author: Judge Burnet.

text:
    *Aspinwall v. Williams and others.
    Articles of agreement for constituting a partnership, assigning to each party the performance of certain things to put the business to be carried on into operation, constitutes a partnership immediately, not from the commencement of the business itself.
    Where the articles of copartnership do not fix the name of the firm, and a contract is made by ono partner for the joint account, a note executed by one for the whole, in the name of himself & Co., is binding on all.
    This cause was tried before the Supreme Court of Hamilton county, at May term, 1823, and a verdict rendered for the defendant. A motion was made for a new trial and reserved for decision upon a case stated, at the special session in Columbus.
    The substance of the case is as follows: On the 31st of July, 1818, the defendants entered into contract, of which they made a memorandum in writing, in the following words:
    “Memorandum of an agreement made and entered into this thirty-first day of July, one thousand eight hundred and eighteen, between Jacob Williams, of Mill Creek township, Hamilton county, State of Ohio, on the first part, and Benjamin Gardner, Jr., and William Chase, of Newport, State of Rhode Island, on the second part, witnesseth, that the said Jacob Williams, Benjamin Gardner, Jr., and William Chase, do agree to erect and build a distillery for the distillation of grain, jointly to share and share alike the cost of said establishment, to be erected on the ground of said Williams, near where he now resides. Now the conditions of this agreement are such, that the said Williams does, for himself, his heirs, and assigns, agree to lease for the occupation of said establishment, a certain lot of ground, not to exceed more than two, or be less than one and one-half acres of land, through which there is a running stream of water, for the sole use of said establishment, or those interested therein; this lease to continue for the full term and time of fifteen years, to commence from the time of signing these instruments: and for his part doth further covenant and agree to erect the necessary buildings in order to go into the operation, to commence thereon immediately; the said Gardner and Chase do on their part agree to provide the stills and worms of said establishment. It is further understood that a store of goods shall be established, to be furnished by said Gardner and Chase; and after the establishment shall be completed, the goods and stills on the spot, an equal proportionate of the amount paid by each shall take place, and a full adjustment be made. The whole establishment, goods, etc., etc., is to be equally owned by us three. The said Gardner to manage all things appertaining to the distillery inward, and *the said Chase all that concerns the outdoor business of the establishment; the said Williams to be consulted in all things, and his advice always to have due weight. Further, we, the said Jacob Williams, Benjamin Gardner, Jr., and William Chase, do by these presents bind ourselves, our heirs, and assigns, for the full and faithful performance of the above obligations ; and should either of the parties feel disposed to sell or dispose of their interest therein, the remaining parties shall have the offer to buy out; and after the expiration of the lease, it shall be at the option of the said Williams to continue, or sell out; and that a settlement of all accounts shall take place quarterly, or half yearly. Respecting the purchase of grain, it is understood that whatever purchases each of the parties may make, it is to be binding on all the parties, or that what sales of whisky or gin each one may effect, the other parties are to comply with.”
    Received five hundred dollars, in full for all damages, costs, and debts, and especially for all damages on or respecting this article.
    Jacob Williams.

      After the making of this contract, the defendant, Chase, proceeded to New York with letters from merchants in Cincinnati, stating the character and responsibility of the defendant, Williams, upon the credit of which the plaintiff sold him a quantity of merchandise, and took a note for the amount executed by Chase in the name of William Chase & Co. Upon this note the action is brought. It was admitted that Williams know nothing of Chase carrying letters recommending his credit, to New York. It was also admitted that none of the goods came to the use of Williams, and that the business of distilling was never commenced between the parties.
    Hammond, for the plaintiff.
    It is insisted that the contract constituted an entire, and complete partnership from the moment of its execution, and that the stipulations as to what shall be done by the different parties for carrying the partnership into effect, and setting it in operation, are nothing more than agreements what part each shall perform upon the partnership account.
    On the other hand, the defendant, Williams, insists that the agreement does not constitute an immediate partnership; that it is nothing but a contract to commence a partnership hereafter, upon the performance by the respective parties of particular things which *they covenant to perform — that these things not being performed, no partnership ever existed. This interpretation of the agreement appears to me untenable for various reasons.
    The first stipulation is in the present tense; the parties “ do agree to erect and build a distillery for the distillation of grain, jointly to share and share alike the cost of said establishment.” A distillery', when erected, consists not merely of the house, but it consists also of the stills placed in furnaces, worms in their proper vessels, troughs, tubs, etc. — including everything necessary to carry on the.process of distillation from grain. The agreement to erect and build a distillery necessarily includes the preparation, in their proper places, of everything essential to the establishment. This the parties agree to do jointly — and they add, so as to leavé no ground for misapprehension, that they are “ to share and share alike the cost of said establishment.” The term establishment fully explains the proper interpretation of the term distillery before used, as I claim it must be understood.

      It seems clear to me that here is a present partnership established for the erection of the distillery, and that every act done toward effecting that object, must be done upon the partnership account. After having thus created the partnership, the members agree between themselves that Williams shall erect the buildings, and that Gardner and Chase shall provide the stills and worms. The distillery, the establishment, includes all these, and that is to be erected or built jointly. Williams, in erecting the buildings, must act for the company — Gardner and Chase, in providing stills and worms, must act for the company; thus every act done by either party, in completion of this part of the agreement, must have been an act performed for the account and advantage of the company, for which the company must be responsible. Had Williams employed hands to furnish materials, or mechanics to erect the buildings, would the law permit Gardner and Chase to say: True, this work was to be done by Williams and ourselves jointly; we were to share and share alike the cost, and what has been done is for our benefit, yet Williams agreed with us to do this for his part— you made your contract with Williams, and you must look to him for compensation. It is most certain that the law would not permit Gardner and Chase, in the case stated, to hold this language. Had Gardner and Chase purchased stills and worms for the establishment-, could -Williams be permitted to say: I am not responsible for the price. To be sure they constitute part of the distillery to be erected and built jointly; *the articles of co-partnership give me a right of property in them; but Gardner and Chase were to provide them, and they alone are legally bound to make payment. This surely could not be permitted. Is the case of the purchase of the store in any respect essentially different?

