author: Johnson, J.

text:
    Lindsey v. The State.
    1. On a charge of uttering and publishing a forged instrument with intent to defraud (R. S. § 7091), the place where the instrument was uttered and published, and not the place where the forgery was committed, determines the jurisdiction of the court over the accused.
    2. If the forged instrument has heen uttered and published in this state with intent to defraud, by means of an innocent agent here, it is no defense to an indictment in the proper county in this slate, to show, that the accused was never within the state, or that he owes allegiance to another state or government.
    3. On the trial of a person accused of uttering and publishing a forged deed for the conveyance of real estate with intent to defraud, other forged deeds for the conveyance of real estate, including deeds of trust, made to a trustee to secure the payment of promissory notes or bonds, found in his possession, or proved to have been uttered and published by him, are competent testimony to show the guilty knowledge of the accused.
    Error to the court of Common Pleas of Jefferson county.
    The plaintiff in error, and one John T. Morris, were jointly indicted in Jefferson county. The charge is, that they did unlawfully and feloniously utter and publish in said county, as true and genuine, a certain false, forged and counterfeit deed of real estate, purporting to be executed and acknowledged by Maurice F. Thornton and wife, before Herman E. Shuster, a notary public of the state of Missouri, and to convey certain lands in that state to James Turnbull, of Jefferson county, Ohio.
    The plaintiff in error had a separate trial, and was convicted and sentenced.
    The evidence tended to show that the deed was a forgery, executed in St. Louis by the notary public by the procurement of Lindsey, who then and thereafter, until forcibly brought to Ohio, was never in this state; that this deed was delivered by Lindsey or his agent to his co defendant Morris (who is awaiting his trial), and by him was sent by mail to T. & D. Hall, real estate agents in Steubenville, through whom it was uttered and published by a sale of the land to Turnbull. T. & D. Hall were the innocent agents in the transaction, and received and accounted for the purchase money, less commissions.
    The theory of the prosecution is, that Lindsey, in the state of Missouri, procured the deed to be there forged, and through Morris sent to T. & D. Hall at Steubenville by mail, to be there uttered and published, and that T. & D. Hall were the innocent agents of Lindsey, or of Lindsey and Morris, in defrauding Turnbull by a pretended sale of the land described.
    There is evidence tending to show that Morris was innocent, and also that he was a confederate of Lindsey in the transaction ; but if he was, all his acts were done in Missouri, and consisted of sending the deed to T. & D. Hall at Steubenville, and of conducting the correspondence with them.
    During the progress of the trial, and for the purpose of proving guilty knowledge on the part of Lindsey, there were admitted certain other forged deeds published by Lindsey, and others found in his possession, purporting to convey other lands to other parties.
    These deeds are either general warranty deeds, like the one described in the indictment, or trust deeds, purporting to convey lands to secure certain notes and bonds.
    The foregoing statement sufficiently presents the grounds for the legal questions saved for report.

      Ong c& Mansfield and James F. Dayton, for plaintiff in error:
    1. As to jurisdiction : The facts as claimed by the state do not constitute a crime in Jefferson county, Ohio. State v. Revanals, 14 La. Ann. 278; Manly v. People, 7 N. Y. 295; 1 Bishop (2d ed.) 601.
    An accessory before the fact in one state to a felony committed in another state, is guilty of a crime in the state where he became accessory, and punishable there, the principal being indictable in the state where the felony was committed. State v. Chapin, 17 Ark. 561. A person, who out of the state of Indiana becomes accessory before the fact to a felony committed within the state, cannot be punished therefor under the laws of this state. Johns v. State, 19 Ind. 421; 2 Davis Ind. Digest, 142; see art. 3, last clause of section 2 of Constitution of the United States; State v. Cassady, Hawley Am. Crim. Rep. 570 (12 Kansas 550); State v. Wyckoff, 31 N. Y. 65; Wilcox v. Nolze, 34 Ohio St. 520; Kerr v. State, 36 Ohio St. 621.
    2. Inadmissibilty of exhibits: In any event the forgeries of the trust deeds and notes, admitted in evidence, and the uttering and publishing them, knowing them to be forged, are distinct and independent crimes, not collateral to the crime on which the indictment is predicated, and were inadmissible in evidence. They are not of the same description as the Turnbirll deed. 18 Ohio 221; Barton v. State; 2 Criminal Law Reports; Shaffer v. Commonwealth, 504; 16 Ind. Lane v. State; Dibbles v. People, 4 Parker, 199; affirmed 3 N. Y. Court of Appeals; People v. Corbin, 56 N. Y. 363; 55 N. Y. 81, Coleman v. People; Bluff v. State, 10 Ohio St. 547.

      William H. Bliss, Joseph B. Harris and John M. Cook, for defendant in error :
    1. As to jurisdiction, see People v. Rathbun, 21 Wend. 509, 527, 541; 1 Wharton on Cr. L. (7th ed.) § 210; 1 Russell on Cr. 298; 2 Russell on Cr. 722; Wharton’s Cr. Ev. § 113 ; 1 Bishop on Crim. Law (2d ed.) § 556 ; Roscoe’s Crim. Ev. 456; 3 Greenleaf (8th ed.) § 112 ; Commonwealth v. Blanding, 3 Pick. 304; Commonwealth v. Macloon, 101 Mass. 6; Norris v. State, 25 Ohio St. 217.
    The offense of Lindsey was entirely committed within the county of Jefferson. T. and D. Hall were innocent agents. They acted under his express directions, and their act is his act, and he is responsible for the same not only civilly, but criminally. 1 Wharton Crim. Law (7th ed.) §§ 152, 153; 1 Bishop on Crim. Law (2d ed.) § 473; 1 Russell on Cr. 28; Rex v. Palmer, 1 New, 96; Robbins v. State, 8 Ohio St. 131; see also Commonwealth v. Smith, 11 Allen (Mass.) 243; Commonwealth v. Blanding, 3 Pick. 304; Rex v. Johnson, 7 East, 65; Wh. Con. of L. §§ 877-921; People v. Adams, 3 Denio, 190; affirmed, 1 N. Y. 173; U. S. v. Davies, 2 Sumner,
      482; State v. Wyckoff, 2 Vroom (N. J.) 68; Commonwealth v. Gillespie, 7 Serg. & R. 469; Stillman v. White Roch Co., 3 Woodb. & M. 538; Rex v. Garrett, 6 Cox C. C. 260; Rex v. Jones, 4 Cox C. C. 198; State v. Grady, 34 Com. 118.
    2. As to proof of scienter: While we admit, that generally it is true that a distinct crime in no way connected with that upon which the defendant stands indicted, cannot be given in evidence against him upon the trial, yet there ai’e exceptions to this general rule, and when it becomes necessary for the state to prove affirmatively that the accused knowingly did an act, or to prove the scienter or guilty knowledge, as it is called, then the exception arises, and this character of evidence is admissible. Hess v. State, 5 Ohio, 9; Reed v. State, 15 Ohio, 223; Griffith v. State, 14 Ohio St. 62; Shriedley v. State, 23 Ohio St. 130; Bainbridge v. State, 30 Ohio St. 264; Copperman v. People, 56 N. Y. 591; Coleman v. People, 58 N. Y. 555; Commonwealth v. Stone, 4 Met. 43; Commonwealth v. Price, 10 Gray, 476; 3 Greenl. on Ev. (8 ed.) § 111; Roscoe’s Crim. Ev. 82-87, 467; Whart. Crim. Ev. (2 ed.) §30, et seq.; 2 Russell on Crimes, 403, et seq.

    The collateral forged instruments admissible in evidence to prove scienter, need not be identical with the instrument set forth in the indictment. It is sufficient if they are of the same general description and character, although of a different kind. 2 Russell on Crimes, 404, 405, 406; Roscoe Crim. Ev. 83, 84-85; 3 Greenl. Ev. (8 ed.) § 15; Bayley on Bills, 619 (3d Am. ed.); Rex v. Dawson, 3 Stark. 62.
   Johnson, J.

Two questions are presented on the foregoing statement:

1st. Had the court jurisdiction over the plaintiff in error ? and,

2d. Were the conveyances of other lands admissible for the purpose of showing guilty knowledge ?

1st. As to the jurisdiction of the court. Is the crime charged an extra-territorial crime ? Was it committed by the accused in Missouri or in Ohio ?

If he were indicted for the forgery of this deed, he could not be punished in Ohio, as it is conceded that all his acts that constitute that crime were committed in Missouri. When he procured the notary in St. Louis to forge the signatures, and 'the acknowledgment of the grantors, with the criminal intent, the crime of forgery was consummated in the state of Missouri. But this is not the charge in the case at bar. It is for knowingly uttering and publishing as true and genuine a false and forged deed. It is wholly immaterial where the forgery was committed.

The question therefore is, was this deed uttered and published in Jefferson county, Ohio, and was Lindsey guilty of this crime ?

That this forged deed was uttered and published in Ohio, by T. & D. Hall, who supposed it was genuine, is clear from the evidence.

Now, it is assumed that the jury had evidence to warrant them in finding that T. & D. Hail did so utter aud publish this deed by the procurement of Lindsey.

The crime was therefore completed or consummated in Ohio, through the instrumentality of an innocent agent. It is-wholly immaterial whether his co-defendant Morris was his confederate or his dupe, as in either case the acts of Morris by correspondence mailed in St. Louis to T. & D. Hall, were simply the means used to consummate a crime in Ohio. The crime had its inception in Missouri, but it was committed in Ohio by innocent agents. If a letter containing a forged instrument is mailed at one place to be sent to another, the venue must be laid where the letter is received. 8 Greenl. § H2.

The crime of uttering and publishing is not complete until the paper comes to the hands of some one other than the ■accused, and if it be sent by mail for the purpose of being there used, the crime is not consummated until it is received by the person to whom it is to be delivered. It is a fundamental principle that a person is responsible criminally for acts committed by his procurement as well as for those done in person. The inherent power of the state to punish the uttering and publication of forged instruments within its territorial limits, without regard to the place where the forgery was committed, or purpose was formed, is essential to the protection of her people. It is now a generally accepted principle, that one who in one county or state employs an innocent agent in another to commit a crime, is liable in the latter county or state. Robbins v. The State, 8 Ohio St. 131; Norris v. The State, 25 Ohio St. 217; 1 Whart. Grim. Law, 7th ed. §§ 210, 278 ; see also Commonwealth v. Macloon, 101 Mass. 1; Commonwealth v. Smith, 11 Allen (Mass.) 243; Commonwealth v. Blanding, 3 Pick. 304; Rex v. Johnson, 7 East 65; Wh. Con. of L. §§ 877-921; People v. Adams, 3 Denio, 190, affirmed, 1 N. Y. 173. United States v. Davies, 2 Sumn. 482; State v. Wyckoff, 2 Vroom (N. J.) 68; Commonwealth v. Gillespie, 7 Serg. & R. 469; Stillman v. White Rock Co., 3 Woodb. & M. 538; Rex v. Garrett, 6 Cox C. C. 260; Rex v. Jones, 4 Cox C. C. 198; State v. Grady, 34 Com. 118.

