the interdict removed.
    Complainants are afraid that before the quo warranto can be heard, the funds of the association will be squandered; the property wrongfully .appropriated ; and the ground so filled with bodies inadmissible, that even a judgment in favor of complainants admitting them into office will be barred of all good effects, the interdict continued, etc.
    The bill prays that the defendants be restrained from the exercise of the offices of trustees of the association, until the quo warranto can be heard, and that they account for moneys received, and hand the same over with the books and papers of the association to complainants; that the trust created be required to be faithfully executed by preserving the burial ground for the exclusive purpose of the burial of Germans who are Catholics, and that the surplus means of the company to be appropriated to charitable and pious uses; that the bodies of persons not Catholics buried in the cemetery be removed; that the members admitted by the defendants and their associates, since the irregular election in February, 1850, be stricken from the list of the members of the association and excluded; and that the observance of the terms of the stipulation made with the bishop, with a view to the consecration of the ground, be strictly required, so that the interdict of the bishop may be removed.
    The answer denies all the equities set up in the bill. It avers the purchase of the land on the 25th January 1843, and that after the association was incorporated, they received a deed of the property.
    So far from ever agreeing to the terms said to be agreed on with the bishop, they aver that no such agreement was ever made or authorized to be made by the association. On the contrary, the great object in purchasing the property was to have it entirely free from the control of the bishop and clergy, and for this purpose one of the articles of their constitution, article 30th, provides in order that “ our reverend priests may not be importuned with temporal offices, the association shall never elect any of these reverend priests to any office that may have any relation to the concerns of this association.” The same article further declares that the “ members reserve to themselves to extend or limit the objects declared ; to alter or repeal or add to the arti* des ; and to act and to do whatever they may as Tree men think expedient to the welfare and object of this association.” Then follows the provision about the priests.
    The answer not only denies the making or authorizing any agreement to be made with the bishop as is claimed in the bill, but insists, that when the alleged agreement was made, there was no incorporated association in existence; and that any agreement made, was of course not binding on the corporation.
    But the answer denies that any of these stipulations have ever been violated.
    The defendants deny ever burying any but Catholics in the ground — deny ever refusing burials to poor persons. They deny having appropriated any funds except for charitable purposes.
    As to the election, they aver that complainants were not duly elected, and allege that the election was conducted in the same way and manner the elections had always been conducted, but that the complainants with the priests had, by an intrigue or trick, endeavored to elect complainants on an opposition ticket.
    Since the bill was filed, the quo warranto case has been dismissed ; and divers elections have since been had by the members of the association, all of which have resulted, as is alleged, in electing men into office who were opposed to the priests having any thing to do with the affairs of the association.
    The case was submitted on bill, answer, replication, testimony, and arguments of counsel.

      Samuel M. Hart and J. B. Moorman, for complainants.

      Fox, French, & Pendleton, for defendants.
   Bartley, J.

The legality of the election of the complainants, as trustees of the German Catholic St. Peter’s Cemetery Association of Cincinnati, at the election held by the association in February, 1850, and the right of the defendants to exercise the powers, and conduct the affairs of the association, cannot be judicially tested by bill in chancery, but such cause falls appropriately within the jurisdiction of proceedings at law by quo warranto.

A special and express trust, created by the appropriation of a lot of ground for the exclusive purpose of the burial of the dead of the German Catholics of Cincinnati and its vicinity, and the appropriation of the surplus means of the association solely to pious and charitable uses, are objects which will be upheld, and the execution of the trust strictly enforced in a court of equity, upon the application of any member of the association, where there has been an abuse or perversion of such trust. But the proof in this case does not show such a violation or abuse of the trust created as to justify the interference of a court of equity.

And the corporation was not, either by its charter or its articles of association, placed under the special authority, control, or direction, of the German Catholic Church of Cincinnati; and the special stipulations of the bishop of the Catholic diocese, with some of the members of the association, that, in consideration of his blessing the cemetery, and consecrating the burial grounds, the rules and usages of the church should be strictly observed, and the directions of the bishop, or the priests of the church, be followed as to what German Catholics should be entitled to burial in the cemetery, do not legally constitute conditions in the terms of the trust, so as to restrict, or in any manner control, the legal powers of the corporation.

Bill in chancery dismissed.


author: Ranney, C. J.

text:
    Jonathan Hill v. Josiah Higdon.
    Legislation authorizing cities and villages to levy special assessments for the purpose of improving streets, upon real estate peculiarly and specially benefited, and in proportion to such benefit, is not repugnant to any provision of the constitution.
    In Error to the District Court of Hamilton county.
    The facts in this case are the following :
    Hill was the owner of a lot of ground at the south-west corner of Seventh and Plum streets, in the city of Cincinnati, fronting fifty-one feet on Seventh. On the 19th of September, 1851, the city council passed an ordinance to re-grade and pave Seventh street, between Plum and Western Row, and to assess the expense of so doing, according to the provisions of the act of March 20th, 1850, “ further to amend the charter of the city of Cincinnati,” and of the general ordinance of June 12th, 1850, upon the subject of special taxes for the improvement of streets, etc. Higdon did the work under a contract made with the city, October 21,1851, and on the 3d day of November, 1851, the city council assessed a special tax of one dollar and sixty-six cents and seven mills per front foot, for each front foot on Seventh street between Plum and Western Row, to pay the expense of this work; and ordered Hill, with other property owners on Seventh street, to pay the assessment on his lot within twenty days from the date of the ordinance, or be subject to penalty and interest. Hill refused to pay the assessment. December 1st, 1851, Higdon brought suit against him for the amount of it, before a justice of the peace, and the cause was taken by appeal to the court of common pleas of Hamilton county, and the main question upon which the parties joined issue, to wit, the constitutionality of the law providing for the assessment, was raised by special demurrer to the declaration.
    The court of common pleas, in June, 1852, overruled the demurrer, and rendered judgment against Hill for the amount of the assessment, with interest and costs.

      The district court, in April, 1854, on error, affirmed the judgment of the common pleas. To reverse this judgment of affirmance, this petition is prosecuted.

      A. P. Hill and J. T. Crapsey, for plaintiff in error.

      Corwine, Hayes & Rogers, for defendant in error.
   Ranney, C. J.

