text:
    *Walter S. Landon v. Conrad Reid.
    "Where a nunc pro tuna judgment is entered in C. P., at July term, to taka effect at the April term preceding, an appeal bond filed •within thirty days after the July term, is not within time.
    This is a motion to dismiss an appeal from the county of Lorain.
    This suit was brought to the November terip. of the common pleas, 1838, and was continued, by regular entries, until April term, 1840.
    At the April term, 1840, the transcript shows that a jury was called, impaneled, and sworn, and “upon their oaths do say - there the entry stops; no verdict, no judgment, or continuance.
    At June term, 1840, the record recites, “ that the parties came, by their attorneys, and the plaintiff moved that the verdict, and the judgment on the verdict, be entered," nunc pro tunc, as of the last term; whereupon it appearing to the court that the case was duly submitted to a jury, who found the defendant not guilty, and that the court had considered the defendant should go hence, without day, and recover his costs; and that, thereupon, the plaintiff had given notice of appeal — all which, through inad- ‘ vertenee, had not been entered, the entry thereof was ordered upon the journals as of the last April term.
    The appeal bond was filed on July 29, 1840.
    Benedict and Leonard, for the motion.
    Hamlin and Bliss, contra.
    The appeal was perfected by filing the bond within thirty days after the nunc pro tunc judgment at the June term. Section 109 of the practice act requires the bond to be in ^double the [208 amount of the judgment rendered. There was no record by which the amount of the judgment could be ascertained until the June term. In Ludlow v. Johnson, 3 Ohio, 553, this court say, “By entering such a judgment the party against whom it was rendered would be deprived of his right of appeal. This right is secured by statute, the party appellant giving bonds, within thirty days after the term, in double the amount of the judgment. The bond could not be given before August; for there would be no judgment of record, no means of ascertaining the amount. And if given after August term it would be too late, more than thirty days after the May term, of which the judgment is to be considered, 'having expired. This consideration induced the court, in the case of Goforth’s Adm’rs v. Hezekiah Flint, to decide, that so far as respects the right of appeal, at least, a nunc pro tunc judgment must be considered as a judgment of the term when actually entered.”
   Lane, C. J.

The question now before us is, whether the appeal can be sustained.

The authority to enter this nunc pro tunc order at a subsequent term, after a complete discontinuance, will be properly made on. certiorari. But taking for granted the power to enter the judgment, and that a valid judgment exists from which an appeal may be taken, the filing the bond and entering the appeal is evidently too late; for no judgment of June term is in being. The judgment exists and takes effect at April term, and the bond is filed in the following July.

The case differs from that of Moore v. Brown, decided at this term, ante, 197, in this respect, that here the appeal bond is not given until within thirty days after the term in which’ the order is made for entering a judgment, as of a former term; there the appeal bond was given within the thirty days after the term to which the nunc pro tunc judgment, by relation, belongs.

The authority to make nunc pro tunc entries, and their effect, has been often before the court, yet the principles upon which they depend are not laid down very plainly. Cases frequently 204] *occur, in which the power is undoubted, as when they relate to the amendments of returns, rules, and interlocutory orders. 3 Ohio, 553; 4 Ohio, 45; Wright, 495. And the power of setting aside final judgmnts for irregularity is admitted. 3 Ohio, 16, 519. In one case on the circuit, cited in 3 Ohio, 576, the court seem to recognize the same authority over final judgments, and admit, as a consequence, the right of taking the appeal at the term in which the last entry was made. But this court has denied any such authority of the common pleas to amend any of its final judgments, except in matters of form only, because the rjght of appeal is lost by lapse of time. 1 Ohio, 375 ; 3 Ohio, 16, 523.

Appeal dismissed.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    Thomas H. Genin v. James Grier.
    The division of personal actions into local and transitory is not known in Ohio.
    Personal actions may he prosecuted in any county where process can he served on the defendant.
    This is an action of debt for rent from the county of Monroe.
    The declaration contains two counts. In the first, it is alleged that by deed of indenture, bearing date January 12,1831, between the plaintiff and one John J. Wilson, the plaintiff leased to the said Wilson a certain messuage and ^tenement therein de- [210 scribed, for the term of three years, from the 1st day of April then next ensuing, for the yearly rent of one hundred dollars and the taxes which might be charged on" the premises, which said rent the said Wilson bound himself, his executors, administrators, and assigns well and truly to pay. That the said Wilson afterward, to wit, on April 1, 1831, took possession of the premises under said lease, and was possessed thereof from thenceforth until July 1, 1831. That on July 1, 1831, the said demised premises,, by assignment of said Wilson legally made, came to and were' vested in the defendant, who took possession thereof, and continued in possession until April 1, 1834, when said lease expired.
    On this count the plaintiff claims to recover two hundred dollars, the amount of two years’ rent.
    The second count is for the use and occupation of the same premises.
    To this declaration the defendant jileaded as follows: “And
    the defendant in his own proper person comes and says, that the court ought not further to have cognizance of the plea aforesaid, in the first count in said declaration, because he says that the messuage, tenements, and premises, in the first count mentioned, are situate at Pairview, in Guernsey county, and out of the jurisdiction of this court, to wit, at Guernsey county, and not in Monroe county, in the first count of the declaration named, or elsewhere in the jurisdiction of this court,” etc., concluding in common form to the jurisdiction.
    To this plea the plaintiff demurred and the defendant joined in demurrer.

      The ease was argued by Peck, for the plaintiff, and by Walton, for the defendant.
   Hitchcock, J.

The question raised in this case is, whether the action is local and must be prosecuted in the county where the land lies, or whether it may be treated like a transitory action, and prosecuted in any county where the defendant can be served 211] with process. It being against the defendant as assignee *of a term, if sustained at all, it must be on account of privity of estate and not of contract. Such being the case, according to the rules of the English law, the action is local, and can not be prosecuted except in the county where the land lies. 1 Bac. Ab. 56; Cro. Car. 183; 1 Wils. 165. If we were to follow the English rule, there would be an end of the case, and the demurrer must be overruled.

In England originally, all actions were tried in the proper counties in which the causes of action arose. Hence,’originally, in that country all actions were. local. 7 Co. 11. “ This created no inconveniency, for ail men, being anciently in decenna, they wore easily come at, the decenna being responsible for their appearance; but when the customs of the decennary begun to wear off, men used to fly from their creditors; and this begot the distinction between local and transitory actions, the first relating to lands, which must be tried where the land lies; the other, a debt or duty adhering to the person wherever he fled.” 1 Bac. Ab. 56. From this it appears that the courts of England did not hesitate to change the rule of law, when it became necessary to subserve the ends of justice.

In England, no inconvenience results from keeping up the distinction between local and transitory actions, because, as is well known, the appearance of a defendant can as effectually be compelled in one county as another. Without going into a minute examination of the practice of the courts of that country, suffice it to say, that it is so constructed that an appearance may oe compelled if a defendant is within the realm, so that process can be served upon him, and if he can not be served with process, he may be prosecuted to outlawry. And if after being outlawed he appear, the outlawry will bo reversed upon the slightest grounds, being considered as a species of process to compel his appearance. If the same distinction is kept up m any or all the states of this Union, I presume it will be found that wherever it is so kept up, there is a corresponding practice, either provided by statute or rule of court, to prevent a failure of justice. But if, in this state we were to adhere to the distinction, there must be in many cases an entire ^failure of justice. The same reason which operated [212 in England originally to make this distinction in actions, that is, because “men used to fly from their creditors,” would operate here to induce us to destroy, or almost entirely to destroy, the distinction, and to consider all personal actions, or actions intended to recover debt or damages only, as transitory actions, for men do here, as they “used,” to do there, sometimes “fly from their creditors.”

Whether this 'distinction between local and transitory actions shall be adhered to must depend upon our own peculiar system of jurisprudence. This question, so far as my knowledge extends) is somewhat novel in this state. Within my own recollection there has been but one case in which it was agitated, and that was decided upon the circuit. So far as it respects an action for the recovery of the possession of real property, there can be no doubt such action must be considered as local, and must be tried and determined in the county where the land is situated. The only action of this description known to our practice is the action of ejectment. ■

The constitution of the state provides that there shall be a supreme court and courts of common pleas, but the powers and jurisdiction, as well as practice of these courts, are prescribed by law. By law, as now prescribed, the Supreme Court has original jurisdiction in all civil cases where the matter in dispute exceeds $1,000, and appellate jurisdiction from the court of common pleas in all civil cases where that court has original jurisdiction. In like, manner the courts of common pleas have original jurisdiction in all civil cases where the matter in dispute exceeds $100, and appellate jurisdiction from justices of the peace, in all cases where those officers have original jurisdiction. But this jurisdiction by cither court must be exercised in the proper county. Where, then, is the appropriate county? Is it the county in which the cause of action accrued? If so, then there must be a failure of justice, unless the defendant happen to be within that county, for without the service of process, the court can not take jurisdiction, and process, except in some specified *eases, can not reach beyond [213 the county in which it is issued. If the action be to recover dam-, ages for a trespass upon real property, is the appropriate county the one in which the land trespassed upon lies? If so, the trespasser has nothing to do but pass over a county line, and he escapes with impunity. And so with respect to an action like the one now before the court, if it be held to be local, the assignee of a term entirely exonerates himself from the payment of rent, by fleeing or removing into another county.