2d. Were the deeds and deeds of trust admissible for the purpose of proving guilty knowledge.

It is essential that the prosecution should, by competent evidence, satisfy the jury that' the accused had such knowledge.

These instruments were either general warranty deeds, like the one described in the indictment, or deeds of trust to secure notes and bonds for the payment of money. It is conceded they were all forgeries. Some of them were found in Lindsey’s possession, and some of them had been uttered by him. They were all deeds of land, some conveying the title absolutely to the grantee, and others to vest such title in the grantee in trust to secure the payment of money. Under the statute of Ohio (R. S. 7091) it was an indictable ofíense to forge such instruments, or to utter and publish them with intent to defraud. The crime here charged is, that of uttering and publishing a forged deed of general warranty.

The claim is, 1st, that none of these instruments were admissible, because of the general rule that another and a distinct crime, in no way connected with the one charged, can be given in evidence on the trial of the crime charged; and, 2d, that even if the warranty deeds were admissible, the deeds of trust were not, as not being of tbe same description with tbe deed described in tbe charge.

That the warranty deeds were admissible is well settled. “ In proof of the criminal uttering of a forged instrument it is essential to prove guilty knowledge on the part of the utterer. And to show this fact evidence is admissible that he had about the same time uttered or attempted to utter other forged instruments of the same description ; or, that he had such others, or instruments for manufacturing them in his possession.” 3 Greenl. Ev. (8th ed.) § 111; Hess v. State, 5 Ohio 9; Reed v. State, 15 Ohio 217; Shriedley v. State, 23 Ohio St. 130; Bainbridge v. State, 30 Ohio St. 264.

But it is claimed that these deeds of trust were not of the same description,” as the warranty deed, described in the indictment. The words “ of the same description,” are taken from the above citation from 3 Greenleaf. Ev.; but in 1 Greenl. Ev. § 53, the text reads: So an indictment for knowingly uttering a forged document, or a counterfeit banknote, proof of the possession, or the prior or subsequent utterance of other false documents or notes, though of a different description, is admitted as material to the question of guilty knowledge or intent.”

The rule, as stated -by Phillips is : Thus, in a prosecution for uttering a bank-note, bill or promissory note, with knowledge of its being forged, proof that the prisoner had uttered other forged notes or bills, whether of the same Mnd or a different Icincl, or that he had other forged notes or bills in his possession, is clearly admissible, as showing that he knew the note or bill in question to be forged.” 1 Phillips on Ev. 768-769.

In a note by Oowen & Hill, which discusses the cases on this rule, the conclusion reached is, that “ on the whole, the decided weight of authority would seem to be in favor of receiving the evidence, whether the other bills, &c., be ejusdem generis or not.”

This conclusion, when applied to trials for uttering forged and counterfeit instruments, is abundantly supported by the authority of the cases cited in notes to the foregoing citations. Also, The King v. Whiley, 2 Leach C. C. 983; Rex v. Ball, Russ. & Ry. C. C. 132; Sunderland’s case, 1 Lewin C. C. 102; 2 Russell on Crimes, 404 et seq. Cook v. Moore, 11 Cush. 216; Note 3 to section 53, 1 Greenleaf.

As guilty knowledge is an essential ingredient of this class of crimes, and as the burden is on the prosecution to prove such knowledge, the reason of the rule is apparent.

Without the aid of other acts and conduct of the accused, than the one charged, it would be impossible to prove this allegation. Proof of the single act charged, will not of itself warrant the inference of guilty knowledge. Hence this exception to the general rule, that other acts of the accused calculated to raise a presumption of such knowledge, are admissible. Other acts which, in their nature, do not aid the jury in determining this question, are not competent, but when such acts or conduct tend to raise a presumption of such knowledge, they are admissible.

In the case at bar, the charge is for knowingly uttering a forged deed with intent to defraud, that is, by this pretended conveyance of the title, to obtain money fraudulently. The forged deeds of trust were in the nature of mortgages to secure notes and bonds for money. They conveyed the title to a trustee to secure those who advanced money on the faith of this conveyance.

Although these instruments are not identical in tenor or affect with an absolute deed, yet the fact, if it be one, that the accused was engaged iñ obtaining money by this class of forged instruments, is calculated to raise a strong presumption that he knew that a deed of warranty used to accomplish the same purpose, — that is, to obtain money, — was also forged.

The general conduct of the accused in uttering forged deeds of trust, to raise money about the same time, tends to show he is engaged in that business, and the inference is natural and cogent, that he knew the warranty deed he uttered in the case at bar, was of the same character.

Judgment affirmed.


source: Caselaw Access Project

author: Oxey, C. J.

license: Public Domain

text:
    Counterman v. Dublin Township.
    The act of April 10, 1880, “ to authorize certain townships to build railroads, and to lease and operate the same” (77 Ohio L. 165), being unconstitutional (Wyscaver v. Atkinson, 37 Ohio St. 80), a tax-payer may maintain an action (Rev. Stats. §§ 5848-5851) to restrain the collection of a tax levied for the payment of bonds issued under the act; and the fact that the bonds were issued and the money arising from the sale thereof was expended by the trustees, with the knowledge of the plaintiff, in the construction of a railroad in the township, which enhanced the value of the property therein, including that of the plaintiff, and was otherwise useful to the citizens of the township generally, and that the plaintiff did not commence an action to restrain the issue or negotiation of the bonds or prosecution of the work, is not sufficient to estop the plaintiff from maintaining such action to restrain the enforcement of such tax.
    Error to the District Court of Mercer county.
    Jacob Counterman and Jacob S. Keetb, for themselves and others alike interested, brought suit in the court of common pleas of Mercer county, against the board of trustees of Dublin township, Mercer county, and the auditor and treasurer of the county, to enjoin the collection of a tax levied on the taxable property in that township, under the act of April 10, 1880, to authorize certain townships to build railroads, and to lease and operate the same” (77 Ohio L. 165), for the payment of bonds amounting to $20,000, issued under the act, to defray the expense of building a railroad in the township. The ground of action was that the plaintiffs were tax-payers of the township, and that the act under which the tax was levied was unconstitutional.
    The defendants answered as follows: “ The defendants aver that in pursuance of the law in the petition averred, such proceedings were duly had in compliance with the provisions of said law, that the election provided for in said law was duly had, resulting in an affirmative vote in favor of providing said line of railway; that afterward the result of said vote was duly declared; that afterward bonds were duly issued to the extent of twenty thousand dollars, and were duly and regularly sold, in pursuance of the provisions of said law, to persons who are unknown to these defendants, and the money realized therefor; that afterward, the railroad trastees, who had been duly appointed, expended said funds in the construction of the railroad as contemplated by said act; that all of said several acts and things done, were well known to the said Jacob Counterman and Jacob Keeth and all persons for whom they bring suit, as they transpired; that the building of said railroad has largely enhanced the property of the citizens of Dublin township, and is otherwise of great value to the plaintiffs and to the persons for whom they sue; that the plaintiffs, and each of them, and each and all of the persons for whom they sue, stood by, with full knowledge of each and every step being taken, which is provided to be taken by said law, and well knew that the railroad trustees were about to issue and sell the bonds of said township, and apply the money to the building of said railroad ; and that afterward they, and each of them, well knew that said work was progressing, and that they took no steps to enjoin the building of said road or the issuing of said bonds, until the said fund had been expended, and the road was fully built. Wherefore, the plaintiffs and each of the persons for whom they sue, are estopped.
    On appeal to the district court, a demurrer to the answer was overruled and the petition was dismissed, and this petition in error was filed to reverse the judgment.
    . Isaiah Pillars, for plaintiffs in error:
    There could be no estoppel. Morgan v. Spangler, Beardsley v. Foot, 14 Ohio St. 119, 416; Kellogg v. Ely, 15 Ohio St. 64; Goodwin v. Canal Co., 18 Ohio St. 169; Welker v. Potter, 18 Ohio St. 85; 20 Ohio St. 184; Wright v. Thomas, 26 Ohio St. 346; Myers v. Quinlan, 29 Ohio St. 500; State v. Mitchell, 31 Ohio St. 592, and cases cited.

      1. FT. Alexander, for defendants in error, commented on. the same cases.
   Oxey, C. J.

The act construed in Wyscaver v. Atkinson, 37 Ohio St. 80, and the act involved in the determination of this case (77 Ohio L. 165), are in substance the same, — the latter applying to no other than Dublin township, Mercer county, and the former to Beaver township, Noble county, alone, — and for reasons satisfactorily stated in that case, they are alike unconstitutional.

As an action of this sort, by tax-payers, is clearly authorized (Rev. Stats. §§ 5848-5851; Stephan v. Daniels, 27 Ohio St. 527), the sole question before us is, whether, in view of the matters stated in the answer, they are estopped to assert the unconstitutionality of the act under which the road was constructed.

An act of the general assembly in conflict with the constitution, is a mere nullity, and no one is estopped to assert its invalidity. Such is the general rule. And this is a matter to be determined by the court as a judicial question. South Ottawa v. Perkins, 94 U. S. 200, 267; The State v. Railway Co., 31 Ark. 701; The State v. Railway Co., 74 Mo. 163; Post v. Supervisors, 105 U. S. 667. But parties may, under special circumstances, be precluded from availing themselves of such infirmity. Where one actively intervenes to secure the passage of an act, or the expenditure of money in pursuance of it, or where one, with knowledge that improvements are in progress on his lands, under authority of a legislative enactment, permits the work to proceed without objection, there is much reason for saying he should not be permitted to plead that such statute is unconstitutional. Ferguson v. Landram, 1 Bush, 548; s. c., 5 Id. 230; approved, The State v. Mitchell, 31 Ohio St. 592, 610; and see cases cited by counsel, and Daniels v. Tearney, 102 U. S. 415, 421. But the same reason does not apply where there is only inaction, and “ the duty to speak ought to be very imperative to make mere silence operate as an estoppel.” Cooley on Taxation, 573. If we should hold the plaintiffs to be estopped on the facts here set forth, we would, in effect, require every property owner to determine, at his peril, in advance of the expenditure of any money under the authority of the act, whether such act was constitutional, and incur the necessary expense of obtaining a judicial determination of the question. And he would thus become not only the guardian of his own property rights in that regard, but charged with the duty of controlling the conduct of the officers provided by law for the township.

