author: Ranney, J.

text:
    *Timmons v. Dunn.
    In an action brought for the purchase price of personal property, it is competent for the defendant, upon giving notice of his intention to do so, to recoup against the plaintiff's claim any damages he may have sustained by fraud in the sale or breach of warranty.
    Such a proceeding is in the nature of a cross-action, and governed by the same principles.
    When the controversy is between the original parties to the contract, it mates no difference that a note or bond was given for the purchase price.
    If the defendant elects to present his claim in this form, a decision for or against him is a bar to another action.
    Error to the common pleas of Boss county, reserved in the district court.
    The original action was one before Isaac Fleming, a justice of the peace, founded upon breach of warranty in the sale of a horse. The defendant in error was plaintiff, and the justice gave judgment for defendant, whereupon defendant in error appealed and filed his declaration in the common pleas in assumpsit. Plaintiff in error plead the general issue and filed notice that he would offer evidence of the prior adjudication of the matter in issue, before William Mick, a justice of the peace, as a bar. The court rejected the testimony, which tended to prove that, upon the trial of the action before Mick, which was to recover upon a note given for part of the purchase money of the horse, defendant in error had set up a claim to recoup the damages, by reason of the alleged breach of warranty. Mick decided against the claim of defendant in error to recoup, being of opinion that there had been no breach of warranty, and rendered judgment for plaintiff in error. Upon the trial in the common pleas of the appeal from Fleming’s decision, the court rejected the testimony as to the former trial and the adjudications of Mick, and the ^plaintiff in error excepted. This writ was issued to the common pleas and made returnable to the district court, where the case was reserved for decision here.

      Milton L. Clark, for plaintiff in exrror, cited:
    1 Greenl. on Ev., secs. 529-531; 20 Ohio, 344; Basten v. Butler, 7 East, 479, 481; Lewis v. Cosgrave, 2 Taunt. 2; Farnsworth v. Ganard, 1 Camp. 38; Fisher v. Samuda et al., 1 Ib. 190; Poulton v. Lattimore, 17 E. C. L. 373; Street v. Blay, 22 Ib. 122; 2 Starkie on Ev., 645, 646; Lowe v. Tucker, 19 E. C. L. 225; Jones v. Scriver, 8 Johns. 453; Beeker & Beeker v. Vrooman, 13 Ib. 230; Burton v. Stewart, 2 Wend. 236; McAllister v. Reab, 4 Ib. 484; S. C., 8 Ib. 109; Spalding v. Vandercook, 2 Ib. 431; Gleason & Viele v. Clark’s Adm’r, 9 Cow. 57; Blanchard v. Ely, 21 Wend. 342; Cook v. Mosely, Ib. 277; Still v. Hall, 29 Ib. 51; Ives v. Van Epps, 22 Ib. 155; Westlake v. Degraw, 25 Ib. 669; Batterman v. Pierce, 3 Hill, 171; The Mayor of Albany v. Trowbridge, 5 lb. 71; Barber v. Rose, Ib. 76; Whitbeck v. Skinner, 7 Ib. 53; Judd v. Dennison, 10 Wend. 512; Van Epps v. Harrison, 5 Hill, 63; Tone v. Brace, 8 Page, 597; Britton v. Turner, 6 N. H. 481; Miller v. Smith, 1 Mason, 437; 1 Pet. C. C. 221; Dodge v. Tilerton, 12 Pick. 328; Harrington v. Stratton, 23 lb. 510; Hunt v. The Otis Company, 4 Met. 464; Christy v. Reynolds, 16 Serg. & Rawle, 258; Todd v. Gallagher, Ib. 261; Steigleman v. Jeffries, 1 Ib. 477; 2 Kent’s Com. 474; Culver v. Blake, 6 B. Mon.; Moore v. Nestbit, 3 Hill's S. C.; Swan’s Treat, (ed. 1841) 440, ed. 1854, 602; Hare & Wallace’s Note to Cutler v. Powell, 2 Smith’s L. C. 45 (ed. 1852); Hatchett & Brothers. Gibson, 13 Ala.; Sedgwick on Damages, 456; McAlpin v. Lee, 12 Conn. 129; Harlan v. Reed, 3 Ohio, 285 ; 2 East, 446; House v. Ford, 4 Black. 293; Williams v. Harris, 2 How. Miss. 627; Supmt. U. S. D., secs. 297, 312.

      *Alfred Yaple, for defendant, cited:
    1 Greenl. Ev., sec. 524; Starkie Ev. 214, 215; Comyn on Cont. 37, 38; 3 Wend. 236; 13 Johns. 56 ; 16 Ohio, 504; 4 Viner’s Abr. 533; McAllister v. Reab, 8 Wend. 109; Harlan v. Reed, 3 Ohio, 285; State v. Collins, 6 Ib. 126; Poulton v. Lattimore, 17 E. C. L. 373; 9 B. & C. 259; 4 Man. & Ry. 208; Baston v. King, cited 7 East, 480; Street v. Blay, 22 E. C. L. 122; 2 B. & Ad. 464; DeLewhanberg v. Buchanan, 24 E. C. L. 352; Fisher v. Samuda, 1 Camp. 190; Cormack v. Gillis, cited 7 East, 480; Tye v. Gwynne, 2 Camp. 346; Morgan v. Richardson, 1 Ib. 40; Obbard v, Betham, M. & M. 483; Archer v. Bamford, 3 Stark. 175; Spiller v. Westlake, 2 B. & Ad. 155 ; Day v. Nix, 9 Moore, 159; Solomon v. Turner, 1 Stark. 51; Jones v. Bright, 5 Bing. 33; Chitty on Contracts, 464; Reab v. McAllister, 8 Wend. 109; Frisbee v. Hoffnagle, 11 Johns. 50; Beeker v. Vrooman, 13 lb. 302; Spalding v. Vandercook, 2 Wend, 431; Burton v. Stewart, 3 lb. 236; 3 Ohio, 285; State v. Collins, 6 lb. 126; Kinnear v. Thomas, 4 West. Law Jour. 187 ; Pulsifer v. Hotchkins, 12 Conn. 234; Thornton v. Wynne, 12 Wheat. 183; Harlan v. Reed, 3 Ohio, 285 (Ham. Revised); State v. Collins, 6 Ohio, 144; 16 lb. 504; Scudder v. Andrews, 2 McLean, 464; 3 Dev. 396; 2 A. R. Marshall, 545; Bain v. Wilson, 1 J. J. Wilson, 282; 7 Cranch, 565.
   Ranney, J.

This case, involving questions of very considerable interest and importance when it was tried, has become comparatively unimportant by a decision of this court made since it was reserved, and by the adoption of the code of civil procedure. The case of the Steamboat Wellsville v. Geisse, 3 Ohio St. 333, has settled, for all eases pending when the code took effect, that the doctrine of recoupment is a part of the law of this state, and a form of remedy to be administered by its courts; while the code itself has confessedly provided for the same thing in the fixture, under the foiun of a counter-claim. It may be readily ^admitted that this doctrine, in its present completeness, had a very impeidect foothold in the early and technical period of the common law; nor is it at all surprising that it should have been adopted by degrees, and with much hesitation; or even that it should not now be universally recognized. But, if it has made its way to favor slowly, it has nevertheless done so surely; and there is no hazard now in affinning that, with very inconsiderable exceptions, it has become fully naturalized in the courts of England and the United States.

A moment’s attention to the principles upon which it is founded, will sufficiently indicate its limits and proper application. It is no defense to the action, but only affects the amount to be recovered by the plaintiff. It consists simply in allowing the defendant, who upon his part has a right of action against the plaintiff, growing out of the same transaction, by giving notice of his intention to do so, to settle his rights in the same suit, and to deduct so much from the plaintiff’s claim as he would bo entitled to recover if he brought a cross-action. As stated by Bronson, J., in a late case : “ It is a matter which is never pleaded in bar. It is in the nature of a cross-action. The right of the plaintiff to sue is admitted; but the defendant says he has been injured by the breach of another branch of the saxne contract on which the action is founded, axxd claims to stop, cut off, or keep back so raxxch of the plaintiff’s damages as will satisfy the damages which have been sustained by the defendant.” Nichols v. Dusenbury, 2 Comst. 286. It properly applies in actions brought for the purchase price of property, where the defendant claims fraud or warranty. In such case, if the plaintiff was permitted to recover the whole amount stipulated, the defendant might bring his action and recover back to the extent of his injury. No earthly reason can be given why such a controversy should be divided into two suits, instead of being settled in one. On the contrary, individual justice and public policy unite in requiring a definitive settlement at the earliest moment that the rights of the parties can be properly investigated. It ^involves no examination of separate transactions, and the court and jury employed to settle the rights of the plaintiff, are as competent as any other can be to settle those of the defendant. As the whole consists in deducting from the stipulated price of the property the amount for which the plaintiff is liable for his fraud or warranty, and as the groat object is, in this manner, to avoid circuity of action and needless litigation, it is evident that it can make no possible difference how the contract is evidenced. Whenever the action is brought for the price of the property, and is between the original parties to the contract, it is the absolute right of the defendant to have the amouht of his damages deducted from that price, instead of being put to a sej>arate action; and when he elects to litigate his rights in this form, he is as fully barred by a decision for or against him, as though he had prosecuted an independent action for the recovery of his damages.

We see nothing in this case to take it out of the operation of these principles; and we are therefore of opinion, that Justice Mick was fully competent to have allowed Dunn all the damages to which ho showed himself entitled, in the action prosecuted before him for the price of the horse; and that the court of common pleas erred in rejecting the evidence offered, to show that it was so litigated, and that the adjudication was a bar to the action afterward brought.

