author: Caldwell, J. Spalding, J.,

text:
    Alfred F. Cumpston v. William Lambert.
    Where a justice of the peace called upon a person to assist a constable in making an arrest upon a capias ad satisfaciendum, stating that such arrest was lawful, and promising to indemnify such person, for assisting to make the arrest and prevent a rescue, and it turned out that the arrest was illegal, and a judgment had been recovered against the person assisting, for the trespass; Held, that the justice was not liable on his promise of indemnity — the contract being for the performance of an illegal act.
    This is a writ of error to the Supreme Court for Lawrence county.
    The original action, which was commenced in the court of common pleas of that county, was in assumpsit. The action was brought by Cumpston' against Lambert. The declaration contained nine counts. The defendant demurred to all the counts, and the court of common pleas sustained the demurrer. The case was taken to the supreme court on and' the judgment of the court of common pleas affirmed. This writ is prosecuted to reverse the judgment of the supreme court, the error complained of being that this court affirmed the judgment of the common pleas.
    The first count of the declaration charges, in substance, that the defendant was a justice of the peace ; that, as such justice, he assumed and pretended to have lawful authority to command and direct the arrest of one William Razor, then present before him; that he did command the plaintiff and other persons to arrest said William Razor ; that in pursuance of said command, said plaintiff and said other persons had arrested said Wm. Ra zor, and was detaining him in custody, when one John Razor in terfered, and attempted forcibly to rescue said Wm. Razor; that thereupon, the defendant, as justice of the peace, directed the plaintiff to lay hold of John Razor to prevent the rescue, and promised to indemnify him for so doing; that the plaintiff, believing, as he reasonably might, the arrest to be lawful, and relying on the promise of indemnity, obeyed the command; that the arrest was in fact unlawful for want of authority in the defendant to make it; that afterwards said John Razor brought suit against both plaintiff and defendant, and the other persons who assisted in making the arrest, and recovered damages against them; all of which damages plaintiff has been compelled to pay; and that the defendant refused to indemnify him.
    The second count charges, that the defendant, being an act ing justice of the peace, assumed to have authority to command the arrest of Wm. and John Razor, then present before him ; •that said defendant commanded the plaintiff and others to arrest said Wm. and John Razor, and promised to indemnify him; that the plaintiff, believing the command to be lawful, and relying on .the promise of defendant, did assist in arresting said Wm. and John Razor. The averment of the unlawfulness of the arrest, the damage, and breach, is the same as in the first count.
    The .third count is substantially like the second, the command being to arrest John Razor only.

      The fourth count charges, that one James A. Sherman, being a constable, assumed to have authority, by virtue of a writ of ca. sa. which he pretended to have from under the hand and seal of the defendant, a justice of the peace for said county, to direct the arrest of .Wm. Razor; and said Sherman, as such constable, had arrested and was detaining in custody said Wm. Razor, when one John Razor was endeavoring forcibly to rescue said Wm. Razor from the custody of said constable; that the constable commanded plaintiff, with others, to lay hold of and arrest said John Razor to prevent the rescue, and the defendant promised to indemnify plaintiff, for so doing; that plaintiff believing the command to be lawful, and relying on the promise of defendant, assisted in arresting John Razor, to prevent him from rescuing Wm. Razor. The averment of the unlawfulness of the arrest, and the damage and breach, are the same as in the first count.
    The fifth count charges, that one James A. Sherman was an acting constable, and the defendant was an acting justice of the peace in Upper Township in said county. That said constable pretended to have authority, by virtue of the command of said defendant as justice, to direct the arrest of Wm. and John Razor; that he commanded plaintiff to assist him in making the arrest; that the defendant promised to indemnify him for so doing; that the plaintiff believing the arrest to be lawful, as he reasonably might, and relying on the promise of defendant, did assist the constable. The averment of the unlawfulness ot the arrest, and the damage and breach, are the same as in the first count.
    The sixth count is the same as the fifth, only the command •was to arrest John Razor alone.
    The seventh count charges, that in consideration that the plaintiff would, at the special instance and request of the defendant, assist one James A. .Sherman to arrest one John Razor, then present before said James- A. Sherman, being then and there an acting constable, and having then and there commanded the plaintiff to assist him in making said arrest, the said defendant promised to indemnify the plaintiff from all loss or damage by reason thereof; that the plaintiff, believing the arrest to be lawful, and relying on defendant’s promise, did assist said constable in making the arrest. The damages and breach are the same as in the first count.
    The eighth count charges, that in consideration that the plaintiff had, before that time, at the special instance and re quest of defendant, assisted one James A. Sherman, then ane there an acting constable, to arrest one Wm. and John Razor the defendant promised to indemnify the plaintiff from all loss by reason thereof. Damage and breach as in first count.
    The ninth count charges, that in consideration that the plaintiff had before that time, at the special instance and request of defendant, assisted one J. A. Sherman to arrest and detain as a prisoner one John Razor, the defendant promised to indemnify the plaintiff from all loss by reason thereof. Damage and breach the same as in first count.

      J. F. Wheeler, for plaintiff in error,
    Contended that, though there was no contribution between joint trespassers as a general rule, yet it was a rule that admitted of exceptions. That where the act to be performed might have been lawful, and the illegality thereof was unknown to the promisee at the time of performing the act, the promise of indemnity is valid. And that this is particularly and,necessarily so, when the command to do the act was given and the promise of indemnity was made by an officer who has a right to call in assistance in the discharge of his duties, he cited Adamson v. Jarvis, 4 Bing. Rep. 72; 1 Esp. N. P. (1 Am. Ed.) 91; Betts v. Gibbons, 2 Adol. & Ed. Rep. 57; Coventry v. Barton, 17 Johns. Rep. 144; Stone v. Hooker, 9 Cowen’s Rep. 154; Avery v. Halsey, 14 Pick. Rep. 174; Allaire v. Ouland, 2 Johns. Cases 54; Musson v. Fales, 16 Mass. Rep. 331; Fletcher v. Harcourt, Winch. 48; Doty v. Wilson, 14 Johns. Rep. 881; Pow. on Con. 177; 1 Com. on Con. 31; Stephens N. P. 322; Chit, on Con. 503; Cowp. 343; 1 Vin. Ab. 229, Pl. 27; Buller’s N. P. 146; Bathurst’s N. P. 136; 1 Ch. Pl. 84; 2 Greenl. Ev. sec. 115; 1 Bac. Ab. tit. assumpsit, E.

      Simeon Nash, for defendant,
    Insisted that all the cases cited in which a promise of indemni ty had been enforced, were cases involving the assertion of a right to real or personal property; that the distinction was founded in reason and was recognized by the authorities.
    It was further insisted, that the promise was void for want of consideration in this: that inasmuch as peace officers have authority to call for aid in the discharge of their duties, persons are bound to obey. If the aid demanded was in the discharge of a legal duty, it was a contract to pay one for doing his duty, and therefore void. If it was to aid in an illegal act, then the contract was void, as against public policy. He cited 7 Com. Dig. 543; 5 Wharton’s Rep. 437; 1 Leigh’s N. P. 39; 2 Burr. Rep. 924; 2 Camp. Rep. 317; 1 B. & A. Rep. 950; Addison on Con. 22; 1 Caine’s Rep. 104; 12 Ohio Rep. 281.
   Caldwell, J.

The simple question, arising on this record, is whether a promise of indemnity of this kind is valid ?

The general rule on the subject is, that agreements to perform, or indemnify for the performance of, unlawful acts, are void. Another rule,' of a kindred character, is, that there can be no contribution between wrong-doers.

There are, however, exceptions to these rules, where a contract of indemnity has been held good, notwithstanding the act done, which formed the consideration, was illegal, and the person doing it liable to the party injured, on the ground that the party doing the act did not know of its illegality, and might reasonably have believed it to be legal.

It is contended by the plaintiff’s counsel that this case comes within the exception, and we have been referred to a number of cases which are said to be analogous to the present; where the contract for indemnity was held to be valid. We think, how ever, that none of the cases referred to are similar to the present one.

The case of Coventry v. Barton, 17 Johns. Rep. 144, is relied on. That was a case where the person indemnified was called on by the overseer to work on the highway, and ordered to remove a gate that stood across the road, and a promise of indemnity was given him by the overseer. On a recovery against him in trespass, he was permitted to recover on his contract of indemnity against the overseer. That case differs from the present one in this, that it was a trespass to property, whereas this was a direct assault on the person; that was a case where the person committing it, at the time was engaged in doing (what he was told to do, to wit,) work on the roads, under the direction of the overseer, who was supposed to know what was to be done, and who, for the time being, had the right to control his labor. The same may be said of the most of the cases cited. They are cases of trespass to real property, where the person committing the trespass, and receiving the indemni ty, was engaged in his usual occupation under the direction of the person who indemnified him.