"We are clear, that the doctrine of estoppel can never be rightly applied to the facts here presented. But the holders of the bonds are not before us. Moreover, the question as to the liability of the owners of lots abutting on a street improved under an unconstitutional act, to pay an assessment for such improvement, is presented in other cases which have been submitted but not decided. For these reasons this opinion is confined strictly to the question of estoppel on the facts set forth in the statement of the case.

Judgment reversed.


author: Longwoktii, J. Cockburn, C. J.;

text:
    Peter v. Caswell.
    A mill-owner constructed a dam and dug a mill-race, in such manner that the waters of the stream were diverted from their ancient channel and flowed through the race. He maintained, however, at all times, a flood-gate for the purpose of returning the waters to their natural channel whenever repairs upon his mill should make it necessary. He and his grantees continued to flow the water through the race for a period of more than twenty-one years, during which time the water was occasionally and temporarily restored to the ancient channel. This channel had, by long disuse, become obstructed and partially filled, so that it was not sufficient to carry off all the water which originally passed through it. Plaintiff purchased from grantees of the mill-owner a tract of land, through which ran the ancient channel of the stream. For the purpose of repairing the mill, its owners opened the gate and restored the water to the ancient channel, which flooded the land of the plaintiff and injured her crops. Held: 1st. That nothing in the condition of things, or in the acts of the parlies, at the time of the plaintiff’s purchase, showed that the use of the ancient channel had been permanently abandoned. 2d. The mill-owners still retained the right to restore the water to its old channel whenever the repair of their mill rendered such course necessary or advisable.
    Error to the District Court of Erie county.

      H. db L. LL. Goodwin, for plaintiffs in error.

      John M. Lemmon, for defendants in error.
   Longwoktii, J.

This was an action brought by the plaintiff against defendants, who were mill-owners, to recover damages for flooding her lands, and destroying her crops, by diverting the channel of a stream. The jury, upon the trial, rendered a verdict in favor of defendants; and a motion for a new trial, on the ground that this verdict -was not supported by the evidence, and resulted from erroneous instructions, was overruled, and judgment was rendered on the verdict. This was afterwards affirmed in the district court.

The facts of the case, in so far as I have considered it necessary to report them, are as follows

Prior to 1812, there existed in Erie county, a spring, now called “■ Castalia,” which discharged perennially an extraordinary volume of water, flowing northwardly through the land now owned by the plaintiff, and emptying into Sandusky bay.

About' this time, one Snow, wishing to utilize the waterpower furnished by this spring, built a dam across the'outlet, immediately below its source, and raised the water to a higher level. The result of this increased pressure was, that several years thereafter, the water found, or forced a subterranean channel, breaking out some sixty rods north of the original source, and thence flowing in a new channel to the bay. To maintain the original level of the water, it was found necessary to buildl au embankment around the lower pond, thus raising the -water and obtaining a uniform level in both ponds. This was done.about the year 1822.

Up to 1810, all the water from these ponds ran down-through the old channel through plaintiff’s land as it hadi always done; but in that year, another mill was built at the-lower pond, and a race-vray cut from the latter pond, conveying the water to the ancient channel at a point some distance-below the plaintiff’s land. Through this race-way, all tliewater from the springs has run since 1810, except that there-has always been more or less leakage through the dam at.. th& upper pond, which has passed down the old channel; and on some occasions, when the dam broke away, or when it became necessary to repair the mills, all the water was returned to the old channel. To enable this to be done, a flood-gate, or weir, was at all times maintained, opening from another race-way, which had been cut between the ponds, into the old channel.

In 1812, one Marshall Burton became the owner of these springs, and all the mill property, including the lands now owned by plaintiff ; and through various conveyances, the title to the mill property passed from him to the defendants, and the title to the land now owned by plaintiff, to her.

One of these conveyances from Burton, under which plaintiff acquired an undivided interest, contained the following expressed reservation: “Reserving all water-courses and privileges of excavation for mill or manufacturing purposes at all times.”

In 1875, the defendants, to enable them to repair their mill at the lower pond, opened the flood-gate and turned the water from both ponds into its ancient channel. This channel, by long disuse, had become partially filled up and the 'flooding of plaintiff’s premises resulted, causing the injuries complained of.

This, defendants claim, they had a perfect right to do; among other reasons, because of the reservation in the deed from Burton, above mentioned. It does not appear that in the exercise of the right claimed, the defendants allowed the water to run through the old channel for a longer time than was necessaiy to enable them to repair their mill, or turned into the channel a larger amount of .water, at any time, than would naturally flow there if not restrained by the dam at the upper pond.

It is claimed by the plaintiff that no such right is reserved as against her, for the reason that the deed from Burton in which such reservation is found, conveyed only an wndimded interest, and that, as to the remaining undivided interest, she 'holds her land free from any reservation of such right in Burton’s grantees. ’ She further says that, at the time of the injuries complained of, the channel had been permanently changed ier more than twenty-one years; that defendants had acquired a right by prescription to flow the water through a new channel, which was inconsistent with their right to continue the use of the old; and that she was justified by the condition of things and the acts of the defendants, at the time she purchased, in believing that they had finally abandoned the use of the ancient channel, and that they are, therefore, estopped from asserting such right as against her. This theory of estoppel, we do not think can be maintained. In the first place, the plaintiff knew that the diversion of the stream was for milling purposes only, and that, should the defendants at any time abandon the business of milling, and cease to maintain their dam at the upper pond, the water would inevitably seek again its ancient channel, through which it always had, and always would naturally flow. Such a view would require us to say that the defendants had impliedly bound themselves to forever maintain a dam at the upper pond, and prevent the water from returning to its natural channel. Secondly, the plaintiff knew that defendants had at all times, maintained a flood-gate at the upper dam, the only use of which could be to enable them to return the- water to the old channel, when the repair of their mill, or other cause, should make such a course necessary or advisable. Lastly, the reservation in the deed from Burton, even if it did not operate to secure this right to himself and his grantees, was at least an assertion that he intended to use that water-course thereafter. We are, therefore, unable to see that there was anything in the condition of things, or in the acts of parties, at the time of plaintiff’s purchase, which would justify her in supposing that all use of the ancient channel had been permanently abandoned.

We concede, of course, that the exercise of this right should be reasonable, and that it would be the duty of defendants to so use their own, as not to inflict unnecessary damage or injury upon others; but whether or not they did so act, was a question properly left to the jury, who found upon it in their favor, and the verdict is abundantly supported by the testimony.

In leaving this subject I shall content myself with citing the case of Mason v. Shrewsbury & Hereford R. R. Co., 6 L. R. (Q. B.) 578, which, to my mind, seems directly in point. In that case, a canal company had, under powers granted by act of parliament, diverted a considerable part of the water from a broolc which flowed through plaintiff’s land, at a point above plaintiff’s land, the rest of the water continuing to flow in its natural channel. The canal was disused in 1853; and in 1861, the defendants, who had succeeded to the rights of the canal company, restored to the brook the water which had been diverted from it. The bed of the stream, owing to the diminished flow of water for fifty-three years, had been “ silted up,” and was insufficient to carry off the water coming down in times of extraordinary flood. Such a flood occurred and overflowed plaintiff’s land, damaging his crops. It was held that no right of action existed. In deciding the case, Blackburn, J., said, The occupiers of the land, lower down the Ashton brook than the canal, would naturally suppose things were going to remain in the state in which they had been for so many years, and can in no way be blamed for not anticipating that the canal would be disused, and the waters, which had been diverted, again turned into the brook; and, after that state of things had continued for .more than forty yean?, one would wish to find some legal ground for saying that they had acquired a legal right to prevent this long-continued state of things from being altered to their prejudice. But I feel obliged to come to the conclusion that there is no ground on which such a right can be supported.”

Cockburn, C. J.;

concurring in this opinion, said : “Nowit is of the essence of such an easement ” (referring to the right to divert a stream, the ser'vitus aquae ducendce of the civil law), “ that it exists for the benefit of the dominant tenement alone. Being, in its very nature, a right created for the benefit of the dominant owner, its exercise by him cannot operate to create a new right for the benefit of the servient owner. Like any other right, its exercise may be discontinued, if it becomes onerous, or ceases to be beneficial to the party entitled. An easement like the present, while it subjects the owner of the servient tenement to disadvantage by taking from him the use of the water, for the watering of his cattle, the irrigation of his land, the fuming of his mill, or other beneficial use to which water may be applied, may, on the other hand, no doubt be attended incidentally with equal or greater advantage to him; as, for instance, by rendering him safe from the danger of inundation. But this will give him no right to insist on the exercise of the easement on the part of the dominant owner, if the latter finds it expedient to abandon his right.” This decision, if correct, would effectually dispose of the ease before us, even in the absence of other considerations to which I have referred.

Various exceptions were taken at the trial to the rulings of the court upon matters of evidence, to the refusal to give certain instructions asked, and to the charge as given, which, if I were to attempt to discuss seriatim, would swell this opinion to an insufferable volume. Suffice it to say that, although the charge was somewhat involved, and portions of it, standing alone, might be considered erroneous, yet, taking it as a whole, we are of opinion that the jury was fairly advised as to the law of the ease. We all think that substantial justice was attained by the verdict; and, being the only verdict which could be property rendered in the case, we find no error in the court’s refusal to set it aside, or in the action of the district court affirming the judgment. See Buck v. Waddle, 1 Ohio, 357-363.

Judgment affirmed.


text:
    Commissioners of Belmont County v. Ziegelhofer.
    Where a claim against a county, which must be allowed by the commissioners before it can be paid, is founded exclusively on a statute, the remedy by appeal provided by section 18 of • ‘ an act establishing boards of county commissioners and prescribing their powers and duties ” (1 S, & O. 247) is exclusive ; but where such a claim is founded upon a contract, which the commissioners are authorized to make, and they refuse to perform such contract, or disallow the claim, the remedy by appeal and the summary proceedings provided for by said section, is cumulative merely, and the claimant is entitled to have his action thereon against the county by due course of law, in any court of competent jurisdiction.