      “ It is further understood that a store of goods shall be established, to be furnished by said Gardner and Chase; and after the said establishment shall be completed, the goods and stills on the spot, an equal proportionate of the amount-paid by each shall take place, and full adjustment be made, the whole establishment, goods, etc., to bo equally owned by us throe.”
    Can there be any serious difficulty in giving a just interpretation to this provision? I can see none. The establishment shall include a store of goods which shall be furnished by Gardner and Chase; when furnished, it shall be equally owned by the three part* ners. What sum of money, of their own property, Gardner and Chase shall have expended in furnishing the goods, and in providing the stills'and worms, and what sum of money Williams shall have expended of his own property in erecting the buildings, shall be apportioned to each — the accounts shall be adjusted — but no matter what the relative proportion may be, the whole shall be a company concern, and each shall own an equal interest without regard to his individual expenditure. This certainly is the legal interpretation of the contract.
    The defendant, I am informed relies much upon the case of Saville v. Robertson and another, 4 Term, 720. This case, as I think, is not in point for him. The judges differ in opinion, which weakens its authority. But it is distinguishable from this case in all its important bearings.
    In the first place, it is decided that there was a partnership in regard to the ship, and, in this particular alone, the case resembles ours. With respect to the cargo, each party was to be interested according to the amount of cargo furnished by him. This is not our case. The parties are to be equally interested, no matter what amount is furnished by each. When the extent of interest depends upon the amount of capital furnished, it is impossible to say that the partnership can be bound for contracts to supply that capital. Each individual partner must be regarded as contracting to procure his own share of the capital. But when the interest is to be equal, without reference to the amount furnished by each, it is very natural to infer that each makes his purchases for the whole. He *c.an have no inducement to involve himself, because the only consequence is to make himself a creditor of the company. Third persons can have no inducements to credit him —for if he advance four-fifths of the whole capital, where there are partners, except as to one-third, he is only loaning money to his copartners.
    In this case of Saville, the supplementary agreement of 28th July, 1787, expresses distinctly the understanding of the parties that they are not to have any interest in the amount furnished by each other, and that they are not to be separately liable for the advances of each other. This is not like our case, because with us all are equally bound' to do part, and all are to receive equal proportions of the aggregate property. There is a joint interest in everything as it is brought into the use of the company, no matter by ■whom supplied; and this of itself creates a joint responsibility. See Watsop on Partnerships, 5-25; Com. on Contracts, 286,300; 1 Camp. 185, 329.
    In Saville v Robertson et al., Lord Kenyon says, “ It is clear that if all these parties had been partners at the time when the goods were furnished, though that circumstance was not known to the plaintiffs, they would all have been liable for the value of the goods” — 725. Now it is clear that in our case the parties were partners for creating a distillery establishment — and that a store of goods, according to the articles of copartnership, was to constitute a part of that establishment, in which all the parties were to be equally interested. If such store of goods be purchased by one partner upon the credit of the whole, surely the whole, who were to share and share alike in the amount, ought to be responsible for the cost.
    In the case of Saville, the copper purchased to repair the ship was held to bo chargeable to the company, because the company were alike interested in the ship. But the copper purchased as an adventure was not allowed to be charged upon the company, because they had no interest in the purchase, and in no event could derive advantage from it. And besides it was purchased upon the individual credit of Pearce. In our case the goods were purchased upon the credit of Williams, and had Chase acted honestly, Williams might have derived benefit from them. The circumstances under which the purchase was made constituted Williams part owner of the goods. If loss is sustained by the knavish conduct of Chase, Williams ought to bear it, rather than the plaintiff. Williams trusted Chase, and gave him credit; the plaintiff trusted ^Williams not Chase. It was by receiving Chase as a partner that Williams enabled Chase to impose upon the plaintiff, and it was by the interest acquired in the goods by virtue of the partnership that Chase was enabled to sell them so as to divest the title and ownership of Williams.
    Williams’ receipt on the article recognizes a liability for costs and debts. Now no liability for debts could exist if the copartnership had never commenced. Damages might have been sustained in consequence of the other parties not perfecting the copartnership, but debts could not have been incurred. This receipt is therefore an acknowledgment by Williams that the partnership had existed and had incurred debts — and this acknowledgment settles the question, unless it is shown to have been made under a mistake of the parties’ rights.
    If a partnership exist, and one member be sent to make purchases for the partnership account, with instructions to make such purchases as if for himself, the company are nevertheless liable, if the company receive the articles purchased. It is not permitted to a partnership actually to receive goods tor their own use, and shift the pecuniary responsibility upon an individual member. In this case, after the article of agreement to erect a distillery jointly and to share and share alike the cost, a subsequent provision that Williams should build the house, and Gardner and Chase provide the stills, could not, in respect to strangers, change their joint liability.
    Whatever they agree to do jointly, to supply jointly, and to own jointly, they must jointly pay for, no matter on whose credit it may be supplied. In the case of Saville, the copper to repair the vessel appears to have been furnished as entirely on the credit of Pearce as the copper for exportation; yet the company was held liable because they were jointly bound to fit out the vessel. For the copper furnished for exportation they were not held liable, because they had no interest, and could have no interest in it.
    The plain letter of the contract, and the conduct of all the parties, alike contradict the position of the defendant. If it were a ease in which each party agreed to furnish certain sums of money, or specific articles,, to create a foundation whereon an association should be afterward erected, no partnership cost or debt could arise; nothing of this kind could exist to be satisfied by pecuniary compensation. Williams’ receipt, therefore, most strongly confirms and corroborates the natural and obvious interpretation of the terms used in the contract.
    *Corry for defendant:
    We contend that the articles of agreement prove no actual existing partnership between the defendant, Williams and Chase, at the time the goods were purchased from the plaintiffs, and the note on which the suit is brought was executed. But they exhibit a project of a partnership contemplated to be perfected at an indefinite future period, resting on the performance of the conditions contained in the agreement of the contracting parties. That this agreement is executory, is manifest from its provisions, “ That the said Williams does, for himself, his heirs and assigns, agree to lease, for the occupation of said establishment, a certain lot of ground,” etc.; not that he does hereby demise, grant, and to farm let a certain lot of ground, etc. “And, for his part, does further covenant and agree to erect the necessary buildings, in order to go into the operation, to commence thereon immediately.” That is, that he shall immediately commence the erection of the necessary buildings to go into the operation of the distillation of grain, an undertaking that necessarily required some time and much labor for its completion.
    Again, “ The said Gardner and Chase do, on their part, agree to provide the stills and worms for said establishment. It is further understood that a store of goods shall be established, to be furnished by the said Gardner and Chase; and after the establishment shall be completed, the goods and stills upon the spot, an proportionate (apportionment) of the amount paid by each shall take place, and a full adjustment be made,” etc. To provide stills and worms, and furnish a store of goods, to bring them to the spot, and to adjust the proportion of stock each party to the agreement would be entitled to, necessarily required some time for their accomplishment. Hence, it is evident that this agreement was, from the terms of it, executory in its nature. But the plaintiffs have failed to prove that the provisions of this contract had been complied with by Gardner and Chase on their part, at the time the goods were purchased from the plaintiffs and the note in question given by William Chase in the name of William Chase & Co. Hence, it is most manifest, that at that time no actual partnership did exist between Chase and Williams, and therefore he had no authority to bind Williams or to render him in any way responsible to others. This position is fully supported by Watson on Partnership, in margin, page 184, where it is declared: “ So essentially necessary is it that a person sought to be charged should have been actually a partner at the time the contract sued upon was entered into, that if it clearly appear that no ^partnership existed at the time of the contract, no subsequent act or acknowledgment by him will render him liable.”
    The case of Saville v. Robertson and Hutchinson, 4 Term Rep. 720, illustrates and establishes the foregoing doctrine; that was an action for goods sold and delivered to Samuel Pearce. At the trial a special ease was reserved, which stated as follows: “ In April, 1787, the defendants and one Samuel Pearce, since deceased, and one William. Robertson, since a bankrupt, entered into the following articles of agreement:
    “Articles of agreement made the 19th day of April, 1787, between J. Hutchinson and J. Robertson, of London, merchants and copartners, as well on the part and behalf of themselves, as of others who shall subscribe their names on the back of these presents, of the one part, and Samuel Pearce, of, etc., merchant, of the other part, etc.
    “ Whereas the said Samuel Pearce is the sole owner and proprietor of the ship Triumph, etc., and whereas the said J. Robertson, J. Hutchinson, and others, who have or shall subscribe their names on the back of these presents, have mutually agreed upon a joint undertaking and risk, as to profit and loss, in a certain voyage or maritime adventure about to be performed under the direction of the said parties, who have or shall have a majority of interest therein, or of a committee appointed by them: now these presents witness that the said J. Robertson and J. Hutchinson, on behalf of themselves and all others who shall subscribe, etc., and the said Samuel Pearce, for himself, in consideration of the trusts which they severally repose in each other, mutually agree with each other, etc.: 1. That the said ship Triumph, of which the said Samuel Pearce is the sole proprietor, shall, from the day of the date, until her return from her intended voyage, be at the disposal, direction, and risk of all the parties hereto jointly, at the valuation of 3,750¿., etc. 2. The said J. R. and J. H. and others shall, on or before the 20th of August next, provide a cargo of goods to the value of between 22,000i. and 25,000Z., which goods shall, in the opinion of a majority of the parties to these presents, be deemed eligible for the voyage and markets, etc. 3. The additional outfits of the ship, in cables, etc., shall be on the joint account, etc. In case the said Pearce shall be desirous to increase his interest in the said joint concern, by shipping on the joint account as he may think proper, the goods to be such articles as a majority of those concerned or their committee shall approve as proper for the voyage, etc., *that the 3,7501., together with such additional goods as he may ship, to be his share of the capital in the joint undertaking, etc., and to receive the profits and bear the loss in proportion as the amount of all such sums shall be to the remainder of the said joint concern, etc. And the said J. Robertson, J. Hutchinson, etc., shall receive the profit or bear the ■loss in proportion to the sums set opposite their several names, etc. Signed and sealed by J. Robertson, J. Hutchinson, S. Pearce, and W. Robertson.” The remaining articles are not material.
    In May, 1787, the plaintiff, on the order of Pearce, supplied copper to sheath and repair the ship Triumph, to the amount of 482i. In August the plaintiff delivered copper on board the ship by the order of Pearce, to the amount of 9382. 3s. 3d., which formed a part of the cargo thereof. In October, 1787, the said ship sailed from London to Ostend, and thence to the East Indies, with the goods as furnished by the plaintiff, and other goods on board. In January, 1788, Pearce became a bankrupt, and Saville proved his debt under the commission against him, etc.
    “Lord Kenton, C. J. Some of the points made at the bar admit of no doubt: It is clear that if all these parties had been partners at the time these goods were furnished, though that circumstance were not known to the plaintiff, they would all have been liable for the value of the goods. But my difficulty arises from the form of this action, which is for goods sold and delivered; for I do not see how any act which passed subsequent to the delivery of the goods, can have any retrospect so as to alter the nature of the contract, which was not doubtful. It might have been evidence to explain it to be a partnership contract, if the contrary had not expressly appeared. The facts of the case are shortly these: Several persons who had no general partnership, nor any connection with each other in trade, formed an adventure to the East Indies. The outfit of the vessel was a joint concern of all the partners, to wit: the copper for sheathing the ship, which is admitted to be a partnership concern; but beyond that I see no partnership between the parties till all the parcels of the cargo were delivered on board, and that made it a combined adventure between all the parties.
    “I can not distinguish this case from that put at the bar, where several persons were to contribute their separate quota of money, and they applied to different scriveners to procure it. They could not all be liable for the capital which each should borrow. At the time when the copper was furnished, Pearce stood in no relation ^whatever to the other persons, but he alone bought the copper in his own name, without carrying to market the name of any other person than his own. Suppose the plaintiff had brought an action for this copper the instant it was delivered on board, against whom must the action have been brought? Pearce only: for he alone was answerable at that time. I can not, therefore, see how it can be said that these goods which were sold to Pearce only, and on his sole credit and account, were sold and delivered on the partnership account. Afterward these defendants were to gain or lose by their joint cargo. When the other goods were brought in, the partnership arose; but each was to bring in his own particular stock. But in this case, I think the question stops short of affecting the defendants, and I can not see how the plaintiff has a right to call on the defendants as partners, for the value of the goods, on a supposed contract, when the real contract between the buyer and seller was consummated before this joint risk began. Suppose several persons agreed to open a banker’s shop, and it was agreed that each partner should bring into the house a certain sum of moneyas his share. It could not be'contended that if one of them should borrow money for his share, all the ■others would be liable for it.”
    The case at bar presents a stronger case for the defendant, Williams, than the case cited exhibits for the defendants, Robertson and Hutchinson. In their case, the goods ordered by Pearce came into the possession of the contracting parties, and the adventure was actually made for the benefit of the joint concern. In the case at bar, the goods purchased by Chase, and for which the note was given, never came to the possession of the parties to the agreement, but were received by Chase, and sold by him for his sole advantage. In the one case the partnership was consummated — in the other it never has been perfected.
    There is another ground submitted to the consideration of the court. That a partner, to bind his copartners, must sign in the partnership name, when that name has been agreed upon — when not, in the name of all the members of the firm. But no name of partnership was given to this firm in their agreement, nor proved to have been otherwise made. Therefore the signature of “ William Chase & Co.” could not bind the defendant, Williams, had he been an actual partner at the time; but it will be obligatory on William Chase only.
   ^Opinion of the court, by

Judge Burnet.