The case of Fletcher v. Harcourt, however, is said by counsel to be strictly analogous to the present. That was the case of an innkeeper who kept in his inn during the night, a prisoner who was brought to his house by the sheriff, who had arrested him on a commission of rebellion, the sheriff promising to indemnify him. On a recovery had by the prisoner against the innkeeper for false imprisonment, it was held that he could recover against the sheriff on his promise.of indemnity. Although a false imprisonment may be supposed to contain an assault on the person, it does not necessarily imply the use of actual force. In this case the innkeeper did not assist in the first instance in depriving the prisoner of his liberty — he had nothing to do with the arrest, but in the course of his business a prisoner is brought to his house. His business compels him to keep such persons as stop at his house; it is his duty to keep prisoners as well as others, who must have some place to lodge, and who have to receive the necessaries of life in their transit from one point to another. Humanity, if nothing else, would require the innkeeper to receive him.

We have seen no case where it has been held that a contract to deprive a person of his liberty, in the first instance, or to commit an actual assault on the person, where such arrest or assault was illegal, has been held to be binding. We do not suppose that such case comes within the rule, except in cases where the person committing the arrest is an officer whose duty it is, in a proper case, to arrest persons, and who acts by some supposed legal authority.

We do not think that the fact that the plaintiff in this case acted under the direction of a justice will at all avail him for doing an illegal act. Most of the tyranny and cruelty that has been practiced in the world over the persons and property of men, has been done under some kind of official sanction. I could much sooner sympathize with a person that had committed an illegal act on his own responsibility, than with one who did it because he had the backing or countenance of official power. If a person (as the plaintiff in this case did) commits an assault on another, either for the purpose of depriving him of his liberty, or to hold him in custody after he has been taken prisoner, he should be satisfied that such interference is legal, otherwise he should heed the consequences.

We think that this contract of indemnity comes under the general rule that a contract to do an illegal act is void; and therefore affirm the judgment of the supreme court.

Spalding, J.,

dissenting. I dissent from the opinion expressed in this case by a majority of the court.

The fourth count, in my judgment, makes a case which, if supported by proof, will entitle the plaintiff to a recovery.

It is admitted that an agreement to indemnify for the performance of an unlawful act cannot, in general be enforced:' “ As where the defendant in consideration of 20s. assumed to pay 40s. if he did not heat J. S. out of such a close.” 2 Leo 174.

“ But the act to be done must appear unlawful at the time, otherwise the promise will not be void.” Buller’s Nisi Prius 146.

Thus, where Harcourt brought one Battersey to an inn, and affirmed to the host that he arrested Battersey by virtue of a commission of rebellion, and requested the host to keep him safely over night, and promised to save him harmless, the promise was held to be binding, though the arrest and imprisonment were illegal. Story on Contracts, sec. 206.

It is said in 1 Viner’s Abridg. 299, that in commenting upon this case Hobart, C. J., said, “ it may be there is a difference between a public officer and a private man; for if the sheriff arrest a man unlawfully, and promises as before, this is a good assumpsit.”

In the case of Avery v. Salsey, 14 Pickering 374, it was held that a promise of indemnity made to the plaintiff by a person in no wise interested in the property upon which the trespass was committed, was binding; as the danger incurred hy the promisee was a valid consideration for the promise.

•In Coventry v. Barton, 17 Johnson 142, Judge Spencer after an examination of the authorities, lays down the rule “ that if the act directed or agreed to be done is known at the time to be a trespass, an express promise to indemnify would be illegal and void; but if it was not known at the time to be a trespass, the promise of indemnity is a good and valid promise.”

It is said, however, by my learned brethren that this rule must be confined to cases of indemnity for trespasses upoD property.

I can find no adjudged case that sanctions any such distinction, and I can see no propriety in adopting it in the present case.

The act which the plaintiff was called on to perform was to all appearance lawful. He was requested to lend his aid in preventing a forcible rescue from what was claimed to be a legal arn:st; he hesitated to do so, and was told by the magistrate who Issued the execution that he should be indemnified against harm, I yield my assent to the doctrine laid down in the American Jurist, vol. 4, page 276, that “ignorance of the moral quality of actions, or of the law relating to offenses, will not excuse a breach of law, nor render legal an engagement to save an offender harmless in consideration of his committing a punishable offense

But in the case under consideration, the plaintiff did not commit a punishable offense. However much he may have subjected himself to damages for false imprisonment, he could not have been found guilty on an indictment for an assault and battery. The criminal intent is wanting.

If the writ in the hands of the constable had been legally issued, as it was claimed to have been, then the plaintiff would not have committed an unlawful act by interfering to prevent the rescue. The defendant undertook to be answerable for its legality, and promised to indemnify the plaintiff. I am at a loss to see how we are to prevent usurpation, or oppression in office, on the part of magistrates, by holding the promise of indemnity made by such a magistrate to be void, and by ruling that his innocent dupe shall suffer the whole penalty of the law.

I am of opinion that the demurrer to the fourth count should have been overruled, and consequently that the judgment of the common pleas was erroneous.


source: Caselaw Access Project

author: Hitchcock, C. J.

license: Public Domain

text:
    John Smith v. The State.
    In a suit in the name of the state against an individual to recover a penalty incurred by a violation of the canal law, a collector of tolls, who has instituted the prosecution, is a competent witness, notwithstanding he may be liable in damages to the party aggrieved, where he has commenced the suit without probable cause.
    Tnis is a writ of error to the Court of Common Pleas of Atbms county.

      The original action was debt in the name of the state against the defendant below to recover a penalty for a violation of the canal laws.
    The particular violation complained of is set forth explicitly and at full length in the declaration.
    To the declaration the defendant below pleaded nil debit.
    The case was submitted to the court at the August term thereof, 1848, and the'court found the issue joined against the defendant, and rendered a judgment accordingly.
    After the finding of the issue by the court, the defendant moved for a new trial, which motion was overruled.
    The defendant then tendered a bill of exceptions, which was signed, from which it appears that the prosecution was com menced at the instance of one James E. Price, who was called by the counsel for the prosecution to testify on the part of the state. The witness was objected to by the defendant, on the ground of his interest in the event of the suit.
    The objection was overruled and the witness examined, and this is the alleged error on the part of the court of common pleas.

      Jewett, Hanna, and Smith, for plaintiff in error,
    cited the following authorities: Edmonds v. Lowe, 8 B. & C. Rep. 407; 1 Greenl. Rep. 386; 14 East’s Rep. 565; 16 Johns. Rep. 70; 2 Greenl. Rep. 199; 1 Stark. Rep. 148; 1 Holt 390.

      Henry Stanbery (attorney general), and Horace Wilson (prosecuting attorney), for defendant, contended,
    1. That a witness was not incompetent unless he would gain or lose directly by the result, or unless the record would be evidence for or against him in some-other action. Greenl. Ev. 434.
    2. That the interest, to disqualify, must be legal and certain, not equitable or contingent.

      3. That the rule claimed by the plaintiff would exclude witnesses in all cases of criminal prosecutions.
    4. That in this class of cases public policy requires that the person commencing the prosecution should be deemed competent to testify, since it is often commenced upon his own knowledge of the facts. Muscot's case, 10 Mod. 194; 1 Stark. Rep. 357; Roscoe’s Cr. Ev. 129, 130.
   Hitchcock, C. J.

It appears from the bill of exceptions that on the trial of this case James E. Price, a collector of tolls upon the Hocking Yalley Canal, and who instituted this suit, in the name of the state, before a justice of the peace, from whose judgment it was appealed to the court of common pleas, was introduced as a witness on the part of the state, and was objected to on the part of the defendant, on the ground that he was interested in the event of the suit. This objection was overruled by the court, and the witness permitted to testify. It is claimed by the plaintiff in error that, in this, the court erred; and the only question now presented for consideration is, whether, in fact, this witness was so far interested as to be incompetent.

It is said by Greenleaf, in his Treatise on Evidence, vol. 1, see. 386, that the interest which disqualifies a witness must be some legal, certain and immediate interest, however minute, either in the event of the cause itself, or in the record, as an instrument of evidence, in support of his own claims, in a subsequent action.” In the next section it is said, “ The interest, too, must be real, and not merely apprehended by the party.” Again, in the 390th section, it is said, “ the true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will .be legal evidence for or against him, in some other action. It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent.” I suppose these principles to be in accordance with the law, and, keeping them in view, will proceed to examine the case.

Before doing this, however, it may be proper to remark that, by the canal laws, it is made the duty of any “ lock tender, col lector, superintendent, engineer, or acting commissioner,” to commence suit, in the name of the state, against any person who may have violated the provisions of those laws, to recover the penalty incurred by said violation. From this it is apparent that Price, the witness, was not a mere volunteer, in instituting the prosecution which is now the subject matter of inquiry. He instituted that prosecution in pursuance of a duty imposed upon him by statute.