      Error to the District Court of Belmont county.
    The facts, so far as necessary to an understanding of the question saved for report, are as follows: The defendants in error brought an action before a justice of the peace against the Commissioners of Belmont county, to recover a balance due on a contract for work and labor in tearing down and rebuilding a protecting wall on a county road, which the commissioners refused to pay. Prom a judgment against the commissioners, they appealed to the common pleas, where a petition was filed which the commissioners moved to dismiss, 1st. Because the justice had no jurisdiction, and, 2d. Because the common pleas had no jurisdiction. The ground for this motion is, that the exclusive remedy of the plaintiffs was an appeal from the action of the commissioners, in refusing to allow and order the claim paid. Another question, of minor importance, appears in the record but is not here stated, as to which there was no error of the court below.
    Upon issue joined, judgment was rendered for plaintiff, which was affirmed by the district court.

      Mees éi Gallaher, for plaintiff in error.

      Anderson é¡ Danford and Tollman Brothers, for defendant in ei'ror.
   Johnson, J.

By section 18 of an act establishing boards of county commissioners, and prescribing their duties (1 S. & C. 241), it is provided : That if any person shall conceive him or her or themselves aggrieved by the decision of the county commissioners in any case, such person or persons may, within fifteen days thereafter, appeal to the next court of common pleas, notifying the commissioners at least ten days before the time of trial, which notice shall be in writing, and delivered personally to the commissioners or left with the auditor of the county, and the said court shall, at their next session, hear and determine the same, which decision shall be final. ” The question at bar may be thus stated: Is the appeal thus provided for, the sole remedy for defendants in error upon refusal of tbe county commissioners to allow the claim upon which this action is founded, or is it merely cumulative ? Section 18 is a special statutory remedy given to any person aggrieved by the decision of the county commissioners. It is peculiar, and unlike the remedy by action in several respects. The appeal may be taken in fifteen days, instead of ten days, as in case of appeals from a justice of the peace, or thirty days from the common pleas. No bond is required, as under the practice acts applicable to courts. The only notice required to be given of the .fact, is one in writing ten days before the time of trial, and the court shall, at their next session, hear and determine the same, which decision shall be final. As the section reads, there is no provision for pleadings, rule days, continuances, or a trial by jury, and no appeal from the judgment of the common pleas. The court, at its next session is, upon ten days’ notice to the commissioners, to hear and determine the case, and make a final decision.

It would be an anomaly in our judicial proceedings, if this were the exclusive remedy against the county commissioners in every case of law or equity, whatever be its amount or nature. The Bill of Rights provides that the right of trial by jury shall be inviolate, and that every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law.

In the Commissioners v. Robb, Wright, 48, there was an appeal by a claimant from the decision of the commissioners, disallowing a claim for building a bridge under a contract with them. In the court of common pleas, the commissioners moved to quash the appeal, which was overruled. They then moved that an issue be duly made up by pleadings. This was also overruled, and the court then proceeded to hear the case upon the papers sent up on appeal, without other evidence, and rendered judgment in favor of the claimants. On certiorari, the case was taken to the supreme court on the circuit, where the judges, Collet and Wright, were divided in opinion, the former holding that, under the statute, the right to proceed in a summary way, without pleadings, issue or jury was given, while the latter held otherwise. The court being divided in opinion, the case was reserved for decision before the full court in banc, and is found reported in 5 Ohio, 491. In that court, the judgment of the commonpleas was affirmed. The question of a summary trial, without pleadings, issue, jury or evidence, was not noticed or considered, but the affirmance of the judgment was equivalent to an affirmance of the opinion of Judge Collet, that it was a summary proceeding, not in due course of law. The court did, however, decide that in that case- — a contract for building a bridge — the claimants might, on the disallowance of their claim, appeal. They did not decide that an appeal was the exclusive remedy, as no such question arose in the case. That case arose under the act of 1824, which contains a provision relating to appeals similar to section 18 above quoted. The affirmance of the judgment of the common pleas may be claimed as an affirmance of the view taken by Judge Collet, in the court below, that this was a summary remedy without pleadings, issue or jury, but whether so intended, or whether such a view be correct, we express no opinion.

By section 7 of the act establishing a board of county commissioners and prescribing their duties, as amended April 27, 1877 (74 Ohio L. 133), which was in force when this action was brought, the board of commissioners, in the several counties, are made capable of suing and being sued, pleading and being impleaded, in any court of judicature in this state; and they are authorized, in all suits at law or in equity, brought by or against them in their official capacity, to employ counsel to prosecute or defend, and to allow and pay such counsel reasonable fees out of the county treasury.

The capacity to sue and be sued, to employ and pay counsel, to prosecute and defend in all suits at law and in equity, is commensurate with their official duties, and embraces all causes of action, arising out of the duties required of them by law. This liability to be sued, with the corresponding right and duty to defend at the public expense, extends to every cause of action for which the county is or may be liable, in due course of law, except where an exclusive remedy is otherwise provided, consistent with the provisions of the Bill of Bights already cited.

In the case at bar, the power of the county commissioners to bind the county by the contract to repair the retaining wall of a county road is not disputed. If the work is done according to the terms of the contract, a claim against the county exists, which it is the duty of the board of commissioners to allow, and order paid.

It belongs to that class of claims that cannot be paid except upon the allowance of the county commissioners. 1 S. & O. § 9, p. 251. If they refuse to allow the same, a right of action exists in favor of the claimant, unless the claim be of that nature or character that an exclusive remedy, other than by action in due course of law, is legally provided.

The question here is, whether the claimants in this case are limited to an appeal under section 18, or whether they may sue in the ordinary form of action — whether the remedy by appeal is exclusive in all cases where it is the province of the commissioners to allow a claim before it can be paid, or whether it is merely cumulative ?

Robb v. Commissioners, 5 Ohio, 491, is an authority that, the defendants in error might have appealed from the refusal to allow their claim, but it does not hold that they might not, at their election, bring an action, and have all the benefits of a trial by due course of law, instead of being limited to the summaiy remedy by appeal.

Paine v. Commissioners, Wright, 471, is the next case in order of time, and was decided by two of the judges who sat in Robb's case. It was there held, that the commissioners are but a corporation performing certain public functions, and not lords paramount or sovereigns, and that they are subject to suit before a justice, or in the courts.

Shepard v. Commissioners of Dark Co., 8 Ohio St. 354, was an action by the recorder of the county against the commissioners, to recover on an alleged contract for the value of books, and labor of making a new general index to the records of the county, under a statute authorizing the work, and providing that, “ the recorders shall be allowed*and receive for their services such compensation as the commissioners of the ^respective counties shall deem reasonable and just.

It was said, by tlie court that, “ whenever the board of commissioners are authorized to allow or reject claims against the county, the party aggrieved may appeal.” What was held in that case was, “where a claim against a county is of such a nature that, but for the statute, no right of action at common law would exist on the claim, the remedy prescribed by the statute must be pursued, and no cumulative remedy exists.” As the recorder’s claim arose under the statute, but for which no right of action would have existed, the remedy by appeal was held to be exclusive. A quaere was suggested by the court, whether in <my case, where the claim is to be passed upon by the commissioners, the claimant can pursue any other remedy ? That question is the one before us.

The principle laid down in Shepard’s case, was re-affirmed in State ex rel. Gerke v. Commissioners, 26 Ohio St. 364, and was applied to, a claim for attorney’s services, under the employment of the county treasurer in prosecuting suits for the collection of taxes. It was held that such a claim belonged to the expenses of the treasurer, which it was the duty of the commissioners to allow, and that the i ight of the claimant, to be paid out of the county treasury, is founded exclusively on the statute, which also provides for the allowance of the claim by the county commissioners, before it can bo paid,” and that his only remedy is by appeal, when he is aggrieved by the decision . of the commissioners on the merits. These cases rest upon the well settled rule of construction, that where, by statute, a liability is created, and a specific remedy is given, it is ■exclusive, but when.a specific remedy is given for an existing right of action for which there is a remedy by due course of law, the new remedy is merely cumulative, unless it clearly appears to be the intent of the legislature, that it be to the .exclusion of the existing remedy. Commissioners v. Bank, 32 Ohio St. 194, 201; Darling v. Peck, 15 Ohio, 65; State v. Orr, 16 Ohio St. 523; Sedgwick on Stat. Law, 341-345; Hardcastle on Rules of Construction, 163-169.

In the case a¿ bar, the liability of the county, if any existed, was founded on, and arose out of a contract, and not by virtue of a statute creating such liability. The statute confers upon the commissioners, the power to contract with reference to the subject matter. In the exercise of this corporate power, they can create a liability against the county.

When such a contract is made within the scope of the authority conferred, the obligations arising therefrom, are to be determined by common law principles, in the absence of statutory provisions to the contrary. The right is not founded on a statute, but on a contract made by a quasi corporation.

It is not of that nature that, but for the statute, no right of action at common law would exist on the claim. Hence it follows that the remedy by appeal is cumulative merely. In this respect, it differs from Shepard’s Case, 8 Ohio St., or Gerke's Case, 26 Ohio St. In the former, but for the statute (2 S. & C. 1276), the recorder would have no claim for compensation for making a complete general index. His right depended exclusively on the third section of the act of 1835, authorizing him to do the work, and giving him a right to such compensation as the commissioners should deem reasonable and just. The same is true of the latter case.

Here the claim is founded upon contract, and grows out of the corporate liability of the county, for the official acts of the board of county commissioners. In this respect, the rights of persons contracting with the commissioners, and the liability of the county on their contracts, are of the same nature as the corporate liability of private corporations. In either case, the capacity to contract is derived from the statute, but the liability to others, arises from the acts of those authorized to bind the corporate body.

As this is a claim for which the auditor cannot issue a warrant, unless allowed by the commissioners, a right óf action on it did not accrue, until disallowed by them. If allowed by a competent court, the auditor should draw his order without any further action of the commissioners.

What we hold is, that upon a refusal by the commissioners to allow this claim, defendants in error had the right, by due course of law, to have the same adjudicated in a court of competent jurisdiction, and that they were not limited to the summary proceedings on appeal, as provided by section 18 of the act.