The question to be decided is, was there a partnership at the date of the note, so as to render Williams liable to this action.

On the part of Williams, it is contended, that these articles do-not show a partnership, at the time the note was given, but only a-project for a partnership, to be consummated at a future day.

For the plaintiff, it is insisted that the contract created a complete partnership from the moment it was signed, and that the-stipulations as to what each partner shall do, are nothing more than a distribution of the services to be performed by each, for, and on account of the joint concern.

In deciding the question submitted, it is necessary to ascertain what constitutes a partnership in the view of the law. Having donoso, we may determine the true construction of this contract, and whether it did or did not create a partnership between the parties, from the time of its execution.

A partnership has been defined to be “ a contract of an association, by which two or more contribute money, goods, or labor, to the end that the profits may be ratably divided between them.” This definition, as far as it goes, is said to.be unexceptionable; but it is incomplete, as to third persons, between whom and the parties the question most frequently arises. In this respect, it is observed that he who shares in the profits ought to bear his portion of the^ losses, because by taking the profits he takes the fund on which the creditor relies for payment. In order to constitute a partnership so - as to make a person liable as a partner, there must bo some agreement between him and the ostensible person to share in the profits, or he must have permitted the ostensible person to 'use his credit, and to hold him out as one jointly answerable with himself. 1. Com. on Cont. 286 ; Doug. 371.

In order to constitute a partnership, a communion of profit and-' loss between the parties is essential, and this is the true criterion to judge by, when the question is, whether persons are parties or not. 1 H. Blac. 43, 48. Where one takes a moiety of the profits, he shall, by operation of law, be made liable for losses. 2 H. Blac. 247. But where an agreement was made for the purchase of goods, in the name of one, for the benefit of several, but the agreement did not extend to a joint sale of the goods, a majority of the court held that it was not a partnership, but had the agreement extended to the sale as well as the purchase, all would have been liable, though but one was known in the purchase. 1 H. Blac. 37. Though in-*point of fact, parties are not partners, yet if one so represent himself, and by that means gets credit for the other, both shall ba liable. 1 Esp. 29. In the case of Waugh v. Carver and Giesler, 2 H. Blac. 235, it was admitted that the parties to the contract did not intend to become partners, or to carry on trade at the risk of each other, or to become liable for each other’s losses, but yet it was. determined that as to third persons they were partners, because it appeared from certain parts of the agreement that they intended to share the profits. This case was decided principally on the authority of Grace v. Smith, 2 Blac. 998, in which it was settled that every man who takes a share of the profits, ought, by operation of law, to bear his share of the loss. Let these principles be applied to the case before us, and there does not appear to be any room for serious doubt. It might have been the intention of the parties to the agreement that each person should pay for the articles or goods he purchased; but the expectation of partners is not to affect the legal right of their creditors. The question is not simply, what the parties intended by the contract, but whether third persons had not a right to rely on their joint credit. To determine this we must refer to the agreement itself. The first provision is, that the three parties to the contract, do agree to erect and build a distillery jointly, to share and share alike the cost of said establishment. The defendant, Williams, is to lease a certain lot for the use of the establishment, to continue for the term of fifteen years and to commence from the time of signing the said instruments. He agrees on his part to erect the necessary buildings — Gardner and Chase agree, on their part, to provide the stills and worms for said establishment. A store of goods shall be established, to be furnished by Gardner and Chase. After the establishment shall be complete, the goods and stills on the spot, the whole establishment, goods, etc., to be equally owned by the three partners. From this it appears that the parties were all equally interested in the establishment. They were to be joint owners of the goods, which were to be sold at their store, for their common benefit. They were -consequently to participate in the profits.

Again. It would seem that the term, establishment, as used in the agreement, was intended to embrace the whole concern of the parties, and to include the store, as well as the distillery. If this inference be correct, no doubt can remain, as the first article in the contract provides, that the parties shall share and share alike the most of the establishment. The cost of an establishment must -^include all moneys expended, and all debts contracted in the completion of it, which would, in this ease, include the debt on which-the suit is brought. The mind seems to be irresistibly led to this conclusion from the consequences that adifferent construction would produce on the parties themselves. Admit for a moment that the-defendant’s construction is to be sustained, and what is the consequence? Williams, on his part, is to furnish the ground and to erect the buildings, at the joint cost of all the parties. Chase- and Gardner, on their parts, are to furnish the stills, worms, and goods at their own individual cost; and when all are furnished, each is to be an equal owner of the whole. The injustice of such a construction, must be apparent.

But if it be admitted that the store was not considered as a part, of the establishment, but merely as an appendage, the same conclusion seems to follow, for as the principal establishment was by express stipulation to be erected at the joint cost of all the parties, the appendage to the establishment must be provided on the same terms. Justice requires it — the common sense of mankind requires it.

Had it been the intention of the parties to provide for a partnership, to commence at a future day after each of the parties had furnished his portion of the stock, the contract would have contained some stipulation as to the amount to be furnished by each, and that, it should be on his own credit, so that each might bring into the* common stock an equal portion of it. But nothing is said on this subject. Each party is left to his own discretion. The building-may cost much or little — the assortment of goods may be small or extensive — yet each is to be equally interested in, and an equal owner of the whole.

In forming an establishment of this kind, various duties and services were to be performed, and it was natural to distribute these-among the parties with reference to their different capacities; hence we find that Williams was to have the building erected, and. the other partners were to lay in the goods. This consideration-will sufficiently account for this part of the arrangement, without searching for any other cause, and when in connection with this it. is considered that all the disbursements and engagements of Williams, in performing his part of the contract, were to be at the joint , cost of the concern, it seems to remove all doubt as to the understanding of the parties themselves on this point.

But some stress has been laid on the clause, that “ an equal proportionate *of the amount paid by each shall take place, and a [97 full adjustment be made.” What we are to understand by an equal proportionate in this case can not be easily told, as that^erm is never used in any sense in which it can be understandingly applied in the connection in which we here find it. The meaning of it may be ascertained by determining what the intelligible parts of the contract require it should be. It is certain that a partnership is provided for — that a distillery is to be established — that the parties are to share and share alike the cost of the establishment — that a store of goods is to be furnished — that the parties are to perform different services in getting the establishment into operation — and that they are to be joint and equal owners of it. These provisions would seem to require another, that each party should render an account of his purchases and payments, in order to ascertain- the whole amount of capital, the sum advanced by each, and the debt contracted on the credit of the company, by which their situation would be known, and their accounts could be correctly stated and adjusted. But in such a provision we can not see anything inconsistent with the commencement of a partnership from the date of the contract.

Great reliance is placed on the case of Saville v. Robertson, which the defendants consider as establishing the construction for which they contend. Independent of the fact that the court were divided in that case, we can not but view it as operating rather against the construction they contend for, inasmuch as the leading facts on which a majority of the court found their opinion do not exist in this agreement, and in the absence of those facts it can scarcely be doubted that the whole court would have concurred with Ashhurst ; but let us examine the case, and compare it with the one before us. In Saville’s case, each individual was to have an interest in the cargo equal to the amount of goods he might furnish. In this case, each party was to have an equal interest in the whole establishment. In that case the contract extended to a single voyage only, at the expiration of which each party was to receive back the amount of cargo he had furnished. In this case the contract was to continue fifteen years, and the interest of the parties was not governed by the amount furnished by each. In that case it was expressly stipulated, that the parties should not be liable for the engagements of each other. In this case it is as expressly stipulated that the parties shall share and share alike the cost of the establishment. In that case the copper for which the suit was brought was purchased on the individual credit of Pearce, who did not take the name of %ny other person into market, nor did the seller look to the responsibility of any other. In the casebefore us, Chase took the names .of all the parties into market, and the goods were purchased on the responsibility of the defendant Williams. In that ease it was stated what should be done on the joint credit of the company, and what on the credit of the members individually; it was provided that one should not be bound by the contracts of another, and no confidence had been created nor any credit obtained in consequence of the association. But in this case there is no such provision. Williams was held out as a partner; his name was carried into market, and the fact of his being a member of the company procured for it all its credit. Connected with these circumstances the facts, that the parties were to share the cost of the establishment — that Williams was to be an equal owner of the goods which were to be sold for their joint account, and that they were all interested in the profits, and it would seem that no doubts can remain. It would certainly be a novel case if Williams was to furnish his part of. the stock at the joint cost of all the parties — Gardner and Chase to furnish their part at their own individual cost, and then each partner should be an equal owner of the whole. Such a construction can not be admitted.