It is not claimed by the plaintiff in error that Price had any “ legal, certain, and immediate interest in the event of the cause itself,” in which he was offered as a witness. But it is claimed that the judgment in that case might be evidence for or against him in a suit which by possibility might be subsequently prosecuted against him. The disqualification urged grows out of the provisions of the 135th section of the “ act for the protection of the canals,” etc. Swan’s Stat. 199.

This section provides that “ if any collector, superintendent, acting commissioner, engineer or other person, shall commence any suit or institute any other proceedings under the provisions of this act or any order of the board, and judgment shall be rendered for the defendant in such suit or other proceeding, or discontinued without the consent of the parties, such collector, superintendent, acting commissioner, engineer or other person commencing such suit or other proceeding, shall be liable to the defendant, or any other person interested therein, for all costs, hindrances, delay, and other damages sustained thereby, to be recovered by action on the case, in any court of competent jurisdiction, unless the court or jury, as the case may be, shall be satisfied by evidence produced by the defendant, in the action brought for the recovery of such damages, that there was probable cause for commencing and carrying on such former suit or other proceeding.”

The object of this section is apparent. It having been provided that certain persons in the employ of the state, and charged with certain duties connected with the state canals, should in certain cases institute prosecutions against individuals for violating the canal laws, it was deemed essential that provision should be made to guard against abuse, and to protect individual rights. Therefore it is enacted, in substance, that if any agent of the state, or any other person, shall, without any probable cause, institute a prosecution under those laws, he shall be liable to an action on the case at the suit of the party aggrieved, whether the party so aggrieved was a party to the original prosecution or not; and in such action, the plaintiff is entitled to recover “for all costs, hindrances, delay and other damages sustained thereby.” The prosecutor is not charged with the cost in the original suit by the judgment in that case. Whether he shall be made liable or not, depends upon a subse-. quent prosecution. True, in such subsequent suit, the judgment in the original case might be given in evidence, but that judgment would not of itself render the prosecutor in the original suit liable. His liability depends upon the question whether or not there was probable cause ; hence, this fact must be ascertained from all the evidence in the case. If Price could in any shape be considered as interested in the event of the case in which he was called upon to testify, it was not a “ present, vested, and certain interest,” but “ an interest, uncertain, remote and contingent.” Interest of this latter character is not of that description for which, according to the principle cited from Greenleaf, a witness can be excluded.

The character of the action authorized by the 135th section of the canal laws, assimilates itself very much to the common law action for a malicious prosecution. Now no one ever supposed that the prosecutor in a criminal prosecution should be excluded from testifying, because, perchance, if the prosecution failed, he might be sued for a malicious prosecution. True, if such suit should be commenced, the judgment of acquittal would be an item of evidence in the case. But still, any interest which the prosecutor might be supposed to have on this account, would be too “ uncertain, remote and contingent,” to exclude him from testifying. It is the same in the case before the court, with respect to any supposed interest of the witness Price.

In the opinion of the court, there is no error in the record before us, and the judgment of the court of common pleas is therefore affirmed, with costs.


author: Spalding, J.

text:
    Alexander McLaughlin et al. v. Orange M. Stevens.
    Where the width of a street, marked by right lines, is given in a town plat, surplus land, between the street and the low water mark of a river, is not thereby dedicated to the use of the town
    It is no evidence of an intention to dedicate land to the use of the public, that the original proprietor joins in a petition for a town charter extending the limits of the corporation over such land.
    This is a writ of error to the Court of Common Pleas of Columbiana county.
    The original action was trespass, brought by Stevens against the plaintiffs in error, to recover damages for setting adrift his wharf-boat, which he had fastened to the shore of the Ohio river at Wellsville, in said county.
    The plea was the general issue, with notice that the towD of Wellsville was incorporated by an act of the general as sembly, passed February 6,1833, with power “ to regulate the erection and occupation of all wharfs or levys within the corporate limits of the samethat one William Wells laid out said town of Wellsville, by plat duly recorded in 1823; that said Wells dedicated to the use of said town all his interest in certain lands situate therein, embracing the locus in quo; that the same had been used, controlled and regulated by the authorities of said town, for many years; and that defend ants acted under authority from the town council in committing the acts complained of, etc.
    The case was tried by a jury, at the September term, A. D. 1848.
    Exceptions were taken to the charge of the court; and also on the ground that a motion for a new trial was overruled. The whole evidence is set forth in the bill; from which it appears, chat on the 30th day of November, 1847, the plaintiff below was the owner of a wharf-boat, with which he occupied a portion of the wharf or landing of the town of Wellsville, and had been stationed there for several years, for the purpose of doing a grocery, storage and forwarding business. That defendants on the day, when, etc., entered upon said boat, unmoored her, and floated her down the stream about forty rods, and then fastened her to the shore, at a place unfit for the business in which plaintiff was engaged: no damage was done to the boat or cargo.
    It further appears, that on the 1st day of May, 1847, William Wells conveyed, by deed, a tract of land, including the point'where the boat lay, to Robertson & Reppert, of Pittsburgh, who leased to plaintiff.
    The town council had passed sundry ordinances for the regulation of wharf boats at the landing, and it was for a refusal to take out license, etc., that plaintiff’s boat was removed.

      TJmbstcetter, Stanton $ Wallace, and W K. Upham, for plaintiffs in error,
    Cited Cincinnati v. White’s Lessee, 6 Pet. Rep. 437; Barclay v. Howell’s Lessee, Ibid. 498; Jarvis v. Dean, 13 Eng. C. L. Rep. 46; Rex v. Lloyd, 1 Camp. Rep. 262.

      Mason Potter, for defendant in error,
    Cited State v. Catlin, 3 Ver. Rep. 530; Abbot v. Neff, Ibid 621.
   Spalding, J.

The whole ease is made to turn upon the right to control the river bank, where the boat was originally stationed.

The plaintiffs in error insist that the use was in the town of Wellsville,- by virtue of a dedication made by Wm. Wells, the original proprietor.

If they fail in this, it is conceded that the judgment must stand.

The evidence of dedication is claimed to be as follows:

1. The town plat.

2. The absence of claim, at the sale of lots, to any intervening strip between Water street and the river.

8. The silence and acquiescence of Wells, while wharfs were constructed and improvements were made by the town.

4. The description in the town charter of the corporate lim its as extending “ to low water mark ;” this description having been given by Wells himself, and the charter, granting jurisdiction over the wharfs and levys ” to the corporate authorities, being procured on his own petition.

We have examined and deliberately weighed all the facts and circumstances brought under our notice, by the ingenious counsel for plaintiffs in error; but we fail to discover any evidence of an appropriation by Wm. Wells, or of a user by the town of Wellsville, which will warrant us in saying that the locus in quo was not rightfully in the possession of the plaintiff below, when the alleged trespass was committed on his property.

The recorded town plat, so far from establishing a dedication of the premises by the original proprietor, does, in our opinion, most effectually preclude any such supposition.

It describes “ Water street,” which was along the high bank on which the town was laid out, parallel with the river, and overlooking the same, as being “ sixty-six feet in width.” Between the outer line of this street and the water line of the river, down a precipitous bank, is a distance from one hundred and fifty to two hundred feet — and this is the ground said to be dedicated to the town.

The plat does no purport to bound “ Water street” on the river, but on the contrary, when used in connection with the statements of witnesses, has a direct tendency to confine the street to the top of the bank. The diagram attached to the plat, shows this street to be contained within two parallel lines, with the words “width 66 feet” within the open space, and the outer line is represented as being some considerable distance from the line of the river. Here the counsel for plaintiffs in error commit a mistake in point of fact. The location of Water street, in Wellsville, is not represented in the survey as “ extending the whole breadth, from the first tier of lots, on the inner side of said street, to the river;” but it rather comes up to the supposed case made by Mr. Justice McLean, in Barclay et al. v. Howell’s Lessee, cited by counsel from 6 Peters 498. There is nothing on the plat,” says the learned Judge, “ which shows any limits to the width of Water street, short of the river on the south. If a line had been drawn along its southern limit, there would have been great force in the argument, that the ground between such limit and the water, was reserved by the proprietors. This would have been the legal consequence from such a survey unless the contrary had been shown.” He is speaking of Water street in Pittsburgh. We find that “ Water street ” in Wellsville, has such a line drawn along its southern or eastern limit upon the map.

The counsel would seek to take advantage of the fact, that in the plat of the town “ Main street is marked as 60 feet wide, and Market street is 66 feet- wide; while the intersection of-these streets represents a greater width, doubtless intended as a market, situated on a street the width of which is specified to be 60 feet.” We have read the description of these streets from the recorded town plat, and find it to be as follows: “ Main street is sixty feet in width, except opposite to lots numbered 43 and 59 — 44 and 60, where it is one hundred feet in width.” This is the appropriation of the ground whereon to set a market house, and the dedication is perfect and complete. But there is no such evidence of an intended dedication as to the ground between “ Water street ” and the river.