Judgment, affirmed.


author: "White, J.

text:
    Close v. Sinclair.
    1. The right given by section 3 of the Homestead Act, as amended February 37, 1873 (70 Ohio L. 51), to a debtor, who is the head of a family, and not the owner of a homestead, to hold exempt from levy and sale, property as therein mentioned, to be selected by him “ at any time before sale,” applies as well to property levied on by attachment as by execution; and an order for the sale of the attached property, made in the proceeding in attachment, does not prevent the debtor from exercising his right of selection after the making of such order of sale.
    3, Where property has been levied on by attachment, and, pending the suit, the debtor assigns all his property for the benefit of creditors, excepting only such as he may lawfully hold exempt from execution, the right of the debtor to select the attached property as exempt from sale is not thereby waived.
    Error to the District Court of Huron county.
    The only important question arising in this cause is under the third section of the act of March 23,1850, as amended February 27, 1873, as to the right of a person, “ the head of a family and not the owner of a homestead,” to hold personal property to an amount not exceeding five hundred dollars, free from levy and sale.
    The defendant, Sinclair, was the head of a family, resident in Ohio, and' not the owner of a homestead.
    Two actions were commenced in Huron county common pleas against Sinclair, under which his property was seized in attachment, viz: the first by Eichelburger, November 12,1873, in which an attachment was levied on 320 bushels of wheat; and the second suit, begun February 10, 1874, by J. IT. Close, in which an attachment was levied on a Marvin safe.
    On February 17, 1874, Sinclair made an assignment to A. B. Smith, of all his property, reserving his exemption rights in the words: “excepting from this assignment, only such property as 1 ma/y lawfully hold exempt from execution.”
    At the June term, 1874, of Huron common pleas, judgment was taken for the plaintiff in each of said cases, against Sinclair, with an order of sale of said attached property.
    • On August 4, 1874, Sinclair served notice upon the sheriff of Huron county, that he (S.) was the head of a family, resident of Ohio, and not the owner of a homestead; and claiming to be entitled, under the exemption laws, to hold exempt from levy and sale such property as he might select, to the amount of five hundred dollars, and demanded that the same' be set off to him as provided by law; and on Angust 8, 1874, the sheriff did, pursuant to the statute, and under Sinclair’s selection, set off to him said “ safe,” appraised at $300, and said wheat, appraised at $200.
    But, notwithstanding said appraisal and setting off of said property, the sheriff refused to, and did not deliver it to Sinclair, but retained the same in his own possession, and on August 10, 1874, was proceeding to sell said property under said orders of sale. Thereupon, at said last date, and before the property was offered for sale, Sinclair, by a proceeding instituted before a justice of the peace, replevied said wheat and “ safe ” from the sheriff. The value of the property replevied, as shown by the appraisal, exceeding the jurisdiction of a justice of the peace, the cause was certified to Huron county common pleas. Eichelburger and Close, on their own motion, were made parties defendant in said action of replevin; and on trial of the cause, the court rendered judgment for Sinclair.
    The district court, on error, affirmed the judgment; and it. is now sought in this court to reverse both judgments.

      John M. Lemmon, for plaintiff in error :
    I. When the court sustained these attachments and ordered the property sold, it adjudicated that this property was not ex-' empt. Perkins v. Bragg, 29 Ind. 507; State v. Manley, 15 Ind. 8; see also 76 Pa. St. 232. The proceeding in attachment is essentially in rem, and the order to sell the attached property is an adjudication that it is liable to be applied to pay the claim ; and when the debtor has knowledge of the attachment, his claim for exemption comes too late if not made before this final adjudication.
    II. The demand for exemption should be seasonably made, and that is, at the time the officer is about to execute the order to seize the property. Sears v. Hanks, 14 Ohio St. 298; Fort v. Shaw, 3 Ohio St. 270; Smyth Homestead & Ex., § 536-540. And the right may be lost by laches or waived. Dow v. Cheney, 103 Mass. 181; Clapp v. Thomas, 5 Allen, 158; Smyth Homestead & Ex. § 536; Butt v. Green, 29 Ohio St. 667. This case is in point, the same statute being in force." See Bell v. Davis, 42 Ala. 460; Huswell v. Parsons, 15 Cal. 266.
    TIT. As to exemptions in case of voluntary assignments, see act of January 9, 1861 (73 Ohio L. 3), amending section 15 of the act of April 6, 1857 (1 S. & O. 712).

      P. N. Schuyler, for defendant in error:
    The judgment of the court was merely a judicial finding that so much was due the plaintiff, and the order of sale was merely equivalent to, that execution issue, or that execution be proceeded with. An order of sale is an execution within the meaning of the statute. See Sears v. Hanks, 14 Ohio St. 302. An attachment is only “ an execution in advance.” It seizes property no more strongly than an execution; and the question of exemption from it must always be raised after levy. The question of exemption was not raised at the rendition of the judgment with said order of sale. A question cannot be said to be “ adjudicated ” — -to be finally adjudicated — which is not considered by the court. The adjudication of a court is always made under, and subject to, existing statutory provisions applicable.
    2. The debtor may make the selection at any time before sale. 70 Ohio L. 51.
   "White, J.

The only question in this case is, whether the right of Sinclair, the judgment debtor, to hold the safe and the wheat exempt from sale, was waived.

It is claimed on behalf of the plaintiffs in error, that the orders of sale in the attachment suits had the effect to cut off the right; that such orders, in effect, adjudged that the defendant had no right to hold the attached property exempt from sale.

We do not think so. The effect of the attachments and the subsequent oi’ders of sale, was no greater in regard to the right of exemption, than would have been had by a judgment and execution thereon, levied on the same property.

The waiver is also claimed to arise from the fact that the debtor made no selection at the time of the levy of the attachments, and that he subsequently made a general assignment of all of his property for the benefit of his creditors. The assignment was made on February 17, 1874, and included the attached property subject to the attachments, as well as his other property. Whether the attachments would be effective or not, depended upon the plaintiff’s recovering judgment in the attachment suits. If they failed to prosecute their suits to judgment, or rather, if judgment should be rendered for the defendant, the attached property would pass under the assignment. Subsequently to the assignment, at the June term of the court, 1874, judgments were recovered by' the plaintiffs, and the orders of sale made.

The property now in question was selected by the debtor on August 4,1874, — six days before the time fixed for the sale, —and was set off and appraised by the officer, on the 8th of the same month. The question is, whether there was such delay in making the selection, as to operate as a waiver of the right. We think the statute, which declares that the selection may be made at any time before sale,” requires the question to be answered in the negative. 70 Ohio L. 51. We doubt not the right to make the selection may be waived by the debtor, as was held in Butt v. Green (29 Ohio St. 667); but we find no circumstances in the present case to justify us in holding that he had waived the right.

Judgment affirmed.


author: Okey, O. J.

text:
    Banta v. Martin.
    1. Where, at the time a general charge is given, a party states his objections to separate specified parts of it, and the court fails to modify the charge, it is sufiicient to set forth in the bill of exceptions the parts complained of, followed by the statement that the party excepts to each and all the parts so specified; and this is not inconsistent with Adams v. The State, 25 Ohio St. 584
    2. In an action against a stranger who indorsed in blank an overdue promissory note, it was alleged that, on April 7, 1873, he guaranteed the payment of the note, in consideration that the payee would extend the time of payment “until next spring.” Evidence was received without objection, tending to show that the agreement was for an extension of time for one year. After the cause had been argued and submitted, the court, in the general charge, said to the jury that they must disregard such evidence. Held, that the case "was not one of failure of proof, but of variance, which did not appear to have prejudiced the defendant, and hence the case was within section 131 and not section 133 of the Civil Code. Bev. Stats. §§ 5294-5296.
    Error to tbe District Court of Huron county.
    Clary & Co., a firm consisting of Gr. W. Clary and Seymour B. Martin, in 1871, executed and delivered three promissory notes to Isaac Banta, payable to him or order, each due one year after date, the whole amounting to $2,200. Several payments were made on the notes in 1871, 1872 and 1873, leaving a balance of $1,478 and interest. In 1874, Clary & Co. became bankrupts, and subsequently both members of the firm died insolvent.
    On April 7, 1873, Robert Gr. Martin wrote his name in blank on the back of each of the notes, and in 1875, Banta brought suit against him in the court of common pleas of Huron county, seeking to recover a judgment for the balance due on the notes, upon the ground that he was a guarantor. An issue of fact was joined, trial had, and judgment rendered in favor of Martin, which judgment was afiinned in the district court, and this petition was filed by Banta in this court to reverse the judgment of both courts.
    In the petition it is alleged, in substance, that on April 7, 1873, the plaintiff, Banta, being about to bring suit on the notes, the defendant, Robert G. Martin, in consideration that the plaintiff would extend the time of payment of the notes until the next spring, agreed that he would, and he then did guarantee the payment of the notes by indorsing his name thereon, and in consideration of such guaranty, the plaintiff then agreed to and did extend the time of payment of said notes for the< time stated.
    Evidence was given, without objection, tending to show that Seymour B. Martin applied to Banta for an extension of one year in the time of payment of the notes, and proposed that his brother, Robert G. Martin, should guarantee the payment of the notes in consideration of such extension; that this was communicated by Seymour B. Martin to Robert G. Martin, in the presence of Banta; that Robert G. Martin thereupon indorsed his name in blank on the back of each of the notes, in pursuance of the arrangement; and that, accordingly, Banta extended the time of payment of the notes for one year.
    The whole charge to the jury is not set forth in the record. After the general charge was given, the plaintiff objected to certain parts of it, which are set forth in the bill of exceptions, but the court refused to modify such parts, and the plaintiff excepted in this form: “To each and all of which charges and instructions herein above stated, the plaintiff then and there excepted.” ' Among the matters so excepted to, was the statement, in substance, that the contract was, in effect, for an extension until March 1, 1871, and that, unless the proof was in accordance with that allegation, there could be no recovery.

      G. T. Stewart, for plaintiff in error.

      Chas. M. Pennewell, for defendant in error.
   Okey, O. J.

Two questions are involved in the determination of this case : first, as to the form of exception to the charge, and secondly, whether the charge, in the particular set forth, was warranted.