The judgment must be reversed, and the cause remanded.


source: Caselaw Access Project

author: *Ranney, J.

license: Public Domain

text:
    *Thomas Hueston v. The Eaton and Hamilton Railroad Company.
    The owner of land regularly appropriated to the use of a railroad company, upon proceedings instituted by the company, under laws providing therefor, is barred of the common-law remedy to sue for and recover the damages he may have sustained by the entry of the company and the construction of their road upon such land.
    In such case, the bar is equally effectual, although the owner may have refused to submit to such proceedings, or to receive the amount awarded to him and deposited for his use.
    Error to the court of common pleas of Butler county.
    The original action was brought to recover from the defendant, for the construction of its railroad upon 'the lands of the plaintiff, by which he claimed he was damaged f 4,000. The defendant pleaded to the declaration, and the third plea upon which the decision of the case turned was, in substance, as follows: 11 For a further plea the defendant comes and says, that the plaintiff ought not to maintain his action against it, because, by virtue of the power and authority conferred-upon it by an act of the general assembly of the State of Ohio, enacted on the 7th day of March, 1851, entitled ‘ an act to amend and consolidate the several acts relating to the Eaton and Hamilton Company,’ which said act was afterward, to wit, on the first day of April, a. d. 1851, at Eaton, in the county of Preble, and State of Ohio, to wit, at Butler county aforesaid, accepted by the board of directors of said Eaton and Hamilton Bail-road Company, by a journal entry to that effect, regularly made upon the journal of the proceedings of said company. The said defendant did heretofore, on the 20th of April, 1851, enter upon the lands of the plaintiff, for the purpose of examining and surveying the line of the said railroad, and the said defendant then and there ascertained that it was necessary to appropriate, and did appropriate, to the use of said*eompany, a strip of land 100 feet wide, through the plaintiff’s land, for the distance of 3,402 feet, more or less,containing twelve andfour-tentks acres, more or less, with the privilege of removing and using a sufficient quantity of earth and other material, except timber, within said limits, to make and construct said railroad; and to restore the crossing of the turnpike over the said railroad, the same to be used as a way and bed for said railroad, of tbe width of one hundred feet, with grades, excavations, embankments, drains, and culverts; allowing the said plaintiff, his heirs and assigns, to pass and repass over the same in a reasonable manner, not interfering with the rights and interest of said company. And the said defendant further says, that upon the making of said appropriation, the defendant did forthwith, on the 10th day of July, 1851, file with the clerk of the court of common pleas of said county of Butler, a description of the rights and interest so appropriated, as such description remaining on file in the office of said clerk, will fully and at large appear. And said defendant further says, that the said railroad company did, upon making the appropriation aforesaid, to wit, on the 11th day of July, 1851, deliver to the said Thomas Hueston, a copy of the said act or instrument of appropriation, and that thereupon, the court of common pleas of Butler county not being then in session, Nehemiah Wade, Esq., one of the judges of said court, did, upon the application of the defendant (of which application the said Thomas Hueston had due notice), by his warrant duly issued, appoint Fergus Anderson, James W. Cochran, and G-iles Richards, three disinterested freeholders of the said county of Butler, to appraise the damages which the said Thomas Hueston would sustain, by reason of the appropriation of the premises and rights aforesaid, of which appointment the said Hueston had due notice. And defendant further says, that by virtue and in pursuance of the command of the warrant aforesaid, afterward,, on the 14th day of July, 1851, the said freeholders having been first duly sworn, at the time and place named in the warrant, %nd having fully heard the parties, did, on actual view and upon full consideration of the premises, appraise the value of the land of the said Thomas Hueston, so appropriated and taken for the use of said defendant’s railroad, at the sum of nine hundred and thirty dollars, and the damage done, by reason of said railroad to the said tract of land, at three hundred and seventy-eight dollars — making, together, the sum of thirteen hundred and eight dollars; and the said freeholders appraised the benefits which would accrue to said tract of land, by the construction of the railroad, at three hundred dollars, and the difference being one thousand and eight dollars, the said freeholders assessed that sum as the damages of the said Thomas Hueston in the premises, and made return of the same, under their hands and seals, to the clerk of the court of common pleas of Butler county, by whom the same was duly filed and recorded.

      “ And defendant further says, that the said railroad company paid into the hands -of the said clerk, to and for the use of the said Thomas Hueston, on the 18th of July, 1.851, the sum of one thousand and eight dollars, as his damages aforesaid. And thereupon, by virtue of the provisions of the said act, it became and was lawful for the said defendant to hold the interest in the lands and materials aforesaid.” The plea then alleges that, in the construction of the said railroad, the acts were rightfully done of which the plaintiff complains, and prays judgment if the said plaintiff ought to maintain his action. The plaintiff replied that the matter, in the introductory part of the plea, had been wrongfully done by the defendant without the consent or acquiescence of the plaintiff, and in defiance of the objection and protest of the said plaintiff, and, therefore, he ought not to be barred of his action in the premises. The court sustained the plea of the defendant, whereupon this writ of error was brought.

      Vance, for Hueston.
    -, for railroad company.
   *Ranney, J.

The third special plea of the defendants sets up a regular appropriation of the lands of the plaintiff for the track of their road, and a deposit of the sum awarded him, with the clerk of the court, for his use. To this he replied that the assessment was made without his consent and against his protest, and that he then refused, and still refuses, to receive the sum awarded in satis-' faction of the damages claimed in the declaration. The demurrer to this replication having been sustained, and judgment given for the defendant, his counsel now insists that the assessment provided by the statute for property taken for public uses, is cumulative merely to the common-law remedy by action, and unless acquiesced in by the owner, and the amount awarded received by him in satisfaction, is no bar to the common-law remedy, and, consequently, no bar to the present action.

We can not yield our assent to this position. Before a case for an election of remedies can arise, there must be a wrong requiring a remedy. A right of action must exist before the party can choose, as between two modes provided by law for obtaining satisfaction. In the case before us, as it is made to appear by the pleadings, no -wrongful act has been done; no trespass upon the plaintiff’s property lias been committed, and, consequently, no right of action over existed in his favor. The defendants have regularly appropriated his property to a public use, and before taking possession, or otherwise interfering with it, have paid him its full value in money, as provided by law. The public, as it lawfully might, has compelled him to submit to a forced sale of the property to be applied to a public use. But in all this, no legal wrong has been done; it was but the exercise of a lawful authority, and lawfully and regularly pursued. He has but submitted to one of the conditions upon which all property is holden — the sovereign right of the state to appropriate it to -public uses when necessary, upon making compensation. His right to compensation was perfect and absolute; but when these proceedings were had, under the former constitution of the state, *no court or jury was required to [689 fix the amount. Any fair mode of assesssment, provided by law, was sufficient. Willyard v. Hamilton, 7 Ohio, 115 (pt. 2); Work v. The State, 2 Ohio St. 307.

After the amount was regularly ascertained, and paid or deposited for the use of the owner, the title to the property, or such interest as was necessaiy for the use of the company, passed from him to the company, to be held in trust for the public, just as fully and effectually as though he had voluntarily conveyed by deed. In afterward entering upon it, they entered upon their own land, and not upon his; and used it as lawful proprietors, and not as trespassers.

If they had taken possession without making compensation, a very different question would be presented. Although that constitution did not provide that the compensation should be made before the property was taken, still it would seem to be doubtful whether the property could be appropriated until it was done, and whether the company might not bo treated as wrong-doers, and, as such, subjected to a common-law action, at the election of the owner, instead of a proceeding, on his part, under the statute. But even upon that state of facts, the case of Hickcox v. The City of Cleveland, 8 Ohio, 543, supported by numerous decisions in other states, would seem to confine the owner to the statutory mode of assessment. Upon that question, however, we express no opinion. All we decide is, that where the corporation itself institutes the proper proceeding, and regularly appropriates the property by making compensation, no right of action arises against it$ and that such proceeding is equally effectual, whether the owner submits to it or not, or whether he takes or refuses the money deposited for his use.

The diversion of the water-course was a necessary consequence of making the embankment, and fell within the appropriation for which compensation was made, and seems to be fully justified by the plea.

Judgment affirmed,.


author: McCauley, J.

text:
    Chaffee v. Bank.
    L. & Co. made an assignment for tlie benefit of creditors, under the insolvent laws of Ohio, on September 26, 1S74. On September 29, 1874,. L. & Co. gave their cheek on the First National Bank of Ravenna to H. & S. and dated it back to September 22d. On September 29th the' bank paid the check with knowledge of the assignment of L. & Co., but without knowledge that the check had been dated back.

      Held, in an action by the assignee of L. & Co. to recover moneys on deposit with the bank at the date of the assignment, the knowledge of the bank, that L. & Co. had made an assignment prior to the presentation of the check, put it upon inquiry as to whether or not the check bad in fact been given before the assignment. And such payment of the check would not be a defense for the bank.
    Error to the District Court of Portage County.
    On July 16th, 1874, Lyons & Co. gave their note to* Heckman 65 Spencer for $225, falling due October 13th,. 1874. On the same day H. & S. sold and endorsed the' note to the First National Bank of Ravenna.
    On September 16th, 1874, Lyons & Co. deposited their sight draft on David T. Busby of Baltimore for $292 with the bank for collection, which was paid September 80.
    On September 26th Lyons & Co. made an assignment under the insolvent laws to Chaffee, plaintiff in error.
    On September 29th Lyons & Co. gave Heckman & Spencer their check on the bank for $280. On the same day H. & S. presented the check at the bank and requested that it be used to take up and pay the note of Lyon & Co. then held and owned by the bank, on which Heckman & Spencer were indorsers. The bank attached the check to the note, and at the maturity of the note applied the money then in the bank realized from the Busby collection to the payment of the $225 note and accounted to H. & S. for the balance of the check.
    The application of the proceeds of the check was made by the bank, with knowledge of the assignment of Ljmns & Co., but without knowledge that the check had been dated back to September 22d prior to the assignment.