It does not appear that Mr. Wells set up a distinct claim ta this ground at the time he sold lots on the north or west side of Water street, and we know of no reason why he could be required or expected to do so. The village was laid out entirely upon a high bluff bank. The broken face of that bank, with the river shore, was not appropriated by the survey and plat. The lots sold on “ Water street,” were all bounded on the south or east by that street limited on the map to sixty-six feet in width. The purchasers of those lots may have paid a higher price, for the reason that they would always have an open front towards the river; but they took by their purchase no right to •control the land of the proprietor on the river.

It is said that Mr. Wells was silent and acquiesced, while wharfs were constructed and improvements made by the town. 'This argument is built on a sandy foundation. The town did indeed construct a wharf, and make a road down the bank to the wharf, but where was the right obtained ?

The evidence shows that in 1888, the town applied to Wm Wells- for a grant of some ground on which to erect a wharf, -and he gave a written authority to the town, to use two hundred feet on the river for that purpose. The same land is now ■claimed to have been dedicated, long before this period, to the use of the town.

The only remaining evidence of dedication is the petition for an act of incorporation, which was signed by Mr. Wells, asking that the limits of the town corporate might extend to low water mark.

The only effect of bringing this ground within the limits of the town corporate would be to subject it to increased taxation. The town charter asked for by Mr. Wells, covered much real estate belonging to that gentleman, and it would be a novel claim to start against him, or his heirs, that it was all dedicated to public use when he put his name to the petition.

The charter, when obtained, provided that the town council might have power “ to regulate wharfs and levys,” but the petitioners are not to be held responsible for the terms of the charter.

There is no evidence which brings home to Mr. Wells any knowledge of such provision until the law was enacted; and if he had knowledge that such a clause was to be placed in the act of incorporation, it is difficult to perceive how his right of property in the soil could be affected thereby.

There may be some technical objection to the particular phraseology used by the judge in giving his instructions to the jury, but, on the whole, we are satisfied that the law was well administered on the trial, and that the judgment of the com' mon pleas should be sustained.

Judgment affirmed.


author: Caldwell, J.

text:
    William Laughlin v. The State.
    In a prosecution for a rape, the statements made by the female immediately after the transaction may be given in evidence to corroborate her testimony given in court.
    Where the witnesses in a cause have been ordered by the court, at the request of a party, to withdraw, and one of them remains, in violation of the order, and hears the testimony of the other witnesses, it rests in the discretion of the court whether he shall afterwards be permitted to testify in the case.
    This is a writ of error to the Court of Common Pleas of Columbiana county.
    The plaintiff in error was indicted for rape, and for an assault with intent to commit a rape, and convicted and sentenced upon the latter charge.
    Three bills of exceptions were taken during the progress of the trial. They show that on the trial, the father and mother of the girl on whom it was alleged the injury had been committed, and another witness, were called, to state in corroboration of the girl’s evidence what she had said about the matter, immediately after the crime was alleged to have been committed.
    The introduction of this evidence was objected to by defendant’s counsel; but the objection was overruled, and the testimony admitted, which ruling of the court is now assigned for error.
    The record further shows that before the examination of the witnesses had been commenced, the counsel for the defendant requested that the witnesses for the state should be examined out of the hearing of each other; and that they should be ordered to withdraw from the court room, and that the order was made as requested.
    Notwithstanding this order, Robert Johnson, the'father of the girl, whose name was not on the subpoena as a witness, but who was sworn with the other witnesses before they retired, and who remained in court, seated by the counsel for the state,, and heard the testimony of his daughter and the other witnesses who were examined, was offered as a witness on the part of the state. The counsel for the defendant objected to his being examined, he having, contrary to the order of the court, remained within the bar.
    When -inquired of by the court why he disobeyed the order in remaining within the bar, he stated that he heard the order of the court, but did not understand the meaning of it. It also appeared that Johnson had gone to the room to which the witnesses had retired, and brought them into court as they were severally sent for.
    The court overruled the objection, and Johnson was examined as a witness, and stated the declarations of his daughter immediately after the commission of the alleged offense.
    The ruling of the court in this behalf zs also assigned for error.

      Umbstcetter, Stanton £ Wallace, and William B. Ewing, for plaintiff in error,
    cited the following authorities:

      Parker v. McWilliams, 6 Bing. Rep. 683; Stark. Ev. 1733; Peake’s Ev. 270; 1 Ry. and Moo. Rep. 430; Beamon v. Ellice, 4 Carr. and P. Rep. 585; Arch. Cr. Pl. and Ev. 163; Rex v. Colley, 1 Moo. and Malk. Rep. 320; 1 Ry. and Moo. Rep. 483; Attorney General v. Bulpit, 9 Price’s Ex. Rep. 4.

      Henry Btanbery (attorney general), and John Clark (pros ecnting attorney), for defendant,
    cited the following authorities

      Rex v. Colley, 22 E. C. L. Rep. 325; Rex v. Brown, 19 E. C. L. Rep. 539; Thomas v. David, 32 E. C. L. Rep. 538; Parker v. McWilliams, 19 E. C. L. Rep. 204; Beamon v. Ellice, Ibid. 538; Cook v. Nethercote, 25 E. C. L. Rep. 629; Roscoe’s Cr. Ev. 150; Arch. Cr. Pl. 196; State v. Sparrow, 3 Murph. Rep. 487; 3 Cowen and Hill’s Phil. Ev. 722; 1 Green. Ev. secs. 432, 434.
   Caldwell, J.

The first question raised was decided by this court in the case of Harrison Johnson v. The State of Ohio, (17 Ohio Rep. 593.)

The court in that case decided that the declarations of the injured female,-made immediately after the offense was committed, may be given in evidence, to sustain her testimony given in court, but not as substantive testimony, to prove the commission of the offense. And for this purpose of corroboration alone, we understand from the record, the evidence in the case now before us was received; and that it related only to such declarations as were made immediately after the commission of the alleged offense.

But the most important question arising in the case, and the only one that the counsel for the accused have relied on.in argument, arises on the admission of Robert Johnson, the father of the girl, as a witness.

This is a question of no little delicacy. It relates, exclusively, to the fairness of proceeding on the trial. Much may be said on both sides of the case, and on the part of the accused in this case, many considerations meriting a careful examination have been presented. On the one side, where the order of the court has been made for the witnesses to retire, and be exam ined out of the hearing of each other, if a witness remains in violation of the order, it furnishes strong ground of suspicion that the witness is not fairly disposed in the cause, and that he wishes to avail himself of the testimony of the other witnesses, in order to make his statements as potent as possible, by making them correspond with theirs.

Where, too, a party in interest in the cause, after the order has been made, should procure his witnesses to be present in violation of such order, it is equally suspicious that he intends a similar degree of wrong and unfairness. On the other hand, when we consider the little control that a party can have ovei his witnesses; the little attention he is likely to be able to give to their movements; the crowds and the confusion that generally exist during exciting trials, rendering it impossible to note who are present; the questions that may arise on the trial, that could not be anticipated, and which may require bystanders to be called in as witnesses, who have been present and heard the other witnesses testify, — these and other considerations which might be presented, render it difficult, and we think impossible, to establish any general rule of exclusion that would not in many cases deprive parties of important and necessary testimony, for the fair presentation of their cause. Nor do we find that any such rule has been established in the United States.

The authorities in this country, so far as they go, are against any such rule of absolute exclusion; although we have been able to find but little on the subject. In North Carolina, in the case of The State v. Sparrow, (3 Murphy’s Reports 487) it is decided that the witness may be sworn, although suffered to remain even by design of the party.

Henderson, Judge, in deciding this case, doubted the right to exclude for incompetency, in any case, as a consequence of the witness disobeying the order. But the court say that “ a refusal by either party to comply with an order of separation would make an unfavorable impression, would be fairly open to observation, and go to the credit of the witnesses.”

In Cowen & Hill’s notes to Phillips’s Evidence, vol. 2, page 722, note 501, the author, after reviewing the authorities, appears to arrive at the conclusion that it is a matter of discretion with the judge to exercise the power of exclusion or not.

He says: On the whole, it seems that although the right to exclude witnesses, for willful disobedience of the order, be well established, yet judges are quite cautious of exercising the power. The reason probably is, because a party may in that way, without any fault of his own, be put in very great hazard, by losing important testimony. He cannot prevent the misbehavior of his witnesses.”

In G-reenleaf’s Evidence, page 505, it is said: If a witness remains in violation of the order, it is in the discretion of the judge whether or not he shall be examined.”

In some of the English courts, the rule has been more stringently applied than it has ever been in this country. In the court of exchequer, the rule is said to be inflexible, that a witness who is present and hears the testimony of the other witnesses, in violation of the order, shall not be examined.