In all cases under our system, it would seem where the action is personal, and for the recovery of a debt or damages merely, unless otherwise expressly provided by statute, the appropriate county in which to exercise jurisdiction is the county in which a defendant may be found, so that process can be served upon him. It is not material that he should be a resident of the particular county ; it is sufficient if he be found within it, so that the process can be legally served. By such service, the court from which the process was issued obtains jurisdiction of the person of the defendant, and having jurisdiction of the subject matter of the controversy can proceed with the case.

I am aware of but one class of civil cases, where mesne process can be issued to the sheriff of another county than the one in which the process is issued, and that is where two or more per-' sons residing in different counties are jointly bound in the same note, promise, or obligation. In such case, suit may be commenced in the county in which either of the promisors or obligors reside, and process may be issued to the sheriff or coroner of. the county or counties in which the other promisors or obligors reside, returnable to the court of the county from which issued. 29 Ohio L. 59. After judgment against one of two or more defendants, who has been served with process, a scire facias may be issued to any county in the state, to make a defendant, who was not originally served with process, a party to the judgment. 19 Ohio L. 65.

It is true, that upon return of capias or summons not served, or not found, the plaintiff may sue out a testatum capias or sum-214] mons, *but if is only where the defendant shall have removed to “another county .subsequently to the commencement of the said suit.” 29 Ohio L. 198. By the same statute it is provided, “ that if the defendant, at the time of suing out sush process, have a residence in, or be an inhabitant of the county in which such process was sued out, the court may, on motion of the plaintiff, order a proclamation to bo issued, warning the defendant to appear at a certain day therein named, or that judgment will be rendered against him; which proclamation shall be published three successive days of the court, if the court shall so long remain in session, at the door of the court-house of the county to which the last process was returned, and also three times in some newspaper published in the state. And if the defendant shall fail to appear, pursuant to such proclamation, the same proceedings shall be had, and the same judgment given, as in other cases of default.” These two provisions go to strengthen the position, that the place of residence of a defendant, or the place where he may be found, are material in settling the question of jurisdiction.

Considering all the legislation of the state upon this subject of jurisdiction, we entertain the opinion that it is the person of the defendant which gives a court jurisdiction in a particular case, so far as locality is concerned. And as a defendant can not be compelled to answer in any other county, except the one in which he is served with process, except in some few specified cases, he must bo held to answer there, provided the action be personal, -and sounds merely in debt or damages, and that such actions must, in this state, be considered as transitory.

We are aware that such decision is an innovation upon the subject as understood in England, and perhaps in some or all of the other states of the Union. But it is in conformity with the policy of our own state legislation, and by this we must be controlled. It is necessary for the ends of justice, and no serious inconvenience can result from it.

The demurrer is sustained, and a respondeat ouster awarded.

Demurrer sustained.


author: Lane, C. J.

text:
    *John Hyde and Elias Brown v. Alfred Kelley and others.
    An agreement to convey a lot, with one front upon a river and another upon a street, is not satisfied by a conveyance with a river front only.
    A vendor, where the vendee is content with the title, can not object to a specific performance, on the ground that a trustee of the bare legal title attendant on the inheritance and held expressly in trust for the owner, is not a party.

      This is a bill in chancery from the county of Cuyahoga.
    It is a suit for a specific execution of a contract for lands.
    The plaintiffs are the assignees of a contract made in 1831, by which Alfred Kelley agreed to sell to Enoch Burrows a lot in Cleveland, having a front of 120 feet on the Cuyahoga river, and “running back to a street to be laid out nearly parallel to said river, and at least 100 feet distant from the channel.” The purchase money was to be paid at stipulated timos, and the deed was to be made at the last payment in 1835. Stakes were set by the parties at the corners on the line where the street was expected to be laid, which line left the lot 100 feet deep.
    The lot sold was one of a range of water lots on the river. In 1832, the proprietors of the other lots in this range proposed to Kelley to alter his proposed plan so far as to lay the street at the distance of 120 feet from the river. He consented to adopt this scheme, upon receiving compensation for the land which would bo included in the lots by this extension. All the persons having interests complied with the terms except Burrows, who, after various equivocating negotiations, declined paying any further price, conceiving that his lot would extend to the proposed street, wherever it should be laid. ¡

    In 1833, the street was laid out, by the trustees of Cleveland, on Kelley’s petition. It was 66 feet wide, and left all the lots in this range 120 feet deep, except Burrows’. At this point an .offset was made in the street of 20 feet, so as to leave Burrows’ lot only 100 feet deep, and to increase the width of the street to 86‘ feet. 216] *In 1834, a petition was presented, to the trustees, by sundry persons, to make such alterations in this street as to make it of uniform width. Kelley was a party, assenting to this application, and it was granted. The effect of the altoi’ation was to vacate the street, upon a strip of land 20 feet wide, between the lot and that part of the street which remained open. This strip of land was conveyed by Alfred Kelley to T. M. Kelley and A. Walworth, in 1836, who purchased with knowledge of any claim the plaintiff may have to it.
    Objections to the execution of the contract are taken by the principal defendant, on account of Burrows’ failure to fulfill the representations he made, as inducements for the sale, but are not apparently relied upon-with much confidence. The points really disputed are the size of the lot, whether it is limited to the depth
      ! of 100 feet, or whether it should extend to the street now laid, and what are the rights of the owners of the lot to the twenty feet strip, lying in its front.
    H. Foote, for the complainants:
    There is no pretense that the written agreement does not contain the contract as really made between the parties. Any inducements, therefore, that, may have led the vendor to enter into the contract are foreign to the present inquiry. The rule is well settled that all previous negotations, resting in parol, are merged in a written agreement. Packhurst v. Van Courtland, 1 Johns. Ch. 273; S. C., 14 Johns. 15; Jones v. Warner, 11 Conn. 40; Powell v. Edwards, 12 East, 6; Dean v. Mason, 4 Conn. 428; 2 Stark. Ev. 543. Nor will the chancellor encourage a vendor in any attempt at disabling himself to complete his contract. The alteration of the street, made at the instance, or with the assent, of Kelley, can. in no way affect the rights of the vendee. When the contract was made, equity regarded the vendor as a trustee of the estate-for the vendee. Sug. Vend. 211 ; 1 Story’s Eq. 383; Howard v. Babcock, 7 Ohio, 78, pt. 2; Green v. Smith, 1 Atk. 572; Pollexfen v. Moore, 3 Atk. 272. And a purchaser of the estate so contracted to be sold, with notice of the agreement, is ^equally [217 with the vendor himself, a trustee for the purchaser, or his assigns. 2 Story’s Eq. 92, 459; Howard v. Babock, 7 Ohio, 78, pt. 2; Murray v. Ballou, 1 Johns. Ch. 566; Brown v. Champion, 6 Johns. Ch. 398. The plaintiffs, therefore, as assignees of the original vendee, had a right, in 1835, to demand a deed from Kelley, for a lot, with a street front and a river front, and this right is n.ot impaired either by the alteration of the street, or by Kelley’s subsequent sale to his co-defendants.
    It is no objection to a specific performance, that a public way has been laid out over the .land. Fairfield v. Williams, 4 Mass. 428; 2 Hill. Abr. 73.
    S. J. & John W. Andrews, for the defendants,
    insisted that a conveyance made and tendered by A. Kelley, calling for a line 100 feet from the channel of the river, was a faithful compliance with his part of the contract; that Burrows, or those representing his right, had no reason to complain if his lines were shorter than the adjoining proprietors’, inasmuch as they had paid Kelley an extra price for their additional twenty feet, and that Burrows having refused to allow any further compensation for the proposed enlargement of his lot, Kelley was under no obligations to bestow upon him privileges which others were willing to pay for.
    They further insisted that, under the act to provide for the re- ■ cording of town plats, 29 Ohio L. 351, sec. 6, by the location of the street, the legal title in the twenty feet was vested in the city of Cleveland, and the city of Cleveland not being a party, the present bill can not be sustained. Story’s Eq. Pl. 187, secs. 207, 208.
    R. Hitchcock and E. T. Wilder,.in reply,
    denied that a conveyance by Kelley of any lot, not fronting on a street, would be a compliance with the contract; that he stipulated with Burrows for a lot, with a river front and a street front, and that Kelley can not avoid this stipulation by any location or alteration of the 218] streets, either with or without the aid of the *city of Cleveland. That the contract as made was fair, and the vendee has a right to a specific execution of it, and that Kelley can not call upon the court, either to make a new bargain, or to compel Burrows to pay for twenty feet of ground more than he purchased. They cited Martin v. Lewis, 1 Marsh. (Ky.) 103; Dale v. Pope, 4 Littell, 167; Fishback v. Woodford, 1 J. J. Marsh. 84; Hunt v. Rousmaniere, 1 Pet. 1; Gillespie v. Moon, 2 Johns. Ch. 585; Peck v. Smith, 1 Conn. 103; Wyman v. Mayor of New York, 11 Wend. 486; In the matter of Thirty-second Street, 19 Wend. 128; Hooker v. Utica and Men. Turnpike Co., 12 Wend. 371; Corning v. Lowerre, 6 Johns. Ch. 439; 2 Story’s Eq. 206.
   Lane, C. J.