There are other circumstances in the case from which inferences might be drawn; as for example, the language of the article is in the present time — the parties do agree to erect, etc. — the law shall commence from the time of signing the instruments, and the receipt on the back of the article recognizes a liability for debts as well as for costs, but wo have not thought it necessary to dwell on these facts.

We do not discover any serious difficulty in the form of executing the note. The agreement being silent on that subject, the fair presumption arising from all the circumstances is, that the form adopted by Chase was the one agreed on by the parties.

We are clearly of opinion that the partnership commenced from the signing of the articles, and that the plaintiff had a right to look to the credit of all the parties. A new trial, therefore, must be granted.


source: Caselaw Access Project

author: Lane, C. J.

license: Public Domain

text:
    The Lessee of Theodore Miles v. Jonathan Fisher, Nehemiah Allen, and Paul P. Condit.
    Where an estate is devised to certain trustees and their successors, the limitation over to the successors is void.
    In a limitation, by will, to A., B., and C., and to the survivors, to hold as joint tenants, and not as tenants in common upon trusts, the grantees take at law an estate for life, with a remainder for life during the life of the survivors and survivor, leaving the remainder in fee to descend to the heir. During the life of such trustee, or the survivors or survivor, the heir can not maintain ejectment.
    The estate of joint tenancy does not exist in Ohio.
    This is an action of ejectment on an agreed state of facts, from the county of Cuyahoga.

      The plaintiff claims as one of the heirs at law of Daniel Miles.
    The defendants set up title in themselves under the will of Daniel Miles.
    In 1825, the testator devised his estate, real and personal, to 2] three of his friends, and to the survivors or survivor, as *joint tenants, and not as tenants in common, in trust, and for the following uses:
    I. To pay debts.
    II. To pay certain pecuniary legacies to his mother, brothers, and sisters.
    III. To pay an annuity of five dollars to the library society of Newburg.
    IV. To stand seized.of certain in-lot for a school-house.
    V. To pay the net income of all the remainder of his estate, for one hundred years, after 1825, to the education of ten persons, who should be:
    1. Of his name.
    2. Nearest of kin.
    3. For whom application shall be made by residents of Ohio.
    VI. After the year 1925, the net income is to be applied:
    • 1. One-half to the church of the most numerous denomination in Newburg, who believe in future rewards and punishments.
    2. One-half to the common schools of Newburg.
    The judges of the common pleas of Cuyahoga are appointed visitors, and umpires to decide all questions arising as to the objects of the testator’s bounty.
    To provide a succession of trustees, he directs that when any •of them die, or remove from Cuyahoga county, the judges of the common pleas shall appoint a new'trustee or trustees, to whom the estate shall be transmitted by some valid conveyance, to be Feld on the same trusts.
    Three questions are raised:
    1. Whether the succession of trustees, in the manner prescribed •by the will, js n.ot an effort to create a perpetuity, in a manner not warranted by law.
    -3] 2. Whether, the objects of the testator’s bounty being Members of his own family, the devise is not a mere gift of a private mature, and not a charity, in the eye of the law.

      3. Whether, if it be a charitable bequest, it is not so indefinite in its terms and limitations, that it can not be executed, and is therefore void.
    These points were fully argued by Wade, Welles, and Hamline, for the plaintiff, and by Payne and Wilson, for the defendants; but as the opinion of the court rests on other grounds, the discussion of counsel is omitted.
   Lane, C. J.

Much industry and learning have been devoted to the investigation of the various questions arising in this case, and the time probably will come, which will render their examination necessary. But in an action of ejectment, regarding legal titles only, it will not be required to enter upon this widely extended field. For the charity may subsist, and cling to the land, whether the legal title be held by the trustees or the heir; or the charity may be void and unsustainable, and the beneficial trust inure to the heir, while the trustees retain a good estate at law. The questions therefore raised in argument lie behind that which is presented in the case. We are now only called to consider if the freehold passed by the will, leaving all questions relating to the trusts to be decided in the only proper tribunal.

If an estate be conveyed to a grantee, .capable of taking, upon trusts, the question of the validity of the trusts will not be entertained in a court of law. The land passes. If the trusts can be supported, they will be enforced in chancery, at the suit of .the cestui que trust; if the trusts are void, they may be declared void by the same court, and the beneficial use of the estate reclaimed by the heir.

In this case the land was devised to Fisher, Shaw, and Allen— a lawful conveyance, with lawful parties and apt words. It transmitted a title of some nature, upon trusts.

The extent of the estate thus created is next to be considered. The testator did not intend to give the trustees an *estate in [4 fee, and the statute of 1834 does not operate. 32 Ohio L. 41. He gives the land to them and their successors. This limitation over to their successors is void; for the law does not permit the transmission of an estate to successors, except in a grant to a corporation. The estate in the trustees is for life only, and there is no provision for the continuance of the title at law beyond them; after their death, it descended to his heirs, charged or not charged with the trust, as may be hereafter determined.

Two of the trustees are living and one is deceased. The two hold two-thirds of the estate, by virtue of the plain words of the will, and it remains to be considered, whether the heir may, in this suit, recover the estate held by the deceased trustee.

The testator’s words are to “Fisher, Allen, and Shaw,” to the survivors or survivor, to hold as joint tenants, and not as “tenants in common.” It is urged that where an estate is limited in joint tenancy, by express words, the common law incident of survivorship attaches, and that in this case, on the death of Shaw, his share is held by his co-tenants, as long as they hold their own. But it has long since been adjudicated that the estate of joint tenancy, as distinguished from a tenancy in common, has no existence in Ohio. 2 Ohio, 306. Consequently this doctrine of survivorship can not be used to protect this part of the title.

Yet the testator intended to give the land to the survivor of the trustees, and every conveyance should be construed to carry the intention of the maker into effect, if made consonant with the principles and forms of law. Laying out of view the doctrine of survivorship, resulting from joint tenancy, an incident of the estate depending upon the law, and not on the act of the party, we find the testator, by express words, limiting the estate to the three trustees and the survivor. The estate well passes, by these words, to the survivor, for life. The remainder in fee is not dis-5] posed of. The ^freehold is given to each trustee for life, and the remainder of the estate for life is given to the other trustees, and the remainder in fee descends to the heir. Such is the legal effect of the donation; and during the lives of the original trustees, or that of the survivor, the heir is precluded from recovering the possession of the estate, by virtue of his legal title.

Without any reference, therefore, to the trusts which attend the estate, the defendants are entitled to judgment.

Judgment for the defendants.


author: *Hitchcock, J.

text:
    Joseph Harris v. Samuel Clark and Sidney S. Clark.
    An action can be sustained on the common counts, by the holder, against a remote indorser .of a promissory note.
    In such case, it is necessary to prove a demand of the maker and notice to the indorsers.
    A demand upon one of three joint and several promisors is sufficient to charge an indorser.
    This is an action of assumpsit from the county of Hamilton.
    It is a suit by the holder against an indorser of a promissory note, and is submitted to the court, both as to matters of law and of fact.'
    The declaration contains a special count, and the several counts for money paid, money lent, money had and. received, etc.
    The first count in the declaration being defective, the plaintiff offered in evidence, under the common counts, a joint and several promissory note, bearing date January 9, 1838, signed by Daniel B. Basset, Luke Kendall, and J. Basset, made payable one year after date to one Nathan Sharp or order, indorsed by Sharp to the defendants, subsequently indorsed by the defendants to Sharp, and by Sharp to the plaintiff, accompanied with proof that on the day the note fell due, demand' of payment was made of J. T. Basset, *one of the makers, and that payment was refused, of [6 which fact the defendants were duly' notified. This evidence was objected to by the defendants, but received by the court, subject to such exceptions as might be made.
    Wright & Walker, for the plaintiff,
    insisted, that the evidence offered was sufficient to entitle the plaintiff to recover; that a promissory note is evidence of money had and received by the maker, and when indorsed is equally good evidence of money paid to the indorser. They admitted that by the rules of law established in the English courts, the holder of a note or bill could not recover on the common counts, against a remote indorser, for want of privity of contract, but insisted that it had been otherwise decided in the United States. Assimilating a joint and several note to a partnership transaction, they insisted that a demand upon one of the makers was sufficient to fix the liability of an indorser. They cited Grant v. Vaughan, 3 Burr. 1516; Salk. 283; Wayman v. Bend, 1 Camp. 175; Bayley, 390, 391; Olcott v. Rathbone, 5 Wend. 490; Ellsworth v. Brewer, 11 Pick. 316; State Bank v. Hurd, 12 Mass. 172; Page v. Bank of Alexandria, 7 Wheat. 35.
    Storer, for the defendants,
    insisted,, that an action for money had and received, etc., could not be sustained by the holder of a promissory note against an indorser, especially against a remote indorser, because an .indorser is only liable in consequence of due diligence used by the holder to recover the money of the maker. Demand and notice must be shown in order to fix the liability of an indorser, and these facts not being stated in the common counts, can not be proved on the trial, upon the principle that all the facts necessary to fix the liability of a defendant must be stated in the declaration, and if not stated can not be proved. He further insisted that the demand pi’oven was not sufficient to charge an indorser, having been made upon only one of the makers of the note. He cited 1 Chit. 162; Bank of United States v. Smith, 11 Wheat. 174; Whitcomb v. Whiting, Doug. 629.
   *Hitchcock, J.