Starkey and Phillips both lay down the rule, generally, that under such circumstances the witness will be excluded. Still we would infer from the authorities, so far as we have been able to examine them, that with the exception of the court of exchequer, it is within the discretion of the judge to admit the witness, although he may have been present in violation of the order. In the case of Parker v. McWilliam,, 6th Bing. 683, the court hold that it is “ always in the discretion of the judge to receive a witness who remains in court after an order to withdraw, except in the exchequer, where he is peremptorily exclud ed.” It is certainly a good practice, where a party requests it, to have the witnesses examined separately. And we think (as in the case before us) where the witness is called to testify as to the previous statements of a witness, in order to corroborate the statement of such witness on the trial, it is especially necessary And a rightminded judge will be very careful, particularly in a criminal case, where the defendant is generally in custody, unable to attend to his interests, in seeing that the order of the court is strictly complied with. Still we do not find that any rule has been established, in this country, that would justify this court, as a court of errors, in deciding that it was error in an inferior court to admit a witness who had violated the order, and heard the other witnesses testify. We think the law is the •other way; and that the court of common pleas in this instance had the right, in their discretion, to admit the witness.

Judgment affirmed.


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    Lessee of Allen Latham v. Christopher Oppy.
    Land within the Virginia military district is appropriated by location or entry placed upon the book of entries of the principal surveyor.
    A survey executed 'without a previous entry, or entirely off the land previously entered, does not appropriate the land included within its boundaries.
    A survey so executed is not protected by the act of congress of March 2d, 1807.
    This is a writ of error directed to the Court of Common Pleas of Scioto county.
    The original action was prosecuted to recover the possession ■of a certain tract of land in Scioto county, to which both parties claim title under patents from the United States. The declaration is in the common form, and issue joined upon the plea ■of not guilty.
    The case was submitted to the court of common pleas without the intervention of a jury, upon an agreed statement of facts. Upon the facts agreed the court found the issue joined for the defendant, and. entered judgment accordingly.

      The plaintiff then moved the court for a new trial, which motion was overruled. To the opinion of the court overruling the motion for a new trial, the plaintiff excepted, and by his bill of exceptions the agreed statement of facts is made part of the record.
    To reverse the judgment so as aforesaid rendered, this writ is prosecuted, and the following errors are assigned:
    1. The court erred in finding the issue joined for the defendant upon the agreed statement of facts, and the evidence offered in the case.
    2. The court erred in overruling the motion of the plaintiff for a new trial.
    3. The judgment was given for the defendant, whereas it should have been given for the plaintiff.

      Thomas Scott and O. F. Moore, for plaintiff in error,
    Cited Wallace v. Saunders, 7 Ohio Rep., 1st part, 176; Hoofnagle v. Anderson, 5 Peters’s Rep. 271; 5 Peters’s Rep. 637; 6 Peters’s Rep. 675; 7 Ohio Rep. 210.

      O. 0. Tracy, for defendant in error,
    Cited Hoofnagle v. Anderson, 5 Peters’s Rep. 271; 1 Ohio Cond. Rep. 77, 178, 232, 356, 429; 6 Peters’s Rep. 666.
   Hitchcock, C. J.

This case was submitted to the court of common pleas without the intervention of a jury, and certain facts were agreed by the parties which were to be considered by the court as well as other evidence which might be of force. These facts and this evidence are all embodied in a bill of exceptions, which is.made a part of the record; and as the court of common pleas overruled a motion, made by the plaintiff, for a new trial, on the ground that the finding of the court was against the law and evidence of the case, the question is fairly presented, whether upon the facts the plaintiff was entitled to recover, or whether the finding and judgment of the court of common pleas were right and proper. The land in controversy is upon Brush creek, in the county of Scioto. Both parties-claim title under patents issued by the President of the United States.

The matters in evidence in the court of common pleas,, show the following state of facts, as to the title of the respective parties: So far as the plaintiff’s title is concerned, it appears that on the 26th day of December, 1820, the heirs and representatives of Charles Stewart entered 300 acres of land, on a part of military warrant No. 6308. The entry was made on a branch of Doe run fork, of the east fork of the Miami, and is numbered 10561. Two hundred and forty acres of this entry appear to have been withdrawn. On the 19th of May, 1821,. 84 acres, as a part of entry No. 10561, was surveyed for the representatives of Charles Stewart, on the aforesaid warrant No. 6308, upon the waters of Brush creek, in the county of Scioto. This survey includes the land in controversy.

It will be seen that this survey does not include any part of the land appropriated by entry No. 10561, made on the 26th day of December, 1820. On the contrary, the entry and survey are upon lands in different parts of the district, in different counties, and many miles distant from each other. And it would seem that the first attempt which was made to appro priate this land, was by the survey executed in 1821. It is the same as if there had been no previous entry upon which the survey was made ; for surely an entry upon the waters of the east fork of the Little Miami, cannot be called in aid of a sur vey made upon the waters of Brush creek or of the Scioto.

The survey above referred to was recorded on the 29th day of March, 1826, and was carried into grant by patent to the lessor of the plaintiff as assignee of Stewart’s heirs. This patent-bears date 14th January, 1847. Such is the title of the plaintiff.

On the 9th of June, 1826, John Evans’s assignee entered the land in controversy on part of military warrant No. 6666. number of entry 12766.

This entry was surveyed on the 10th of June, and the survey recorded on the 12th of June, 1826. There is no controversy but that the survey was in exact accordance with the entry. The entry in pursuance of which this survey was executed, was-made by or for the benefit of Andrew Ellison and Matthew L. Cook, and in April, 1827, said survey was, by patent, granted to the said Ellison and Cook. It further appears that the defendant was in possession of this land at the time Ellison and Cook caused entry No. 12766 to be made; that they caused it to be made for his benefit; that he has ever since remained in possession, claiming title; and that the title derived from the government by the patent to Ellison and Cook, is now actually vested in him. Such is the title of the defendant.

From the foregoing statement it is manifest that the title of the defendant is the elder legal title, and must prevail in a court of law, unless it is defective.

Several questions have been argued by counsel which, as it seems to me, are not of much or any consequence in the present situation of the case. Was this an application to the court, as a court of chancery, by the plaintiff to compel the defendant to release his legal title on the ground that the plaintiff .first acquired an interest in the land by an entry and survey anterior, in point of time, to the entry and survey under which the defendant claims, these questions would be of the first importance-They may be so in the present state of the case, but I do not perceive it. As before remarked, the defendant has an indisputable legal title, unless there is some defect in that title.

On the part of the plaintiff, it is claimed that the title of the defendant is not only defective, but that he has no title at all, and that the patent through which he claims is null and void, under the act of March 2d, 1807, or acts similar thereto which have been since enacted. This is true, provided the survey under which the plaintiff claims, was a survey which appropriated the land, and is within the meaning of the act referred to. For it must be remembered that survey was executed in 1821, and was, as far as we can see, subsisting at the time those under whom the defendant claims made their entry and survey, and received their patent. If this survey of the plaintiff was a valid survey, one which in fact appropriated the land, no subsequent locator had any right to interfere with it, and if he attempted so to do, he could acquire no interest, even should he receive a patent. His entry, survey and patent, would be void.

It will not be pretended that by the statute of 1807, any survey was protected unless the same was legal, and subsisting at the time of the subsequent attempted appropriation of the land. Surveys upon warrants which were not granted for military services in the Virginia line upon continental establish ment, are not protected; for the holders of such warrants have no claim to have their warrants satisfied from lands between the Scioto and Little Miami rivers. Surveys upon such warrants would be void; and the proviso of the act of 1807 was never intended to protect void surveys. I suppose it will be unnecessary to cite authorities to prove this position. They are referred to, at least some of them, by counsel, and will appear from the argument. If the survey was valid at the time of its execution ; if afterwards and before a subsequent entry of the same land, it becomes invalid, as for instance, if the survey and the entry upon which it is based are withdrawn or abandoned, such survey is not protected by the provisions of the before recited act. If for any cause, no matter what, the survey is void, this act gives it no vitality, no protection. The act was intended for the protection of defective and irregular surveys, not of illegal and void ones.

It is contended, on the part of the defendant, that the survey under which the plaintiff claims was a void survey, and several reasons are assigned why it should be so considered. The first is that the survey was made without there having been any previous entry, and it is claimed that a survey made under such circumstances, was made without authority of law, and is therefore absolutely null and void.

This objection raises a very important question, and one upon the solution of which the court upon the circuit had doubts, and therefore reserved the case for decision here. This question is, whether a survey, without any previous entry, is protected by the proviso of the act of March 2, 1809. We had hoped that the counsel would 'have been successful in find ing some case in which the point raised here had been directly decided, but no such ease is produced. The question presented depends upon another, and that is whether a survey so made is void, or whether it is merely voidable. Whether in fact such a survey is an appropriation of the land included within its limits.