      P. B. Conant for plaintiff in error.
    1. The assignment transferred to the assignee all the assets of Lyon & Co., including their choses in action and money on deposit; and the assignee became the purchaser and owner of all their property. Copeland v. Mantón, 22 Ohio St., 398; Fuller v. Steiglitz, 27 Id., 355.
    2. At the time of the assignment the Bvisby draft, which is the subject of this controversy, was in Baltimore, in the hands of the correspondent of the bank, for collection, and certainly passed by the assignment. There were no funds in the bank at that time, save $43.02, which was paid to Clark Bishop on the day of assignment. On the 28th of September, two days after the assignment, Busby paid tha* draft to a bank in Baltimore, which gave the Ravenna banl credit for the collection.
    3. Notwithstanding the assignment transferred all the assets of every sort to the assignee, still the bank was entitled to notice of the assignment to protect it as a debtor of the assignors, and the only object of the notice is this protection. Copeland v. Mantón, 22 Ohio St., 398; Haven-' port v. Woodbridge, 8 Greenl., 17; Bishop v. Holcomb, 10 Conn., 444; Beckwith v. Union Bank, 4 Sandford’s S. 0., 604.
    The requests to charge and the charge of the court raise this question of notice. The court said to the jury, “ If the bank received information from any source that J. D. Lyon & Co. had made an assignment, and the officers Of the bank who received the information believed or ought to have believed it to be true,” etc., it would have been sufficient notice. This comes up to the notice applied to purchasers of commercial paper before due. Johnson v. Way, 27 Ohio St., 374. But surely the bank did not stand in a position to insist upon that rule, for it was in no sense a purchaser of the check for a valuable consideration before due. The bank was simply a debtor and did not purchase the paper, and can stand on no higher plane, or demand any more explicit notice, than-any other debtor.
    The bank took the check as security for a pre-existing debt, and was not entitled to any notice. The check is not paid yet. Iloxborough v. Messick, 6 Ohio St., 448; Lewis v. Anderson, 20 Ohio St., 281.

      W. B. Thomas for defendant in error.
    The bank had no right to refuse payment of a depositor’s check upon an existing fund based upon rumor. It is not claimed here that the bank acted in bad faith. Actual notice must be given in the absence of bad faith. The record only shows that the bank had notice. It is not shown what that notice was, or that it was such notice as the bank ought to have relied upon. Information may have been notice in the eyes of the jury, but courts ought not to allow such notice to be a criterion as between a bank and its depositors. According to such a rule no bank would be safe. Banks receiving money of and for their customers, to be paid out on their checks and notes, are to be protected as to payments made by them in the ordinary course of dealing of said banks, notwithstanding the customers make an assignment, unless said bank has actual notice of said assignment or acted in bad faith. Crriffin v. Hice, 1 Hilton (N. Y.), 184.
    Banks do not guarantee the solvency of their depositors. Again, when money paid into a bank is passed generally to the credit of the owner, and not received as a special deposit, this money may be applied by the bank to the payment of any demand they may have against the depositor; Bank v. Hughes, IT Wend., 94.
    A banker has a lien upon all securities or drafts, without payment of money, even with notice that the same belongs to another. 3 Pars. Cont., 262; 17 Ohio, 572; 2 Kent, 641; 17 Peters, 179; 1 How., 234; 3 Id., 70 or 770; See 20 Ohio St., 234.
    A check is drawn upon an existing fund, and is the absolute transfer and appropriation to the holder of so much money in the hands of the drawee. Baily v. Burgess, 5 Ohio St., 15.
   McCauley, J.

The action in the common pleas was by the plaintiff, as assignee for the benefit of the creditors of Lyons & Co. under the insolvent laws, and was brought for moneys of Lyons & Co. claimed to be on deposit with the defendant at the time the assignment was made.

The assignment was made September 26th, 1874, and the bank set up as a defense that on September 29th it paid a check given by Lyons & Co. to Heckman & Spencer for $280, and that the check was dated September 22d, four days prior to the assignment.

On the trial.in the common pleas the jury returned a general verdict for the plaintiff and, by direction of the court, found specially, that on September 29th, when the check was presented, the bank had knowledge that Lyons & Co. had made an assignment on September 26th. It appears also from the evidence on the trial in the common pleas that when the check was presented on September 29th the bank had a note given by Lyons & Co. to Heckman & Spencer and by them endorsed to the bank, and that when the check of Lyons & Co. was presented by Heckman, it was attached to the note of Lyons & Co. and on October 13th following, when the note matured, an amount of the Busby collection sufficient to pay the note was applied in payment of it, and the balance of the $280 cheek was accounted for to Heckman & Spencer.

Upon this state of fact, the bank makes two claims, first, that the check was a complete appropriation and transfer of the funds of Lyons & Co. in the bank to their credit, at the date of the check. And second, that at all events the bank had a lien upon the proceeds of the Busby collection to pay any indebtedness of Lyons & Co. to it.

It is not necessary to consider just how far a check is an appropriation and transfer of the funds of the drawer on deposit at the giving of the check, nor to consider how many exceptions there may be to this rule; for in this case, there were no funds out of which to pay it when it was presented, and it was not then paid but it was kept until October 13th, when the note matured. During which time the proceeds of the Busby collection were received by the bank, and this money was applied to its payment.

The matter of attaching the check to the note and holding it for two weeks was not equivalent to a payment of it. And during the time it was so held the bank had full knowledge that Lyons & Co. had assigned on September 26th. The assignment was a transfer of the fund realized from the Busby collection; and assuming that the check was also a transfer of it, pro tanto, then the bank had knowledge of what purported to be two transfers of the same fund. We think it should not have recognized either transfer by paying the money on it without first making inquiry as to which of them was prior in fact.

As to the banker’s lien claimed by the bank. After September 30th it had the proceeds of the Busby collection, but it had not made any advance on the faith of that collection, it had no interest in it — and having made no advance upon it, it had no lien upon it, and no right to retain it to apply in satisfaction of a note held, against the owners of it.

.The bank might have applied this money on any balance due it on general account with Lyons & Co. 3 Parson’s Contracts, 262; Bank of Metropolis v. New England Bank, 17 Pet., 174.

The bank having no lien on the proceeds of the Busby collection, when suit was brought for that money by the assignee, it could defend against his claim by using the note of Lyons & Co. as a set-off. This is the only way in which the bank could have applied any part of the Busby collection in payment of the note. And this was not done.

Judgment Reversed.


author: Dtckman, J.

text:
    Railway Company v. Howard.
    Where animals that are breachy or unruly escape from an inclosed field into another field (of the same farm) which abuts on a railroad, and between which and the railroad the railroad company has neglected to construct a fence as required by the statute, and while straying upon the railroad track are killed or injured by a passing train, their owner may recover from the company for the loss or injury, provided the animals were at large without his fault, and he has used that reasonable care and precaution in restraining them, which a prudent and cautious man would use who had knowledge of their breachy or unruly character.
    Error to the District Court of Clinton County.

      John 8. Brasee for plaintiff in error.

      J. B. Allen for defendant in error.
   Dtckman, J.

The defendant in error, William Howard, was the owner of a mare and a horse, which on the night of July 2, 1875, escaped from an enclosed field into another field (of the same farm) which abutted on the railroad of the Pittsburgh, Cincinnati & St. Louis Railway Company, plaintiff in error, and between which and the railroad, there was not a fence. From this field the animals strayed upon the railroad track, and the mare was killed, and the horse injured by a passing train. Suit was brought by the owner of the animals to recover for the injuries alleged to have been caused by the negligence of the company in not constructing a fence along the side of its track next to the farm, and in the management of one of its trains. A verdict was returned for the plaintiff; the defendant filed a motion for a new trial on the ground that the verdict was against the manifest weight of the evidence, which motion was overruled. To the overruling of such motion the defendant excepted, and judgment was entered on the verdict. Upon petition in error in the District Court, the judgment of the Court of Common Pleas was affirmed; and the plaintiff in error now asks that said judgment of the District Court and Court of Common Pleas may be reversed.

It was admitted by the plaintiff on the trial in the Court of Common Pleas, “ that there was no negligence in the running of the train, unconnected with the fact that the railroad was not fenced.” To meet the presumption of negligence from not fencing its track, it is contended by the plaintiff in error, that there was evidence on the trial before the jury sufficient to prove, that the mare killed was breachy, and that the owner had knowledge of that fact, and was therefore bound to restrain her, under all circumstances, within the enclosure from which she escaped, and having failed to do so, could not, by reason of contributory negligence, recover from the company.

By the Act of April 18, 1874, (71 Ohio L., 85, § 1; Rev. Stat. § 3324) the railroad company was required to construct a good and sufficient fence “to turn stock,” along the line of the road on both sides thereof, and is made liable for all damages sustained to property in any manner by reason of the want of any such fence. The term “ stock ” we are of opinion, should not be limited to embrace only such animals as are not breaehy or unruly, although, in restraining them, the owner may find it necessary to be more careful than in restraining animals that are gentle and easily managed. Since the passage, however, of the Act of April 13, 1865, to restrain certain animals from running at large, (62 Ohio L., 185, § 1; Rev. Stat. § 4202) the benefit of the obligation imposed upon railroad companies to fence, can be claimed only b}r persons whose horses, cattle, &c., may be at large without the knowledge of the owners, and without their fault. The Statute makes it unlawful for any person, being the owner of horses, cattle, &c., to “ suffer the same to run at large” in any public road or highway, &c. “ To suffer such animals to run at large ” as construed by the Court in Marietta & Cincinnati R. R. Co., v. Stephenson & Brown, 24 Ohio St., 58, involves the element of willfulness or carelessness on the part of the owner, and the statute was not intended to impose upon him anything more than the duty to use reasonable care and precaution in restraiiring his animals upon his own premises. If the animals .are breachy or unruly, and are at large without the owners’ fault, and the owner has used that reasonable care and precaution in restraining them, which a prudent and cautious man would use who had knowledge of their breachy character, a railroad company that has neglected to fence its track as required by the statute, cannot be exempt from liability for injury in consequence thereof to such animals at large and upon its track.

All the evidence in reference to the owner’s knowledge of the habits of the animals,- and in regard to his acts for preventing their running at large and straying upon the railroad track, was considered and passed upon by the jury, and a verdict was rendered against the railroad company. Questions of negligence and contributory negligence are peculiarly questions for a jury, and it is only when a verdict is palpably against the evidence or against the decided weight of it, that courts are warranted in setting it aside in order to send the cause to another trial. Webb et al. v. The Protection Insurance Co., 6 Ohio, 456 ; Landis v. Kelly, 27 Ohio St. 571.

In the record of this case, there is no assignment of error on the ground that the verdict was against the charge of the court, or that there was error in the charge. The presumption being that the jury followed the charge of the court, and the jury having better means of arriving at a knowledge of the facts than the imperfect medium of the written statement in a bill of exceptions, we are not prepared to hold, that their verdict was against the manifest weight of evidence, and that the court below erred in refusing a new trial. We think the District Court properly affirmed the judgment of the Court of Common Pleas.