The spirit with which Burrows has treated the contract has not been very fair, and he has exhibited very little disposition to reconcile all interests with a due regard to justice. A very honest man woqld have consented to pay an additional price, for advantages beyond the contemplation of the contracting parties. But the plaintiff's, standing in his place, having performed all he stipulated, and paid all he contracted to pay, are claiming from the defendant such benefits as result by law from the terms in which the agreement was framed. We have no power to make a new contract between the parties, nor can one of them be compelled against his consent to change that already in existence; we can only enforce his legal rights, as defined and interpreted by the rules of that system we sit here to administer.

By the terms of this contract, the purchaser, on payment duly made, acquired the right to demand from Kelley, in 1835, the conveyance of a lot, 120 foot long and not less than 100 feet wide, having both a river front and a street front. The street was not then laid, but was to be laid “nearly parallel to the river.” Although stakes were set by the parties on. the easterly line of the lot, this act is not regarded by the court as fixing the line of the lot, but as marking its supposed boundary; by the nature of the transaction, this line could not be ultimately fixed until *tho street was laid. The vendee was not obliged to accept [219 a conveyance until 1835, and if then he acquired a lot of this size, having a river front and a street front, he would obtain all for which he contracted; the width of the street was not stipulated; the rights secured were, accessibility on one side by water, and on the other by a street. And the vendor bound himself by this contract that he would possess the ability to satisfy these conditions in 1835.

It seems to us, that if the street of 1833 had remained until 1835, i conveyance to its line, being 100 feet from the channel, would have been an entire fulfillment of the obligation, notwithstanding the other lots were of greater depth, and the vendee’s line were thrown back from the line of the others. For he would have obtained what he contracted to receive, and when he rejected the enlargement upon such terms as others were willing to comply with, the vendor was under no obligations to bestow upon him additional advantages, such as others had secured by a price.

But the situation of the property has been materially altered since 1833. A part of the street is vacated, access to the front of the lot, by the street, is cut off, and the twenty feet strip between it and the lot has been conveyed to others; and these alterations have occurred by the agency or the consent of the vendor. Now the law exacts from a vendor, while the contract remains executory, the ability to fulfill it in good faith, according to its substantial meaning. The vendor in this case gave the purchaser the right to demand such a conveyance, in 1835, as would give him a street front. The street of 1833 would give such a front, but this had been so altered, that a conveyance of a lot 100 feet deep would give no such advantage, and that a conveyance to a line where a street was once run, would be no fair fulfillment of the engagement. If-this alteration had been made by some paramount power, or from some cause not within the control of either party, it would raise a different question. But it is impossible to overlook the fact, that this alteration was brought about by the agency 220] or the consent of the principal defendant, he assuming *to act as the owner of the lot. If he had originally caused the street» to be run at the distance of 120 feet from the channel, a conveyance of the lot on such a street would have been a fair performance of his obligations; if, by his agency, or through his consent, the street is located at that distance, at the time when he is bound to convey, it seems to us that he can not satisfy his engagements with the purchaser, except by a CQnveyanee of land extending to such a street. The other defendants having purchased with a knowledge of the plaintiff’s claim, he may require from them all which he may demand of the vendor.

It is said in argument that no conveyance of the twenty feet strip should be directed, because by the operation of the statute (29 Ohio L. 351) the fee is vested in the city of Cleveland. The soundness of the objection is not felt by the court. It might be answered that the vendor can not resist making a deed, which ho has stipulated to execute, because it conveys no title ; for he can encounter no greater liability from a deed, even with warranty than arises on the rescission of an executory contract, although he often is subjected to less ; and a bare legal title, held expressly in trust for the owner of the land, and attendant on the inheritance, is never held an obstacle to the specific execution of a contract, if the purchaser is content with the title.

The facts of the case, therefore, show the plaintiff’s right to a decree, without making it necessary to decide any questions as to the extent of the limits of town lots bounded by a street.

Decree for the plaintiff.


author: Wood, J.

text:
    William Montgomery v. The State of Ohio.

      Tp i trial before a justice of the peace, if the plaintiff offer himself as a witness, is sworn, and testifies falsely, perjury may be assigned on the oath thus taken, though he was incompetent as a witness, provided the justice had jurisdiction of the subject matter.
    This is a writ of error to the court of common pleas of the county of Adams.

      *The plaintiff íd error was convicted of perjury, at the [221 March term of the court of common pleas, 1840, and sentenced to imprisonment, at hard labor, in the penitentiary. He now prosecutes his writ of error, to reverse the judgment.
    It is averred in the indictment that a suit was pending before a justice of the peace, in which one James Staub was plaintiff, and the plaintiff in error was defendant. That the said suit was insti-4 tuted on a note of hand, purporting to be executed by the plaintiff in error to said Staub, bearing date June 28, 1838, for the sum of $40.68. It is then averred, that on the trial before the justice, the plaintiff in error offered himself, and was swoi-n as a_witness, in his own behalf; the truth to speak, concerning the making of said note; and did then and there, among other things, falsely and maliciously depose and say, that said paper writing was not the promissory note of him, and that he did not sign and deliver the same, as and for such note, whereas in truth and in fact the plaintiff in error did make, sign, and deliver the said note, as such, to the said Staub, etc.
    The plaintiff assigned for error:
    1. The note offered in evidence is not the same set out in the indictment. 2. The legal requisitions of the act of March 9,1838, dispensing with proof, in certain cases, are not complied with. 3. The oath administered by the justice is extrajudicial. 4. Other errors.
    There are written arguments on each side, but there is nothing to show the nam'es of the counsel who made them.
   Wood, J.

We have inspected the record in this case with all the attention the rights of the plaintiff seem to us to require. The instrument described in the indictment as a promissory note, and the one which the record shows was offered in evidence on the trial, appear to us to be the same. The only variance we are able to precoive is an indorsement of $9.73, paid on the latter. Such an indorsement, except under peculiar circumstances, is a memorandum made by the payee for his own convenience. It is *made subsequent to the execution and delivery of the note, [222 is separate and distinct from it, and the description is as complete without the indorsement as without the filing of the maker’s name, or the amount due: neither of which can be said to form any part of the note itself, and consequently need not be described by the pleader. In prosecutions for forgery, it has been held to be sufficient to set out that part of a written document only, which comprehends the particular instrument forged, though connected with other matter. 1 East, 180; East’s P. C. 925. In this case, the forged instrument was a receipt, in these words: March 18, 1733, received the contents by me, Stephen Withers," and it appeared in evidence that the receipt was forged at the bottom of an account. But it was holden by all the judges, that the indictment was sufficient, and that the account itself was only evidence to make out the charge of forgery. Leach, 68, and 3 Salk. 171, are to the same import. Stark. Crim. Pl. 111. On an indictment for perjury, it is sufficient, if enough be stated, to bring the defendant within the provisions of the statute. Rex v. Dowlin, 5 Term, 320.

In support of the second assignment, it is argued by the plaintiff’s counsel, that no written plea, nor affidavit of the truth thereof, was filed before the justice, who tried the cause; that it was, therefore, illegal to permit the plaintiff to testify that he did not execute the note, and that perjury can not be assigned on the oath so taken. The statute provides, that upon the “ plea of non assumpsit or nil debet, offered by the person charged as the maker,” etc., “ of any promissory note, it shall not be necessary for the plaintiff to prove the making of the note,” etc., “unless the party offering such plea shall make affidavit of the truth thereof,” etc. 36 Ohio L. 38, sec. 1. It is unnecessary for us to decide, whether this statute is applicable to proceedings before justices of the peace. It is of no consequence, whether the party be competent to testify or not, without such plea be filed, or the oath embodied in an affidavit. It is well settled, when the court has jurisdiction over the subject matter, if a witness totally incompetent be admitted he may commit perjury. It would be strange, indeed, if it were 228] *not so. The erroneous opinion of a justice of the peace in settling questions of competency, oftentimes nice and difficult, is no license to the witness, when improperly admitted, to set at defiance both the laws of God and man. There would be no “ perfection of reason,” in such a rule of action.