No question is made, in the present case, as to the execution and indorsement of the note which was given in evidence, but several exceptions are taken to the competency and sufficiency of the proof introduced by the plaintiff.

The first question raised for the consideration of the court is, whether an action for money had and received, money lent, etc., can be sustained by the holder of a promissory note against an indorser of the same note. That such bill, note, acceptance, or indorsement, as between the immediate parties, is prima facie evidence of money lent, money had and received, etc., seems to be well settled. But it is believed that, according to the English authorities, there must be privity of contract, in fact, between the parties, in order to recover under the money counts. This principle is not controverted by defendants’ counsel, but it is claimed that there is not, in the present case, the necessary privity of contract, there being an intermediate indorser between the defendants and the plaintiff. The principle, however, that as between the parties to a note or bill, an action for money had and received can be maintained, is extended much further in the American than in the English courts. In the case of Olcott v. Rathbone, 5 Wend. 490, the Supremo Court of New York say, “the holder of a note payable to bearer, or of a note payable to order, and indorsed by the payee to him or in blank, may sustain a count for money had and received, by proof of such note; but if the plaintiff can not recover on the note as bearer or holder, for want of title or authority to sue in his own name, he can not recover on the common counts.” In the case of Ellsworth v. Brewer, 11 Pick. 316, it is decided by the Supreme Court of Massachusetts, that “ to maintain assumpsit there must be a privity between the parties, but it may be a privity in fact or in law, as between each party to a bill of exchange or negotiable promissory note, there is a sufficient privity in law ; and as such negotiable contract is presumed to be a cash transaction, and as a money consideration is presumed to pass at the making and at each subsequent indorsement of the instrument, each party liable to pay is held ^responsible as for so [8 much money had and received, to the use of the party who is for the time the holder and entitled to recover;” and it was further decided, “ that assumpsit for money had and received may be maintained by the indorser of a promissory note against any previous party to the note.” These authorities, without searching further, seem to settle the point, that in the case under consideration the note and indorsement are properly receivable in evidence under the common counts in the plaintiff’s declaration.

It is next objected, by defendants’ counsel, that demand and notice can not be given in evidence under the common counts, and without proof of demand and notice, an indorsee of a promissory note can not recover against an indorser. This objection, if it proves anything, proves too much. The cases already cited, and the well-settled rules of law, sustain the principle, that the holder of such note may maintain an action for money had and received against a preceding party to the note, and the note itself is evidence to sustain the count. It will follow, then, that proof of demand and notice may be given in evidence, or that the holder will recover without such proof. This can not bo, because an indorser is only liable where due diligence has been used to collect of the maker. We admit the rule as laid down in 11 Wheat. 174, where it is said to be “a genetal rule in pleading, that where any fact is necessary to be proved on the trial in order to sustain the plaintiff’s right of recovery, the declaration must contain an averment substantially of such feet in order to let in the proof.” If, however, the case now before the court is within that rule, it must be an exception to it; or, in other words, if that rule would require, in an action by the holder of a promissory note against the previous indorser, that no proof could be given of a demand and notice, unless alleged in the declaration, then, although a general, it can not be a universal rule. But apply the rule in the present case, and I do not perceive that there would be any difficulty. “ Any fact necessary to be proven, must be stated in the declaration.” It is not necessary to state in the declaration the evidence 9] by which a particular *fect must be proven, but sufficient, facts must be stated to show a right of recovery. What fact is it necessary to prove, in order to sustain an action for money had and received ? Simply that the defendant had received money to the plaintiff’s use, and this must be stated in the declaration. But how, or in what manner the proof is to be made, is a different question. Anything which goes to show that the defendant has received money, which, in. equity and good conscience, he ought to pay to the plaintiff, will be sufficient. Take, for instance, the .case where money has been paid ,on a consideration which has failed, or where it has been paid by mistake; it is necessary to allege the particular manner in which it was paid, in order to let in proof of the mistake or failure of consideration ? Such has never been the practice, and it is too late now to introduce it. In a ease like the.one before the court, the introduction of the note, with the indorsement, shows the receipt of money by the defendant. Whether, in equity and good conscience, he is bound to refund it, depends upon another fact, which must be proven in order to make out the plaintiff’s case. ;

This mode of declaring, in a case like the present, is one probably which ought not to be encouraged, nor can a plaintiff, by adopting it, gain any advantage that he would not have by declaring specially. By adopting it, he might, by possibility, lose the benefit of our statuto dispensing with proof in certain cases, if not the penalty accruing upon appeals for delay.

Another, and the only remaining objection to the recovery of the plaintiff in this case, is, that demand* was made of only one of the three makers of the note. Upon this point we have had no little difficulty in arriving at a satisfactory conclusion. So far as respects adjudged cases, we find none exactly similar. Had the three makers of the note been partners in business, then a demand upon one would have been sufficient. It would have been equivalent, so far as an indorser is concerned, to a demand upon all. An acceptance by one of two or more partners will bind his copartners. A promise or an admission by one would bind all; and, when necessary, to ^charge them as indorsers, a notice [10 to one would be equivalent to a notice to all.

But it is not pretended that the makers of this note were, in fact, copartners; they were merely joint and several promisors. In this character, it is true, as in. case of partners, the property of each, and the property of all, could be subjected, if necessary, to the payment of the debt.

If we were to hold that a demand must be made upon all the makers, in order to charge the indorser, such decision would operate to discharge many, if not all, indorsers of notes of a character similar to the one now under consideration. It will be seen that the note is not payable at any particular place; if it were, a demand at the place would be sufficient. But as it is, a personal demand was necessary, Now, suppose the makers resided in different states, or in different and distant parts of the same state, how could demand be made of all, so as to charge an indorser. It must be made on the day the note falls due, or, where days of grace are allowed, upon the last day of grace. Will it be said that demand can be made at different and distant places on the same day through the agency of letters of attorney? I believe such a practice has not been heard of, at least we have found nothing like it in the books.

But it is said that an indorser is to be considered in the light of security; that his undertaking to pay is only in the event of a failure of the makers ; and that although one of the makers may refuse, still another, if requested, might pay. There is force in this reasoning. When, however, it is considered that an indorser is immediately notified of the fact of non-payment, and that the object of this notice is, that he may procure an indemnity from those whose note he has indorsed, it is not perceived that he is in any great danger of loss, in consequence of a failure to make demand of all the makers. He can at once procure his indemnity, if it can be had, or he may himself pay off the note, and immediately proceed against the makers.

11] *Upon the whole, although we feel that there are apparent difficulties in the way, we see no substantial objection to considering the makers of a joint and several promissory note in. the light of partners in that particular transaction. True, they may be sued separately, or, like partners, they may be sued jointly; and as the joint and separate property of partners is liable for partnership debts, so the property of all and each of the makers of such a note may be subjected to its satisfaction. We hold, therefore, that a demand of one of the makers, in the case before us, was sufficient, and that the plaintiff is entitled to judgment.

Judgment for the plaintiff.

       In an action by the indorsee against the maker, a promissory note can not be given in evidence under a count for money lent; but it maybe given in evidence under a count for money had and received. Rockefeller v. Robison, 17 Wend. 206.
      In Pownal v. Ferrand, 6 Barn. & Cress. 439, 13 Eng. Com. Law, 230, the indorser of a bill being sued by the holder, and having paid his part of the money, was permitted to recover the same amount from the acceptor, in an action for money paid to his U3e.
      In Pennsylvania, a note is admissible, under the common counts, only as between the payee and maker, or an indorsee and his immediate indorser. Kennedy v. Carpenter, 2 Whart. 344.


author: Hitchcock, J.

text:
    Catharine Mansfeild v. James McIntyre and John Babcock.
    A decree of divorce in Kentucky does not bar the right of dower in lands lying in the State of Ohio.
    This is an application for dower, from the county of Hamilton.
    The case made by the bill, answers, exhibits, and testimony is this:
    In the year 1816, the complainant intermarried with one John Mansfield, at Campbell county, Kentucky, with whom she resided some short period, when a separation took -place, and since 1818 she has lived separate from her husband, in Butler county, in the State of Ohio. What was the cause of this separation is not shown, but it was probably by mutual agreement of the parties. During the coverture, Mansfield owned and possessed the lands described in the petition, as an estate of inheritance. This land is a part of lots numbered 201 and 202, in the city of Cincinnati. Mansfield, on October 15,1818, conveyed the premises to one John Chambers, and the same are now vested in the defendants as an estate of inheritance.
    On April 28, 1824, Mansfield filed his petition in the circuit 28] court of Campbell county, Kentucky, praying to be ^divorced from his wife Catherine, alleging'for cause that the said Catherine had willfully abandoned him and continued absent from him for a long period of time prior to the filing of the petition.
    Of the pendency of this petition, notice was given by publication in a newspaper, and at the October term of said court, 1825, a decree was pronounced divorcing the said John Mansfield from his said wife.
    John Mansfield died in 1828, and his widow now claims to be endowed of the lands before referred to.
    The defendants, in their answer, alleged that subsequent to the divorce the claimant entered into an agreement to relinquish her right of dower in the premises, in consideration of $400, to her paid by the said John Mansfield. Upon this point, there was some testimony which was contradictory.
    The case was argued by H. Hall, for the complainant; and by Riddle and Roll, for the defendants.
    For the defendants, it was insisted, that the divorce in Kentueky was a good and valid divorce; that from the time it was pronounced the complainant was no longer wife of John Mansfield, and of course did not become his widow at the time of his death. Not being his widow, she is not entitled to dower under the statute of Ohio ; for by the statute of Ohio, where a divorce is decreed for the misconduct of the wife, she is barred’of her dower, and as this decree was pronounced in consequence of the misconduct of the complainant, she is barred by the terms of the statute.
    It was further insisted that the complainant was barred in equity of her right of dower by the agreement set up in the answer. The following authorities were cited: 2 Kent’s Com. 107-109; Story’s Conflict of Laws, 499; Spencer v. Brockway, 1 Ohio, 259.
   Hitchcock, J.