1. In Adams v. State, 25 Ohio St. 584, it was held that a reviewing court is not bound to notice an exception to any particular part or- parts of a general charge, unless the attention of the court delivering the charge was, at the time, directed specifically to the part or parts claimed to be erroneous, and this fact appear by bill of exception. That case has been repeatedly approved (Taylor v. Leith, 26 Ohio St. 428; Railroad Co. v. Strader, 29 Ohio St. 448; Railway v. Probst, Fitzgerald v. Cross, 30 Ohio St. 104, 450; Berry v. State, 31 Ohio St. 219; Insurance Co. v. Tobin, 32 Ohio St. 77; McKee v. Hamilton, Powers v. Railway Co., Insurance Co. v. McGookey, 33 Ohio St. 7, 229, 555; and see Lincoln v. Claflin, 7 Wall. 132; Magee v. Badger, 34 N. Y. 247; Brown v. Kentfield, 50 Cal. 131), and we are well satisfied with it; but we see no reason for applying that rule in this case. On the contrary, where, at the time a general charge is given, a party states to the court his objections to separate, distinct parts of it, and the court fails to modify the charge, it is sufficient to set forth in the bill of exceptions the parts of which he complains, and state, as here, that he excepts to each and all the parts so set forth, and it is unnecessary to note an exception at the end of each of such parts.

2. That Robert Gr. Martin, by assenting to an agreement between S. B. Martin and Banta, for an extension of time for payment of the notes and indorsing his name thereon, would render himself liable for their payment, admits of no doubt; and the agreement would be equally binding whether such extension be in terms for a reasonable time, or until next spring, or for a year. Calkins v. Chandler, 36 Mich. 320; cf. Gower v. Stewart, 40 Mich. 747; Seymour v. Mickey, 15 Ohio St. 551; 1 Rev. Stats. 821; Oldershaw v. King, 2 H. & N. 517; Pratt v. Hedden, 121 Mass. 116; Brandt on Suretyship, § 8; Leake on Con. 622 ; Wald’s Pollock on Con. 166; Roseoe’s N. P. Ev. (14th ed.) 432. On the other hand, it is quite clear that Robert Gr. Martin is not liable unless he had knowledge of an agreement for such extension, and placed his signature .on the notes in furtherance of such agreement. Ib.

Upon the question whether there was an agreement for extension of time assented to by Robert Gr. Martin, the evidence is in conflict, and we express no opinion as to its weight or preponderance. We are of opinion that the charge of the court, in the particular stated, was unwarranted, and that this calls for a reversal of the judgment. The court, as we have seen, ehai'ged in effect that the extension of time, according to the agreement set forth in the petition, was until March 1, 1874. Assuming, without deciding, that this was correct, evidence of an agreement for such extension for one year, made April 7, 1873, was offered and received without objection, as we have also seen. In this posture of the case — the evidence and arguments of counsel having been heard — the court, in effect, arrested the evidence from the jury. But there is a marked difference between a case where the allegation of a claim, to which the proof is directed, is unproved in its general scope and meaning, and not merely in some particular, and a case in which the variance between the proof and such allegation does not appear to have misled the defendant. Civil Code, §§ 131-133 ; Rev. Stats. §§ 5294-5296. The variance here was of the latter class, while the court treated it as of the former.

Judgment reversed.


text:
    Brewer v. Maurer.
    The plaintiff held the notes of B., secured by a mortgage on his land. B. conveyed the land to a married women, by deed of general warranty, in consideration of a sum of money paid, and of her accepting a deed in which “said grantee assumes ... as part of the purchase money,” said mortgage debt. This was the only separate property she possessed. She conveyed the land to F., and1 he conveyed to defendants by like deeds, each containing a stipulation in favor of their grantors that the grantees assumed and agreed to pay the mortgage debt as part of the purchase money. Upon foreclosure and sale, the proceeds were insufficient to pay the mortgage debt.

      Beld: 1. That, aside from the disability of coverture, the acceptance by the married woman of the deed from B., containing the clause, that said grantee assumed as part of the purchase money, the mortgage debt, was an agreement between herself and her grantor to pay the mortgage debt as part payment of the consideration agreed by her to be given for the land. The transaction was not a purchase of the equity of redemption, subject to the mortgage, but of the land in fee, with a stipulation as to the manner in which the purchase money agreed upon by the parties should be paid.
    2. A married woman owning real estate, as her separate property, has legal capacity, her husband joining, to convey the same to her vendee, and she may stipulate for such terms of payment of the purchase money as she may think best. After her conveyance is executed and delivered, her grantee is legally bound to pay the consideration money in the manner stipulated, the same as if she were a femme sole.
    3. The defendants, as grantees of F., having agreed with him to pay this debt as part payment of the purchase money, were liable to the mortgagee on such promise, in an action to recover the deficiency.
    4. In such an action by the mortgagee it is a good defense to show that before the plaintiff has assented to or acted on the promise made in his favor, the agreement has been rescinded.

      Error to the District Court of Cuyahoga county.
    January 27,1872, George Braundel executed and delivered to Martin Maurer, sixteen promissory notes of $100 each, the first becoming due in six months, and the others at intervals of three months thereafter, the last being due April 27, 1876 ; and at the same time, secured the same by a mortgage on real estate. Subsequently, he paid one of these notes.
    May 2, 1875, by a deed of general warranty, he sold and conveyed said real estate to Mary Braundel, a married woman, for the sum of $500 in cash, and her assumption of his mortgage debt aforesaid, as part of the consideration. This assumption to pay, is contained in the deed to her, and is in the following words: “ Said grantee assumes a certain mortgage given by grantor to Martin Maurer, January 27, 1872, and interest thereon, as part of the purchase money.”
    Mary Braundel entered into possession of the land, having no other separate estate, and on October 13,1875, by warranty deed, her husband joining, sold and conveyed the same to one L. B. French, he assuming as part of the consideration, to pay said mortgage debt, by excepting said deed with the following clause inserted: “ This deed is made subject to a certain mortgage for $1,500, made by George Bi’aundel to M. Maurer, and which the grantee hereby assumes and covenants to pay.”
    On December 24,1875, French, by a like conveyance, sold this real estate to W. G. Brewer and S. Truseott, plaintiffs in error herein, under a like agreement as to the mortgage debt. In French’s deed to Brewer and Truseott, is this agreement: “ The above is made subject to a certain mortgage for $1,500, made by George Braundel to M. Maurer, and which the said grantees hereby assume and agree to pay, together with the interest thereon.”
    Two of said notes were not yet due. Whether the condition of the mortgage was broken by non-payment of prior notes, does not clearly appear.
    After these notes all became due, Maurer foreclosed the mortgage, and sold the premises at judicial sale, realizing therefrom only $650.61, leaving abalance due to him July 17, 1878, of $1,093.78.
    The object of the action in this case was, to recover this balance from Brewer and Truscott on their agreement with French.
    In addition to the foregoing averments found in the petition and answer, the defendants, by way of defense, pleaded, 1st, that Mary Braundel, at the time she assumed to pay this mortgage debt, was a married woman, and, 2d, “that since said 24th day of December, A. n. 1875, when said deed containing said covenant was executed and delivered, the said L. B. French, the grantor of these defendants, and in whose deed said covenant is contained, for a good and valuable consideration, has released and discharged these defendants of and from any and all liability to him, the said French, on account of the aforesaid covenant, and that thereby the defendants are wholly discharged and released therefrom, and that plaintiff, by reason thereof, cannot have and maintain his aforesaid action against these defendants.”
    Upon a demurrer to defendants’ answer, the court of common pleas held the defendants liable, and rendered á judgment against them. This judgment was affirmed in the district court.

      E. Sowers, for plaintiff in error:
    1. Aside from the question of coverture, the covenant in the deed of George to Mary Braundel, is not such as will enable Maurer to maintain an action thereon against Mary Braundel. Thompson v. Thompson, 4 Ohio St. 333, 349, 353, 354. This case was decided on the assumption that Thompson did not expressly promise to pay the debt. Moore's Appeal, 88 Penn. St. 450; 1 N. J. Eq. 330; Bassett v. Bradley, 48 Conn. 224; Fisk v. Tolman, 124 Mass. 254. See ease and note to the last cited case in 26 Am. R. 659-667; Prentice v. Bremhall, 123 Mass. 291; Nat. Bank v. Segur, 39 N. J. 173.
    2. 'We claim that the covenant contained in the deed from George to Mary Braundel is of no legal force or effect as to her by reason of her coverture. Rosenthal v. Mayhugh, 33 Ohio St. 155; Foster v. Wilcox, 10 R. I. 443; Griner v. Butler, 61 Ind. 362. The law of Ohio respecting married women was the same when the land was conveyed to Mary Braundel, and by her conveyed to Erench, as at the time Rosenthal v. Mayhugh was decided. 58 Ohio L. 54, 55; 63 Ohio L. 47, 48. The acts of March 30, 1870, 68 Ohio L. 48, and of March 30, 1874, 71 Ohio L. 47, 48, make no material change, in this respect, in the acts in 58 and 63 Ohio L. Jenz v. Gugel, 26 Ohio St. 527.
    3. If no legal liability attached to Mary Braundel by reason of the covenant in the deed of George to Mary in respect to the Maurer mortgage, then we claim that Maurer cannot maintain an action against the plaintiffs in error for any deficiency due upon the mortgage after the sale of the property on foreclosure. Maurer’s mortgage contract had reference to the land. He gets all he contracted for. He can get no more, unless his debtor, George Braundel, by a valid contract had obtained additional security for the debt due Maurer. George Braundel’s security so derived may in equity inure to the benefit of his creditor, Maurer. But the right Maurer may obtain is a derivative right, which comes to him by virtue of the equitable right of subrogation ; his debtor’s legal rights in respect to his debt he has by the principle of subrogation an equitable right to enforce. To this point we cite the following authorities : King v. Whitely, 10 Paige, 465; Garnsey v. Rogers, 47 N. Y. 233; Trotter v. Hughes, 12 N. Y. 74; Vrooman v. Turner, 69 N. Y. 280; Crowell v. Currier, 27 N. J. Eq. 152. Nat. B’k v. Segur, 39 N. J. Eq. 173; 29 N. J. Eq. 257, 261-266; Dunning v. Leavitt, 85 N. Y. 30; s. c., 39 Am R. 617-620; Trimble v. Strother, 25 Ohio St. 378.
    4. Mary Braundel was not equitably liable for the mortgage debt. Story’s Eq. Jr. § 1041; 29 N. J. Eq. 257; Phillips v. Graves, 20 Ohio St. 371. But if we are wrong ; if on such a covenant an equitable liability may exist; if the chancellor may roam at will through the deed and determine that an equitable liability arises upon covenants therein which are void in law; then we insist that the part of the consideration which sustained this covenant goes no further than the wife’s “ separate property,” and this having been applied, as the record shows, no considerations exist to sustain an action for the deficiency. 26 Ohio St. 527; 20 Ohio St. 371; 17 Law Rep. 454, Ch. Div.
    5. Rut we are discharged, even if once liable, by the release from French, our grantor. 27 N. J. Eq. 152, 650; 24 N. Y. 170.