In Vansteenbergh v. Kortz, 10 Johns. 167, it was held by the Supreme Court of New York, that where the proceedings were not coram non judice, and in order to obtain an attachment, a justice of the peace admitted the incompetent oath of the party, the Statute requiring other “ satisfactory proof,” that perjury was assignable, in the oath so taken. Judge Spencer dissented from the opinion of the court, upon the ground, that, as the satisfactory proof” required, was not submitted, the proceedings were coram nonjudice, and that perjury could not be assigned. Ho adds, however, “that the idea suggested, on the trial, that if a witness be illegally admitted, as, for instance, one who is interested, and he swear falsely, that such swearing will be perjury, is perfectly correct; for, in such case, there is jurisdiction, the witness is judicially admitted, and the oath is judicial.” The third assignment is so connected with the second, that it has been disposed of, in considering the latter. The fourth, or general assignment, raises no other question, and requires no further notice. We are, therefore of the opinion, there is nothing erroneous in the record, and the proceedings and judgment of the court of common pleas are affirmed, with costs.

Judgment affirmed


text:
    Justus Vairin v. The Canal Insurance Company.
    In an action for the loss of a steamboat, by the owners against the insurers, the pilot at the wheel is a competent witness to prove the loss.
    This is an action of assumpsit from the county of Hamilton.
    The suit is brought on a policy of insurance upon the steamboat Swan. On the trial, the plaintiff, in order to prove an insurable ^interest in the boat, in connection with other testimony, [224 offered in evidence to the jury a letter from Joseph J. Dersey, one of the owners, in the following words.
    “ Cincinnati, December 23, 1837.
    “ Justus Vairin, Esq., Present, Dear Sir:

    “ In consequence of the purchase by me and others of the steamboat Swan from you, for the principal part on time, say my draft at six months from this date on A. M. Stanley, Esq., for $5,500, and my draft and Samuel Millikin, Esq., jointly at eight months from this date, on Messrs. Endees & Hynes, of Paducah, Kentucky, for $3,500, and other drafts, you will please take out jiolicy of insurance in your own name, as collateral security agreed on.
    “Yours respectfully,
    “Joseph J. Dersey.”

      To the reception of this letter as evidence, the defendants, by their counsel, objected, but the handwriting of Dersey having being proven, the objection was overruled and the letter admitted.
    In the further progress of the trial, the plaintiff offered in evidence the deposition of John Cosgrove to prove the injury done to and loss of the boat. It appeared from the deposition that at the time of the accident which occasioned the loss, the deponent' was pilot, and at the wheel. On this ground the deposition was objected to, and it was insisted that the deponent was interested, and therefore incompetent. This objection was overruled by the court, and the deposition read to the jury.
    The jury returned a verdict in favor of the plaintiff, whereupon the defendants moved for a new trial, for the following reasons, to wit:
    1. The court erred in admitting the letter of Joseph J. Dersey addressed to Justus Yairin, Esq., upon the mere proof of the handwriting of Dersey, as evidence of the interest of the plaintiff in the boat; and'in not instructing the jury that without other evidence of interest, the letter was not sufficient to establish that point.
    2. The court erred in admitting Cosgrove’s deposition as evidence.
    225] *Wright & Walker, in support of the motion,'
    insisted> that the letter of Dersey was improperly received in evidence, but claimed that Dersey himself should have been examined as a witness, that the defendants might have had the benefit of his cross-examination.
    They further urged that Cosgrove, the pilot, was an incompetent witness. If the loss resulted from gross negligence on his part, or his unskillfulness as a pilot, then the loss was not covered by the policy, but the pilot himself would be liable to his owners. In any state of the case he was interested, and testifying in his own favor, inasmuch as a verdict and recovery against the insurer, would compensate his owners and exonerate him. They assumed this position, that where in one event of a suit, the liability to the party calling'him would be diminished or destroyed, he is not a competent witness for that party, and to produce that result, even though the record would not be evidence against him. ■ And to sustain this position they cited Mower v. Kip, 6 Paige, 88; Harwood v. Murphy, 4 Halst. 215 ; Rogers v. Dibble, 3 Paige, 238; Pendleton v. Speed, 2 J. J. Marsh. 508; Gardiner v. Levand, 2 Yeates, 185; Bland v. Ansley, 5 B. & P. 321; Green v. New River Co., 4 Term, 589; Marquand v. Webb, 16 Johns. 89; The Hope, 2 Gallison, 48; Ludlow v. Union Ins. Co., 2 Serg. & Rawle, 119.
    Fox, for the plaintiff,
    cited 2 Marsh, on Ins. 704. 709 ; Hughes, 30, 31, 367, 482; 1 Marsh, on Ins. 114, 115; Oliver v. Green, 3 Mass. 133 ; Archangelo v. Thompson, 2 Camp. 620.
   Hitchcock, J.

The first question for the consideration of the court in this ease is, whether the letter of Dersey, of December 23, 1837, was properly received in evidence. The objection urged to this letter is, not that it contains matter irrelevant to the issue, but that Dorsey himself should have been examined as a witness, to prove the facts stated in the letter, so that the defendants might have had the benefit of his cross-examination. The letter seems to be considered as a species of hearsay evidence, but it is entirely of a different character. And had Dersey *himself been a [226 witness before the court, he would not have been permitted to testify as to the contents of this letter unless the foundation for such testimony had been first laid by proving its loss. So long as the letter itself could be produced, it was the best and only legal evidence to prove its own contents. And it was competent evidence if it conduced to prove any fact material for the plaintiff to sustain his action.

In order to sustain that action it was necessary for the plaintiff to prove that he had an insurable interest in the boat. It was not pretended that he was the actual owner, nor was it necessary he should' be, if he bad an interest in her preservation, for it is not necessary that the insured should have a title to the thing-insured : all that is required is that he should have an interest in its preservation. 1 Marsh, on Ins. 114, 115. So a creditor having a claim on goods has a right to insure. Hughes, 30, 31.

The plaintiff in this case, although he had not title to the boat, had been the previous owner, and had sold her to others, of whom Dersey was one, but had not received the pay in full. To secure himself he might have taken a lion upon the boat, or if the owners consented he might take a policy in his own name as collateral security. With the insurers it could make no manner of difference whether the policy was taken in his name or in the name of the actual owners. The purport of the letter was to authorize the plaintiff to take the policy in his own name for the purpose of vesting himself with collateral security. Was it not competent evidence?

If a man would show himself entitled to real estate, he produces his deed and proves its execution, not by the grantor himself, but by disinterested witnesses. So if one claim title to personal goods, if that title depends upon a bill of sale,-the instrument itself is produced, and its execution proved by disinterested witnesses. It is not necessary, even if it were proper, to call the vendor. So in the case before us, the letter being a written instrument in virtue of which the plaintiff claimed an insurable interest in the boat, was properly admitted in evidence upon proof of its execution, or of the signature of the writer.

227] *But it is said the court erred in not directing the jury that the letter alone was not sufficient to prove an interest in the plaintiff. Had this been the only testimony conducing to prove an interest, it might have been proper for the court to have expressed an opinion upon its effect. It was not so, however. It was but an item of evidence, and there was other testimony to the same point. Under these circumstances the jury were instructed, and we think properly, to look into all the evidence, and from the whole to ascertain the truth of the case.

The next question to be considered, is whether Cosgrove was an admissible witness. From his testimony it appears that he was pilot of the boat, and, at the time of the accident, at the wheel. It is urged by counsel that he is interested in the event of the suit. And it is said that if he willfully run the boat upon the cypress lands upon which she struck, causing the loss, it was barratry in him, and the loss not within the policy, although he would himself be liable to his owners. And further, that if the loss resulted from gross negligence or unskillfulness on his part, then the loss was not covered by the risk taken by the defendants, though he him. self would be liable to the owners. This last position is founded upon the decisions.of this court, that if a loss happen in consequence of the negligence or want of skill in the crew of a boat, the underwriters are not liable. As the pilot would be liable to his owners for an act of barratry, or for a loss resulting from his own negligence or want of skill, it is claimed that he has a manifest interest in the event of the suit, as a recovery against the underwriters would compensate the insured and exonerate him. This argument, if well founded, will go to exclude the pilot of a steamboat from testifying in any ease between owners and insurers, and in any case where there is an action against owners for a loss in consequence of improper navigation or of collision.