The real question upon which the parties are at issue, and which has been fully argued, is this : Can laws, authorizing the corporate authorities of cities and villages to levy a special assessment upon property particularly benefited, for the purpose of improving streets, continue' in force, or be now passed, consistently with the present constitution of the State ?

Upon this question, involved in several other cases before us, as well as in this, the court have bestowed the most careful attention, and I now proceed to state the conclusion to which they have arrived. The subject is very important in its practical bearings, and not without serious difficulty ; and for myself I am bound to admit, that the doubts which I at first entertained have not been entirely removed. But it is not upon doubts that this case is to be decided. The question can only be solved by a construction of several provisions of the constitution; and a proper construction can only be given, when the intention of those who framed and adopted that instrument is ascertained. We are bound to presume that the general assembly have continued to pass laws, conferring this authority, upon a settled conviction of their power to do so; and it is only when a dear incompatibility between the constitution and the law is made to appear, that the courts are authorized to interfere. We cannot overturn in doubt, what they have established in settled conviction. Cincinnati, W. & Z. R. R. Company v. Clinton Co., 1 Ohio State Rep. 77.

Laws of the character of those now drawn in question, are no novelty in this State. Their origin is nearly coeval with our legislative history, and they have continued to multiply, as occasion has required, from that time to the present. Indeed, so true has this been, that there is no hazard in affirming, that the authority they give has been almost uniformly one of the important powers conferred upon municipal corporations. Nor has their consistency with our first constitution remained unchallenged. In at least two well considered cases, every objection that could be suggested has been answered, and their constitutionality fully affirmed. Bonsal v. Lebanon, 19 Ohio Rep. 518 ; Scovill v. The City of Cleveland, 1 Ohio State Rep. 127.

It is no part of my purpose to go again over the ground covered by those decisions. It was there shown, with what of clearness and force the judges delivering the opinions were capable of employing, that the sum exacted was not a taking of private property, within the meaning of the constitution; and, consequently, that the article providing for its inviolability was not infringed. That it was an exercise of the taxing power, and the sum demanded, a tax levied for the purpose of constructing a public improvement. That the right of taxation was an inseparable incident of sovereignty, delegated in the general grant of legislative authority, and when used by the general assembly as a means to accomplish a lawful purpose, was subject to no express limitations or restrictions, but the provision against poll taxes. That the right to tax for such a purposejnecessarily included the power to determine the extent, and upon what property the tax should be levied; and that its imposition upon the property particularly and specially benefited by the improvement, was but a lawful exercise of the discretion with which the legislative body was invested, in apportioning the tax.

That it was a power liable to abuse, and very often abused, was conceded; but, as the people had made a plenary delegation of authority, and had imposed no positive restrictions upon its exercise, it was thought to be clear, that they had relied for protection upon the wisdom and justice of the representative body, and the accountability of its members to them, rather than the restraining powers of the courts of law.

We see no reason to doubt the correctness of these conclusions; ánd their application to the present controversy demonstrates the entire inapplicability of those provisions of the present constitution which provide for the inviolability of private property, and regulate the exercise of the right of eminent domain; and leave nothing but the question, whether the principles or mode of assessment upon which such taxes are levied, are inconsistent with any of the provisions of this constitution ? That the 12th article was intended to impose, and has imposed, most important limitations and restrictions upon the taxing power, is certainly true ,* and that any substantial departure from the principles therein established, in the cases to which the provisions of that article extend, is such an invasion of the constitutional rights of the citizen, as to call for the interposition of the judiciary, may be deemed equally certain.

By the positive terms of the second section of that article, “ laws shall be passed, taxing, by a uniform rule, all moneys, etc., and also all real and personal property, according to its true value in money." In the case of The City of Zanesville v. Richards, decided at the present term, we have held, that this section is equally applicable to, and furnishes the governing principle for, all .laws levying taxes for general revenue, whether for-State, county, township, or corporation purposes; and that it requires a uniform rate per cent, to be levied upon all property, according to its true value in money, within the limits of the State, or the local subdivision for which the revenue is collected. The general assembly is no longer invested with the discretion to apportion the tax, and to' determine upon what property and in what proportion the burden shall be laid. A uniform rate per cent, must be levied upon all property subject to taxation, according to its true value in money,” so that all may bear an equal burden.' If laws of the character of those now under investigation, are controlled by this section, it is evident they cannot be sustained. They do not impose the tax upon all the property of the city or village, nor is it apportioned according to the true value in money of the property upon which it is laid. As the mode prescribed in this section is sufficient- to enable municipal corporations to raise a revenue for the accomplishment of all their legitimate purposes, had the constitution contained nothing further to evince the intention of its framers, it might be argued, (and I think conclusively,) that any other mode of levying taxes for any purpose was necessarily excluded. But it does contain a further provision, which every sound rule of construction binds us to regard, and which seems utterly inconsistent with such a conclusion. By the sixth section of the thirteenth article, the general assembly is required to “ provide for the organization of cities and incorporated villages by general laws; and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent tlie abuse of such power.” It is very clearly our duty to give effect to the natural and obvious import of the language of this section. It relates to the organization of cities and villages,' and imposes upon the general assembly the very important duty of so restricting the powers it was supposed they would possess, as to prevent their abuse. Amongst these is the power of “ assessment.” This power had, for many years, been in constant and active exercise in every part of the State, and was perfectly understood by every member of the convention. The popular as well as legal signification of this term, had always indicated those special and local impositions upon property in the immediate vicinity of an improved street, which were necessary to pay for the improvement, and laid with reference to the special benefit which such property derived from the expenditure of the money. They had always differed widely from the ordinary levies made for the purposes of general revenue. To confound them now, in giving a construction to the second section of the twelfth article, is to make not only unmeaning but utterly absurd, a material part of the sixth section of the thirteenth article. To restrict or regulate the exercise of a power, furnishes the strongest possible implication of its existence ; and to impose upon the general assembly the duty to do this, in respect to a power which did not exist, or which had been expressly prohibited, would be nothing better than nonsense.