      Charles F. Morgan, for defendant m error:
    1. A want of liability on the part of Mary Braundel, or French her grantee, would not affect the question of the liability of the plaintiffs in error. Moorman v. Moore, 90 Pa. St. 78; Crawford v. Edwards, 33 Mich. 354; Miller v. Thompson, 34 Mich. 10.
    2. A grantee in a deed, who has assumed the payment of a mortgage, cannot escape liability by reason of a want of liability on the part of his gi-antor, by reason of the personal disability of coverture. Comstock v. Smith, 26 Mich. 307; Jones on Mort. § 116; Cushman v. Henry, 75 N. Y. 103; Hyler v. Atwood, 26 N. J. Eq. 504.
    3. For the plaintiffs in error and their grantor to be allowed to take the title to the land through another from the original grantor and mortgagor, and escape liability upon an agreement to pay the purchase price because they received it throúgh a person who could not make a valid assumption because of a personal disability, would operate as a fraud upon the rights of such original grantor. Thompson v. Thompson, 4 Ohio St. 351.
   Johnson, J.

The plaintiffs in error are the grantees through mesne conveyances of George Braundel, who had executed a mortgage to defendant in error, to secure sundry notes. Upon foreclosure and sale of the mortgaged premises, there was a deficiency. The single question arising in this case is, can the mortgagee maintain an action for this deficiency against the plaintiffs in error ? The mortgagee’s claim to such an action is based upon the covenants or agreements to pay the debt, contained in the deed of French to plaintiffs in error, dated December 24, 1875. The plaintiffs in error resist this claim on three grounds : 1st, that aside from her disability of coverture, Mary Braundel did not make such a covenant with her grant- or, George Braundel, to pay the mortgage, as would inure to the benefit of the mortgagee for this deficiency; 2d, that her covenant contained in the deed to her, was of no legal force by reason of her coverture, and therefore, the covenants of French and of Brewer and Truscott, successive grantees from her, ai’e without legal force, on the ground that such a promise, to be effective, must be made to a person legally or equitably liable, and as Mary Braundel was not so liable, neither are her grantees bound thereby on their covenants; and,’ 3d, but even if plaintiffs in error were so liable by reason of the covenants in the deed to them from French, they were discharged by the release pleaded.

1st. As to the character of the agreement, contained in the deed from the mortgagor to Mary Braundel, aside from any question of coverture. She purchased of George Braundel, the mortgagor, May 3, 1875, paying in cash, five hundred dollars, and taking a general warranty deed containing the following clause: “ said grantee assumes a certain mortgage given by grantor to Mai’tin Maurer, January 27, 1872, and interest thereon, as part of the purchase money P This was not a purchase of the equity of redemption merely, but of the fee, protected by covenants of general warranty, the" purchaser agreeing, as part of the purchase money, to assume the mortgage debt.

"We may assume, for the purposes of this case, that one who purchases subject to a mortgage, is not bound, either expressly or by implication, to pay the deficiency of mortgage debt, even as between him and his grantor. Such a deed is construed as a purchase of the equity of redemption merely.

In a recent case (Fisk v. Tolman, 124 Mass. 254), this was held to be so, where the deed accepted was subject to a specified mortgage, which is part of the above named consideration.” It was held, where the consideration named was $11,000, and was subject to a mortgage of $7,000, part of that consideration, that there was no promise to be inferred from the acceptance of the deed on the ground that this clause contains a reference to the consideration. In this and other cases that might be cited, the construction of the transaction is that the purchaser takes only the equity of redemption, and assumes the burden, only so far as the land will go. At most, such a transaction is only one of indemnity as between grantor and grantee, and not a promise to assume and pay the debt that inures to the benefit of the mortgagee.

To determine, therefore, the effect of the contract of Mary Braundel, by accepting the deed containing the assumption to pay this mortgage, as part of the purchase money, we must determine whether it was a purchase of the equity of redemption, or of the land in fee, with an agreement to pay the purchase money in part, by the payment of the mortgage debt. In such case, the purchaser is personally liable to pay the pur-' chase money as agreed.

Mary Braundel’s contract with her grantor was, to pay a certain consideration for a conveyance in fee, to wit, $500, to her grantor, and she was to assume, as part of that consideration, a mortgage of $1,500 and interest.

As between grantor and grantee, this was a promise to pay the $1,500 and interest, by doing which, she would discharge her obligation.

Treating her as a femme sole, it was a binding covenant to pay, enforceable by the grantor or his mortgagee. Such was the manifest intention of the parties. Huyler v. Atwood, 26 N. J. Eq. 504; Pike v. Brown, 7 Cush. 133; Mainwarring v. Powell, 40 Mich. 371; Torry v. Bank of Orleans, 9 Paige, 649; Thayer v. Torrey, 37 N. J. Eq. 339; Comstock v. Drohan, 71 N. Y. 9; Miller v. Thompson, 34 Mich. 10; Heem v. Vogel, 69 Mo. 529; Fitzgeral v. Barker, 70 Mo. 685; Bassett v. Bradley, 48 Conn. 225; Braman v. Dowse, 12 Cush. 227; Tichenor v. Dodd, 3 Green Ch. 454. It is conceded by counsel for plaintiff in error, that where there is such a valid covenant between mortgagor and his grantee, it inures to the benefit of the mortgagee.

2. This brings us to the 2d point, namely, that by reason of her coverture, the agreement of Mary Braundel to pay this debt as part payment of the purchase money, was void at law and good in equity to the extent only of the land purchased, and that inasmuch as she was not liable personally for any de*ficiency, her contract with French by which she agreed to pay the debt, was not enforceable for such a deficiency, and. for the same reason, Brewer and Truscott are not liable.

In Vroomer v. Turner, 69 N. Y. 280, it is held that a grantee of mortgaged premises, who assumes and agrees to pay the mortgage as part of the consideration, is not liable for a deficiency arising upon a foreclosure and sale, in case the grantor was not personally liable, legally or equitably, for the payment of the mortgage debt. To the same purport are the following cases : King v. Whitely, 10 Paige, 465; Garnsey v. Rogers, 47 N. Y. 233; Trotter v. Hughes, 12 N. Y. 74; Crowell v. Currier, 27 N. J. Eq. 152, 650; Nat. Bank v. Segur, 39 N. J. Eq. 173; 29 N. J. Eq. 257, 261-266; Dunning v. Leavitt, 85 N. Y. 30; s. c., 39 Am. R. 617-620.

These eases rest upon the theory, that as the grantor is not personally liable for the mortgage debt, the promise of the purchaser is without consideration to support it, and is, therefore, a nudum pactum, and that, as the right of the mortgagee is derivative merely, to be substituted to his debtor, he can only maintain an action where his debtor could.

As, in this case, the privity existed between the mortgagor and mortgagee, which would give the latter a right to be substituted to the former, on the promise of the purchaser, the only question in fact is, was there a sufficient consideration to support the promise of the plaintiffs in error ?

It may now be regarded as the settled law, that where a valid promise is made to one for the benefit of another, the latter may maintain an action thereon, in his own name. Trimble v. Strother, 25 Ohio St. 378; Burr v. Beers, 24 N. Y. 178; Lawrence v. Fox, 20 N. Y. 268; Pardee v. Treat, 82 N. Y. 385. This last, case is important as one of the latest expositions of the conflicting cases in New Fork, where the promise relates to a mortgage on land. The principle stated on page 385, clearly is, that, if the grantee is bound to pay the debt as his own, he is liable to the mortgagee. The ground upon which the cases rest, that hold that if the grantor is not liable to the mortgagee, the promise of his grantee is invalid, seems to be either want of privity, or want of consideration to support the promise of the grantee. That there is such a privity here, is conceded. If there is a valid consideration to support the promise of the plaintiffs in error, and their grantor, French, no reason is perceived why they should not be bound.

Thus, in Lawrence v. French, 20 N. Y. 268, where one Holly loaned to defendant a sum of money, in consideration that he would pay a like sum to plaintiff, the latter might maintain an action against defendant on his promise to Holly..

In Vrooman v. Turner, supra, it is said : There must be either a new consideration, or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance of the agreement.” This is the doctrine of Thorp v. The Keokuk Coal Co., 48 N. Y. 253. There the mortgagor was not personally liable for the debt, but only for a deficiency upon 'foreclosure. He conveyed the premises to the defendant, subject to the mortgage, which the grantee assumed to pay. In an action by the holder of the mortgage against the grantee, to recover the whole debt without foreclosure, it was claimed, that as the grantor was only liable for the deficiency, that was the extent of the grantee’s liability,, therefore, no action would lie for the whole debt, nor until after foreclosure. It is stated by the court, as the foundation of the right of action in such a case, that “ it is sufficient if the-promise be made by the promisor upon a sufficient consideration passing between him and the promisee, and when the third person adopts the acts of the promisee in obtaining- the-promise for his benefit, he is brought in privity with the- promisor, and he may enforce the promise as if it were madfe-dir.ectly to him.”

Again, It matters not that the mortgagor was-not liable-to pay personally, until after foreclosure, and then only for the deficiency. It would have made no difference-if he had not been liable at all, the defendant having promised^ upon a• sufficient consideration, to pay the debt.”

The case of Paige v. Whitely, 10 Paige, 465, is said to be-contrary to this, but in fact is only another phase of. the question. There it was not claimed there was any other consideration to support the promise than the conveyance of the equity of redemption, subject to the mortgage debt, which he was to pay as part of the consideration. In that case the grantors, who were not liable, conveyed by quit-claim.

This question arose in Merriman v. Moore, 90 Pa. St. 78. That was an action, like the present, to recover for a deficiency, against a grantee, who held under a deed, subject to a mortgage which the grantee had verbally assumed to pay as part of the purchase money. There, as here, it was insisted, that as the grantor was under no personal obligation to pay the debt, his grantee’s promise to pay the same was not binding, for want of a consideration.