The liability of a pilot must depend upon the control which he has over the navigation of the boat or vessel. If, like the crew generally, he is under the control of the captain, and is bound to follow his directions, it is not perceived that he can *be sub- [228 jectod to any greater liability than any other of the crew. Upon the Atlantic coast when a pilot undertakes to carry a vessel into port, he has the chief command so far as that particular navigation is concerned. So far the authority of the captain ceases. If, in navigating the western waters, pilots occupy the same relative position, it would seem to be right and proper that they should be liable for all damages sustained in consequence of their negligence or misconduct. Whether it is so or not must dopend upon the usage of the particular navigation. Without determining this point, however, for the purpose of this particular case, we will consider that a pilot would be liable as claimed by defendants’ counsel.

No rule of law is better known than that a person who has an interest in the event of a suit can not be a witness. And this rule is never departed from except in cases of certain municipal corporations, or quasi corporations. If, by the event of the suit; the individual offered as a witness can gain or lose anything, no matter how great or how small the amount, he must be excluded. It is many times difficult to determine a question of interest, and for the determination of such question another rule has been adopted, and that is to inquire whether the verdict in the case on trial could be given in evidence in a subsequent proceeding against the witness, either for or against him. If it could, it is conclusive of the question of interest. But it does not follow that if the verdict could not be given in evidence in a subsequent proceeding against the witness, that there is no interest. If the decision of the case one way will exonerate the witness from liability entirely, while if decided the other way he will remain exposed to a suit; there is such an interest as will exclude him although the verdict and judgment can not bo given in evidence against him at a subsequent trial. This principle is fully sustained by the authorities cited by defendants’ counsel.

There is still another rule of evidence which it is proper to refer to. If the liability of a witness will remain the same whichever way the suit on trial is determined, his interest is said to be 229] balanced; he is not incompetent. That interest *which will affect the competency of a witness must be an interest in the event of the suit, not an interest in the question merely; such an interest renders no one incompetent.'

Apply these rules of evidence to tho case under consideration. This is not an action against the owners of the boat for an injury sustained in consequence of mismanagement or collision. If it were, it might be doubtful whether the pilot would be a competent witness. It is an action by tho insured against the insurers, for a loss within the risk taken by the defendants. On the trial it was not pretended that there had been any act of barratry, nor was it pretended that the accident occasioning the loss happened in consequence of any negligence or want of skill in the pilot, who was examined as a witness. But suppose this had been the case, and the proof had been such as to have required a verdict in favor of the defendants. In a subsequent suit by the owners against the pilot for his negligence or want of skill, could this verdict have been given in evidence against him? We apprehend not. It is not claimed by counsol that it could have been thus given in evidence ; but that a verdict and judgment against the insurers will compensate the insured for their loss, and therefore exonerate the pilot. But this consequence does not follow. If, as insisted by counsel, the pilot would be answerable to the owners for any loss sustained in consequence of his negligence or want of skill, his liability is not discharged. The defendants having satisfied tho loss are subrogated to the rights of the insured, and may have their action against the pilot. If he would have been liable to his owners, he is liable to them'. His interest, then, is equally balanced, or more properly speaking, he has no interest. He can neither gain nor lose by the event of this suit.

A similar question was raised in tho case of Howell v. Cin. Ins. Co., 7 Ohio, 276, pt. 2, in which it was decided, after full argument, that the captain of a steamboat was a competent witness to prove the loss in an action by the insured against the insurers. In that case the pilot was examined as a witness without objection. Both 280] upon the authority of that *case and upon principle, we think that Cosgrove, the witness, was properly admitted to testify.

The motion for a new trial is overruled, and judgment will be entered on the verdict.

Motion overruled.


text:
    Swift and Nichols v. Holdridge, Bailey, and others.
    A fraudulent grantee, who had conveyed or restored the property at the tima of the bill filed, is not liable, as a trustee, to creditors.
    This is a bill in chancery from the county of Ashtabula.
   Lane, C. J.

This is a creditor’s bill, to discover and set aside fraudulent conveyances, and procure the satisfaction of judgments which the plaintiffs have recovered, by subjecting property, real and personal, to execution, dr to obtain, an account of moneys and assets, in the hands of fraudulent alienees.

The papers in the case have become voluminous, and it will hereafter deserve an extended and patient investigation. It was reserved, not to make this examination at this time, but to decide the general principles in relation to the liabilities to creditors of a fraudulent holder of another’s property.

The bill charges Holdridge with having conveyed his property to Bailey, for the purpose of placing it beyond the reach of his creditors, and that Bailey has sold the land to-others. We do not undertake, at this time, to determine definitely the facts of the case; but to adjudicate upon the questions intended to be reserved, we assume for present purposes, that Bailey received a conveyance of this property to defraud the creditors of Holdridge, and that he has sold it to innocent purchasers, for a valuable consideration, without notice.

It has been so often held, in the courts of this state, that a fraudulent alienee may make a good title to an innocent purchaser, that we take that point for granted, without *dis- [231 cussion. It is claimed, however, by the plaintiff, that the recipient of a fraudulent .title becomes a trustee of creditors, and is not permitted to lay down the responsibility, which the law fastens upon him, without justly accounting with the lawful creditors for whom he holds the estate; that whatever may have become of the property, the cestui que trust may demand its value from him, if ha has placed it beyond the reach of the law.

But, in our opinion, the proposition is too broad to be adopted in this general form. Although, where one man combines with another to cheat a third, an action at law may be sustained, and damages recovered, the jurisdiction of chancery in frauds does not extend so far as to a mere case for damages. -The chancellor, under this general power, in cases of fraud, acts only to remove some legal obstacle, or to pursue a fund, or to restore a right lost at law, but not to give mere damages. It is not, then, upon thiff ground that a court of equity will entertain jurisdiction against the recipient of a fraudulent title.

An honest man will not take a fraudulent conveyance. If a man holds property fraudulently conveyed, as soon as he comes to a sense of his moral duty, he will restore it to those to whom it belongs ; he ought to give it back to him from whom he received it, that it may be applied to his debts if wanted, or to his benefit if not necessary for this purpose. The law to discourage frauds, does not compel him to restore it to the fraudulent grantor; yet no man will retain it for a moment who desires the reputation of honesty, or possess the sense of justice.

The relations between him and the creditors of the debtor are different. There are no express obligations between them; no promise to be aecountáible to them ; no obligation to restore to them; but the creditor ought to receive his debt, and the law gives him a claim to the property, and it charges the iraudulent holder as a trustee, in consequence of his possession. The trust is not express— created by contract; but it arises by operation of law, in conse282] quenco of his having in his hands 'Hhat which ought to be applied to the satisfaction of the creditor’s debt. It depends,' therefore, on the possession of the property. The character of cestui que trust does not belong to the general creditor until ho has shown himself entitled to the debtor’s property by the recovery of a judgment. And if the fraudulent holder has, in good faith, divested himself of that which he could not retain without dishonesty, before the right of the creditor has accrued, there is nothing remaining upon which to raise a trust, and the relation of trustee to anybody subsists no longer.

The court will lend to the judgment creditor any aid in their power, to reach the property of his debtor in the hands of his fraudulent alienee, or to subject any debts, securities, rights, equities, or choses in action within his power, and will exact a rigorous account of the disposition of anything he may have fraudulently received ; but if he has honestly parted with what he fraudulently received, before the rights of the creditor are fixed by judgment and the filing of his bill, he must be exonerated from further liability. How far such taker may incur liabilities, in a suit at law, for a fraudulent combination, we need not now decide.

E. Wade and Whittlesey, for the plaintiffs.

Newton and Bayley, for the defendants.


text:
    John B. Mahan, Amos Pettyjohn, and Joseph Pettyjohn v. The State of Ohio.
    Where several defendants are put upon trial, at the same time, under the same indictment, the prosecuting attorney has but two peremptory challenges.
    The names of the grand jurors ought to appear in some part of the record.
    This is a writ of error to the court of common pleas of the county of Brown.
    The plaintiffs in error were indicted, tried, and convicted for a riot, in the court of common pleas of Brown county, at the term of September, a. d. 1839.
    *On impaneling the jury, it appears, from the inspection [233 of the second hill of exceptions, taken during the trial, that a question arose as to the right of peremptory challenge to the juroi’S, on the part of the state. The defendants having exercised such right, by a peremptory challenge, by each of them, to two of the panel, the prosecuting attorney then claimed the right, in like manner, to challenge six. The counsel for the plaintiffs in error objected, hut the objection was overruled by the court, and the challenge allowed. To this decision of the court exception was taken, and the same, among others, is assigned for error.
    Fishback and Jolieee, for the plaintiffs in error.
    The Prosecuting Attorney, for the state.
   Wood, J.