Judgment Affirmed.


author: Martin, J.

text:
    Ridenour v. Mayo.
    1. The selection and qualification of trustees, pursuant to the act of April 16, 1867, providing for the establishment of savings societies, are virtually an accepted appointment to a corporate agency, limited to receiving and placing deposits of money for the benefit of depositors, and in the manner specified in said act.
    2. Where the trustees selected and qualified under the act of April 16, 1867, do nothing whatever in the execution of corporate power, the mere fact of the existence of the corporate agency will not shield them from individual liability in an action based solely on a contract entered into by them in conducting a business wholly foreign to the objects and purposes of the incorporation, though such business was conducted and such contract entered into in an associate name which could properly be used in corporate as well as private business.
    Error to the District Court of Allen county.
    This case was here before, and certain questions in the pleadings were then disposed of. The state of the issues at that time are shown in the reported case of Ridenour v. Mayo, 29 Ohio St., 138.
    Plaintiff here was plaintiff below. His amended petition counted on a certificate of deposit which reads as follows:

      [For argument of counsel see 29 Ohio St., 142. — Rep.]
    “No. 1416. “Farmers Savings Bane,)
    “ Lima, Ohio, May 10, 1873. )
    “John G. Ridenour, Esq., has deposited in this bank one thousand one hundred and fifty dollars, payable to his order, on return of this certificate, six months after date, with interest at ten per cent, per annum.
    $1,150. (Signed) N. Tucker, Cashier.”
    It was further averred in the amended petition that the defendants, at the time, received from the plaintiff the amount named in the instrument and for which it was given.
    The case was tried on the general issue. Some of the defendants, however, in addition set out as a defense that the instrument sued on was executed by the Farmers Savings Bank of Lima, Ohio, and that it was a savings society incorporated under the act of April 16, 1867, and was composed of certain members including the plaintiff and defendants. To this the reply was a denial. In the common pleas-the case was tried to the court, and resulted in judgment for defendants.
    A motion for a new trial on the ground that the findings and judgment were against the evidence and law, was overruled, and a bill of exceptions containing the testimony was taken. On error to the district court assigning the overruling of the motion for new trial as cause, the judgment was affirmed. To reverse this judgment on substantially the same assignment of error, this proceeding was instituted.

      Isaiah Pillars, for plaintiff in error.

      Cunningham $ Brotherton; Hughes Robb and jS. R. Harris, for defendant in error.
   Martin, J.

It is admitted that the Farmers Bank received the plaintiff’s money and promised to repay him as stated in the certificate; and that in so doing, it acted through its agent Tucker. The contention of the plaintiff is that the bank was a private association or partnership, unincorporated,, and composed of the defendants; whilst the defendants insist that it was a savings society, incorporated under the act of April 16, 1867. (S. & S. 118.) Some of the defendants in separate answers admit that they were members of it: As to them it seems to be a vital question whether or not the association was incorporated. If it was a corporate body, it was personally the debtor — the principal of the agent Tucker. And the action below beiug based solely on the certificate, we do not see how, particularly at this stage of the litigation, any relief could be afforded the plaintiff, even though the testimony at large should show a right of recovery dehors the instrument.

In the first place it is proper to understand the true character of the corporation authorized by the act under which it is claimed the bank was organized. The act provides that not less than five persons may become a body corporate to establish a savings society. To become such they must make a certificate setting forth the purpose; the name thus: The-savings society of -; and the place of business, and transmit the same to the board of commissioners of savings societies, consisting of the auditor, treasurer and secretary of state, whose duty it shall be to examine the same and carefully ascertain the responsibility and fitness of the applicants. If satisfied in these respects, they are required to certify the same to the governor, who, if satisfied the law has been complied with, is required to issue his proclamation of authority to the applicants to commence and carry on a savings society. It is further provided in the act that there shall be a board of managers, consisting of a ’president, vice-president, treasurer, and not less than five trustees. The corporate grant is to receive and invest in specified securities deposits of money that may be made, and to divide the profits ratably among the depositors. The depositors are required to agree to and sign the rules of the society, and thereby become members. The membership is confined to the depositors, and they can severally withdraw their deposits and terminate their membership by giving thirty days’ previous notice. A certain per centage of the deposits is designated as a fund for the purchase of necessary real estate; and the incurring of any indebtedness is impliedly forbidden. The services of the trustees are required to be gratuitous, and they are forbidden to borrow the money of the society. They are not required to become members, and perhaps their is a propriety in their not assuming the double relation of trustee and beneficiary. Hence the members, that is to say, the depositors, are the sole beneficiaries and real owners. Some exemption from disability in the control of their deposits is given to married women and minors. The manifest design of the legislature was to establish a limited and safe agency for the benefit of the industrious poor and persons under disability, and others who have not the opportunity or aptitude to husband their earnings. The society partakes somewhat of the nature of a benevolent institution, and is in no sense a trading corporation; but the reverse.

In virtue of the executive proclamation, five of the defendants, who were also the applicants for the charter, organized, electing themselves and five other persons trustees, who thereby became the board of managers. One of them was elected president and another treasurer or cashier. Of all which due record was made. Thus the agency was established with unconditional corporate power.

And here arises the question which we suggest is presented and answered in the record. Did the trustees in the execution or attempted execution of that power, however imperfectly it may have been done, conduct the business, or any part of it, that was thereafter done by the Farmers Bank, in the course of which the indebtedness to the plaintiff was contracted? The mere fact of corporate existence imposed no imperative duty to proceed further. As duly nominated trustees they had the corporate faculty in presentí to receive a membership and assume an actual trusteeship over the trust funds of the members. Until this was done or attempted, their situation in respect to the trust or duty was merely preliminary and propositional; and, no contract or other rights whatever intervening, they could lawfully abandon the agency or withhold action under it.

The business done by the bank was exclusively of a general banking character. Considered in the light of a savings society it had no corporate plant whatever, and no corporate membership. Indeed it is not seriously claimed that it was in fact a savings society, within the meaning of the statute, or that it resembled one. If the business of the bank had proved remunerative, to whom would the profits have belonged ? Not to Tucker the cashier, for he confessedly had a principal. Not to the actual depositors, for their rights were fixed by their respective contracts. The only plausible claimant would be the board of directors. And a loss happening, we are considering where the testimony and the law casts it. The trustees, as we have seen, were selected on account of exceptional fitness for the trust, and we cannot presume that in setting on foot and carrying on the bank they supposed they were executing, or attempting to execute, the carefully limited power confided to their honor. The business done by the bank was a lawful business. On the plaintiff's theory of a partnership it was laAvfully done. On the theory that it was in some way or other done by, or through, or in connection with, the statutory agency, it was unlawfully done; and involves a total diversion of the power. And inasmuch as the conduct of the defendants throughout, so far as the record speaks, can consist with good faith only on the presumption of an abandonment of the agency, we feel no hesitation in holding as matter of fact indisputably established by the testimony that they did so abandon it.

Having disposed of the plea of corporate contract, we are to consider further the question as to the liability of the defendants. When the debt sued on was created, two changes in the board had occurred by reason of resignations, and the vacancies were filled. And we are impressed with the idea that probably at no time was there any distinct understanding as to a division of profits. They, or some of them, conducted the business and incurred the debt to Ridenour. All of them knew they were held out as directors of the bank, and some of them in their answers admit an actual membership in it, claiming, however, it was official, as trustees or members of a corporation. The defendants relying solely on the general issue, are entitled to have their liability, if there be any, established by the clear weight of 'the testimony. On the trial and In argument they relied greatly on the defense that the bank was incorporated. They have testified that they were not partners in the business. A question as to the existence of a partnership is a mixed question of law and fact; and the testimony of a witness in respect to it amounts, frequently, to nothing more than the expression of an opinion. We are very clear that the partnership as to all was prima facie, established, and that therefore the testimony as to the conduct and acts of each is properly received against all to strengthen the presumption. On the whole case we are pretty well satisfied that the evidence showed a liability on the part of all the defendants to the plaintiff for- his debt. It is not necessary, however, nor perhaps proper, to express an opinion covering all the defendants; especially so, in view of the manifest difference in the extent of their participation severally in the management. The entire question as to the liability of all or any of them will be open on a re-trial.

The view we have taken of this case makes it unnecessary to pass on the several propositions that have been ably argued by counsel.

Judgement reversed and cause remanded.


author: Nash, J.

text:
    Railroad Company v. Newbrander.
    1. The Act of April 18, 1874, (71 O. L., 85) imposes upon a railroad company the duty of constructing and maintaining necessary cattle-guards • wherever its road crosses a highway. This statute may be construed as allowing exceptions, required by public necessity and convenience and the proper use of a station yard by the company.
    2. When the company is relieved from this requirement, for the above reasons, it is its duty to construct and maintain cattle-guards across its roadway and grounds at the first points from the highway which will not interfere with the necessities and convenience of the publie and the company.
    3. Whether this has been done is a question to be submitted to the jury in an action against the company for damages.
    Error to the District Court of Butler County.

      Thomas Millikin for plaintiff in error.

      MoKemy $ Andrews for defendant in error.
   Nash, J.

The plaintiff in error upon the 15th of November, 1877, owned and operated a railroad which extended from the north to the south across a highway from Monroe to Lesoudersville. There were no cattle-guards or other protection at the crossing of said railroad on the public highway". For a distance of twentyr-one hundred feet north of said highway, and for a less distance south thereof, the said railroad and the ground on either side thereof were used by said railroad company for a depot and station yard, called “Monroe Station.” In said yard, besides the main track, there were, north of the highway, a depot building and two side tracks, which side tracks extended across and to a considerable distance south of the highway. Said yard was necessarily uninclosed at the crossing of the highway. It was necessary for the public as well as the railroad company, in using said yard, in getting to and from the depot buildings, in loading and unloading cars, and in using the side tracks, that the yard at the crossing of the highway'- should be open and unobstructed by fences, cattle-guards, or other protections. The first cattle-guard north of the highway was located twenty-one hundred feet therefrom and answered the double purpose of a cattle-guard and culvert. The longest switch or side track, joined the main track four hundred and fifty feet south of the cattle-guard and culvert.

Upon the question as to whether all this four hundred and fifty feet was necessary for the railroad company in the use of its side track and switch with safety to its employés, the evidence was conflicting.