It is evident that during coverture 3ohn Mansfield was possessed of the premises in which dower is ^claimed, as an estate of inheritance, and of course this complainant is en- [29 titled to the relief sought, unless there is something in the case which will operate to defeat her claim.

It is resisted on two grounds: 1. On account of the divorce decreed by the circuit court of Campbell county, Kentucky ; and 2. On account of the agreement to release dower, claimed to have been made subsequent to the divorce.

As respects this agreement, something of the kind is testified to by a witness by the name of Walker, who is far advanced in life) and who appears to have a very indistinct recollection of the circumstances, in relation to which he testifies. But from the other evidence in the case, it is manifest, that this witness refers to a transaction which took place long prior to the divorce and probably about the time of the separation. There can be no doubt, that an agreement made between husband and wife after a divorce, whereby she shall agree for a good consideration to release her right of dower, might be enforced in equity; and should the consideration be paid, the wife would not, after the death of her bus-band, be permitted to recover her dower. But in the case before us there is no evidence to sustain such an agreement, and the defense set up by the defendants on this ground entirely fails;, and the only question in the case is, whether this woman is barred of her dower by the divorce in Kentucky.

From anything which appears in the case, this divorce ought to be deemed valid in this state as well as in the state where it was prononneed. The petitioner was a resident of Kentucky. The defendant had been a resident. By the laws of that state the court had jurisdiction, and the notice required by their statute had been given. But the real question is whether a divorce decreed in Kentucky, or in any other state than Ohio, can have any effect upon the rights of the wife, so far as property in this state is concerned.

Our act relating to dower provides : “ That the widow of any person dying shall be endowed of one full and equal third part of all the lands, tenements, and real estate, of which her husband 30] was seized, as an estate of inheritance ^during coverture.” Of this right she may be barred by jointure, but it can not be defeated by any separate act of the husband during coverture. If she elope from her husband and live with another man in a state of adultery, she loses her right of dower ; but, in such ease, if she return to her husband and he becomes reconciled to her, she is restored to this right. These are the only cases named in this act which operate as a bar.

In section 6 of the “ act concerning divorce and alimony,” it is provided “that when the cause of divorce shall arise from the aggression of the wife, she shall be barred of her right of dower, whether there be issue or not.” But does this apply to divorces generally, or to those decreed by our own courts in pursuance of this statute ? A very slight examination of the statute will be sufficient to convince any one that it applies only to divorces decreed in our own courts. If the divorce is on account of the aggression of the husband, the wife is restored to all her real estate, and is to be allowed, out of the real and personal estate of her husband, such share as the court shall deem reasonable, having regard to the personal property that came to the husband by the marriage. But if the divorce shall arise from the aggression of the wife, the court may order to her, restoration of the whole ora part of the lands, tenements, and hereditaments, and also such share of the husband’s personal property as may appear reasonable, all ch’cumstances considered. In the latter case she is barred of the right of dower in her husband’s lands, in the former she is not. If there are children of the marriage who are infants, the court are authorized to direct that they be committed to the guardianship of the mother, or remain with the father, as shall seem most expedient. In fine, the court are authorized to make such disposition of the property, and also of the children, as shall do perfect justice between the parties. Now, this can not be done by a court in another state, certainly not under the provisions of our law, and therefore it could not have been the intention of the legislature to declare the effect of any other decrees than those pronounced by our own courts.

*It is urged, however, that by the statute, a woman, in order [31 be entitled to dOwer, must be the widow of the decedent, and it is said that the complainant is not the widow of John Mansfield, having ceased to be his wife long before his death. But is this true? By our law, when a divorce is decreed both parties are absolved from the obligations of the marriage contract. In looking into the decree in the present case, however, I find that although John Mansfield is divorced from his wife, she is not, in terms, released from any of her obligations to him. From aught that appears in the decree she still continued to be his wife. If so, upon his death she became his widow. But aside from this consideration, this objection can not be sustained. By our law, although the divorce operates to release both parties from the obligations of the contract, still if it be decreed in consequence of the aggression of the husband, the wife is not barred of her right of dower, but upon the death of her husband may enforce that right, in the same manner she might have done had she continued to live with him until the day of his death.

The complainant is entitled to a decree. Decree for the complainant.


author: Grimke, J.

text:
    Joseph Rosebaugh v. James Saffin, Marshal of the City of Cincinnati.
    An ordinance of the city council of Cincinnati, sequestering the property of an individual without notice, is invalid.
    The power given by the charter of the city to impose a forfeiture does not confer the right to seize and sell without any previous proceedings.
    This is an action of replevin, from the county of Hamilton.

      The declaration charges the defendant with detaining the plaintiff’s hogs.
    The defendant justifies under an ordinance of the city council of Cincinnati. A verdict was taken for the defendant, and the plaintiff moves for a new trial.
    82] *The ordinance of .the city provides: “It shall, be unlawful for hogs, of any size or description, to be let loose and run at large in the street, lanes, alleys, or commons within the city; . . . it shall be the duty of the marshal to cause all hogs, of whatever size or description, that shall be found running at large in the streets, lanes, alleys, or commons of the city, to be taken up, im- ' pounded, and sold to the highest bidder, within three days after being impounded, having first caused the time and place of such sale to be proclaimed through the streets and by handbills, and to pay into the city treasury the proceeds of all such sales, after paying the necessary expenses.”
    Three sections of the charter are relied on, as giving the power to make this ordinance:
    Seo. 8.. “ The city council shall have power ... to impose fines, forfeitures, and penalties on all persons offending against the laws and ordinances of said city, and provide for the prosecution, recovery, and collection thereof.”
    Sec. 12. “The city council shall have power, and they are hereby authorized, to require and compel the abatement and removal of all nuisances within the limits of said city, under such regulations as shall be prescribed by ordinance.”
    Sec. 13. The city council “ shall have power, whenever the public convenience or safety shall require it, to prohibit hogs, cattle, horses, and any other description of animals from running at large in the streets, lanes, alleys, commons, and other public places in said city.”
    S. M. Hart, for the plaintiff:
    The question here involved rests upon the proper construction of section 8 of the charter giving to the corporation power to impose fines, forfeitures, and penalties. The general power to create forfeitures is granted, but the charter nowhere defines the objects over which it may be exercised, nor the manner in which it may be carried into execution. .It is left, then, to construction, and in all such cases, courts of justice confine corporations strictly within their limits. 2 Kent *Com. 299; Broughton v. Manchester [33 Water Works, 3 Barn. & Ald. 1; 5 Eng. Com. Law, 215.
    The charter, then, is to receive a reasonable construction ; and. if the corporation undertake to exercise this power, they must do it without prejudice to the rights of the citizens. If they impose a forfeiture, they must impose it upon the person offending against their ordinance, and they must provide some mode of proceeding that will give him a day in court to answer the charge against him. To seize a man’s property, in the very town where he lives, and sell it, and convert the proceeds to another’s use, without any manner of notice to the owner, is an assumption of authority not to be tolerated. Olin v. Chapman, Wright, 716; Cotter v. Doty, 5 Ohio, 395.
    E. Woodruff, for the defendant:
    The legislature, in enacting the charter, had in view the peculiar necessities of a large city, in respect to the means of promoting its comfort and safety, and have imposed the duty of enforcing these matters upon the city council, and vested them with full discretionary powers over the subject. The propriety and necessity of such an ordinance, in a populous city, must be manifest. Swine running at large in such a place is not only highly offen-. sive to the citizens, but often dangerous. The remedy for the evil should be prompt and effectual, so as to prevent future grievances from the same cause.
    The council considering the evitas a serious one, affecting the comfort and safety of the citizens, enacted the ordinance now in question. The danger and inconvenience constantly occurring in the public streets, the dislocated limbs of children and others who had been attacked by these animals, or prostrated by their violence, were not to be passed unnoticed, and, in obedience to the demands of the citizens, and in the discharge of their duties as trustees of the corporation, they passed the ordinance. Tie wing the evil as a nuisance, they ordained that it should be unlawful, after a time therein specified, for hogs of any size or description to be let loose and run at large in the *streets, etc., and made [34 it the duty of the city marshal to cause them to be taken up, impounded, and sold to the highest bidder within three days after being impounded, having caused the time and place of such sale to be proclaimed through the streets and by handbills.
    That they had a right to abate the evil as a nuisance is obvious, from the tenor of the charter as well as from the necessity of the case. What would not be considered a nuisance in the country, might, in a populous city, be considered a very serious one, and it is not easy to imagine a greater grievance than that which the ordinance in question was designed to remove, and so it has been,, considered in many of the older cities of the Union, in some of which the authority is given to every person to shoot down swine whenever they are found running at large; and in other places they are immediately seized and delivered over for the use of the poor.
    Every citizen being held to a knowledge of thelaws and ordinances of the community in which he lives, if he knowingly or negligently violates them, he ought not to complain when the penalty is enforced. In the present instance this position may be applied with peculiar force, for when a person allows prohibited animals to go at large, or, through negligence, to escape, he may well be considered as having abandoned them to the public anthorities to be dealt with according to law.
    The case of Cotter v. Doty, 5 Ohio, 393, is an authority in support of the positions for which we contend. That decision was made under the charter of January 10, 1815, in which no express power to create a forfeiture was given. The charter of March 1, 1834, upon which the decision of the present question mainly rests, gives the express power to create forfeitures, being in the same language as that in 25 Ohio L. 40, in which the court have said “this power is expressly granted.” Taking it as conceded, that the power exists, can it be denied that it has been exercised in a manner highly beneficial to the citizens?
    When property, subject to forfeiture, is in the actual custody 35] *of its owner, it might not, perhaps, be admissible for an officer of the law to enter upon the premises of such owner and seize the same, without warrant and trial; but it appears to me there is a manifest distinction between such case and the one now under consideration, where a salutary police regulation is sought to be enforced in a summary manner against the offending object found in the public streets. Whether then, we view the case in the light of a forfeiture, or as a moans of eradicating a public nuisance, the ordinance may be considered a valid one.
   Grimke, J.