It is our duty to give such a construction to the constitution as will make it consistent with itself, and will harmonize and give effect to all its various provisions. To do this, we have only to suppose, that the convention used language with reference to its popular and received signification; and applied it as it had been practically applied for a long series of years. That where taxation is spoken of in the second section of the twelfth article, reference is made to the general burdens imposed for the purpose of supporting the government, and the revenue raised expended for the equal benefit of the public at large; while the power of assessment, referred to in the sixth section of the thirteenth article, although resting upon the taxing power, was intended to describe a distinct and well known mode of laying a local burden upon particular property, with reference to the peculiar and special benefit derived to such property from the expenditure of the money. The general language of the first of these sections, is thus only so far restricted as to give effect to the specific provision contained in the last. By the first, as the money is raised and expended for the equal benefit of all, no discretion is left with the general assembly; but the tax must be levied equally upon all property, and according to its true value. But in the exercise of the power of assessment, legislative discretion in apportioning the burden according to benefits, is left as broad and unfettered as under the constitution of 1802. The last of these sections contemplates a delegation of the power to municipal corporations, and imposes upon the legislature the duty (as yet very imperfectly performed) of so restricting its exercise as to prevent abuse. A failure to perform this duty, may be of very serious import, but lays no foundation for judicial correction.

The language of this section furnishes very strong evidence that the convention carefully discriminated between taxation and assessment; and regarded them as distinct modes of raising money for different purposes, and upon different principles; from the fact that loth terms are employed, and loth are required to be restricted when used by cities and villages. The origin and history of the section lead to the same conclusion. It is almost a literal copy of the ninth section of the eighth article of the constitution of the State of New York. From the case of The People v. The Mayor etc. of Brooklyn, 4 Com. Rep. 440, it appears that this mode of taxation had been much complained of in that State, and that an attempt was made in the convention of 1846 to effect its abolition. To this end the subject was referred to a committee, who reported a section for that purpose. But the convention refused to adopt it, and finally incorporated the provision as it now stands in the constitution of that State, and as it is found in ours. Upon this provision Judge Ruggles remarks: “ Instead of abolishing the system of assessments, this section of the constitution refers it to the legislature for the correction of its abuses. The direction given to restrict the power of cities and villages to make assessments, presupposes and admits the existence of a power to be restricted. The constitution, therefore, in this section, recognizes and affirms the validity of the legislation by which city and village assessments for local purposes, like that now in controversy, are authorized; and seems to remove all doubt in relation to the legislative power in question.”

It cannot be supposed that those who borrowed this provision from the New York constitution, were ignorant of the objects and purposes for which it was there adopted; and it is but fair to presume that it was intended to effect the same purposes and objects here. In our present constitution, as well as in the former, the general grant of legislative authority includes the power of taxation in all its forms. Restrictions upon its exercise are to be looked for in other parts of the instrument. The second section of the twelfth article has established the principles upon which all taxes for general revenue purposes must be levied; but it does not extend to what was then, and is still, well known as special assessments, because the sixth section of the thirteenth article shows that they were not intended to be included. Dealing with them under the name of assessments,” the people have contented themselves with enjoining upon the legislature the duty of preventing abuses, by restricting the power of the cities and villages to impose them.

As to the policy or justice of such legislation very different opinions might be entertained. But even in that view, it should be remembered that most of the improvements in towns and cities had already been made at the expense of the adjoining lot owners. To subject them again to taxation to improve other streets for the especial benefit of those owning lots upon the improvement, would, in many cases, work very great injustice. The evil, if evil it was. had been so long continued as to make it doubtful whether its correction or toleration would be attended with the greater injustice.

Upon the whole, we are satisfied that the law under which this assessment was made, is not so clearly repugnant to any provision of the constitution as to authorize us to refuse its enforcement; and that this judgment should be affirmed.

Bartley, J., dissented.


text:
    The Incorporated Village of Marion v. David Epler.
    In error to the Court of Common Pleas of Marion county. Reserved in the District Court.
    This case involves the question of the constitutionality of a special assessment for improving streets under section twenty-six of the act of May 3,1852, “ to provide for the organization of cities and incorporated villages.”
    The question is presented by demurrer to a petition in a suit brought to collect an assessment on Epler’s lot, for improving the street in front of it.

      J. & S. H. Bartram, for the plaintiff.

      Williams & Hume, for defendant.
   Ranney, C. J.

The question presented in this case, is not to be distinguished from that which we have just decided in the case of Hill v. Higdon. For the reasons there given, the demurrer in this case must be overruled.

Bartley, J., dissented.


author: Brinkerhoff, J. Bartley, J.,

text:
    The Columbus, Piqua, and Indiana Railroad Company v. Martin Simpson.
    In an appropriation of a right of way by a railroad company, over the lands of au individual, under the act of February 11, 1848, and where the award by appraisers, acting under the 9th section of said act, found the aggregate amount of damages sustained by the owner of the lands, irrespective of benefits to him accruing from the road, and also the amount of such benefits in a separate item of their report, it is error to adjudge to the owner the aggregate sum, without deduction for. benefits.
    The 9th section of said act is not in contravention of the fourth section of the eighth article of the constitution of 1802.
    The requisite data appearing on the face of the record, this court, acting as a court of error, will render the judgment which the court below ought to have rendered.
    In Error. Reserved in Miami county.
    The facts are stated in the opinion of the court.

      Johnston & Jones, for plaintiff in error.

      H. G. Sellers, S. S. McKinney, and N. Fletcher, for defendant in error.
   Brinkerhoff, J.

This case was reserved from the district court of Miami county, and is a petition in error filed in that court to reverse an order and judgment of the court of common pleas of that county, on an award of damages by reason of an appropriation of a right of way by the plaintiff over the lands of the defendant. The proceedings were commenced while the constitution of 1802, and the act “ regulating railroad companies,” of February 11, 1848, were still in force, and, of course, are to be determined by reference to their provisions. Two appraisements of damages under the aforesaid statute were made, each of which was successively set aside by the court of common pleas, and re-appraisements ordered. By the third, last, and amended appraisement, the appraisers reported “ the amount of actual damages sustained at the sum of $650; the amount of ordinary benefits at $200 ; making in all the sum of $850.” And thereupon the court gave judgment for the aggregate sum last named, and costs.

No bill of exception was taken, showing what proof, if any, was adduced before the court of common pleas on the hearing there; and, consequently, several questions made by counsel in argument, having no basis of fact' appearing in the record, will be passed without notice.