Between five and six o’clock on the morning of the 13th of November, 1877, four horses belonging to the defendant in error, on account of the absence of cattle-guards or other protection at the point where said railroad crossed the highway, entered upon said depot grounds and wandered north through the same, to a point at or near the cattle-guard. Here three were killed and one injured by a locomotive and train belonging to the railroad company and.approaching from the north. Said horses were not permitted by the defendant in error to run at large and had escaped from their enclosure during the night without fault upon his part.

It was a duty enjoined upon the railroad company by the Act of April 18, 1874, (71 O. L., 85) to construct and maintain necessary cattle guards at the point where its railroad crossed the highway. It was relieved from the obligation to perform this duty, only on the theory that the necessities of the public, of the employés of the railroad company and of the company, required that the depot grounds and yard at the crossing of the highway should remain open and unobstructed. Having been thus relieved from placing cattle-guards at the crossing, it was the duty of the railroad company to construct and maintain a cattle-guard at the first point north therefrom, which would not interfere with the necessities of the public, the employés of the company and the company. There having been conflicting evidence as to whether this had been done, it was not error in the court below to submit this question of fact to the jury. The form in which the trial court put this question to the jury certainly did no injustice to the railroad company.

Judgment affirmed.


author: Granger, C. J.

text:
    Newark Coal Company v. Upson.
    The N. C. Co., a corporation, with malice and without probable cause, sued U. and others, in a civil action, and by an order of injunction made on its exparte application, prevented U. et al. from entering upon and enjoying their property, and ajso from prosecuting a profitable business. After a year had passed the N. C. Co. dismissed its action. U. et al. thereupon sued the company, claiming damages for said malicious prosecution. Held,

    1. They can maintain the action.
    2. The measure of the damages is the value of the right of U. et al. to possess their property and prosecute their business during said period! o£ ouster and suspension: i. e. the value of the use of the property,, in the business, during that time.
    3. The quantity and quality of the coal.there and then minable; the expense required to put and keep the mines in operation; the nature and! extent of the facilities for transporting the coal to market; the extent of the demand for such coal; the cost of placing the coal in market and its market price; the relation of the parcel of land in question! to other mining properties of U. et al., are all facts that naturally and; materially affected the value of the use in question.
    4. Although these facts include the element of profit upon possible sales Of coal, it was proper for the jury to consider them; not treating said element as itself a measure of the damages, but as one of the facts affecting the value of the use taken from U. et al.

    Error to the District Court of Licking County.
    On the 15th day of May, 1869, an instrument was executed of which the following is a copy;
    “ Articles of agreement, made and entered into' this fifteenth day of May (15), A. D. 1869, by and between Jonas Garrett, of Perry county, Ohio, party of the first part, and; 5. Welsh Beall, of Miama county, Ohio, and S. Baird, of Zanesville, parties of second part.
    “ Witnesseth, That the said party of the first part agrees to sell and convey all the stone coal that is or may underlie the following described tract or lot of land, situated in the township of Salt Lick, county of Perry, and state of Ohio, and being the farm on which Jonas Garrett resides, bounded as follows: On the north by lands of A. Yager, on the east by lands of J. Yager, on the south by lands of C. Shellhammer, on the west by lands of Robert & Co., containing sixty-six acres, more or less, also twenty-three acres bounded as follows: On the north-east by lands of H. & J. Welsh, on the south by lands of- B. Gordon, on the west by lands of S. Marshall; also thirty acres, bounded as follow’s: On the north by lands of John Woodruff, east by lands of Henry Hazelton. Jr., south by lands of T. Barns and J. R. West, west by lands of Mrs. Lucinda Plummer, in all, one hundred and nineteen acres, more or less, excepting three acres about permanent buildings.
    “ And also grants the exclusive right to test, open, and remove said coal, and further grants the right to construct railroads, and underground entries, all necessarj- buildings and fixtures to facilitate the mining and removing of said coal. And the parties of the second part agree to construct, or assist in constructing, a railroad from or near Straits-ville, Perry county, Ohio, connecting with the Columbus and Hocking Valley Railroad, or any other railroad that the parties of the second part chooses to connect with, and should the parties of the second part fail to comply with these conditions within two years from this date, then this contract to be void. And it is agreed by the parties of the second part, that they will, within three years from date of this contract, test the said lands bj' drilling or otherwise ; and if in case there should be discovered a minable vein or basin of stone coal of sufficient quantity to justify the opening and mining of said coal, in the opinion of the said parties of the second part, then they agree to mine out said coal, and pay the following rate per ton for all coal mined on said premises, to wit: Ten cents for each ton of twenty-two hundred and forty pounds of merchantable coal, the payments to be made and continue in the following manner, to wit: Payment in hand one dollar in a revenue stamp, and signing and sealing of this contract is an acknowledgment of receipt thereof.
    “ All money due for coal mined shall be paid for in thirty days, on the premises.
    “ It is also agreed, that all coal mined on said premises is to be accurately weighed on the premises, and the weight to be kept in a book, which shall at all reasonable times be open for inspection of the said party of the first part; and it is further agreed that the said parties of the second part are to have the privilege of using the said railroads, underground entries, buildings and fixtures, for the purpose of mining and removing coal, and from other lands, and after said mine becomes exhausted or unminable,-that they may continue the use of said railroads, underground entries, buildings and fixtures, by paying the party of the first part, a reasonable compensation, that they may use them for the purpose of transporting coal. All money due under this contract to be paid or received in bankable funds of the state of Ohio.
    “ This contract subject to all other contracts now on record, otherwise to remain in full force.
    “ And we, the parties, by signing and sealing this contract, bind ourselves, our heirs, our assigns, and legal representatives, tc strictly adhere to the several covenants and agreements of this contract, as witness, our hands and seals, the day and year above written.
    “Signed, .sealed and delivered in presence of Thomas Young, S. M. Griffin, witnesses for J. Garrett; Thomas Young, Huida West, witnesses for Beall & Baird.
    [Internal revenue stamp, 50 cents.]
    “Jonas Garrett, [Seal.]
    “S. Welsh Beall, [Seal.]
    “S. Baird, [Seal.]
    “ The State oe Ohio, ) County of Perry, > ss. Township of Salt Lick. )
    “ On this fifteenth day of May, A. D. 1869, before me, a justice of the peace in and for said county, and state, personally came Jonas Garrett, S. W. Beall and S. Baird, above named, who severally acknowledged the signing, sealing and acknowledgment of the foregoing instrument to be their free, voluntary act and deed for the uses and purposes therein mentioned, they are still satisfied therewith, and desire that the same may be recorded as such.
    “Thomas Young, J. P.
    “ Received May 18,1869. Recorded May 25, 1869.
    “ W. G. Buckner, Recorder Perry County.”
    On July 1,1869, Beall and Baird by deed assigned and transferred all “ the property and rights of property, interests, powers and possessions of every kind therein conveyed to them ” to the Straitsville Coal and Iron Company, an Ohio corporation. On April 15, 1872, this corporation sold and conveyed to J. W. Upson, as trustee for himselt and others, “ all the rights mentioned ” in said paper of May 15, 1869, “to the 23 acres ¿¡.escribed in said contract.”
    The Straitsville Coal and Iron Company, during the year 1870, subscribed and paid $40,000 to help build the branch railroad, from the Hocking Valley railway, at Logan, to a point at, or near, New Straitsville ; which point was as near to Straitsville as it was practicable to construct a railroad. Prior to February, 1872, said company made tests for coal on the 23 acre tract and found “ there was a remarkable vein of coal on that land.”
    Upson and his associates in March, 1872, by arrangement with the Straitsville Company, entered upon the land, and expended much money in driving entries into the coal; in constructing a railway leading from the Newark and Shawnee railroad towards said land; and in making other structures necessary for the business of mining and transporting coal on and from said land. By July 27th, 1872, their work had made such progress that, if not interrupted, they would have been ready to ship coal about the middle of the September following. Upson et al. were pressing work and arrangements, purposing, during the fall and succeeding season, an active prosecution of the business of mining, shipping and selling coal.
    On October 27th, 1871, Garrett, who still owned the fee of said land, conveyed it by deed to one Brown.
    On July 26th, 1872, The Newark Coal Company, having actual notice of Upson’s title, possession, work and expenditure, took a deed for the 23 acre tract from Brown, who expressly excepted from his warranty of title all claims arising under the instrument of May 15th, 1869, already herein quoted.
    The next night, said Newark Company, by force, seized the land, ejected Upson and his employés, and held armed possession until the company had begun a civil action in Perry Common Pleas against Upson and his associates and, on an ex parte application, obtained an order of injunction, whereby it prevented all the defendants in said action from re-entering said land and from mining coal thereon, and from transporting it therefrom. On trial in the Common Pleas a judgment of dismissal was rendered, from which the Coal Company appealed, but, after perfecting the appeal, voluntarily dismissed their action on August 27th, 1873.
    On June 30th, 1874, Upson and his associates began a civil action in Licking County Common Pleas, against the Newark Coal Company. Their petition contained tw'o causes of action: the first charging the trespasses of July 27th and following days; while the second charged that the prosecution of the injunction suit was with malice and without probable cause. Each count fully set out the wrongful interference with the property rights of the plaintiffs, and that they had thereby been prevented from prosecuting their lawful business from July 27th, 1872, until August 27th, 1873, to their great damage,— all in due form of law. Issues of fact were joined.
    At trial the jury found for the plaintiffs, assessing their damages at $15,000. On a motion for a new trial the court thought the damages excessive, but as a remittitur of $6,000 was entered by the plaintiffs, it overruled the motion and gave judgment in favor of the plaintiffs and against the Newark Coal Company, for $9,000 and costs. A bill of exceptions embodying all the evidence was taken. The District Court affirmed the Common Pleas judgment. The ease is here on error from the District Court. So many of the alleged errors as we deem proper for report, are indicated by questions in the opinion.