It is provided by section 15 of the act, entitled an act relating to juries,” 29 Ohio L. 98, that every prosecuting at lorney, and every defendant, on the trial of an indictment, may challenge peremptorily two of the panel; and if any person, prosecuting in behalf of the state, shall challenge any petit juror, except as aforesaid, he shall immediately assign the cause of such challenge. It would seem to us this language can hardly admit of construction. The words themselves express the legislative intention as clearly as it could be well conveyed.

There was but one indictment, and, on the part of the state, the right of peremptory challenge should have been confined to two, while each of the defendants could, in like manner, legally object to the same number. Had the defendants been separately tried, the indictment would have been separate as to each, Bixby v. State of Ohio, 6 Ohio, 86; and, on every trial, the state’s right to such challenge of two of the jurors would have been legal; but, upon a joint trial, it is otherwise.

• In extending this right of peremptory challenge to six, as claimed by the state, it is our opinion the privileges which the law throws around the accused, to a certain extent, as a shield 234] *for his protection, in the selection of his triers, was clearly invaded, and that the court of common pleas therefore erred.

It is also proper hero to remark, that there is another defect in this record. The names of the grand jurors, who iound the bill, do not appear; neither in the caption, the indictment, nor in any part of the record. It is a well-settled principle, in criminal pleading, that it must appear, in the caption of an indictment, that it was taken upon oath, and that the names of all the jurors by whom taken must be stated. They may be set forth in the indictment itself; but this is not usual. 1 Chit. Crim. L. 202; Stark. Crim. Pl. 261; 2 Hawk. C. 25, sec. 126. In the king’s bench, in making up the record, it seems now not to be necessary to insert the names of the grand jurors in the caption, A3dett’s case in the House of Lords, 1786 ; 1 Saund. 216, note n.; but it is necessa^ they should be returned in the schedule. In this state, it is clear, if the names of the grand jurors do not appear, at least, in some part of the record, a writ of error will undoubtedly lie; though it is probable that, on- motion, a certiorari would be awarded, and the delect cured by the sending up of a new record. Clerical omissions, in criminal cases, are amendable at common law. The same rule prevails as in civil proceedings, in this respect. 6 Ohio, 435 ; Strange, 842; 2 Hawk. 25.

It has been holden by this court, on the circuit, thatthe statute which requires a copy of the -indictment to be given to the accused, twelve hours before he is placed upon his trial, in certain cases, is not complied with, unless such copy contain a caption of the indictment, including the names of the grand jurors, that the accused may have the opportunity to object to the qualifications of those who found the bill; and which he could not do if their names are not disclosed. The State v. Hillman, Logan County Supreme Court, June term, 1840, Lane, C. J., and Wood, J. The judgment, in the case at bar, is reversed, and the cause remanded for a new trial.

Judgment reversed.


text:
    *Thomas Armstrong and others v. The Treasurer of Athens County.
    "Where a statute exempted forever certain lands of the Athens University from taxation, and the same lands were afterward sold by the university, a subsequent statute, authorizing a tax to be levied on the lands, is not a violation of that clause of the constitution of the United States which prohibits a state from passing any law impairing the obligation of contracts.
    Individuals who have no community of interest can not prosecute their several rights in one hill.
    This is a bill in chancery from the county of Athens.
    The bill was filed by the complainants, to enjoin the defendants from the collection of a state tax, levied upon certain lands owned by them in the county of Athens, as tenants in fee simple. To the bill there is an answer; and upon bill and answer the case is submitted to the court.
    The case made is this: The complainants in severalty, as tenants in fee simple, own separate tracts of land in the township of Alexander, in said county of Athens, and which is known as one oí the college townships, commonly so called. They derive title by deed from the president and trustees of the Ohio University, executed in pursuance of an act of the general assembly of the State of Ohio, of February 4, 1826. These lands have been charged during the present year with a state tax, in the same manner as the lands of other individuals are charged, and the object of the bill is to enjoin the collection of this tax.
    Ewing, for the complainants,
    insisted that by the act of February 18,'1804, “establishing a university in the town of Athens,” certain lands, of which those held by the complainants constitute a part, were exempted from the payment of state taxes forever» and that any subsequent law subjecting them to taxation would conflict with the constitution of the United States, inasmuch as it would have the effect to impair the obligations of a contract, and would therefore be void. On this ground, he contended that the 236] law, in pursuance of which the *taxes in controversy were levied, was void. He cited as authority the State of New Jersey v. Wilson, 7 Cranch, 164.
    Wall, for the defendants.
   Hitchcock, J.

There is one question which seems to have been overlooked by counsel, but which it is apprehended is decisive of the case. Here are several complainants, having no community of interest, yet joining in the same bill. It is true they hold land derived from the same source and charged with a tax under similar circumstances. But still they hold in severalty separate parcels of land, each parcel charged with a separate amount of tax, and each parcel liable for the tax charged upon itself. Under these circumstances there is an improper joinder of parties, and for this reason, if for no other, the bill must be dismissed.

As, however, the case has been argued by counsel upon another point, which goes to its merits, we have thought proper to investigate it, regardless of any technical objections. The questions presented for consideration are of the first im]oortance, as they involve the validity of a legislative enactment of the state. But if that act does, as is contended, conflict with the constitution of the United States, it will be the duty of the court so to decide. If it does so conflict, it is unquestionably void, and can not be enforced. Even should we attempt to enforce it, there is a superior tribunal by which our proceedings might be reviewed, and any judgment or decree which we might render or pronounce might bo reversed.

It has been determined by the people of the United States, oras others hold, by the individual states in their sovereign capacity, that the constitution of the United States shall be the supreme law of the land. In article 6 of that instrument, it is declared that “this constitution and the laws of the United States made in pui’suance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall bo bound thereby, anything in the constitution or laws of any state to the contrary *notwithstanding.” This constitution, the members of [237 this court, in conformity with the requisitions of the constitution of the State of Ohio, have taken an oath to support. When we cease to consider this constitution, or any law or treaty made in pursuance of it, as the supreme law of the land; when we give effect to any enactment of our own state legislature, which in our opinion manifestly conflicts with this supreme law, we violate the oaths which we,have taken. And it would seem to me that those who hold a contrary doctrine, those who advocate legislative supremacy, forget the nature of our constitutional governments, and base their principles upon the theory of the boasted “omnipotence of parliament.”

But although we entertain this opinion, still we hold that before we can declare a legislative act unconstitutional and void, on the ground that it violates the constitution of the United States, or any law or treaty made in pursuance thereof, or on the ground that it violates the constitution of this state, the case must be free from doubt, the violation must be palpable. So long as doubt remains the legislative act should be enforced.

In section 10, of article 1, of the constitution of the United States, it is provided that no state shall pass “any ex post facto law, or law impairing the obligations of contracts.” It is claimed by counsel for the complainants in the case under consideration, that the act of Ohio in pursuance of which the taxes complained of are assessed, is in violation of this provision.

The particular act of the legislature in pursuance of which the taxes complained of were levied, is the act of January 15, 1840, entitled “an act declaratory of an act passed March 14, 1831, pointing out the mode of levying taxes.” This act provides, “that lands set apart for school or ministerial purposes, and sold by and under authority of law, shall be, and the same are hereby declared to be subject to taxation, immediately after such sale, anything contained in the act to which this is an amendment to the contrary notwithstanding, and it is hereby made the duty of 288] the assessor of the proper *county, wherein such lands aré situated, to proceed to assess the same as directed in sections 9 and 10 of the act to which this is an amendment.” 38 Ohio L. 1.

There is certainly nothing in this law which of itself contravenes the constitution of the United States, or of this state. If in any case it has this effect, it must be in consequence of some previous legislation, or some previous state of things. A slight review of the course of legislation in the state upon subjects of this character will show that a provision of this kind is highly neoes-. sary and proper.

From the earliest period of the history of the state, it has been the practice to exempt lands set apart for'school or ministerial purposes from taxation. This has sometimes been done by special laws, exempting lands belonging to particular literary institutions, but more usually it has been done by exceptions in the general laws levying taxes upon land. Thus the act of March 14, 1831, “ pointing out the mode of levying taxes,” in section 2 provides, among other things, that “all lots of land or ground set apart for school-houses, academies, or colleges, with the buildings thereon .occupied for those purposes, and all lands the property of any such academy or seminary of learning, which now is, or may hereafter be established in this state, including all lands granted by Congress for the use of schools, academies, colleges, etc., shall be exempted from taxation. This is but a repetition of what before had been the law.

This legislation is in compliance with that clause of the constitution of the state, which requires that, “ schools and means of instruction shall be forever encouraged .by legislative provision.” While lands remain the property of any literary institution, it is aiding and encouraging that institution to exempt those lands from the burden of taxation. But so soon as they are conveyed to, and become the property of individuals, this reason for exemption ceases. And it is no good reason that an individual who becomes the owner of such lands should be privileged from contributing his proportionate share toward the expenses of the govern-289] ment under which he lives, ^because the land which he now owns has once been the property of a literary institution. Hence the propriety of the before-cited law of January 15, 1840.