The only question presented on the face of the record is, whether, under the constitution of 1802, and the statute before referred to, on an appropriation of a right of way for a railroad, benefits resulting from the construction of the road to the owner of lands appropriated, could be lawfully set off against, or allowed in the estimate of, damages by reason of the appropriation. The court below seems to have decided this question in the negative ; and hence its judgment for the aggregate sum. The ninth section of said act explicitly provides that the appraisers “ shall consider the benefit as well as injury which such owner shall sustain by reason of such railroad,” in their award of damages; and the court below, in order to arrive at the conclusion indicated by their judgment, must have regarded this provision as being in contravention of the fourth section of the eighth article of the constitution of 1802, which provides that private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.”

The uniform construction, both legislative and judicial, of this section, while the constitution of 1802 remained in force, has been different. Erom the first formation of our State government, until that constitution was superseded by the present one, the legislature has allowed benefits accruing, as well as damages resulting from the appropriation of private property for public uses, to be taken into consideration in the estimate of the proper amount of compensation to be awarded to the owner. Nearly all our common highways, turnpikes, canals, and a large part of our railroads, have been established on this construction. And it was judicially settled by our predecessors, the late Supreme Court in Bank, in the cases of Symonds v. The City of Cincinnati, 14 Ohio Rep. 147, and Brown v. The City of Cincinnati, Idem 541.

The present constitution prescribes a different rule ; and in its construction and application we shall feel ourselves at liberty to follow the unobstructed leading of our own judgments on the subject. But nearly or quite all cases arising undér the section un'der consideration of the constitution of 1802, are now disposed of; and whatever, under other circumstances, we might be disposed to think of the correctness of the construction of it arrived at by our predecessors, we are not disposed at this time to review their conclusions in such a way as to unsettle the many and important interests derived under them.

The judgment of the court of common pleas is, therefore, reversed ; but, as all the requisite data appear on the face of the record, we will here render such judgment as the court below ought to have rendered, which is for the aggregate sum of $850, deducting $200 for the benefits accruing to the owner of the land by reason of the construction of the road.

Judgment for defendant for $650 and costs.

Bartley, J.,

dissented. The grounds of his dissent appear in his opinion, in Kramer v. The C. & P. R. R. Co., ante 147.


text:
    Simeon Haynes v. Jacob Baker.
    Lands not in the possession of the judgment debtor, and in which ho has an equitable estate, created by a contract of purchase, cannot he levied on, and sold to satisfy a judgment against him; and the purchaser under the judgment does not become the assignee of the contract of purchase.
    Bill of review. Reserved in Muskingum county.
    The original controversey between these parties arose upon the following state of facts :

      In 1839, Baker, being the owner of a certain farm in Muskingum county, sold it, by contract in writing, to Haynes, reserving to himself about five acres in the south-east corner of the farm.
    In this contract, Baker bound himself to convey the farm to Haynes, who, on his part, agreed to re-convey to Baker the “ piece reserved.”
    Baker conveyed the farm according to agreement, but Haynes, as Baker claimed, failed to execute and deliver a deed conveying to him the reserved land. Haynes claimed that he had tendered to Baker a deed properly executed, conveying the reserved land. Thereupon Baker brought an action of debt against Haynes on said contract, and Haynes pleaded the tender above stated; to which Baker replied that the deed tendered was not a deed of the same land described in the contract.
    The result of this issue, was a judgment against Baker for costs.
    Upon this judgment, an execution was issued and levied upon the “ reserved land ” as the property of Baker; and a sale thereof was made by the sheriff to Haynes. The sale was confirmed by the Muskingum common pleas, although opposed by Baker, and the sheriff, under the order of the court, executed and delivered to Haynes a deed for the land thus sold.
    Thereupon Baker filed a bill in chancery in the court of common pleas of Muskingum county, to set aside the order of court confirming the sale, and to compel Haynes to perform specifically his contract to convey to him said reserved land.
    To this bill Haynes filed his answer, and to the answer Baker filed his replication ; and the issue thus made was, in substance, the same as that made in the action of debt, with a further issue as to the validity of the sale of the “ reserved land ” on execution, and the confirmation of said sale. Baker was not in possession of the “ reserved land ” at the time of the levy and sale on execution.
    Upon this state of facts and pleadings, the district court of Muskingum county, to which the cause had been appealed, at the September term, 1853, entered a decree by which Haynes was directed to execute to Baker a deed in fee simple for the reserved land; and that, in default thereof, said decree should stand as such conveyance. And in and by said decree it was further adjudged that the-conveyance made by the sheriff to Haynes should be held inoperative, and that he should take nothing by said purchase at sheriff’s sale.
    To reverse this decree of the district court, Haynes filed this bill of review and assigns for error :
    1. That there is no matter or thing set forth in the original bill upon which the said decree can be justly predicated.
    2. Nor is there in the case, upon the testimony.
    Baker demurred to the bill of review.

      C. B. Goddard, for complainant in review,
    insisted that the error copamitted in this case consisted in the erroneous application of the principle “ that an equity cannot he sold on execution.” This means that an equity cannot be “ sold as an equity, but must be sold as land.” Oanhy v. Porter, 12 Ohio Rep. 79. In Baird v. Kirtland Bowler, 8 Ohio Rep. 24, the equity only, was appraised. He cites further: 2 Ohio Rep. 225 ; 7 Ohio Rep., Pt. 1, 227 ; 10 Ohio Rep. 71; Gray v. Tappan, Wright’s R. 117.

      Balcer, defendant.
   J. R. Swan, J.

Possession of land is an estate therein which may ripen into the right of possession and the right of property. If a judgment debtor is in possession of land, it may be levied upon and sold ; for he has an estate recognized by the common law, and to a considerable extent protected by the occupying claimant law. Whether, when such possession of a judgment debtor is united with an equitable estate, a sale on execution will carry with it such equitable estate, has never yet been expressly decided by the Supreme Court of this State. But if the judgment debtor has no estate whatever in lands but an equitable one, that is to say, if he holds simply a contract of purchase or title bond, and is not in possession, there is nothing for the judgment to operate upon as a lien ; and there is nothing in fact to levy upon or sell on the execution but the contract of purchase, which is, at law, a mere chose in action.

Hence a mere equitable interest in land, the judgment debtor not being in possession, cannot be seized and sold upon execution at law. Roads et al. v. Symmes et al., 1 Ohio Rep. 281; Douglass v. Houston et al., 6 Ohio Rep. 156; Scott v. Douglass, 7 Ohio Rep., Pt. 1, 227 ; Baird v. Kirtland & Fowler, 8 Ohio Rep. 24.