      H. § L. II. Goodwin and George B. Smythe for plaintiff in error.
    I. There was no consideration for the contract of May 15th, 1869. Parsons on Con., 448, 449; Chitty on Con., 46 ; Burnett v. Biseoe, 4 Johns, 235; Lester v. Everett, 12 Barb., 505; 3d Parsons on Con., 408; Hill v. Croft, 2d Phillip, 60; Lumbg v. Wagner, 13 E. C. L. & Eq., 252; Railroad Co. v. Brinckerhoff, 21 Wend., 141.
    2. The contract did not give possession, 17 Ohio St., 21. The land was not sold. And the plaintiffs had no right to an action of trespass. Jackson v. Clark, 3 Johnson, 424; Jackson v. Myers, 3 Johnson, 388; Ives v. Ives, 13 Johns; 235 ; 9 Johns, 35, 331; 1 Johns, 123; 4 Johns, 150.
    3. It was an entire and not a severable contract. 2 Ohio, 341; 3 L. C. Eq., 70; 16 Ohio St., 545; 3 Ohio St., 338; 17 Ohio St., 475; 51 N. Y., 246 j 31 Pa. St., 477; 10 Wend., 639.
    4. No title to the coal passed to Beall & Baird by the terms of the contract. It only gave them an incorporeal hereditament. 13 Mees. & Welsh., 838; 8 lb., 488; 16 Ohio St., 573; 6 Wis., 348; 40 Pa. St., 341; 2 Wall. Jr., 91; 4 East, 469; 73 111., 453; 55 Pa. St., 168; 2 Barn & Aid., 724; 4 Eng. C. L., 719; 2 Washburn’s Real Prop., 86; 32 N. J., 249; 47 Ind., 112; 53 Pa. St., 229.
    II. An action for malicious prosecution will not lie in a case of this kind. 1 Am. L. C., 210; 11 Conn., 582; 1 Wend., 354; 9 Ohio, 103; 8 Ohio St., 548.
    III. As to the measure of damages. 10 Ohio, 333; Sedgwick on Damages, 222; 1 Handy, 152; 5 Ohio St., 585; 2 Kernan, 40; 23 Ohio St., 358; 16 Ohio St., 573; 5 Ohio St., 504; 16 N. Y., 496; 1 Dutcher, 453.

      J. Buckingham and J. B. Jones for defendant in error.
    I. The answer to the objection that there was no consideration for the contract is, 1st. It is under seal, which implies a consideration, at least prima facie. 2d. The covenants on the part of Beall & Baird are absolute. 1 Parsons on Con., 373-376. 3d. The deed is a grant, an executed contract and no consideration was necessary. 4th. Want of mutuality is no defense to either party to a contract, unless it be merely executory. 55 Pa. St., 516.
    II. The instrument of May 15th, 1869, was a conveyance. In construing it the intention of the parties must have a controlling influence.
    . That the language used does not import that the parties had it in their mind to make another and more formal writing is a strong, if not controlling circumstance, in the construction of it. Bortz v. Bortz, 55 Pa. St-., 164; Chit Con., 313-315 and Note; 4 Kent Com., 105.
    The circumstance that the instrument is attested by two witnesses and acknowledged before a justice, shows that the parties regarded it as a deed conveying the title — the final instrument between them..
    Ikit if the instrument gives the grantee and his assigns the license or right for a term of years to mine on the grant- or’s land and convert the mineral to the grantees’ own use, then it passes an interest, and that interest may be assigned by the grantee. Maskett. v. Hill, 5 Bing., 694; Fink v.. Halderman, 53 Pa. St., 229; Q-rove v. Hodges, 55 Pa. St., 504; CHllett v. Treganza, 6 Wis., 343; Baimb. on Mines, 269, 271; 31 Pa. St., 474; Caldwell v. Fulton, 31 Pa. St., 474.
    III-. As to the action for malicious prosecution, see 9 Ohio, 103; 8 Ohio St., 548; 4 Ohio St., 502. That the action lies for malicious injunction was held in Cox v. Taylor, 10 B. Mon., 17; see also Whipple v. Fuller, 11 Conn., 581; Closson v. Staples, 42 Vt., 209; Marhourg v. Smith, 11 Kan., 554; Panghurn v. Bell, 1 Wend., 345. That- the injunction was allowed by a judge is no excuse or defense. 2 Add. Torts, 748, citing Fitz John v. MacJclinder, 39 L. J. C., 257, and 29 L. J. C., 170.

      IV. As to the measure of damages. Allison v. Chandler, 11 Mich., 542; Sedges, on Dams., 79, 80, 92; 71, 73, 89; lb., 661, Note — 693. White v. Morley, 8 Pick., 356; Roberts v. Mason, 10 Ohio St., 277; A. (?. i2. _fi. v. Dunn, 19 lb., 162.
   Granger, C. J.

I. What right, or estate, in the 23 acre tract, if any, was vested in Upson and his associates at the time of the ouster ?

A careful examination of the instrument executed by Garrett, Beall and Baird, on May 15th, 1869, leaves the mind satisfied that the parties did not contemplate the future execution of any other conveyance by Garrett: that, as they understood it, Beall and Baird were, by the delivery of that paper, vested with all the estate and title in said premises that Garrett intended to sell to them, or that they intended to buy of him. It is true the words “ agreement,” “ agree to sell and convey,” “ contract,” and the like, are used. But so also are the words “ and also grant the exclusive right to test, open and remove said coal;” so, also, they sign, seal and acknowledge it, precisely as if it were a deed of conveyance; “ and desire that the same may be recorded as such.” It is a well settled rule that the plain purport and purpose of an instrument, as a whole, should-control the ordinary meaning of particular words, so far as to make them conform to that purport and purpose.

We think that the title to the minable coal, with full right to enter and remove it, passed to Beall and Baird; that under the express words of the final clause of the deed of May 15th, 1869, their assigns fully succeeded to their rights; and, that, as the tracts of land were several, and the coal easily capable of subdivision, the conveyance to Upson was valid.

II. Did the grantees fulfil the conditions on which the continuance of the interest, or rights granted, depended? Garrett named “ at or near Straitsville ” for one end of the railroad to be aided. The other end might connect with the Hocking Valley railway, or such other railway as the grantees should prefer. The grantees did, within the two years, aid a railway, that began as near to Straitsville as practicable, and connected with the Hocking Valley. This fulfilled the condition. We think the performance of the condition as to “testing” for coal is not seriously denied. Hence, on July 27th, 1872, Upson was in rightful possession as lawful owner of the coal, for himself and his associates, with full right to prosecute the business of mining, removing and selling the coal.

III. Was the second cause of action a good one ?

It may now be considered the approved doctrine, that, an action for the malicious prosecution of a civil suit may be maintained, whenever, by virtue of any order, or writ, issued in the malicious suit, the defendant in that suit has been deprived of his personal liberty1', or of the possession, use, or enjoyment, of property of value. The name, or form, of the writ, or process, is immaterial. It may be an order of arrest, or of attachment, or of injunction.

The malicious prosecutor cannot shield himself behind the interlocutory order of the judge, based upon his own malicious, éx parte application and affidavit.

IV. By what rule should the damages be assessed ?

There being no market value of the rights taken from Upson and his associates, the only practicable rule for settling that value, is to follow, the ordinary common sense practice of business men. Make known to the body charged with the assessment, as fully as legal evidence can do it, all the facts that naturally, and materially, affect the value of the use of the rights of which the plaintiffs below were wrongfully deprived. These facts necessarily include the location, thickness, quantity and value of the coal that was mineable there and then; the facilities for transporting that coal to a market; the nature and extent of the demand for that coal; the total expense of placing it in the market (this included also all preliminary expenditures) ; the competition with which they must contend; the contingencies in the demand and supply of labor; the relation of the 23 acres to other mining lands of Upson and his associates, for which they could use part, or all, of the same approaches ; the total cost of the coal to them, and the. prices for which it was saleable during the period of the suspension; all these are facts naturally affecting the value of the right to prosecute that business with that coal, at and from that place, during that time. No one of them is by itself a measure of the value. Considered together, some of them add to, others subtract from the value; and then, after such a view, a common sense judgment again subtracts a percentage for the contingencies that are ever presenting themselves in the affairs of men.

Within these facts thus stated is the element of “profit on possible sales of. coal,” i. e. the difference between the cost of it and its market price. But it is there not as a measure of value; not in order to be allowed by the jury “ as profits,” but to be treated as one of a mass of facts that throws light upon the value of the use of- the rights taken from Upson, all of which the jurors ought to have known and considered when computing the damages. As we understand the charge to the jury, it instructed them to ascertain the value of the use in question by considering the evidence bearing upon the classes of facts hereinbefore enumerated. Inasmuch as it was the duty of the jury to consider the element of profits in the manner above described, the judge did not err when he omitted to charge as the defense below desired. Upon the remaining alleged errors complained of in the record, we hold against the plaintiff in error, upon.established rules of law and practice, and therefore without naming them, we affirm the judgment of the District Court.

Judgment accordingly.


author: Dickman, J.

text:
    Yearly et al. v. Long et al.
    A testator devised all his real estate to his son; he, however, to pay the testator’s daughter a legacy, in annual installments. Held,

    1. That the devise did not create a continuing and subsisting trust within, the purview of section 6 of the code, S. & C., 941.
    2. That the legacy was an equitable charge upon the estate devised; and that an action by the daughter to recover the unpaid installments, was barred after the lapse of six years from the time the right of action accrued on said installments respectively.
    Error to the District Court of Licking County.
    Joseph P. Long and others, creditors who held liens by judgments and mortgages, filed their petition in the court of common pleas against Andrew Weiant, Jr. and others who held liens on his lands, praying to have the liens on the land described in the petition adjusted and marshalled, and that said land might be sold to satisfy such liens according to their priority. Emeline Carver who was made a defendant, filed her answer and cross petition, alleging among other things, that her father, Andrew Weiant, died in 1858, seized of the tract of land described in the plaintiffs’ petition as" the sixth parcel, and that she had a lien thereon.
    Andrew Weiant before his death executed his last will, in which, after directing that all his just debts and funeral expenses should be paid out of his estate, gave and bequeathed all the real and personal property of which he might be possessed at the time of his decease to his son Andrew Weiant, Jr., he, however, to pay to the testator’s daughter Emeline Carver the sum of fifteen hundred dollars, in the following manner, to wit: One hundred dollars in one year after the testator’s decease, and one hundred dollars each. and every year after that time, until the full sum of fifteen hundred dollars should be paid. The testator appointed his said son executor of the will, directing therein that he be not required to give bond as executor, nor be compelled to make an inventory and appraisement. The said son accepted the provisions ,of the will — took possession of the property given and bequeathed to him — and after so accepting, paid to Emeline Carver one hundred dollars on the 1st of May, 1860, one hundred dollars on the 1st of May, 1861, and two hundred dollars on the 1st of May, 1864, but thereafter made no other payment on said legacy.
    Emeline Carver in her cross petition claimed, that said sixth parcel of land was charged with the payment of the balance of her legacy; that her lien therefor was the first and best; and though not asking for the sale of the land, prayed that should any order of sale be made, the unpaid installments of her legacy might be paid out of the proceeds of the sale. To the cross petition of Emeline Carver answers were - filed, setting up the statute of limitation of six years. To these answers she demurred, because they did not state facts sufficient to bar her right to recover said unpaid installments. On appeal to the district court, her demurrers to said answers were overruled, and it was held, that her action to recover the unpaid installments of said legacy was barred after the lapse of six years from the time her cause of action accrued thereon respectively. A petition in error filed in this court by Levy N. Yearly, one of the defendants, having been dismissed, the points in controversy arise upon the cross petition in error of Emeline Carver, also filed herein, to reverse the judgme^tf of the district court.