Thecase presents thisquestion : Is this ordinance authorized by the act of incorporation ? The only parts of the city charter from which the power to pass it can be derived, are sections 8,12, and 13. In section 8, power is given to impose fines, forfeitures, and penalties on all persons offending against the ordinances, and provides for the prosecution, recovery, and collection thereof. Sectson 12 authorizes the abatement of nuisances, and section 13 gives power to prohibit all hogs, etc., from running at large. If this last section had been omitted, there would, perha-ps, have been force in the argument, that it was intended to embrace the evil complained of, in this instance, under the head of nuisances. But section 13 absolutely excludes this inference, and by its precise and definite phraseology withdraws the mischief, now complained of, from the head of nuisances. Does section 8, then, which authorizes the imposition of fines, forfeitures, and penalties, give the power which has been exercised in this instance? It is claimed that it does, and that the true signification of the word forfeiture, shows that the city council were justified in the ordinance which they passed. The term forfeiture is, undoubtedly, distinguishable from the term fines, inasmuch as it may mean the sequestration of property, and the other term does not necessarily carry that signification. But admitting this were the true and invariable line of distinction between the two classes of punishment, it does not, therefore, follow that a forfeiture *can be [38 enforced in the summary way in which this ordinance undertakes to enforce it. Although it is a proceeding in rem, yet all proceedings of this nature are so conducted as to give, if possible, notice to the party interested. The hogs or horses of an individual may, from some inevitable accident, or the act of God, be found in the streets; it would be manifestly unjust, unless some overruling necessity should say so, to impound and sell without giving an opportunity to the party to explain the circumstances. If the construction of the clause in the charter were only doubtful, such construction ought to be put upon it as is most favorable to the rights of the citizens. In Fairfax v. Hunter, 7 Cranch, 603, where it was argued that the legislature of Virginia might, by a simple enactment, confiscate the property of an alien, it was answered, that admitting that it might, yet it would not be presumed, 'where there was any room for an opposite presumption, that it was intended to dispense with the accustomed mode of proceeding. Indeed, in every instance in which a forfeiture of property is worked, the forfeiture is consequential upon some judicial proceeding. The city corporations which have grown up in modern times are of infinite advantage to society; they bind men more closely together than does any other form of political association. But that which most remarkably distinguishes them from the close corporations which formerly existed, is the general spirit of freedom which has been breathed into them. More especially is this the case with town corporations in America, which are as different Rom those of England as the latter are Rom similar corporations in Scotland and Holland. Occasionally, however, we see symptoms of the old forms showing themselves ; the maxim, that the safety and well-being of the people are the supreme law, sometimes persuades those who are invested with authority that they may be permitted to pursue so noble an end, by any means short of tyrannical. It is a great improvement in legislation to pursue the good of the majority, but the true end at which American institutions aim, is to consult the rights and interests of all conditions of men. There was no necessity for the summary pro-37] cess which was ^directed by the ordinance of the city of Cincinnati of June 15, 1836. The mischief, and it is undoubtedly one, which was .intended to be guarded against, might be prevented as effectually by a different proceeding. Unless there be a special custom, or express legislative authority for it, the penalty of a by-law can not be enforced in this way. There can be no custom in this instance, and the legislative authority which is contained in the charter, does not necessarily or naturally import the exercise of the power. The ordinance commands the marshal to seize and impound the property, and, then, without any reserve, without any notice to the party, by means of which he might be enabled to exculpate himself, directs it to be sold, and the proceeds to be placed in the city treasury. Such an ordinance is as contrary to the spirit of the charter as it is alien from the general genius of our institutions.

New trial granted.


author: *Lane, C. J.

text:
    The Lessee of James N. Lawrence v. Henry H. McArter.
    In a devise, “ to my four sons or the survivors of them, and their heirs and assigns, to be equally divided among them, when the youngest attains the age of twenty-one years,” cross remainders are not raised, but each takes a fee.
    Letters of attorney, from an infant, conveying no present interest, are absolutely null.
    This is a motion to set aside a verdict, taken for the defendant, in an action of ejectment, in the county of Knox.
    William Barton, Sen., was once the owner of the land.
    He died, and his will was proved, in 1802. By it, he devised the land, “to my four sons, Gilbert, William, Joseph, and Georgei or the survivors of them, and their heirs and assigns, to be equally divided among them, when the youngest attains the age of twenty-one years."

    All the sons survived the testator.
    ^George, the youngest son, attained twenty-one years in 1816. [88 Gilbert died, in 1812, intestate and without issue.
    William died, prior to 1812, and left a son, William, and a daughter, his heirs at law.
    Joseph was living when George arrived at full age, and the defendant now holds his interest.
    In 1815, before he came of age, George gave to his brother Joseph a letter of attorney, to sell his lands, and they have been sold under it, and the defendant claims the title.
    In 1835, George conveyed to the plaintiff.
    In the same year, William, the grandson, conveyed to the plaintiff.
    M. A. Sayre and R. C. Hurd, for the plaintiff:
    I. The letter of attorney from George Barton is void, because,, at the time of giving it, he was an infant. There may be doubts whether an infant can make a valid deed of bargain and sale, or of lease and release, but a letter of attorney, conveying no present interest, is spoken of in all the books as a mere nullity. Zouch v. Parsons, 3 Burr. 1804; Saunderson v. Marr, 1 H. Bl. 75 ; Stafford v. Roof, 9 Cowen, 626 ; 2 Kent’s Com. 234 236 ; Fonda Van Horne, 15 Wend. 631; 3 Bac. Ab. 598; 2 Roll. Ab. 2; Noy, 130 ; Palm. 237 ; Roll. 242; 8 Co. 45, a.