In the case now before the court, the judgment debtor was not in possession of the land. The case therefore comes within the principle recognized in the decisions above referred to.

Demurrer sustained, and bill of review dismissed.


text:
    Horace G. Bigelow v. Cornelius G. W. Comegys.
    A replevin bond which the statute in force at the time of its execution required to be executed by the party with two or more sureties, is not void because actually signed and delivered by the party with one surety only, the name of another person appearing on the bond as a surety, being a forgery.
    The obligor of a bond cannot avoid his liability, by showing that his signature to the bond was procured by the fraud of one of his co-obligors, without any participation on the part of the obligee.
    Petition in error to reverse the judgment of the Superior Court of Cincinnati.
    The original proceeding was a suit on a replevin bond, signed by the plaintiff in error as surety for Joseph C. Rich, and given in a certain action of replevin which had been instituted in the common pleas of Hamilton county by said Rich, against Cornelius G. "W. Comegys and William Comegys, and in which action judgment had been rendered for the defendants. The name of Solomon Eversull appeared on the replevin bond as co-surety with the plaintiff in error; but on the trial in the superior court, it was proven and admitted that the name of Eversull on the bond was a forgery. And the defense set up in the court below, by the plaintiff 'in error, was that he was induced to sign the bond upon the fraudulent representations made to him on the part of Rich, that Eversull, who was known to be a responsible man, had already signed the bond as a surety. And it did not appear that either Cornelius Gr. W. or William Comegys was present at the execution of the bond by Bigelow, or in any way participated in the fraud. The court below rendered judgment on the bond against the plaintiff in error, and to reverse that judgment this proceeding in error is prosecuted.

      Jones & Eaton, for plaintiff in error.

      Fox & French, for defendant in error.
   Bartley, J.

A replevin bond which the statute, in force at the time, required to be given with two or more sureties, is not void because actually signed and delivered by one surety only.

The obligor of a bond cannot avoid his liability, by showing that he was induced to execute the bond by the fraud of one of his coobligors, in which the obligee had no participation whatever, upon the settled rule that where one of two persons must suffer loss by the fraud or misconduct of a third person, he who first reposes the confidence and commits the first oversight, must bear the loss.

Judgment of the court helow affirmed.


text:
    Daniel Stewart v. Richard Aten’s Lessee.
    A description upon a duplicate, and a sale for taxes of a tract of land, as 150 acres, part of Section 36, N. W. corner, is defective, unless the 150 acres were situate in the N. W. corner of the Section, and in a square form.
    This is a petition in error to reverse the judgment of the District Court of Athens county.

      The original action was ejectment, brought to recover a tract of land in Rome township, in said county, and bounded and described as follows: Beginning at the north-west corner of section 36, Tp. 6, R. 12; thence east 80 rods; thence south 230 rods; thence west 80 rods, to the section line; thence north to the place of beginning, containing 115 acres.
    The case was tried at the September term, 1854, of the district court, by the court, and resulted in a judgment in favor of the plaintiff below.
    The record contains a bill of exceptions, from which it appears that the legal title of the lessor of the plaintiff below having been given in evidence, the defendant below, to show the title to this land out of the lessor of the plaintiff below, and to maintain the issue on his part, gave in evidence a deed in due form of law, from the auditor of Athens county, dated June 27, 1846, for a tract of land sold on the 8th day of January, 1844, for the taxes of 1842 and 1843. The bill of exceptions does not show how the land was described in the auditor’s deed, but it appears that the lessor of the plaintiff produced in evidence the record of the delinquent list, and of the sales made.
    The delinquent list contained the following:

    The record of sales contained the following: “ 150 acres sold to R. de Steiguer, in Section (36), Tp. (6), Range (12), N. W., charged in the name of E. Wood, for taxation, he being the best bidder, and having paid the sum of $5.51, charged on said lands.”
    It further appeared in evidence, that the tract of land in fact delinquent, and on which the $5.51 were due, and unpaid, was a 150 acre tract, in the north-west corner of the section, and of the shape represented in the plat of said section, as follows :

    The land sought to be recovered in the action of ejectment was the 115 acres designated on the above plat, being a parallelogram, 280 rods long on the west line, by 80 rods wide on the north line of the section.
    The record does not show that the defendant below was the assignee of the purchaser at the tax sale, but counsel, in argu ment, seem to recognize such to be the fact.]
    The plaintiff below objected “ to the sufficiency of said descrip tion of said 150 acres so sold for taxes,” and the court sustained the objection, and gave judgment for the plaintiff and against the defendant below; to which action of the court the defendant below excepted, and on that ground moved the court for a new trial • which motion the court overruled, and the defendant below excepted.
    The plaintiff in error now assigns for error the action of the court in sustaining the objection to the sufficiency of the description of said 150 acres, and overruling the motion for a new trial, and giving judgment as stated.

      A. G. & H. T. Brown, for plaintiff in error,
    insisted that the description was sufficient to cover the land which was in fact delinquent ; but in case it should be held that the description defines 150 acres in a square form in the north-west corner of the section, then the judgment of the 'district court would be erroneous; for, under that construction, 75 acres of the 115 would have been embraced within the square, leaving but 40 of the 115 acres out of it; and that in either case the judgment of the district court was erroneous.

      Welch & Jewett, for defendant in error.

      Mr. Welch submitted an argument, in which he insisted that the description “ 150 acres north-west,” defines a square in the corner; and that, as the law required the advertisement to give a “pertinent description” of the land, and the tax charged against it, the advertisement was subject to this dilemma: The tax was charged on one tract — 150 acres, of an E shape, and another tract — 150 acres, of a square shape — was advertised as delinquent. Either the wrong tax was assessed, or the wrong land was advertised.
   J. R. Swan, J.