The court say, the consideration was the price of the land. It was nothing to the grantee what the grantor did with the purchase money. He might direct how it should be paid. If the vendee agrees to pay it as the vendor directs, the former cannot set up, as a defense, that his vendor was under no duty to apply it in that way. If this principle be sound, and I see no reason - to question it in a case like the present, then it follows, that the plaintiffs in error are liable on their covenant to pay, even though Mary Braundel was not. French, when he sold the land to them, made his conveyance subject to this mortgage, which they agreed to pay, as part of the purchase money.

He, for reasons that are obvious, having assumed this debt, and having warranted the title, devoted a portion of the purchase money, equal to the debt, to its discharge. At that time, the debt was not all due. The promise was to pay the purchase money in the way specified in said mortgage. It was a promise for the benefit of all prior grantors, including the mortgagor. No reason .can be perceived, why, in the furtherance of justice, the plaintiffs in error should not pay the purchase money in the manner they had contracted to pay, and therebj' relieve the mortgagor, through whom they claim, from his liability.

We do not, however, assent to the doctrine that the coverture of Mary Braundel rendered her promise void. It was in equity good to the extent of the real estate purchased, and might in her hands be charged with-the debt. As a vendee in possession of land which she had capacity to buy, her contract to pay the purchase money, in the way stipulated, was, in equity, as binding as that of a femme sole, and could not be repudiated. The only limitation to this is, that it is a liability chargeable on her separate estate for which she is not personally. bound, beyond such separate estate.

Although she would not have been personally liable for any deficiency, either to her grantor or to the mortgagee, yet she was in possession of a fee simple title, which she could convey. Having capacity to convey (her husband joining), she was legally capable of stipulating for the amount and manner of payment of the purchase money. French’s notes to her for the same, would have been valid. It would have been no defense to an action on them that she was a.femme covert. She would not have been liable personally on a covenant to convey, or on her covenants of warranty in her deed to French, but having, by a valid conveyance, fully executed the contract on her part, her grantee could not plead her coverture to escape the performance of his obligation made to her, as to the payment of the purchase money. Had her contract with her grantee been executory merely, such a plea might have availed him, but being executed on her part, French could not escape the performance of his promise. The promise of French to her was, therefore, a valid contract. The consideration for it was the purchase money, which she had the right to stipulate for, and direct how it should be paid, and which he agreed to pay in the manner stated. Upon her executing the conveyance to him, his promise to her was as binding as if she were a femme sole. This being so, he was personally bound, and in like manner, his grantees became bound to him. The several grantees being in privity with the mortgagor, the chain is perfect.

In Meiley v. Butler, 26 Ohio St. 535, this court held that where a married -woman had induced a purchaser to buy land owned by her, by agreeing that he might deduct from the purchase money a debt due him from her husband, she could not, after a conveyance of the land, repudiate this agreement as to the husband’s debt, and compel the purchaser to pay the contract price to her. So in the present case, after inducing French to buy, agreeing that he might deduct from the purchase money, sufficient to pay off a mortgage on the land, and thus make the title clear, she could not, after the deed was executed, repudiate the contract, and compel him to pay to her this amount, leaving the incumbrance on the land.

Our conclusion is, that the covenants of her grantees are invalid, notwithstanding her coverture.

III. The only remaining question is, whether the release of defendants by French, discharged them from liability to the mortgagee.

In Trimble v. Strother, 25 Ohio St. 378, it was held a good defense to an action to recover a debt, which defendant had agreed with a third party to pay to plaintiff, to show that before the plaintiff had assented to, or acted on the promise made in his favor, the agreement had been rescinded. To the same effect is Crowell v. Hospital of Saint Barnabas, 27 N. J. Eq. 650.

In the case at bar, the answer alleges that after plaintiffs in error had accepted their deed from French, containing the agreement to pay, he, for a valuable consideration, released and discharged them therefrom. Giving this answer a liberal interpretation instead of a technical one, we think it a sufficient plea of a release, and, therefore, the demurrer of the plaintiff below should have been overruled. No such release after the rights of the mortgage had become fixed, would operate as a discharge. The contract for the benefit of the mortgagee was one which ho could avail himself of or not, at his election, but until he had done some act which fixed his right, it was competent for the parties thereto, in good faith, and for a valuable consideration^ to rescind or cancel it.

Judgment reversed a/nd the cause is remanded.


text:
    The State ex rel. v. Casey.
    1. The Association of the Tobacco Trade of Cincinnati, a corporation formed under the act of April 3, 1866 (S. & S. 182), since the repeal of said act, is, under § 3232 of the Revised Statutes, required to be governed by the provisions of title 2 of said statutes.
    2. Under title 2, § 3827, the association is authorized to appoint an inspector of leaf tobacco, whose duties are to be prescribed by the by-laws and rules of the association; and the performance of his duties by such inspector, at the instance of members of the association, is not a usurpation of the duties required of the inspectors appointed under chapter 6, title 5, of the Revised Statutes, as amended April 20, 1881. 78 Ohio L. 242. The tobacco which the inspectors last named are required to inspect, is limited to such tobacco as they maybe “ called on to view, weigh and inspect.” Section 4340. ’
    Error to tbe District Court of Hamilton county.
    The original action was in quo warranto in the district court of Hamilton county. The petition contains two causes of action, the first alleging that defendant in error, Casey, on January 1, 1882, and thereafter continuously, intruded into, and unlawfully held and exercised the office of inspector of leaf tobacco, in the city of Cincinnati; the second, charging that said Casey, on January 1, 1882, and continuously thereafter, did intrude into and unlawfully usurp, hold and exercise an office in a corporation incorporated by the authority of the state of Ohio, to wit, the office of inspector of “ The Association of the Tobacco Trade of Cincinnati,” not being a citizen or resident of the state of Ohio, and said corporation not having the lawful power or authority to appoint or elect said Casey to said office.
    Defendant in error filed his answer, admitting that he was not a citizen of the state of Ohio, denying that he intruded himself into the office of inspector of leaf tobacco, in the city of Cincinnati, or that he exercised the functions of said office, or that he ever claimed to hold the same; admitting that he was the duly appointed inspector of leaf tobacco of the Association of the Tobacco Trade of Cincinnati, a private corporation, and averring that said association had full and complete power and authority to appoint him as such.
    The evidence introduced upon the trial of the cause, upon the issues thus made up, proved that there were six tobacco commission warehouses in the city of Cincinnati, connected with each of which was an inspector of leaf tobacco, duly appointed in accordance with' the provisions of the statute (78 Ohio L. 2Í2), but that' all the tobacco sold at auction at such warehouses was inspected at the request of the proprietors thereof, by said defendant, as inspector of the Association of the Tobacco Trade of Cincinnati, and in accordance with the rules of said association.
    It was further shown that defendant in error never claimed, nor held himself out to be, an inspector of leaf tobacco, save as an appointee of said association.
    On this state of facts, the judgment of the district court was for the defendant in error, and the present petition in error is prosecuted to reverse that judgment. ■

      G. Bambaeh, for relator.

      Ramsey & Matthews and RLoadVy, Johnston & Oolston, for respondent.
   "White, J.

The question in this case is, whether the corporation known as “ The Association of the Tobacco Trade of Cincinnati,” is authorized to appoint, as one of its corporate officers, an inspector of leaf tobacco. The defendant Casey was appointed tó such office, and claims the right to exercise its functions under the rules and regulations of the corporation. The association became incorporated under the act of April 3, 1866, “ To authorize the incorporation of Boards of Trade and Chambers of Commerce.” S. & S. 182. The objects of the association were “ to secure the better regulation of the tobacco trade of Cincinnati, to promote its interest and influence, and to collect and disseminate information concerning it.” Section 8 of the act under which the association was incorporated, provides that the board of directors shall control, manage^ and conduct the financial and business concerns of the association, and “appoint such inspectors, gaugers, weighers, measurers and other officers and employes as the by-laws may require, or as they may deem expedient and necessary.”

By section 7137 of the Revised Statutes, paragraph 500, the act of April 3, 1866, was repealed; and- by section 3232, the corporation now in question was to be thereafter governed and controlled by the provisions of title 2, of the Revised Statutes.

Section 3827 is found in title 2, and provides that “ The officers of an incorporated board-of trade or chamber of commerce shall consist of a president, two vice-presidents — first and second, and ten directors, all of whom shall be members of the •association, and be engaged in business at, or residents of, the city or town where it is established; .... and all other officers, agents, or committees, deemed necessary for the interests of the association, shall be appointed in such manner, and with such powers, as may be provided by the by-laws and rules of the association.”

Section 3829 provides that such corporations may require' from their officers, bonds to secure the faithful discharge of their duties. Section 3830 is as follows : “ Every inspector, gauger, weigher or measurer appointed by such association, shall be recognized as a legally appointed officer, for the duties pertaining to his position, in the city and county wherein the association is located, and shall be subject to all the provisions and penalties of the laws relating to such officers ; and the certificate of such appointee, as to his official acts, shall be ev-; idence, and binding upon the persons interested.”

- Under this legislation the association is authorized to appoint an inspector to perform such duties as may promote the objects for which the association was incorporated.

It is, however, claimed on behalf of the relator, that the right to inspect tobacco in the several warehouses of the members of the association, is vested excktswely in the inspectors appointed under chapter 6, title 5, of the Revised Statutes, as amended April 20,1881. -78 Ohio L. 2é2, We do not think so. The tobacco, which such inspectors are required to inspeet, is limited to such tobacco as they may be “ called on to view, weigh and inspect, at sucb warehouse, of any other public warehouse.” S.ection 4340.

' The sale of tobacco at the warehouse or elsewhere, unlike the sale of spirituous liquors, is not forbidden until subjected to inspection by the statutory inspector. With the consent of the seller and buyer, tobacco may be sold without any inspection, or upon the inspection of any person they may agree upon.

The defendant does not claim the right to insjiect tobacco, except at the instance of the warehouse-man having it in charge; and, in the absence of any showing to the contrary, the warehouseman must be presumed to represent the owner from whom he received the tobacco for sale.

We find no error in the judgment of the district court.

It is contended on behalf of the defendant, that the mode of appointing inspectors, prescribed in section 4334 (18 Ohio L. 242), is in conflict with the constitution; but the view we take of the case renders the consideration of that question unnecessary.

Judgment affirmed.