It is claimed, however, that this act can be of no .binding force as respects the lands now the subject matter of controversy, because by an act of the legislature of February 18, 1804, “establishing a university in the town of Athens,” it is provided that the lands in the township, of which these lands constitute a part, “ shall forever be exempt from the payment of all state taxes.” And it is said that here is a contract, the obligations of which can not be impaired by any subsequent legislation.

We still adhere to the opinion that certain acts of incorporation are in the nature of contracts, and that no subsequent legislature can repeal, or materially alter or change the same, without the assent of the corporators. That an act incorporating a literary institution is of this character, was decided by the Supreme Court of the United States in the case of Dartmouth College v. Woodward, 4 Wheat. 518.

The inquiry then will be, whether the declaratory act of January, 1840, when carried into effect, interferes with or materially changes any principle contained in the act, “establishing a university in the town of Athens,” when this latter act is properly construed and understood.

To a right understanding of the whole matter, as well as to aid in giving construction to the act incorporating the “ Ohio University,” it may be necessary to ascertain whence these lands were originally derived. They are situated in that tract of country usually denominated the Ohio Company’s purchase, and within the territorial limits of the present county of Athens. This purchase was ■ made of the Congress of the Confederation in the year 1787, previous to the adoption of the present constitution, by a company of individuals called the “ Ohio Company of Associates.” By the terms of purchase, it was agreed that section 16 in each township should be appropriated to the use of schools, and section 29 for the support of religion. In addition to this, two entire townships, as near *the center of the tract as might be, were to be appro- [240 priated for the purposes of a university. These sections and townships were donations from Congress for the purposes intended, although one objebt might have been, and probably was, to encourage the settlement of the country, and thereby enhance the value of the other lands of the United States. The donation of the townships was not to the Ohio University, for that was not in. being, nor to any other particular university, but for the purposes of a university,” which might at some subsequent period be established, within the territory convoyed, at some future period. The two townships, eight and nine, in the 14th range, wore the townships eventually set apart in pursuance of this arrangement. Subsequent to the organization of the government of the United States under the present constitution, this contract, made by the “ Ohio Company of Associates” with the Old Congress, was confirmed by an act passed on April 21, 1792 (Swan’s Land Laws, 20) ; and the territory purchased was patented to certain individuals, as agents, in trust for the said company.

In 1799, the legislature of the Northwestern Territory, acting as trustees for the proper application of these two townships of land thus given by the United States for the purposes of a university, by resolution appointed certain individuals to lay off a town at the most suitable place within the townships aforesaid, with a view to the establishment of a college therein. Swan’s Land Laws, 219. The duty assigned 'these individuals was performed, and report thereof made to the legislature in 1800. This report was confirmed, and the town thus laid off named Athens. Swan’s Land Laws, 220.

On January 9, 1802, the same legislative body passed an act “ establishing a university- in the town of Athens,” then in the county of Washington, “by the name and stylo of the American Western University.” It is unnecessary to examine particularly this act of incorporation ; it is sufficient to say, that it conferred powers and privileges upon the university thus incorporated, at least as full and ample as those subsequently conferred upon the '241] “Ohio University.” In manyrespects *the powers and privileges were precisely the same. The t'wo townships of land donated by the United States “for the purposes of a university,” ■were expressly vested in this “American Western University.” Swan’s Land Laws, 220.

, What became of this corporation, whether it was ever organized, or whether it ever exercised any acts of ownership over these lands, I do not know. It would seem to have been dissolved by the act of February 4, 1804. by which the “ University of Ohio ” was incorporated, so far as it was in the power of the legislature ■■to dissolve it. This latter university was invested with all the powers and privileges of the former, and even the lands vested in the former were by this act vested in the latter. The former act of incorporation is not repealed in so many words, but all acts and parts of acts containing anything in the purview of this act are repealed. It is clear, upon an examination of the two acts, that the latter is in contravention of the former, and if the principle be correct that an act of incorporation is in the nature of a contract, then the act incorporating the Ohio University is itself unconstitutional so far as respects those lands, as impairing the obligations of a contract, contained in the act incorporating the “American Western University,” It is impossible to escape this conclusion, unless it is upon the hypothesis that the trustees of this institution assented to the act incorporating the Ohio University. It is highly probable that such was the case, as, with but few exceptions, the same individuals are named as trustees of both institutions.

This act incorporating the “ Ohio University,” was enacted by the general assembly of the State of Ohio, as before stated, on February 4, 1804. Swan’s Land Laws, 226. In section 11 of this act, the two townships of land which had been given by the United States are vested in this university. The section is as follows: “ The two townships, eight and nine, in the 14th range of townships, -within the grant of land made by Congress to the Ohio Company of Associates, be and they are hereby vested in the corporation by this act created, in trust, for the use, benefit, and support *of the said university forever.” The act then goes on [2i2 to prescribe the manner in which these lands shall be leased, the terms and conditions of leases, the rent to be paid, etc.: “Provided always, that said corporation shall have power to demand a further yearly rent on said lands and tenements, not exceeding the tax imposed on property of the like description by the state, which rent shall bo paid at such timo and place, to such person, and collected in such manner as the corporation shall direct.” It is further enacted, that the clear annual rents and profits of all the es-. tate, both real and personal, of the corporation, shall bo appropriated to the endowment of the university. But no power is given to sell and convey any description of property. Having conferred power upon the coiporation to charge upon these lands, in addition to the rent reserved by contract, a rent equivalent to the amount of tax imposed by the state upon property of the like description, the legislature noxt introduce the section relied upon by the complainants as the foundation of their case, in the following words: “’The lands in the two townships vested and appropriated as aforosaid, with the buildings which are or may be erected thereon, shall forever be exempted from all state taxes.”

These, it is believed, are all the provisions contained in the act of incorporation relative to these two townships of land, at least all that it is necessary to refer to, in order to a proper understanding of this case. It will be seen that they were not acquired by the corporation in pursuance of any contract of purchase, nor was the corporation vested with any other interest in the lands than the right to use and enjoy them in a particular manner, or rather the right to use and enjoy the rents and profits derived from them. The whole amount of the legislation is this: These two townships of land having been given by tho United States for the purposes of a university within tho Ohio Company’s purchase; and the legislature of Ohio, having established such university, enact that these lands shall be “ forever ” vested in the university so established, “in trust ” for the purposes intended in the donation, and 243] ^authorize the corporation, not to sell and dispose of these lands, but to lease them upon the terms stated in the act, and to appropriate the rents and profits to the endowment of the university. As a further encouragement tho corporation are authorized, in addition to the rents stipulated by contract, to charge the land with an additional rent, equivalent to any tax which may be charged by the state upon any property of the like description for state purposes. And having conferred this latter privilege, it is then declared that the same lands shall be “ forever ” exempted from a state tax.

Now what is the nature and extent of this exemption? Is it a privilege attached to, and running with the land? It seems to us that it can not be so considered, because tho land itself is not exempted from any burden. It is still liable to county taxation. And although a state tax, eo nomine, can not be charged upon it, still a charge equivalent to a state tax is imposed upon it, although bjr a different name — a charge not imposed from time to time by direct legislation, but by an act of the corporation in virtue of its organic law. The privilege,4then, is granted to the corporation, •not attached to the land.

What is the extent as to time of this privilege or exemption? In point of time there is no limitation. It is to continue “forever.” Still this expression must be taken in connection with the other parts of the act of incorporation relative to the same subject matter, in order to arrive at the true intent and moaning of the legislature. Looking to this connection, it will be found that the lands themselves are “ forever ” vested in the corporation ; and it has the power while they are so vested, that is to say, “forever,” to lease them for a stipulated rent in conformity with the act of incorporation, and in addition to these rents thus stipulated, the corporation have power to charge and collect an additional rent, equivalent in amount to a state tax. And the rents so collected, the corporation is bound to appropriate for the purpose of endowing the university. Taking all these circumstances together, and it seems clear that it was not the intention of the legislature to continue the exemption for any longer period than the land remained ^vested, “in trust,” in the corporation. While so [244 vested no state tax could be levied, nor could the corporation at any subsequent period, without its assent, be divested of the lands themselves. But if, with the assent of the state, these lands should bo conveyed to individuals, or if the charter of incorporation should be forfeited, it is not perceived with what propriety the state can any longer be restrained from charging them with a tax.