When land is described in a deed or other instrument as a certain number of acres, situate in the corner of a designated tract, the description would be wholly defective, unless certainty could be given to it by legal construction. It has, therefore, been held, in order to sustain such description, that it means a square. Applying this rule of construction to the duplicate in the case before us, there was an assessment of taxes upon 150 acres of land, situate in the north-west corner of section No. 36, in the form of a square. Such square was assessed with taxes, which should have been assessed upon 150 acres shaped like an E; and the square included lands not within the bounds of the last mentioned premises. Penalties for the non-payment of taxes, upon premises without the bounds of the square, and which were not assessed with taxes at all, have been laid upon the square; and the square has been sold to pay these unauthorized taxes and penalties. It is therefore clear, that the fact that a part of the 150 acres, intended to be assessed, being within the limits of such square, affords no ground for a recovery of that part of the 150 acres which fall within the limits of a square. It would be permitting one part of a tract of- land to be assessed, and sold with penalties and interest for the taxes of another portion,not assessed.

If we reject the rule of construction by which the description of the land is held to be a square, what other shall be adopted to find the land described on the duplicate ? Proof that the person named as owner, in fact owned 150 acres somewhere in the northwest part of the section, has never been permitted or recognized as a mode of helping out a defective description in a tax duplicate."

The 115 acres claimed by the plaintiff, so far as the tax duplicate describes it, might as well be in the form of a V as of an E. A portion of the tract is nearer the south-west than the northwest corner. There is nothing in the tax duplicate description by which the 115 acres could be found. This defect- is fatal to the tax title. It is said that it is impracticable for the auditor of the county to give such description of sub-divisions of land as that they may be found. This may be true; and, it is also true, that the courts of this State have, ever since their organization, required such description, to render a tax sale valid; and that the general assembly, advised of this by reported adjudications, have not interfered by legislation with the rulings of the courts upon this subject.

In many, perhaps in all cases, the auditor of a county could make brief references upon the duplicate to plats and records in his office, so that the same might form a part of the description in the duplicate, and thus avoid a common objection to tax titles.

Judgment below affirmed.


author: Brinkerhoff, J.

text:
    William B. Lloyd v. Samuel Quimby.
    L. executes to Q. a mortgage containing full covenants of warranty to secure the payment of $625, payable in installments. Part of the installments being due and unpaid, and pending proceedings for foreclosure and sale, by agreement of parties, a decree of simple foreclosure is entered, and the notes evidencing the debt surrendered. Subsequently Q. is evicted under a prior mortgage, hitherto unknown to either party, executed by L.’s grantor. Held:
    1. The mortgage to Q. is not merged or in any way affected as a conveyance by the decree of foreclosure; its covenants of warranty remain in full force and vitality; and an action against L. may be maintained on them.
    2. Q. was not bound to discharge the prior mortgage, but might well rely on the covenants of warranty.
    3. The rule of damages, where the eviction goes to the entire estate, is the amount of the debt with interest, discharged by the foreclosure.
    In error to the District Court of Cuyahoga county.
    The facts and questions in the case are stated in the opinion of the court.

      C. Stetson, for plaintiff in error.

      Mason & Estep, for defendant in error.
   Brinkerhoff, J.

This is a petition in error, filed by leave in this court, to reverse the judgment of the district court of Cuyahoga county, rendered at its October term, 1854, in favor of the defendant in error against the plaintiff in error. The facts of the case are substantially as follows :

In the year 1839, William B. Lloyd executed his deed of mortgage, containing full covenants of seizin, warranty, and against incumbrances, for the nominal consideration of one dollar, but really to secure the payment in installments of $625, to Samuel Quimby, on 661 acres of land in Lorain county. A part of the installments having become due, and all being unpaid, Quimby, in 1848, filed in the common pleas of Lorain county his bill in chancery for the foreclosure of his mortgage ; and thereupon, in pursuance of an agreement between and by consent of parties, a decree of foreclosure simply, without sale, extinguishing Lloyd’s equity of redemption in the premises, was entered in said court; and thereby the debt, for the security of which the mortgage had been executed, was, by agreement of the parties, considered as discharged, and the notes by which it was evidenced were surrendered. ,

In 1845 proceedings were commenced upon a prior mortgage hitherto unknown to both parties, which had been executed on the same premises by Lloyd’s grantor, to one Dodd; and under this proceeding the land was sold and Quimby evicted. The amount due on Dodd’s mortgage was some $355, and the land was sold for less than that sum.

In 1853, Quimby brought his action against Lloyd on the covenants contained in his mortgage ; the district court rendered judgment for the amount which the mortgage was given to secure, and interest; and it is to reverse this judgment that this petition in error is filed. And it is claimed in behalf of the plaintiff in error—

1. That, on this state of facts, no action can be maintained by the mortgagee against the mortgagor for any breach of the contract contained in the mortgage, for the reason, as is alleged, that, on the foreclosure of the mortgage, it was merged in a higher title than any which it conveyed.

Now what was the effect of the decree of foreclosure, taken in connection with the agreement of the parties in pursuance of which it was entered ? Its effect was,- first, to satisfy and discharge the debt to secure which the mortgage was given; and the decree would, doubtless, operate as a bar to any future proceeding on the mortgage to enforce a payment of the debt. But did the decree operate as an extinguishment or merger of the mortgage as a conveyance, or affect in any way the obligations of the covenants it embraced ? If it did, then where was Quimby’s evidence of title ? The decree furnished none ; for that, by its terms, merely foreclosed and extinguished Lloyd’s right in equity to redeem. The decree conveyed no title; and if the mortgage, regarded as a conveyance, was merged by the decree, there was left to Quimby no subsisting evidence of title whatever.

The mortgage itself, from the moment of its execution, conveyed to Quimby an estate in fee simple as against the mortgagor, on which he might have maintained ejectment against him; nothing was left in the mortgagor except his equity of redemption ; and that, and that only, being extinguished by the decree, we think the mortgage, from thence forward, stood as an absolute conveyance in fee, with all its covenants in full force and vitality. The case of Lockwood v. Sturdevant, 6 Conn. R. 373, is substantially analogous to, and covers all the points arising in the case before us; and we have been able to find no case which at all conflicts with the principles which we think there well settled. In that case, Hosmer, C. J., delivering the unanimous opinion of the court, says :

“ Mortgage deeds generally, if not universally, are secured by covenants of title ; and the equity of redemption is extinguished by release or foreclosure. In the event of a release from the mortgagor, it cannot be presumed to have been the intention of the parties to extinguish the mortgage title ; and in both events, of release and foreclosure, it would be unjust and inconvenient to hold this as legal doctrine. The title to the estate may be found fatally defective; and of this the case under discussion is a full illustration. That the debts secured by the mortgage should be faithfully paid, was the intention of both parties ; and to this end the reléase was executed and the note given up. The mortgage title, guarded by covenants, is the plaintiff’s only security ; and it would be flagrantly unjust, and in opposition to general convenience, to hold that the title by mortgage should merge, and the plaintiff be remediless. Upon the same principle, on decree of foreclosure, the mortgagee would be without remedy, if his title should prove defective.”