      James M. Stariberry, for plaintiff in error.
    The question of law presented is, whether the executor and devisee of Andrew Weiant, Sr., did ’«ot hold this land, charged with an express trust to nay Emeline Carver’s legacy, and if he did, whether che bar of the statutes is pleadable to avoid its payment.
    Section 49?4, Revised Statutes of Ohio, provides: “ Nor shall this chapter apply to the case of a continuing trust, nor to an action by a vendee of real property in possession thereof, ta obtain a conveyance of it.”

      If the payment directed by the testator of this legacy comes within the class of continuing and subsisting trusts, which have been defined as express in contradistinction to implied trusts, the limitation statutes as to other actions will not apply.
    The estate devised to the executor is a conditional fee, and he receives it, coupled with the trust of complying with its conditions. The executor and devisee takes the estate with the onus of the legacy, and it does not become perfect in him until its removal, by full payment of the legacy. He holds upon that express condition, and there is no expression in this will, giving to this claim for the legacy, the appearance of a trust resulting from implication. The averments of the cross petition of plaintiff in error disclose the provisions of the will and define the nature of his trust.
    “ The general rule is, that if the testator creates a charge upon the devisee personally, in respect of the estate devised, as if he devised lands to B, on condition of his paying such a legacy, the devisee takes the estate upon that condition, and he will take a fee by implication.” 4th Kent’s Comm., 541; Jackson v. Bull, 10 Johns. R., 148; Jackson v. Martin, 18 Id., 35; Shraker v. Van Alstigne, 18 Wend., 200; Karris v. Fly, 7 Paige, 421; McClellan v. Turner, 17 Maine, 436; 9 Mass. R., 161; 10 Wheaton, 231; 3 Mason, 209, 212; 5 T. R., 558; 4 East., 496; Cruise’s Dig., title Divise, §§ 11, 49, 70; 2 Preston on Estates, 207-250; 4 Comstock, 56 ; 33 Barb., 250; 3 Mason, 178; 1 Ohio St., 66, 80.
    I claim that, Andrew Weiant, Jr., as executor and devisee, holds the land, subject to the lien of the legacy, and so long as he holds thus without disclaimer or without by unequivocal acts by grant or othérwise, with knowledge of the legatee ignoring her claim, it still subsists and continues, or at all events, as a lien in equity, is not barred by the defense pleaded.
    It is not pretended any disclaimer of the trust exists, or that any such acts as would end it have been done by the devisee.to show-that the plaintiff’s legacy is a charge on the land devised. See Nellons v. Truax, 6 O. S. Rep., 98.
    “The executor Andrew Weiant, Jr., need not be first sued and the personal estate exhausted, because the fee of the land was granted to, and vested in him, as devisee, burdened with the discharge and charge of the legacy as upon the estate devised.” 12 Wheaton, 498, 60 and 114.
    “ The language of the devise makes the legacy a specific lien on the real estate,- as well as a charge against the devisee personalty.” - Sugden on Vend., 331 and 332.
    The trust of the executor “ continues and subsists ” so long as the legacy or any part is unpaid, and the bar of the statute does not attach until payment, or unless the trustee can be presumed to have been discharged by some act of adverse possession, or grant, to which the legatee assented.

      J. Buckingham, for defendant in error.
    Was Mrs. Carver’s action to enforce her equitable lien on the land barred in six or ten years after cause of action accrued, or is it not barred at all by the statute of limitations.
    It is not true, in any legal sense, that the estate of Andrew Weiant, Jr., was conditional.
    It may be said that it was on the implied condition that he would accept it, and every devise or grant is on that condition; but the devise was not to begin or end on the happening of any other event.
    Nor, as we believe, is it true that it created an express or a continuing trust or any trust at all in the true and legal meaning of the word. It may be conceded that in the opinions in reported cases and in text books, in which such devises are mentioned in connection with express and implied charges of debts and legacies on land, and devises to executors or trustees in -trust to pay debts or legacies, they are spoken of occasionally as implied trusts, but it has been incidentally merely and nothing has been made to turn upon that.
    In fact, so far as I have discovered, all that the courts Lave decided in that regard is that, on the acceptance of the devise, the law implies a promise to pay the money and gives in equity a lien for it upon the laud; it is not a lien at law, and is only so in equity, and is no more than a lien. There is no estate, nor any right of possession in the person to whom the money is to be paid.
    The devisee is required by the testator to pay it as purchase money for the land: he is in fact, to that extent, a purchaser, and the lien, in every substantial respect, is the lien of a vendor, enuring to the person to whom the money is payable. See Ranney. J., 4 O. S., 459 — 462; 10 John. R., 30.
    The equitable lien of a vendor, who has no note or bond for the purchase monej', is barred in six years. Borst v. Corey, 15 N. Y., 505; Littlejohn v. Cordon, 32 Miss., 235; Ang. on Lim., sec. 92, note (6th Ed.)
    An action at law lies against the devisee who has accepted the devise, and the statute of limitations begins to run as soon thereafter as the money is payable. Fulton v. McFwen, 17 O. S., 288; Phillips v. State, 5 ib., 22.
    In all cases in equity in which there is also a remedy by an action at law, the suit in equity is barred in the same time that the action at law is barred. Phillips v. State, 5 Ohio St., 132 ; Webster v. Webster, 10 Ves. 93 ; Ang. Lim., (6th Ed.,) § 176.
    A general charge on land by a devise for payment of debts, does not extend the period of the statute of limitations. Trinity Church v. Watson, 50 Pa. St., 518; Agnew v. Fetterman, 1 Har., 56.
   Dickman, J.

Upon an examination of all the provisions of the will of Andrew Weiant, it becomes evident, that it does not — as contended by the plaintiff in error — create, nor was it the intention of the testator to create a trust that would not be subject to the operation of the statute of limitations. The devisee stood under certain obligations in reference to the annual installments of the legacy. But, the obligations devolved upon him after accepting the provisions of the will, did not amount to a continuing and subsisting trust within the meaning of section 6 of the Code. (S. & C., 941.) The class of trusts which as between the trustee and cestui que trust are not barred by the statute, embraces those technical, direct and express trusts which are of a nature cognizable solely in equity. It would not, therefore, include the almost innumerable cases of implied and constructive trusts so-called, as for example, deposits or bailments not special in their character, or other trusts analogous to these. The will of Andrew Weiant, while it makes it incumbent upon the devisee of the land to ■pay the legacy, does not create a direct trust, and devolve upon him such duties and obligations that he cannot claim the benefit of the statutory limitation. He is not made a custodian of money or lands which the testator has beneficially given to Emeline Carver, but at the same time placed in the hands of the devisee in the special confidence that he will pay out and manage the same for her use and benefit. The testator gave the devisee the personal estate absolutely, and by implication a fee simple in the real estate, imposing upon him an annual indebtedness to Emeline Carver. An obligation was created, but not a continuing trust in the sense of the statute. Instead of a direct, express trust cognizable in equity alone, by the act of accepting the devise, the devisee became liable to an action at law, the very moment he failed to pay an installment of the legacju The testator directed that the devisee should not be required to give bond and security as executor, nor be compelled to make an inventory and appraisement of property. If the testator intended to create a direct trust, it will be observed, that while the devisee is made executor, the will imposes upon the executor no duty in reference to the payment of the legacy, although the executor as such is generally presumed “to act as the trustee of the testator, to fulfill his intentions, and to be governed by his directions.” (Wills v. Cowper, 2 Ohio, 127.) The devisee had full power to manage the real estate so as to make profits or gains therefrom for himself, with no accountability to the legatee as cestui que trust for resulting gains, and with no claim against the legatee for contribution towards taxes, or any of the expenses incident to the management of the property. Unlike a trustee charged with an express trust, however faithfully the devisee might manage the estate, having accepted the devise he became bound to pay the installments of the legac3r, though the property by depreciation might prove insufficient to pa3>- the same.

The question has arisen in this case, When was an action to recover the unpaid installments of the legacy barred by the statute of limitations? As soon as the devisee accepted the provisions of the will, an implied obligation arose on his part to pay the legac}r; and upon such an implied contract — not in writing — an action can be brought only in six years. No obligation, rested upon the deviseeuntil after the death of the testator, and the acceptance of the devise; there was no consideration moving to thedevisee from Emeline Carver, and there was nothing in the acts of the parties, or on the face of the will, that made-the devisee a party to a written contract. Any promise on his part to pay the legacy rested wholly in implication. If there was any privity of contract between the devisee and legatee it was created b}r law; and if there was any promise on the part of the devisee, it was only such as the law implied.

In Adams v. Adams, 14 Allen, 65, the declaration alleged,, that the defendant took a certain homestead estate as devisee under the will of John Adams, upon the condition, that he should within two 3rears after .the death of the testator, pay to Charles Adams, the plaintiffs’ intestate, the sum of six hundred dollars. Foster, J.: “ The sum payable to Charles Adams was a legacy which vested upon the-acceptance by the defendant of the devise to him on condition of its payment. Upon the acceptance of such a devise, the law-raises an implied promise by the devisee of the estate charged, in favor of the legatee of the money charged upon it. The legacy vested as soon as the defendant accepted the devise to him, although not payable till two years after the testator’s death.” See also Brewer v. Dyer, 7 Cush., 337 ; Felch v. Taylor, 13 Pick., 133; Putnam v. Field, 103 Mass., 557; Stimpson v. Monmouth Mut. Fire Ins. Co., 47 Maine, 385; Mellen v. Whipple, 1 Gray, 321; Exchange Bank of St. Louis v. Rice, 107 Mass., 41; Carr v. National Security Bank, Ib., 45.