I have always supposed that the first step to be taken in the appropriation of land within the military districts, was to make an entry or location with the principal surveyor of the district. Such is the law of Virginia, and the law of that state controls the subject, unless that law has been changed by some other power having jurisdiction over it; and I know of no such change. The same law provides that the holder of a warrant, or party interested therein, “ shall direct the location thereof so specially and precisely as that others may be enabled with certainty to locate other warrants in the adjacent residuums,” which location is to bear date the day on which it is made, and the surveyor is directed to enter it in a book to be kept for that purpose, “ in which there shall be left no blank leaves or space between the different entries.” The entry thus made vests in the warrant holder an interest in the land. It is in fact an appropriation of the land, and if special and precise, withdraws the land from subsequent location.” True, this is not considered as a legal interest. It is rather in the nature of an equity. And if a subsequent locator shall interfere with it, and pursue such course as to obtain a patent for the land, he will, in chancery, be considered as holding the legal title in trust for the rightful owner of the original efitry. A location or entry having been thus made, and placed of record, next follows the survey, and the mode of its execution is pointed out. It should be made within a reasonable time, and must be recorded. But this survey does not appropriate the land; it merely defines by metes, bounds,. and visible or natural objects upon the ground itself, that which has been previously appropriated by location or entry upon the books of the surveyor. It is necessary that this survey should be executed, for otherwise no patent can be obtained. The equitable interest of the locator commences with the entry; his equity is merged in the legal title when the patent ■emanates.

Such being the course provided by positive law to enable an individual to acquire title to land in the military district, can a locator be protected, who, disregarding the law, at once makes a survey without any previous location? It seems to me that to so hold would be to encourage a disregard of the laws. Will it be said that this matter of making a location or entry upon the books of the surveyor is a useless ceremony ? It is not so. But if it were so, it is one of the terms which Virginia prescribed to her officers and soldiers, and without complying with which they were not entitled to receive any land upon their warrants. And surely their assignees are entitled to no more consideration than themselves.

But how have these surveys, made without any previous entry, or as in the present case, upon land other than that included in the entry, been considered by the courts ? In some instances patents have been issued upon such surveys, and where this has been done, the court would not look behind the patent unless there were some intervening claims. But in such case I apprehend that the interest of the party commences with the patent, not with the survey.

In the case of Willson v. Mason, 1 Cranch’s R. 45, the question as to the legality or validity of surveys made without any previous entry, came before the supreme court of the United States, and was settled by that court. It was a case in chancery from Kentucky. Chief Justice Marshall, in giving the opinion of the court, says, “ The title of Mason, if good, must be shown to be so, by establishing that a survey without .an entry is a sufficient foundation for a title.”

He then proceeds to say: “ With a view to discover whether this question has been settled in Kentucky, all the adjudications ■contained in the books of reports furnished by the counsel for ‘the plaintiff in error, have been examined. It is not perceived -either that the question has been directly determined, or that any principles have been settled -which govern it. This case, then, is of the first impression.” He next examined the act of Virginia, with respect to the location of lands, which is the same 'law under which lands in the Virginia military district in Ohio are located, and then says, “It is apparent, throughout the whole act, that the legislature never contemplated a survey as being in itself an appropriation of lands, or supposed that one would ever be made, if not founded on a previous entry.”

Again, he says : “ From the circumstances under which the act for establishing the land office was passed, as well as from ■the expressions of that act, it is apparent that the entry was ■intended to give complete notice to other purchasers that the land located was already appropriated,” etc.

“ The regulations, therefore, respecting entries, are all calculated to make them as notorious as possible. Not so of surveys.”

“ The entries and surveys are to be kept in separate books. Why so, if a survey amounts to an entry ?”

“ The entry must be dated when made by the locator; but the time of recording the survey may appear or not, at the discretion of the surveyor. And a subsequent survey may be recorded before one of a prior date.”

“ There are to be no blanks in the book of entries, and this regulation is well calculated for the prevention of frauds in the origin of titles. It does not apply to the book of surveys.”

“ The book of entries is open to the inspection of every person. The book of surveys cannot be looked into but at the discretion of the surveyor.”

“ If a prior entry be alleged, the person affected thereby has a right to demand a copy thereof, but no copy of a survey can be given to any other than the proprietor, until twelve months after it shall have been made.”

“From the whole act, a legislative intention to make an entry, and an entry only, the foundation of title to any particular tract of land, is strongly to be inferred; and if an equivalent act could be received, a survey does not appear to be such an act.”

Towards the close of the opinion, the Chief Justice says: “ It has been already stated to be the opinion of the court, that a survey, not founded upon an entry, is a void act, and constitutes no title whatever. Consequently the land so surveyed remains vacant, and liable to be appropriated by any person holding a land warrant.”

I have quoted more largely from this case than I should otherwise have done, because it was the first case in which the question was raised as to the legality of a survey without a previous entry; and it is fully decided that such survey does not appropriate the land within its boundaries, but is null and void; and further, that any warrant holder may subsequently appropriate the same land in satisfaction of his warrant. So far as I know, this decision has never been overruled, but is still considered as the law of the land. It has ever been held by this court to be the law in similar cases.

If such be the law, it follows as a necessary consequence that the survey .under which the plaintiff claims, and by which he would avoid the legal title of the defendant, is a void survey. It appropriated no land, and those under whom the defendant claims had a perfect right to locate their warrant upon the land included within the boundaries of that survey. The act of 1807 does not protect void surveys.

But it is said that the case before referred to, was decided under the law as it was before the act of 1807, and it seems to be thought that the supreme court of the United States would now decide differently. It may be so, but I can see no reason why a different decision should be made. The act of 1807 does not change the law relative to the manner of locating lands. It does not dispense with the necessity of an entry. It merely protects surveys which have already been made, about the validity of which there might be some doubt in consequence of' irregularity.

Again it is claimed that, inasmuch as a patent has been issued upon the survey of the plaintiff, this court cannot go behind the patent to inquire into the validity of the survey.

It seems to us that this objection is not well taken. If we are concluded by the patent of the plaintiff, we ought to be-concluded by the patent of the defendant. But if we go behind the patent of the defendant to ascertain whether there was-a pre-existing survey in favor of some other person, and find such survey, we must inquire whether that survey was a valid, subsisting survey. For it is only a survey of that character which will defeat the title of the defendant.

Such being the opinion of the court, as to the legality of the plaintiff’s survey, it is unnecessary to examine the other objections which are raised to his title.

The judgment of the court of common pleas is affirmed with costs.


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    Catharine Dixon’s Adm’r v. Joseph M. Dixon et al.
    Choses in action belonging to the wife at the time of the marriage, and not reduced to possession by the husband during coverture, will go to her representatives, charged with her debts dum sola.

    Such choses in action may be reduced to possession by means of a judgment obtained during coverture, by the husband alone ; or by an assignment by the husband during coverture, for a valuable consideration ; or by taking new securities in the name of the husband alone.
    Promissory notes payable to the wife or be.arer, dum sola, and remaining in possession of the husband during coverture, without such suit or assignment, will, at the death of the wife, fall to her heirs.
    This is a bill in chancery, reserved in Ashland county.

      The bill was filed by the complainant, as administrator on the estate of Catharine Dixon, who died intestate, on the 2d day of November, 1845, for the purpose of determining the rights of Joseph M. Dixon, the surviving husband of said Catharine, and his assigns, to sundry choses in action which belonged to said Catharine before marriage.
    The answer admits that such choses in action did exist, at the time of the marriage, but insists that they were all effectually reduced to possession during coverture.
    In the court of common pleas the case was referred to a •master, who reported the following facts:

      First, That on the 16th December, 1845, and after the death of his wife, said Dixon recovered judgment for about $80, on a promissory note given by George Craton and Peter Willoz to •said Catharine, or bearer.

      Second, That after the death of said Catharine, the said Dixon assigned to Hanness & Hanna a promissory note for $100.84, which was payable to said Catharine, or bearer, by C. Mykrantz and G. McCartney. Said Hanness & Hanna subsequently transferred said note to J. McBride.

      Third, That a judgment was obtained by said Dixon, in his ■own name, during coverture, on two promissory notes given by said Mykrantz & McCartney, and payable to said Catharine, or hearer, one for $74.90, and the other for $95.43.

      Fourth, That the said Dixon had then in his possession two notes which belonged to said Catharine before the marriage, given by Geo. McCartney and Abraham Huffman, and made payable to John Allison, administrator on the estate of Michael D. Rowe, one for $75 and the other for $30. On this last note there was but six dollars remaining due at the decease of Mrs. Dixon.

      Fifth, That the said Dixon held a note against Michael Rowe for $229, which was given during coverture for the dower of said Catharine in the estate of her former husband, Michael D. Rowe, deceased. Said note was taken in his own name.
    The master reported that the claims arising upon the 1st, 2d and 4th items,'belonged to the complainant as administrator, and the residue to the defendant Dixon.
    Both parties excepted to the master’s report. The exceptions taken by defendants were sustained by the court below, and the bill was dismissed.
    J. W. Smith, for complainant,
    cited the following authori ties:

      Carry v. Fulkerson’s Ex’r, 14 Ohio Rep. 106; 1 Chit. Pl. 29-31; 13 Wend. Rep. 271; 3 Daniel’s Ch. Pr. 72; 2 Kent’s Com. 135-7; Bailey on Bills 159; 15 Ohio Rep. 247; 2 Vesey Sen’r 675; 5 Johns. Ch. Rep. 196; 6 Johns. Ch. Rep. 178; 9 Vesey 174; 10 Vesey 578.