Counsel attempts to draw a distinction between a decree of foreclosure in this State, and such a decree in Connecticut and elsewhere. In this he is quite unsuccessful, so far as concerns the object and effect of the decree. Our courts prescribe terms on which alone such decree may be taken, different from any known to most other courts, to wit, that two-thirds of the appraised value of the mortgaged premises shall not exceed the debt; but the object and effect of the decree is the same every where, and that is, simply the extinguishment of the equity of redemption.

2. It is claimed for the plaintiff in error, that, admitting a right of action, the measure of damages is the nominal consideration expressed in the conveyance — which, in this case, is one dollar. No authority is adduced in support of this proposition; and, on principle, it does not commend itself very strongly to our judgments.

It is claimed,

3. That, admitting a right of action to exist, the recovery of the grantee in the mortgage must be limited to the amount of the prior incumbrance ; because the grantee might have discharged the incumbrance, and thus have prevented an eviction.

It is true, the grantee, while the prior mortgage remained only an incumbrance, might have discharged it, if he possessed the pecuniary ability, and thus have saved himself from eviction ; but then, so- might the grantor; and the grantee, whether able or willing, or not, was in no way bound to do it, and had a right to expect that the grantor would do it — while he, the grantor, was bound to do it — bound by the obligations of his express covenant. Miller v. Halsey, 2 Green’s Rep. 48. Nor can the mutual ignorance of the parties, up to the time of the commencement of proceedings on the prior mortgage, of the existence of that mortgage, at all alter the case. The obligation of covenants of warranty cannot depend on the knowledge, or want of knowledge, of the parties to the covenants. If it could, covenants of warranty would be of little avail; for one of the leading inducements to the requirement of such covenants is, that they may serve as a safeguard against possible ignorance of his own title on the part of the vendor. If a grantor, then, in violation of his covenants, suffers an incumbrance to ripen into a paramount title, and the eviction of his grantee from the entire estate follows, he becomes liable on the covenant of warranty for the full amount of the purchase money and interest, which, in this case, is the amount of the debt discharged by the decree of foreclosure; such being the rule of damages settled in King v. Kerr’s Administrators, 5 Ohio Rep. 155, and prevailing generally in this country.

Judgment affirmed.


author: J. R. Swan, J.,

text:
    J. W. Abernethy et al. v. The Wayne County Branch of the State Bank of Ohio.
    A difference of opinion between the jury and this court, upon a question of motives and intents to be inferred from facts proved, and where the verdict involves the forfeiture of a debt, is not sufficient ground for this court to set aside the verdict.
    In error to the District Court of Knox county.
    The original action was brought by the defendant in error on a bill of exchange for one thousand dollars, dated May 9th, 1850, due in sixty days, and payable at the Bank of North America, Philadelphia.
    The defense set up was, that the bill was void, under the provisions of the 61st section of the charter of the bank. That section is in these words:
    “ Every banking company deriving any of its powers and privileges from this act may take, reserve, receive and charge, on any loan or discount made, or upon any note or bill of exchange, or other evidence of debt, at the rate of six per centum per annum on the amount of any such note, bill of exchange, or other evidence of debt, so discounted, and no more: Provided, however, that interest may be received, or taken in advance, at the time of making the loan or discount, according to the usual rules, or as calculated in Rowlett’s tables ; and the knowingly taking, reserving, or charging on any debt or demand payable to such company, of a rate of interest greater than that allowed by this section, shall be held and adjudged a forfeiture of such debt or demand; but the purchase, discount, or sale of a bill of exchange payable at another place than the place of such purchase, discount or sale, at the current discount or premium, shall not be considered a taking, reserving, or receiving interest: Provided no agreement or understanding shall be made that the same shall, be paid at any other place than that at which it is made payable.” Swan’s Stat., page 99.

      The case was tried to a jury, at the May term, 1854, of the district court, and resulted in a verdict for the defendant in error.
    Thereupon the plaintiffs in error filed a motion for a hew trial, upon the ground that the verdict was against the evidence and the law of the case. The motion was overruled.
    The error relied on is, that the district court erred in not granting a new trial.
    On overruling the motion for a new trial, a bill of exceptions was taken, embodying all the evidence.
    From this it' appears that the loan was originally made October 20,1848, and that it was renewed from time to time — sometimes with a change of sureties — until the bill in suit was given.
    The first evidence of debt given to the bank was a single bill for $1,000, dated October 20,1848, made by J. W. Abernethy, S. Abernethy, John H. Cox, and E. Tegarden, due in sixty days, and payable at the bank.
    About the time this bond matured, S. & J. W. Abernethy, the principals in the bond, wrote to the bank in regard to it.
    Their letter was not in evidence, but the reply of the bank thereto is as follows :
    “ The Wayne Co. Branch Bank, )
    “ Wooster, Dec. 13th, 1818. )

      “ Messrs. S. & J. W. Abernethy :

      “ Gents : — Yours of tke 11th inst. has been duly received. This bank, as a general rule, requires notes that run four months to be paid in an eastern draft, or its equivalent. Although your bond is for sixty days, and payable here, yet if discounted so as to make four months, the directors think it should come under the same rule. The discount, if continued, will be $10.67. No new note necessary.

      “ I am, very respectfully,
    “ Your ob’t servant,
    “E. QUINBY, Je., Cashier.»