      An act done by another for an infant, which act must necessarily be by letter of attorney under seal, is absolutely void. Whitney v. Dutch, 14 Mass.’ 461.
    A letter of attorney given by an infant is absolutely void. Pyle v. Cravens, 4 Littell, 18; Burton on Real Property, 69; Law Library, No. 67; 1 Story’s Eq. 247; Bingham on Infancy, 34; Story’s Agency, 7.
    II.' The next question is, what estate was transmitted by the will.
    It is clear, that the devise creates a tenancy in common to commence in possession at the death of the testator. But does the 39] survivorship relate to the death of the testator, or to *the period fixed for the division of the estate ? This question depends on the meaning of the testator. Hawes v. Hawes, 3 Atk. 524 ; S. C., 1 Wils. 165; 1 Ves. 13 ; Roebuck v. Dean, 2 Ves. 265 ; Perry v. Woods, 3 Ves. 206; Stringer v. Phillips, 1 Eq. Cas. Ab. 292 ; Stones v. Heartley, 1 Ves. Sen. 164; Maberly v. Strode, 3 Ves. 454; Garland et al. v. Thomas et al., 1 Bos. & Pul. 88.
    The words, “ to be equally divided,” in a will, go to the quality and not to the limitation, of an estate. Jackson v. Luquera, 5 Cowen, 221; 2 Hilliard Ab. 43.
    If the construction claimed by the defendants be right, the devisees must be adjudged to have cross remainders, which are not favored in law. In Perry v. White, Cowp. 780, it was settled, that •cross remainders are not to be implied between more than two. An able writer, in relation to cross remainders, says: “ The only rules well settled seem to be these: 1. None by implication in a •deed. 2. Among two, the judges favor them, but not among more -than two.” 4 Dane’s Ab. 285.
    H. Stanbery, C. Delano, and H. B. Curtis, for the defendant:
    I. There is scarcely any question more vexed than whether the .acts of infants are void or voidable.
    This court was pressed with the difficulty arising from the contrariety of the cases, in Drake v. Ramsay, 5 Ohio, 251, but settled .no general rule.
    The older cases seem inclined to make the acts of infants void rather than voidable, and though no recent case is found directly. ■overruling these decisions, yet the rule of late recognized is based on a different principle, holding the acts of an infant void, where, .they are to his prejudice, but voidable, where they may be beneficial to him; and leaving their ratification or disaffirmance to his mature judgment, at full age. 2 Kent’s Com. 236 ; Oliver v. Houdlett, 13 Mass. 239 ; Kline v. Beebe, 6 Conn. 503.
    ^In Yin. Ab. 384, it is said: “ If a man makes a deed of [40 feoffment to an infant, and the infant makes a letter of attorney to another to take livery for him, this is good, because it is for his benefit.” S. P., 1 Roll. Ab. 730; Whitney v. Dutch, 14 Mass. 457.
    II. There can be no legal objection to the creation of a joint tenancy, in Ohio, by will. It is true this court has said, in Sargent v. Steinberger, 2 Ohio, 423, that estates in joint tenancy do not exist under our laws. But in that case there was a conveyance to husband and wife and their heirs. Such a limitation would create a joint tenancy at common law. It is very clear that we have no joint tenancy by operation of law, and that where without express words to create a survivorship, there is only a joint estate granted or devised, which at common law would make a joint tenancy, it would here be construed a tenancy in common. Eor it can scarcely be maintained that a survivorship can not be provided for and established by devise, where the intent is manifest. So long as a testator keeps within the restriction as to perpetuities declared in the law to restrict the entailment of estates, the disposition he may see proper to make of his land will be respected. There is certainly no statute to forbid a testamentary provision for survivorship or cross remainders among the first donees. An estate so limited is not in strictness a joint tenancy — a right of survivorship may be devised with a tenancy in common, and yet not make a joint tenancy, for there are other incidents to a joint tenancy besides the jus accrescendi. Eor instance, a joint tenant may by lease convey a title paramount to that of the survivors, which he could not do where a survivorship is provided by will among tenants in common, until the happening of a contingency.
    In Doe v. Abey, 1 M. & S. 428, it is said by Mr. Justice Bayley, that a “ tenancy in common, with benefit of survivorship, is a case which may exist without being in joint tenancy, because survivor-ship is not the only characteristic of a joint tenancy.”
   *Lane, C. J.

As the plaintiff holds the right of William [41 Barton, the grandson, if he inherited any from his father, it becomes necessary first to consider what estate was transmitted to the sons by the will. It gives the land to his sons, or the survivors and their heirs, to be divided when the youngest attains twenty-one. By this phraseology, did the testator intend to create cross remainders among his four sons, so that those who were surviving when the youngest was of age should take the estate, or does the condition of survivorship relate to the death of the testator, and an estate in fee pass to those of his sons who were then living?

We can not hesitate to believe that the intention of the testator will bo better met by the last construction. For if the former prevailed, the children of his son William, who died before the youngest became of age, would be excluded from the inheritance, and all their father’s share of the estate pass to the brothers. And the contingency which has here happened is a good example of the value of the rule which the law applies to cases like this, that cross remainders are not to bo presumed between more than two devisees, unless required by the imperative terms of the will; that they are not to be raised by implication, except between two only.

By the operation of this rule, the estate became vested in those of his children who survived the testator, and at the death of such children was transmitted by descent, and not in remainder.

The effect of this interpretation is, that William Barton, the grandson, took one-half the share of his father, who held one-fourth the land under the will, and one-sixteenth as the heir of his uncle Gilbert, which is now the property of the plaintiff, and is five thirty-seconds of the entire estate.

The same rule of construction gave to George Barton ten thirty-seconds, which is likewise held by the plaintiff, under a deed from him, unless George was divested of his title by the sale under the letters of attorney, given, in his minority, to his brother Joseph.

It is claimed by the plaintiff that these letters of attorney 42] *are void, incapable of ratification, and never well executed. We are then led to the oft discussed, and yet not settled question, as to what acts of an infant are void and what voidable. No accurate test has yet been propounded to determine this important point, and the authorities seem rather to decide individual cases than to give a comprehensive and intelligible rule. Yet in all, and from, the earliest, we find it laid down, that deeds which, do not derive their efficacy from delivery only, are void; and it has been held in many cases, and, as far as 1 can learn, without a dissenting opinion, or a contradictory authority, that letters of attorney, conveying no present interest, are absolutely null.

It would be a bold act to attempt to withstand this body of precedent, and we can not but recognize it as destructive of that part of the defendant’s title.

It is therefore unnecessary to consider any further questions. The plaintiff is entitled to fifteen thirty-seconds of the land.

The defendant is to have the benefit of the law for the relief of occupants.

Motion granted.


author: Wood, J.

text:
    The Lessee of Throckmorton and Trimble v. William Moon and others.
    A sheriff’s deed, describing the land conveyed as 1,055 acres in a tract of 1,131 acres located in the name of R. T., is void for uncertainty.
    This is an action of ejectment from the county of Clinton.
    The premises in controversy are the southwest quarter of survey No. 1,939, in the Virginia, military district, northwest of the Ohio river, with the surplusage attached thereto, as designated on the surveyor’s plat.
    A patent issued to Richard Throckmorton, on March 24, 1800, and a deed was duly executed by him to *Trimble, the other [43 lessor of the plaintiff, on April 5, 1838, for the same land. The defendants claimed under a deed from the sheriff of Hamilton county, dated August 12,1801, to Jesse Hunt. The sheriff’s deed was made in pursuance of a sale of the lands, upon a judgment, in a suit instituted by attachment in the court of common pleas of Hamilton county, in which suit Abijah Hunt was plaintiff, and Richard Throckmorton, one of the plaintiffs’ lessors, and the patentee, was defendant. This last deed, it is claimed, covers the land in dispute. The defendants have Jesse Hunt’s title. It is admitted that the plaintiff is entitled to recover, unless the defendants are protected by the sheriff’s deed, or by the statute of limitations, they having been in possession more than twenty years.

      Thompson, Wright & Walker, for the plaintiffs.
    G. J. Smith, for the defendants.
   Wood, J.

The plaintiffs’ counsel have taken several exceptions to the proceedings under the attachment, and, among others, it is contended, the levy and the sheriff’s deed to Hunt are void, for the want of a pertinent and necessary description of the premises so levied on and sold.

The sheriff’s deed describes the land as 1,055 acres, being part of a tract of 1,731 acres, or thereabouts, situated on the east branch of the Little Miami river, being part of a tract located in the name of Richard Throckmorton by Joseph Lewis. Is this description of the land sufficient? In Sheldon v. Soper, 14 Johns. 352, in relation to levies, it is said to be a general and salutary principle, one necessary to guard against fraud and to preserve integrity and. fairness at public auctions, that no property should pass at a sheriff’s sale but what was, at the time, ascertained and declared. In Jackson v. Delaney, 13 Johns. 537, it is also said, that no person attending sheriff’s sales can know what 44] price to bid, or how to ^regulate his judgment, if there be no specific designation of the property. In Matthews v. Thompson, 3 Ohio. 272, a levy on 100 acres, section 4, township 7, range 4, was-held to be too uncertain. There can be no difference, in principle, as to the requisite certainty in the description, whether in the levy or the conveyance by the sheriff. Every conveyance of real property must contain such a convenient and definite description, that by its terms the land can be located, and if not, the conveyance is void. Jac. Law Dic., tit. Deed.

Try this sheriff’s levy or deed by these rules. The levy and deed are identical in description: “1,055 acres of land, part of a tract of 1,731 acres, or thereabouts, situated on the east branch of the Little Miami river, being part of a tract located in the name of Richard Throckmorton by Joseph Lewis.” The purchaser, we will suppose, sets out with his deed in his hand to take possession. The east branch of the Little Miami is readily found — it is notorious. In tracing up the branch, from its mouth, he inquires for the Throckmorton tract, located by Joseph Lewis, but can find only a Throckmorton tract, located by Goo. Lewis. The evidence shows such to be the fact! He may, however, suppose the name of the locator to be an error, so far as the Christian name is concerned, and that he is on the right tract; but he ascertains the tract located by Lewis, whether Joseph or George, to be3,167J acres, instead of 1,731. Such, again, from the evidence is the quantity. It must be admitted, with these facts before him, it would be unreasonable to suppose that this was the land he purchased; but suppose it to contain 1,731 acres; his purchase and deed call for 1,055 acres of the tract of 1,731 acres, and where shall he commence his survey? What part of it did he purchase, or what particular portion of it is conveyed to him? It seems to us, neither the levy nor the deed convey any answer to the inquiry. It will be observed, that it was not an undivided interest in the tract, but an interest held in severalty, which is attempted to be sold and conveyed ; and, in our opinion, such a vagueness of description, either in the levy or deed, is fatal to the defendants’ title.

^Reliance is, however, placed on the statute of limitations, [45 but the evidence is clear, that Richard Throckmorton was never in Ohio, nor out of the State of New Jersey, excepting once, on a voyage to London. He is, therefore, within the saving clause of the statute, and his right consequently not barred. The defendent's are, however, entitled to the benefit of the occupying claimant law.