At the time this act of incorporation was passed, it was undoubtedly expected that these two townships of land would “forever ” remain vested in the corporation, and being so vested, would forever be exempted from taxation for state purposes. In the early period of the government, it seems to have been the policy to authorize incorporated -literary institutions to hold lands, but not to sell and convey, depending for the rents and profits as the source from which to derive iunds. The act to incorporate the Ohio University ” was passed at the second session of the state legislature, and contains such a provision. This was the second institution of the kind incorporated by the state government. At the first session, “The Trustees of the Erie-Literary Society’’ were incorporated, the act of incorporation containing a similar provision. This same principle is contained in all the early laws with respect to school lauds. But in later times the policy has been changed, and the sale of lands appropriated to literary purposes authorized. Whether this change is founded in wisdom, it is not for this court to say; and these things are adverted tor merely to show the influence which operated upon the legislature at the time the act of incorporation now under consideration was ssed — an influence as well known and understood by the cor. porators as by the members of the general assembly. At that time it was not contemplated by any one, that lands in Ohio appropriated to literary purposes would ever become individual property.

Frequent amendments were made to the act incorporating the Ohio University, from time to time, both as to the mode of leasing 245J their lands and as to other matters, and perhaps no one Haw was more frequently before the general assembly than this for some .kind of action. In less than ten years from its passage, no less than ten amendatory and supplemental acts were enacted. But no change was made as to the tenure of the land with which the corporation was vested until 1826. On the 4th of February of this year, an act was passed authorizing the corporation to sell and convey in fee simple such lands in the two townships as were not incumbered by leases, and also to make a similar title to such lease-holders, as should pay for the land by them leased, a sum so great, that the interest thereon at six per cent, per annum would be equal to the rent reserved. This act was passed with the assent of the corporation, and the lands of the complainants were sold and conveyed in pursuance thereof.

What further interest have the corporation in these lands ? None whatever. It has conferred upon the complainants the highest character of title which is known to our laws. What becomes of the privilege of charging rent upon these lands, equal in amount to a state tax? It is gone, unless we admit the absurd principle that, after having made to these complainants a title in fee simple, the corporation possess the power to charge the land so conveyed with rent, equivalent to a state tax. This principle can not be admitted, and it follows that if the position assumed by complainants’ counsel _ is correct, these lands are now freed from the payment of a state tax or anything equivalent thereto. By the act of incorporation they were exempted from the payment of a state tax, in consideration that a charge equivalent thereto might bo imposed upon them by the corporation. By the conveyance to the complainants they are freed from this last charge.

Will it be claimed that the purchasers of these lands succeed to all the rights and privileges of the corporation, and as the land in the hands of the corporation was exempted from taxation, therefore it must be exempted in the hands of their vendees? What were the rights of the corporation with respect to these lands? They had power to lease, but not to sell them. And the rents received must be appropriated for a particular ^purpose, that [246 is, for the purpose of endowing a university. This is not the situation of those holding by'purchase from the corporation. Such purchasers may lease or sell at their election. If they lease, they are not bound to appropriate the rents in a particular manner, but may appropriate them as. they please. But if they lease, they can not, like the corporation, impose any rent in addition to that stipulated by contract. In truth, these purchasers have a more perfect title than had the corporation. They have a title in fee simple. But we can not admit that they possess any rights superior to other tenants in fee simple, deriving title from a different source.

In whatever aspect we view this case, it seems to us that the only proper construction which can bo put upon the act of incorporation now under consideration is, that the lands in these two townships being vested in the university, in trust, for a particular purpose, are to be exempted from taxation 'for state purposés, so long as they continue thus vested, and no longer. But when the corporation ceases to have'any interest in them, when they become individual property, they are liable to be treated like other individual property of the same description, and equally subject to taxation.

It is supposed, by complainants’ counsel, that this opinion conflicts with the opinion of the Supreme Court of the United States in the case of the State of New Jersey v. Wilson, 1 Cranch, 164. We have examined that case with careful attention, and, after such examination, do not perceive that it operates against the opinion already expressed. There is, perhaps, a general resemblance between that case and the one now before the court, but there are several material points of difference, while there is but one of exact similarity.

The facts of that ease are, in substance, these: A remnant of the tribe of Delaware Indians had claims to a considerable portion of lands in New Jersey, to extinguish which became an object with the government of the then colony. For this purpose a convention was held between the Indians and commissioners appointed by the government of New Jersey. On August 9, 1758, 247] the Indian deputies made to the commissioners *a proposition in writing, the basis of which was, that the government should purchase a tract of land on which the Indians might reside, in consideration of which they would release their claim to all other lands in New Jersey south of the river Raritan. This proposition was assented to by the commissioners, and the legis lature, on the 12th of the same month, passed an act to give effect to this agreement.

This act, among, other provisions, authorizes the purchase of land for the Indians, restrains them from granting leases and making sales, and enacts that the lands to be purchased for the Indians “ shall not hereafter be subjected to any tax, any law, usage, or custom to th'e contrary thereof in any wise notwithstanding.” In virtue of this act, the convention with the Indians was executed. Lands were purchased and conveyed to trustees for their use, and the Indians released their claim to the south part of New Jersey.

The Indians continued in peaceable possession until some time in the year 1801, when they applied to the legislature of the State of New Jersey, and obtained an act authorizing the sale of the land.

In 1803, the commissioners under this act sold and conveyed the lands to Wilson, Painter, and others, and in October, 1804, the legislature passed an act, repealing so much of the act of 1758 as exempts the land from taxation. The lands were then assessed and the taxes demanded.

The case was brought before the court by writ of error to the Supreme Court of New Jersey, and the question submitted was, whether the repealing act of 1804 was in violation of that part of the constitution of the United States, which declares that no state shall “pass any bill of attainder, ex post facto law, or law impairing the validity of a contract.”

The court decided that the repealing law was unconstitutional and void.

In pronouncing the opinion of the court, Chief Justice Marshall says: “Every requisite to the formation of a contract is found in the proceedings between the then colony of New Jersey and the 248] Indians. The subject was a purchase, on the *part of the government, of extensive claims of the Indians, the extinguishment of which would give it the title to a large portion of the province. A proposition to this effect is made, the terms stipulated, the consideration agreed upon, which is a tract of land, with the privilege of exemption from taxation; and then, in consideration of the arrangements previously made, one of which this act of assembly is stated to be, the Indians execute their deed of cession. This is certainly a contract clothed with unusual solemnity. The privilege, though for the benefit of the Indians, is annexed, by the terms which create it, to the lands itself, not to their persons. It is for their advantage that it should be annexed to the 4and, because in the event of a sale, on which alone the question could become material, the value would be enhanced by it. The purchaser succeeds, with the assent of the state, to all the rights of the Indian. He stands, with respect to this land, in their place, and claims the benefit of their contract.”

This reasoning would seem to be conclusive, but how does the case compare with the one before this court. In that case there had been a contract of purchase and sale, or rather exchange. The Indians had parted with a vast amount of property, and to induce them to do it, the government stipulated that the land purchased for their use should not be thereafter “ subject to any tax.” For this privilege a full and ample consideration was paid. The exemption from taxation was a privilege annexed to tho land itself, and there is nothing in the act, so far as appears from the report of the case, to show that it was intended to be confined to the persons of tho Indians. And it might well be said by the court, that “the purchaser succeeds, with the assent of the state, to all the rights of the Indians. He stands, in respect to this land, in their place, and claims the benefit of their contract.”

In the case no-w before this court, there was no formal contract; no consideration passing from the Ohio University to tho State of Ohio. The act which it is claimed must operate to exempt forever certain lands from taxation, was the act by which it was brought into existence. In passing this act the *general [249 assembly conferred upon this corporation extensive powers and privileges. One of these privileges was, that two townships of land which had been donated by Congress for the purposes of a university should be vested in it for certain purposes, which have been already referred to, and while so vested should be exempt from taxation. This exemption, although by its terms it might Üe considered as a privilege annexed to the land, was not so in fact, inasmuch as the land, while vested in the corporation, was subjected to a charge equivalent to a state tax, although not by that name. Neither could a subsequent purchaser from the university when that corporation was authorized to convey in fee simple, be considered as succeeding to the rights of the university. His rights are of an entirely different character.

In these three leading particulars, there is a material difference between the case of the State of New Jersey v. Wilson, and the case now before this court. They agree in this, however — in both cases there is in terms a perpetual exemption from taxation. By the law of New Jersey, it is declared that the land to be purchased for the Indians shall “not be hereafter subject to any tax;” by the law of Ohio, that the lands vested in the Ohio University “ shall forever be exempted from all state taxes.” But this clause in the Ohio law must be taken in connection with other parts of the same law relative to these lands. And when taken in this connection it seems clear to the court, that it was not the intention of the legislature that this exemption should continue for any longer period than for the time the land should be vested in the corporation, in trust for the purposes in the act specified.

As well, then, for the reason that there is no equity in the complainants’ case, as for the reason that there is a misjoinder of parties, the bill must be dismissed, at the costs of the complainants.

Bill dismissed.