      Grates McGombs, for defendants,
    cited these authorities:
    Wright’s Rep. 348; 2 Kent’s Com. 137, 142; Reeve’s Dom. Rel. 23; 1 Vernon’s Rep. 396; 12 Ohio Rep. 272; 3 Phil. Ev., by Cow. & Hill, 803.
   Spalding, J.

The law is settled in Ohio that choses in action, which belonged to the wife at the time of the marriage, if not reduced to possession by the husband during coverture, will survive to the wife. This rule will embrace notes payable to third persons for her use, as well as those payable to herself.

It may be a work of more difficulty to define what the law will consider a reducing to possession.

Upon mature consideration, this court declares the law to be, that the chose in action of the wife may be reduced to possession by the husband during coverture,

First, by.obtaining payment.

Second, by recovering judgment in his own name.

Third, by assigning to third persons, in good faith and foi valuable consideration.

Fourth, by substituting other securities, taken in his own name.

No action of the husband, after the death of the wife, will be effectual to divest her heirs of their rights; but all promis sory notes, payable to her or her order, or to bearer, which remain in statu quo during the continuance of the coverture, however much they may be in the keeping and possession of the husband, will go to her legal representatives, charged with hei debts dum sola.

Notes taken by the husband, in his own name, for lands oi the wife, sold during coverture, will of course belong to him.

By applying these rules to the case before the court, it will be seen that the master’s report is confirmed in all particulars save one. The assignment after the death of the wife is invalid, and the amount of that note must be recovered from the assignees, if the defendant Dixon be unable to pay it.

The cause will be remanded, that a decree may be taken by complainant upon these principles.


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    Nathan Harris v. The Columbiana County Mutual Insurance Company.

      Where, in a written application for a policy of insurance, the applicant committed a mistake in describing the incumbrance upon his property, in oonsequence of the representations of the agent of the company who drew up the application, and the property insured was afterwards destroyed by fire : Held, that a court of chancery had power to reform the contract and grant relief.
    This is a bill of review, reserved in Columbiana county.
    The original bill was filed by Harris, in the court of common pleas, taken to the Supreme Court by appeal, and at the September term, 1847, of that court, was dismissed. The bill of review alleges newly discovered matter, and also claims there was error in the decree in the original case.
    The material allegations of the original bill are as follows:
    On the 25th of March, A. D. 1845, Harris, the complainant, held a lot of land in Wellsville, on which was situated a steam flouring mill. He held the lot by an equitable title, having purchased it in partnership with one James Kelly from G. & A. Wells, for $4,000, all of which, except $800, had been paid. Kelly had assigned his interest to Harris, who had the sole possession and control of the property, and would be entitled to a deed on the payment of the balance due of $800. On the 25th of March, Harris applied to Henry Cope, who was agent for the Columbiana Mutual Insurance Company, to effect an insurance on the mill. An insurance was made, and a policy issued on that day by Cope, as agent for said company. A blank application was produced by Cope to be signed by complainant, as well as by himself as agent. The same was filled up by Cope and signed by both parties, the premises were examined, valued and surveyed by Cope, and were described by him in the application.
    Harris, at the time the application was filled up, informed Cope of the situation of the title, that no deed had been made to him, that $800 -was due on the contract, and informed him fully and correctly of the situation of his title. Cope being so informed, considered that, notwithstanding the claim of G. & A. Wells, the premises were not incumbered, and that Harris was the owner of the same, and so advised Harris, and wrote in the application that the same was owned by Harris, and was not incumbered. No misrepresentation was, in fact, made by Harris. If any error exists in the application, it was made through the mistake or fraud of the company’s agent. The agent did not correctly write, in the application, the representations which were made to him.
    The terms on which the property was to be and was insured, were, that Harris should give his premium note for $216, pay cash $9.50, and for the policy, 5( cents; the property to be insured for five years, at one and a half per cent, per annum Harris paid the money, gave his note, and the policy was issued. Harris paid up all the assessments, which thereafter accrued, and was called upon by the company for the same. Although there was $800 due to Wells, the property was ample security for all assessment which could -be made upon the premium note, being worth about $4,000. On the 20th of July, A. D. 1845, the flouring mill was destroyed by fire.
    The company refuse to pay the damages sustained, because it is inserted in the application that Harris is owner, and that the property is not incumbered.
    The bill prayed that the policy might be .reformed, that the mistake might be corrected, and the actual representations made by Harris might be inserted, that the company should be decreed to make assessments in accordance with the provisions of the policy and their charter, and pay the damages sustained.
    The allegations of newly discovered matter, in the bill of review, are as follows:
    Soon after the policy was issued, the application and premium note were returned to the company by the agent Cope, who then informed them of the state of the title, and that the legal title to the premises was in G. & A. Wells, in trust for Harris, on the .payment of the remainder of the purchase money of $800. The company knowing the situation of the title and the amount of purchase money unpaid, made assessments and collected them from complainant. It is the custom of the company to place in the hands of their agents, blank policies signed by the president, and to clothe, him with full power to insure any property which he may see proper, and upon such terms as he may see fit, within the powers conferred- upon the company by their charter.
    The company had, previous to the issuing of the policy, instructed their agent that policies might be issued upon buildings where the title was thus held, and that property thus situated was not incumbered, within the meaning of the appli cation and policy.

      The defendant demurred to the original bill, and now demurs to the bill of review.

      Mason Potter, for complainant,
    argued these propositions i
    1st. Cope had the power, as agent of the company, to issue a valid policy on property thus held as to title.
    2d. The acts of Cope in making the contract for an insurance with Harris, and in carrying or attempting to carry the same into execution, were the acts of the company.
    3d. The court have power to correct a mistake made by the defendant or their agent, or by both parties to the contract, and to reform the contract- or policy of insurance, and to decree that the same be carried into execution when reformed, whether the mistake is a matter of fact or of law.
    4th. The undertaking of Cope, when applied to for that purpose, to insure the property, knowing as he did the situation of the title, and the consideration having been paid to him by Harris, is tantamount to an agreement on the part of the company by their agent, to issue a good and valid policy on the flouring mill, which the court have power to compel the defendant especially to perform.
    5th. The misdescription of the title of Harris is a mistake of both parties, caused by the advice and acts of the company and their agent, as to matter of either law or fact inserted in the policy, which the court have power to correct and reform.
    6th. The newly discovered evidence, showing that the agent acted under the express directions of the company in insuring property thus situated, and in not regarding the same as incumbered, and in adopting the contract and in collecting assessments from Harris, with full knowledge of all the facts, establishes the liability of the company on the ground of fraud.
    They cited the following authorities:

      Columbia Insurance Company v. Lawrence, 2 Peters’s Rep. 25; 11 Ohio Rep. 480; Hewett et al. v. Franklin Fire In

      surance Company, 1 Law Jour. 342; 1 Peters’s Rep. 13; McNaughton v. Partridge, 11 Ohio Rep. 223; Hilliard’s Ab. 146; Cook’s Rep. 374; 1 Mad. Ch. 323; 1 Story’s Eq. 209; Hobb v. Norton, 1 Vernon 136; 10 Vesey 470; Bacon v. Bronson, 7 Johns. Ch. Rep. 194.

      Umbstcetter, Stanton Wallace, for defendant,
    ■Contended that the proposal or application signed by Harris, formed the basis of the contract between the parties, and the statements it contained were warranties, upon the truth of which the right of the assured depended. That a warranty is a part of the contract which must be strictly complied with, and this was a warranty that Harris was the owner of the property, and that it was unincumbered. That though the representation of ownership was by mistake, it equally avoided the policy, for the reason that a warranty being in the nature of a condition precedent, it must be fulfilled by the insured, before performance can be enforced against the insurer. They cited the following authorities:

      Duncan v. Sun Fire Insurance Company, 6 Wend. Rep. 494; Bennett v. Saratoga Insurance Company, 5 Hill’s Rep. 188; 1 Phil. Ins. 127; Duer on Ins. 44, 45, 77; 7 Wend. Rep. 274; 6 Cowen’s Rep. 673; 6 Term Rep. 710; 1 Taun. Rep. 345; 3 Dowl. Parl. cases, 255; Jennings v. Chenango Insurance Company, 2 Denio’s Rep. 75; Columbia Insurance Company v. Lawrence, 2 Peters’s Rep. 25; 10 Peters’s Rep. 507; Mutual Fire Insurance Company v. Marseils Man. Company, 1 Gilm. Rep. 236; Stetson v. Mass. Mutual Insurance Company, 4 Mass. Rep. 337; Marshall on Ins. 339, 347; 4 Hill’s Rep. 334.
   Caldwell, J.