But it is contended, that by the will of Andrew Weiant, the payment of the annual installments of the legacy became an equitable charge upon the real estate ; and that the statute of limitations is no bar to a suit in equity for the recovery of the legacy bequeathed to Emeline Carver. By the Code of Civil Procedure, the distinction between actions at law and suits in equity was abolished, and for all such judicial proceedings the civil action is a substitute. Formerly in this state statutes of limitation embraced only remedies at common law, and not those cognizable in equity. But now, the lapse of time sufficient to bar the remedy, whether of a legal or equitable character, must be determined by reference to the statutory mandate.

In seeking for the statutory rule of limitation applicable to the equitable charge under consideration, we cannot adopt the rule governing suits on mortgage liens. A mortgage is a conveyance of the legal estate, which in law would entitle the mortgagee to his action for the possession of the mortgaged premises. A civil action to enforce this equitable charge, we do not think, can be classed among actions barred in twenty-one years “for the recovery of the title or possession of lands, tenements or hereditaments.” A vendor’s lien perhaps bears a closer analogy to the equitable lien created by the testator’s will; and it has been held in New York and other states, that an action to enforce the equitable lien for the purchase money of land, is barred by the lapse of six years after the debt has accrued; that the debt is the basis or foundation of the lien, and with it the lien must stand or fall. Borst v. Corey, 15 N. Y., 505; Clyde v. Simpson et al., 4 Ohio St., 462.

We are aware that it has been held in England, that the statute of limitations is no bar to a suit in equity for the recovery of a legacy. But even in states where the provinces of law and equity are separate and distinct, if an action at law is allowed for the recovery of a legacy as well as a suit in equity, the statutory bar will operate in both tribunals. Souzer v. De Meyer, 2 Paige Ch., 577.

The devisee, in this case, by virtue of his acceptance of the provisions of the will, became personally liable to pay the legacy, on his implied obligation; and the statute law of Ohio enables a legatee to bring a civil action against an executor or administrator, for his or her share of the estate, upon a settlement, and order of distribution. Rev. Stats., § 6200.

Judgment affirmed.


text:
    McMillan v. Boyd.
    A bank, had moneys on deposit in one account to the credit of S., and in another account to the credit of S. as sheriff. The bank, after the expiration .of the term of office of S., transferred the moneys standing to his credit as sheriff, to his private account; and after-wards with the assent of S., applied the moneys thus transferred to the payment of the private debt of S. to the bank.
    In an action by the bank upon the official bond of S., as sheriff, for moneys of the bank, received by him in his official capacity,

      Held, That such transfer and application of the funds of S., as sheriff, to the amount for which such transfer was made, was a defense for the sureties on the official bond of S.
    Error to the District Court of Clinton County.
    The plaintiffs were bankers for some time prior to January 20th, 1871, and for some time afterwards.
    P. A. Stamats for some time prior to the first Monday of January, 1871, was the sheriff of Clinton county, and kept two accounts with plaintiffs’ bank. One account was in the name of “ Sheriff of Clinton county--Stamats,” and the other in the name of P. A. Stamats.
    On January 20th, 1871, there was in the bank to the credit of “Sheriff of Clinton county-Stamats,” the sum of $2,005.11.
    During the official term of Stamats as sheriff, he made on execution for the bank the sum of $754.05, and failed to pay it over to the bank.
    On January 21st, 1871, the bank transferred the balance due on his account as sheriff, to his private account.
    On January 23d, 1873, the bank charged to the account of Stamats $739.93, the amount of two promissory notes that Stamats then owed the bank. '

      L. J. Walker, for plaintiff in error.

      A. O. Diboll, for defendant in error.
   McCauley, J.

This action was brought against the sureties on the official bond of P. A. Stamats, late sheriff of Clinton county, for the sum of $754.05, made on execution for the plaintiffs, by the sheriff during his term of office and not paid over to them.

The plaintiffs for some time prior to the expiration of the official term of the sheriff, had on deposit the moneys held by him, by virtue of his office; and the same stood to his credit on their books to “Sheriff of Clinton countyStamats.”

The form of this credit was sufficient to inform the plaintiffs that the funds thus held were not the private and personal moneys of Stamats. The moneys thus practically to the credit of the office were transferred to his private account, and afterwards $739.93 of this balance was applied by the plaintiffs to pay the private and personal debt of Stamats to them. The plaintiffs holding this money with knowledge that it was not the money of Stamats, but that it was money for which the sureties on his official bond were liable, cannot be permitted to divert it to the payment of their private claim against him, and then call on his sureties to make good a deficiency thus caused in his official account.

The plaintiffs could have no lien on this fund as bankers, for the payment of their private claim against Stamats.

Their right to such a lien could only arise out of their private dealings, and could not be asserted in moneys known to have been deposited in a fiduciary capacity.

Judgment affirmed.


text:
    Hawkins v. Lasley.
    The action authorized by section 4 of the act entitled “ An act in aid of the law regulating suits by and against companies and partners,” passed Feb. 27, 1846, (S. & C. Stat., 1139) is “an action for relief” described in section 18 of the “ act to establish a code of civil precedure ” (S. & C., 949), and is barred in ten years after the right of action accrued.
    Error to the District Court of Jackson County.

      W. W. Johnson and Simeon Nash for plaintiff in error.

      W. A. Hutchins and O. F. Moore for defendants in error.
   Granger, C. J.

In the years 1858,1859,1860 and 1862, several creditors recovered judgments against the “ Iron Yalley Furnace Company,” a partnership, under the act of Feb. 27,1846'(S. & C. 1138). The partnership became insolvent, and ceased to do business as a firm, about 1860. All of said judgments were assigned to Wellington Hawkins. On September 6, 1873, he began an action under section 4 of said act “to charge the individual property of the persons composing said company.” The defendants answered : First, that, “ the plaintiff’s supposed causes of action, nor any, nor either of them did not accrue to the plaintiff within six years next before the commencement of this suit; ” and a second defense set up in like words the bar of ten years. To these defenses, and to the answer as a whole, the plaintiff demurred. The Common Pleas overruled the demurrer, and, the cause being submitted without a reply, dismissed the action. On appeal, the District Court also overruled the demurrers, and on a like submission, dismissed the action at- plaintiff’s costs. He asks a reversal of this judgment.

After Feb. 27, 1846, a creditor of an Ohio partnership could, at pleasure, sue under the act of that date, or under the practice act, making all the partners, in person, defendants. The first course gave him a judgment against the firm and execution against partnership property; the second resulted in a judgment against the partners, and executions on which property of each partner, as'well as partnership effects, could be seized. In either judgment the original cause of action was merged. Either judgment was complete in itself,— equal in vitality, and could be sued upon, or revived, by like proceedings. To maintain the judgment against the firm in all its original force and effect precisely the same processes were at the command of the judgment creditor, as would have been available on a judgment againt the partners. An action to maintain or to revive the judgment against the firm, so as to give full effect to all its attributes as a judgment, (against a firm, applicable to firm property,) was subject to no bar that did not equally apply to a judgment against the partners, in the other form of action.

Section 4, of the act of 1846, looking to the probable failure to enforce payment of the judgment against the firm, authorized the creditor to begin another action, by “ a bill in chancery against the several members” of the firm, “setting forth his judgment and the insufficiency of the partnership property to satisfy the same ; and to have a decree for the debt and an award of execution against all such persons, or any of them, as may appear to have been members of such company, association, or firm.” Section 605 of the code of civil procedure (S. & 0., 1132) made this “ bill in chancery ” a “ civil action.”

This action did not attempt, in any way, to affect the original force of the judgment against the firm. Its existance continued unaltered. It applied to a defendant that, —for the purposes of said judgment — was so like a corporation, that it is difficult to state why it was not, to that extent, a corporate body. The new action sought other defendants, and other property, to be taken under a new judgment. The “ decree ” of the act of 1846 must, under section 605 of the code, be named “ a judgment.”

The original cause of action was merged in the firm judgment. The new suit was not “ an action on a judgment” such as was free from the application of the statute of limitations; because, as already said, it was not a proceeding to maintain, or enforce, the original power of that judgment. In fact the new action may be called “ an action notwithstanding the judgment.” The judgment itself remained a bar to any such action, so long as there was enough partnership property to pay it.

We think the action is not “upon a liability created by statute, other than a forfeiture or penalty.” The act of 1846 was substantially amendatory of, and supplementary to, the practice act. The members of the firm, by contracting with their creditor, and failing to pay the debt when due, gave him a right to proceed against them in either mode; i. e., to push them personally at the outset under the ordinary practice; or, eventually, by action after judgment against the firm, under this act. The act created no new liability ; it authorized an additional mode of enforcing the liability created by the acts of the parties. Its title names it “ An act in aid of the law regulating suits by and against partners.” We would say it created a new remedy. At first view, it might seem that the action should be considered as based in some way upon the original cause of action. But a judgment against a firm may be rendered upon a dozen different causes of action, each falling due at a date different from the others ; no two subject to the same bar. A verdict and judgment merges all in one sum. The firm assets may pay this sum in part before suit brought against the partners. It would be impossible, in such a case, to determine to what cause, or causes of action, the unpaid part of the judgment belongs; and therefore impossible to apply the bar of the original causes of action.

Section 18 of the civil code of 1858, describes “ An action for relief not hereinbefore provided for.” The new remedy created by section 4, of the. act of 1846, is literally “ an action for relief;” and it is not “hereinbefore provided for ” unless it is based upon a “specialty.” But the court, in Tyler's Executors v. Winslow, 15 Ohio St., 366, 367 and 368, so strongly argues that the word “ specialty,” as used in Ohio Limitation Acts, does not embrace a judgment, that we feel constrained to hold that Stockwell v. Coleman (10 O. S., 33), has no application to this case, and that this is not an action upon a specialty. We decide that the answer setting up the ten years bar was a complete and valid defence, and therefore the judgments rendered by the courts below are

Affirmed.