    This bond was continued sixty days after maturity.
    After the four months had expired, and on the 23d of February, 1849, this first bond was taken up by a new bond, made by the same parties, at sixty days.
    This second bond was paid by a bill of exchange of the date of April 27,1849, for one thousand dollars, at sixty days, drawn on blank, and payable at blank, and made by the two Abernethys and Oox, and the present defendant, J. Weldon. At maturity, the current rate of exchange (about 1J per cent.) was charged and paid, (in addition to the six per cent, interest reserved,) as the cashier of the bank in his deposition says he thinks, and as a letter from him to J. W. Abernethy, of date of July 2d, 1849, tended to show.
    This bill was paid by a bond made by the same parties at sixty days, payable at the bank, and dated June 29, 1849.
    . At the maturity of this bond, a second bill of exchange, made by the same parties, and dated August 31,1849,®at sixty days, was executed in payment. This bill was made payable at the Bank of North America, Philadelphia, but, like the other, the name of the drawee was in blank.
    This bill was never sent to the Bank of North America for collection. It was paid at the counter of the bank, and exchange was charged and received on it.
    In payment of this bill, a bond, dated Nov. 2,1849, at sixty days, was executed by the same parties, and paid by a third bill of exchange, dated January 4, 1850, at sixty days, payable at the Bank of North America.
    In this bill, also, the name of the drawee was in blank. It was never sent to Philadelphia or elsewhere for collection, and exchange was charged and paid on the same.
    The cashier Avas unable to state how the blanks in the bills were to be filled up.
    It was paid by a bond of the same parties, dated March 9th, 1850, at sixty days, which last bond was paid by the bill in suit, executed by the two Abernethys and Weldon and H. Myers.
    This bill was never sent away for collection, but retained by the bank until maturity.

      Sapp & Smith, for plaintiffs in error:
    The verdict is most manifestly against the evidence.
    In the case of Curtis et al. v. Jackson, 13 Mass. 507, the court say “ that if the verdict be clearly against the weight of the evidence, justice undoubtedly requires the interposition of the court.” See also Webb et al. v. Pro. In. Co., 6 Ohio Rep. 472.
    A verdict which is clearly against evidence, will be set aside, and a new trial granted.

      Wells v. Waterhouse, 22 Maine 131; Corlies v. Little, 2 Green 373 ; Munn v. Gardner, 3 Brevard 31; Hudson v. Williamson, 3 Brevard 31; McBride v. Whitehead, Geo. Decis., 'Pt. 1, 165; Childress v. Stone, lb., Pt. 2, 157 ; Jenkins v. Whitehead, 1 Smed. & Marsh. 157 ; Scott v. Brookway, 7 Mass. 61; Wait v. White, 5 Pike 640 ; Gibson v. Gibson, 9 Yerg. 329 ; Cassell v. State, 4 lb. 149 ; McCoy v. Martin, 4 Dana 580 ; Tiffin v. Forrester, 8 Mass. 642 ; Shobe v. Morris, 6 lb. 489; Brown v. Handley, 7 Leigh 119 ; Mahan v. Johnston, 7 lb. 317; Yale v. Yale, 13 Conn. 185; Wendal v. Safford, 12 N. Hamp. 171; Thomas v. Hatch, 3 Sumner 170.

      H. B. Curtis & Scribner, for defendant in error.
    The verdict is not clearly.against the evidence. This is not one of those cases in which a court is justified in controlling the finding of a jury upon the facts. French v. Millard, 2 Ohio St. Rep. 45 ; McGatrick v. Wason, 4 Ohio St. Rep. 556 ; 1 Sumner’s Rep. 472; Blagg v. Phoenix Ins. Co., 3 Wash. C. C. Rep. 58 ; Johnson v. Davenport, 3 J. J. Marsh. 391; Clark v. Whitaker, 19 Com. 330.
    Courts never grant a new trial, in order to give a second chance of success to defendants setting up an unconscionable, or hard defense.
    The defense in this case is unconscionable, and is an attempt to establish a forfeiture. “ Forfeitures are odious to the law, and are never favored.” Farewell v. Chaffey et al., 1 Burr. Rep. 54, and cases there cited; Smith v. Page, 2 Salk. 644.
    In penal and hard actions, and actions vindictive in their nature, a new trial will not be granted after a verdict for the defendant. Seymour v. Day, 2 Str. 899; Mattison v. Alanson, Id. 1238 ; Smith v. Frampton, 1 Ld. Raym. 62 ; S. C. 2 Salk. 644; anonymous, 2 Salk. 544; Sparks v. Spicer, Id. 648; Dunkly v. Wade, Id. 653 ; Farewell v. Chaffey, 1 Burr. 54;
      Reaveley v. Mainwarring et al., 3 Burr. 1306; Norris v. Tyler, Cowp. 37; Jarvis v. Hatheway, 3 John. Rep. 180 ; Reiter v. Whipple, 8 John. Rep. 287 ; Hurtin v. Hopkins, 9 John. Rep. 36 ; Steel v. Roach, 1 Bay. 63 ; Tagert v. Hill, Taylor 277 ; Jervis v. Hall, 1 Wils. 17; 3 Wils. 59 ; Brook v. Middleton, 10 East’s Rep. 268. See also, 11 Wend. *329 ; 3 Paige Ch. 439; Hurtin v. Hopkins, 9 Johns. Rep. 36 ; lb. 37, note a. The case of Mansfield y. Wheeler, 23 Wend. 79, is exactly in point.
   J. R. Swan, J.,

delivered the opinion of the court.

The verdict in this case depended upon the opinion of the jury as to the designs and motives of the officers of the bank, in the various transactions detailed.

A difference of opinion between the jury and this court, upon a question of motives based on circumstantial evidence, and where the verdict involves a forfeiture of a debt, is not sufficient ground for the court to set aside the verdict. We should have been better satisfied with the verdict had it been for the defendants below ; for we incline to the opinion that the bills of exchange executed alternately, every one hundred and twenty days, were devices to obtain more than six per cent, on the loan to defendants below. And we should incline to that opinion, although satisfied that it was carefully understood by the bank that there should be no express agreement that the paper should be paid at the counter of the bank, inasmuch as it was regularly paid there with the “ equivalents.” Besides, it appeared from the testimony of the cashier that even he did not know upon whom the bills were drawn, or whose name as drawee was to be inserted in the bills. Indeed, it may have been quite immaterial to the parties whether the bills were drawn on a fictitious person or upon nobody, as acceptance, demand of payment, protest and notice of non-payment were all waived; and there was no drawee: the substance of the transaction seems to have been the equivalents.” We should have therefore differed in opinion from the jury ; but that difference does not, for the reasons before mentioned, authorize us to disturb the verdict.

Whether a loan untainted by usury when made, will be forfeited by a subsequent stipulation or receipt of usurious interest upon it; and if it will not, whether the discount of each bill or note on a single loan is a distinct transaction, it is not necessary to determine.

Judgment lelow affirmed.