Do the facts contained in the bill entitle the complainant to the aid of a court of chancery, to obtain the relief sought ? It is contended on the part of defendants that the application being made a jart of the policy, the representationS there contained amount to a warranty; and that it mat ters not that the company, or their agent, might have known the true situation of the title; if the representations in the applica tion are untrue the policy is void. And that this is true although the assured may have informed the insurer, verbally, of the true .situation of the property. It is also said that such verbal representations cannot be given in evidence for the purpose of explaining or contradicting the written application; and that it matters not whether such variation from the truth in the application, be material to the risk or not. When there is no mistake on the part of the assured, and no misrepresentation is proved on the part of the insurer, these propositions are no doubt true. They are all decided in the case of Jennings v. The Chenango County Mutual Insurance Company, 2 Denio 75, to which counsel have called our attention. But these principles we think will not apply to the present case. Now if Harris in this instance had chosen to put down his property as unincumbered, when it was not, of his own free will, without any mistake on his part, or any inducement on the part of the company, or their agents, to do so, the policy would have been void, although the company were acquainted with the true situation of the property. But how is the case presented by the bill ? Harris applies to the agent of the company to effect an insurance on his mill; he tells him the true situation of his title ; the agent (the company having previously instructed him to that effect) informs him that he considers such property unincumbered ; he writes it down as such in the application, and hands it to Harris to sign, who signs it as it had been drawn up by the agent. The application is handed over to the company, who are informed of the situation of the title, and they afterwards treat the policy as valid, by making and collecting assessments on it.

The agent gave the terms to Harris, which (in accordance with the instructions of the company) he considered as properly describing the property to be insured, and because Harris adopted these terms, they claim that they are freed from all liability on the contract. To sustain this claim of the company,, would be permitting them to commit a fraud on Harris.

Although verbal representations, made at the time the policy is effected, cannot be received to vary or contradict it, yet when a question of fraud or mistake «rises, such representations-become legitimate evidence to prove such fact; indeed they are generally the principal evidence in proving either of those facts.

The law is .very strict in requiring of the insured the utmost good faith as well as the greatest accuracy, in his written application. The insurer should be held to an equally strict account on his part, and when he misleads the insured, and causes him to fall short of making a valid representation, he should bear the loss occasioned by his own conduct.

And although we would not infer, from the facts stated in the bill, that the company or their agent intended to mislead or defraud the complainant; yet they have led him into a mistake, which would operate as a fraud on his rights if he were thereby deprived of the benefit intended by the policy. And the complainant being by such mistake deprived of his remedy at law, we think he has a right to resort to a court of chancery for relief.

The demurrer will be overruled.


text:
    Matthew Acheson v. Calvin G. Sutliff.
    An agreed statement of facts will be considered as a part of the record, when-made so by bill of exceptions.
    This is a writ of error to the Court of Common Pleas of •Trumbull county.
    The original action was assumpsit, brought by Sutliff against Acheson. The case was submitted to the court upon an agreed statement of facts, and judgment rendered for the plaintiff. So much of the agreed statement as is necessary to an understand ing of the case, is found in the opinion of the court.

      John Crowell, for plaintiff in error.

      M. Sutliff, and R. P. Ranney, for defendant.
   Hitchcock, C. J.

This case was submitted to the court of common pleas upon an agreed statement of facts, and the question for the consideration of this court is, whether upon the state of facts agreed, the plaintiff in the court of common pleas was in law entitled to a judgment; and whether if entitled to a judgment he was entitled to such a judgment as he actually recovered. True, the question is not as properly presented as it would have been had there been a motion for a new trial, and that motion had been overruled. We think, however, that it is sufficiently presented by the record.

This agreed statement shows that at the November term of the court of common pleas of Trumbull county, A. D. 1835, judgment was rendered in favor of the Western Reserve Bank, against Calvin G. Sutliff, defendant in error, Matthew Acheson, plaintiff in error, Ruel Miller, Levi Sutliff and Chauncy H. Wilcox, as indorsers for Garry Lewis, of a bill of exchange for five thousand dollars. The judgment was a joint judgment against all the indorsers. That at-the same term of the court, a like judgment was rendered against Lewis, the principal debt- or. Executions were issued upon the judgments, and placed in the hands of the sheriff of the county. On the 16th January, 1836, the sheriff called upon Lewis, the principal debtor, and demanded payment of the execution against him, or property whereon to levy. Lewis refused to show any property, and denied that he had any on which the execution could be levied, or which was subject to execution. The sheriff then called upon the indorsers, and demanded property of them. A short time before the demand as before stated, Lewis, who had been in possession of a store of goods, had transferred the same to one Daniel Gilbert. The indorsers were anxious that these goods should be levied upon as the property of Lewis, and to induce the sheriff to do it, Calvin G. Sutliff, Ruel Miller, Levi Sutliff and Chauncy H. Wilcox, gave to him a bond to indemnify him against loss, for levying upon such property as should be turned out to him by Calvin G. Sutliff. Ruel Miller and Calvin G. Sutliff then broke open the store containing said goods, and turned them out to the sheriff, who thereupon levied the aforesaid execution in favor of the bank against Lewis, and sundry other executions against him, upon the goods so turned out. In February, 1836, these goods were sold by the sheriff, and of the avails $3,135.73 were paid over to the bank and applied on the debt, for the security of which the aforesaid C. G. Sutliff and others were indorsers. Daniel Gilbert commenced an action of trespass against the sheriff and those of the indorsers who signed the indemnifying bond, for talcing and carrying away the goods aforesaid, and at the August term of the supreme court, 1839, recovered a judgment against them for $5,400. In the winter of 1839, this judgment was fully paid and satisfied by C. G. Sutliff, Levi Sutliff, Ruel Miller and Chauncy H. Wilcox, the individuals who signed the indemnifying bond, each paying one-fourth part of the judgment.

As Acheson paid no part of this judgment, it is claimed by the plaintiff below that, inasmuch as the avails of the goods levied upon in January, 1836, went in part payment of the debt upon which Acheson and the others were security, that Acheson is bound to contribute. It will be seen that the facts so far set forth, are like the facts in the case of Matthew Acheson v. Ruel Miller, decided at the present term. In fact, both cases originated in and are based upon the same transaction. In the case last named the question was fully discussed, and the court held that Acheson was not bound to contribute.

But it further appears from the agreed statement, that on the second of April, 1838, an alias execution was issued upon the judgment against the aforesaid indorsers, which was levied upon land belonging to the defendant in error, which land was subsequently sold, in May, 1838, for the sum of 1,198 dollars, which amount was applied on that judgment. It further appears that Acheson has paid no part of said judgment.

This sum of 1,198 dollars having been thus made by the sale of the land of one of these joint judgment debtors, it would be considered as a payment for their joint use, and each one of them would be bound to contribute his’ joint proportion. At least such would be the rule, unless it should appear that he who had made the payment had paid no more than his just proportion of the joint debt. Whether such fact would prevent him from calling for contribution it is not necessary now to determine. Admitting that the defendant in error had a right to compel contribution, he would compel no one of the joint debtors to pay any more than his proportionate share or part. In the case under consideration, there were five indorsers, who had become joint judgment debtors. From the ease of Acheson against Miller, it would seem that there were in fact six of these indorsers or judgment debtors, but five only are named in this case. The sum of 1,198 dollars, made by the sale of the land of the defendant, divided amongst the five, would fix the amount which each ought to pay at something less than two1 hundred and forty dollars. In no event, according to the facts agreed, could the defendant in error recover more of the plaintiff than this sum of two hundred and forty dollars, with interest up to the time of the rendition of the judgment now sought to be reversed. The judgment actually recovered was six hundred and forty-one dollars and twenty-eight cents. It must be remembered that there is no pretense that any one of these judgment debtors had become insolvent at the time of the rendition of this judgment.

On the part of the counsel for the defendant in error, it is insisted that the agreed statement of facts is not a part of the record, and cannot be noticed by the court, and as an authority to sustain this position we are referred to the case of The Bank of Virginia v. The Bank of Chillicothe, (16 Ohio R. 170.) In the case referred to, the court held that “an. •agreed statement of facts forms no part of the record, unless ■made so by the bill of exceptions.” But in the case under consideration, as we understand it, the agreed statement is made part of the record by bill of exceptions. This statement is set forth at full length, and signed by counsel. Immediately thereafter is the following: “ To the sufficiency of said testimony the defendant, by his counsel, objects, and the court overrules his objections, and directed judgment to be entered for the plaintiff. To which ruling and decision of the court the defendant, by his counsel, excepts, and prays the court to sign the same, that it may become part of the record, and it is done accordingly, in open court, the 11th day of October, A. D. 1847.” Next follow the signatures and seals of the judges of the court.

Here is a bill of exceptions, showing the decision of the court .and the evidence upon which that decision is made. It may be informal, and not made up with that technical precision which is sometimes done, but in the opinion of the court it is sufficient.

The judgment of the court of common pleas is reversed with costs, and the cause remanded for further proceedings.